U.S. Soldiers Could Face the Death Penalty — Unfortunately

by Kevin Jon Heller

According to the Associated Press, a U.S. Army officer investgating the murder of three Iraq men near Samarra has recommended that the four accused soldiers should receive the death penalty if convicted.

To be sure, the crime is a horrible one:

Staff Sgt. Raymond L. Girouard, Spc. William B. Hunsaker, Pfc. Corey R. Clagett and Spc. Juston R. Graber have claimed they were ordered to “kill all military age males” during the raid on the island. According to statements from some of the soldiers, they were told the target was an al-Qaida training camp.

Hunsaker told investigators that he and Clagett were attacked by the three men, who were being handcuffed, and shot them in self-defense. Clagett said he was hit in the face, and Hunsaker claimed he was stabbed during the attack.

Prosecutors argue the soldiers conspired to kill the men and then altered the scene to fit their story. They contend Girouard stabbed Hunsaker as part of the killing plot.

Clagett, Girouard and Hunsaker also are accused of threatening to kill another soldier who witnessed the slayings. Girouard, the most senior soldier charged, faces several additional charges, including sexual harassment and carrying a personal weapon on duty.

It is also encouraging to see the military finally taking seriously war crimes committed by U.S. soldiers in Iraq — according to a recent study by the Washington post, “[t]he majority of U.S. service members charged in the unlawful deaths of Iraqi civilians have been acquitted, found guilty of relatively minor offenses or given administrative punishments without trials…. [and charges against some of the troops were dropped completely.”

That said, the army investigator’s recommendation is deeply regrettable. If the soldiers are guilty, they deserve to be punished severely. But they would not deserve to die: the death penalty is immoral, barbaric, and wrong no matter how reprehensible the crime. And that’s true whether the perpetrator is a terrorist, a serial killer, a soldier, or anyone else.


14 Responses

  1. Here, here. Thank you for being adamant about the wrongness of the death penalty in ALL cases. It shouldn’t matter who is being tried, the death penalty is indefensible. Interestingly, in Australia recently, we have had 9 people arrested in Indonesia for drug running, two of whom are likely to be executed. Our government is pushing the Indonesians to prevent this happening, however we also advocate executing the ‘Bali bombers’, who bombed Australians in Bali. These views are obviously irreconcilable, and it makes us all look silly and diminishes our humanity enormously.

  2. Professor Heller’s commentary reflects a lack of understanding of the military justice system. Punishment in this system is at the discretion of the court, and only determined after considering all aggravating, mitigating, and extenuating evidence in a sentencing hearing. To assert that if convicted, these soldiers should be punished “severely” with no knowledge of these relevant sentencing considerations is inappropriate. If convicted, these soldiers should be punished appropriately. In fact, the court members who decide on the punishment will be instructed that they should not select an excessive punishment, but instead a punishment that serves the needs of the accussed, the Army, and society.

    As Professor Heller notes, sentences that have been adjudged in several cases of battlefield misconduct have been criticized as insufficient. I wonder how many of these critics were present during these trials? How familiar were they with the defense sentencing case? I am not surprised that many cases arising out of the current armed conflicts result in sentences that appear to be “light.” But I also believe this appearance is misleading. I wonder how sensitive to defense evidence many critics might become if they, like the juries who decide these cases, shared the experience of serving in combat in such challenging circumstances.

    In any other context, a sentencing process that affords a defendant substantial opportunity to “explain” criminal misconduct and requires the sentencing authority to carefully weigh this information against the nature of the offense would be applauded. This is not something to criticize – it is a fundamental purpose of allowing warriors to judge warrior misconduct.

    As a military defense counsel, I would challenge for cause any military juror who announced that based soleley on the charge, he would impose “severe” punishment.

  3. GC: Surely after <i>Ring</i> a death sentence must come from a jury, not the court, even in the military justice system, yes?

  4. With all due respect to Professor Corn, I think it’s difficult to argue that, if the soldiers are guilty of the acts with which they are charged — murder, conspiracy, obstruction of justice. witness tampering — they should not be punished “severely.” After all, the investigator has recommended death.

  5. I am the first to admit that I don’t know much about military law, but why should ‘a punishment that serves the needs of the accussed’ be relevant in a sentencing decision?

  6. Severe is a relative term. My point was only to emphasize that without knowledge of all the aggravating, mitigating, and extenuating circumstances, it is premature to announce that the punishment for the offense should be “severe.” If a military jury is ultimately called upon to sentence these soldiers, they will be instructed to make this determination only after considering all the evidence, to include the facts and circumstances of the killings and the service record of the accused soldiers.

    The defense attorneys in these cases have already suggested some type of “obedience to orders” theory. While there is no such defense to an unlawful killing, there is no question that IF the evidence suggests such orders were given, or even understood to have been given, this evidence will play a significant role in sentencing. One factor that almost always favors the accused in sentencing is the perception that the chain of command “failed” in some way. If that perception is created here, it will likely impact the sentence. If the end result is not generally considered “severe”, some might conclude it reflects a failure of the process. Concluding that only a “severe” sentence is appropriate at this point contributes to such perceptions.

    A finding of guilt is only one part of this equation, even for such serious charges. As a result of my experience as both a military prosecutor and defense counsel, I came to appreciate the consideration military juries gave to evidence in the sentencing phase of trials. And in answer to the question about why the needs of the accused are relevant? Rehabilitation remains one of the instructed purposes of sentencing in military practice, and as a result, juries are told to consider this factor along with punishment. Here is the actual language from the standard sentencing instructions:

    “you alone are responsible for determining an appropriate sentence in this case. In arriving at your determination, you should select the sentence which best serves the ends of good order and discipline, the needs of the accused, and the welfare of society.”

    Determining how to strike this balance for an unlawful killing on the battlefield is undoubtedly complex. Observers will respond to the outcome of any trial with differing views on whether the sentence was “severe” or “light.” But having worked on a “battlefield killing” case in the past, I believe that what we should really hope for is a military jury that will reject any predisposition towards sentencing, and execute their duty to craft a sentence that is appropriate based on all the evidence.

  7. “But they would not deserve to die: the death penalty is immoral, barbaric, and wrong no matter how reprehensible the crime.”

    Your declaration is prima facie evidence of the total depravity of the human race in general and of yours in particular. In case you haven’t noticed, the death penalty is universal. Your declaration implies that you regard yourself as morally superior to God. You also probably deny the existence of the Creator. (His existence would obliterate your pretentions to moral virtue, wouldn’t it?)

    Permit me to raise your consciousness. Not only has God justly AND MERCIFULLY imposed the death penalty on all of this material cosmos, but He has graciously and with unfathomable wisdom and love, imposed it upon Himself in the Person of His only begotten Son, Jesus Christ, that He might redeem this cosmos, give eternal righteousness and life to as many of Adam’s children as have received Him, and simultaneously obliterate all the mischief that the adversary intended when he induced Adam through Eve to turn from the living God and follow the serpent in a causeless assault on the Holy and Perfect righteousness of God: to wit: when God told Adam that in the day that he ate the fruit of the tree of the knowledge of good and evil,that he would die, He was faithfully informing him of the truth. Adam elected to side with his wife against God, and when cross-examined, attempted to blame God for his own sin. For this, Adam, and the Creation that was subjected to him, fell into antipathy with God. Amazingly, after pronouncing judgment upon Adam, Eve, the serpent and their sin, God then clothes Adam and his wife with animal skins. God is not only holy and just, He is also full of grace and mercy.

    To summarize, God is holy and just, the death penalty is holy and just when imposed according to God’s Holy Law,(which is not achievable by fallible and degenerate human devisings, let me assure you) and you are not only unholy and unjust, but you are totally depraved by the satanic blindness and ignorance of this fallen and corrupted creation, and hence you arrogate to yourself moral superiority to the blessed and thrice holy Trinity. These fig leaves of your own devising will be wholly inadequate when you appear before your Creator and Redeemer, Jesus Christ. Only the animal skin of His righteousness which is imputed to you when you confess Him before men and believe in your heart that God has raised Him from the dead will suffice. It’s a free gift, but it will cost you all that you now hold dear. Not that what you now hold dear is worthy of your devotion. You’re depraved, remember?

    http://pathwayinthesea.blogspot.com (See “Defining Marriage” and “An open letter to the people of the Jews”)

  8. I’m not sure whether Mr. Jones’s comment is serious, but I find one sentence in what he wrote particularly illuminating:

    To summarize, God is holy and just, the death penalty is holy and just when imposed according to God’s Holy Law,(which is not achievable by fallible and degenerate human devisings, let me assure you).

    I agree completely: human beings are indeed too falliable to impose the death penalty in a holy and just way. That’s why the death penalty is “immoral, barbaric, and wrong” when imposed by governments. If God wants to impose the death penalty directly, that is certainly His prerogative.

  9. ‘the total depravity of the human race in general and of yours in particular.’—According to Genesis, we’ve been created in the image of God. In the Gospels of the Christians, we’re counseled to be perfect as the Father in Heaven is perfect. What is more, we are implored to actively realize the Kingdom of God within. In any case, for those believing in vicarious, substitutionary atonement, the death of Jesus on the Cross effects the forgiveness of sins, so it makes no sense to invoke the language of Christianity in conjunction with an assertion of the ‘depravity of the human race.’ Indeed, those who prefer their Abelard to Anselm, exemplary atonement entails directing our moral and spiritual will and energy toward becoming ‘Christ-like,’ an imperative that assumes the human condition is not characterized by depravity, however much at various times and places people behave in a depraved manner.

    On this account, God created the serpent, therefore He, in turn, is ultmately responsible for any mischief the serpent created. So we might hardly be grateful if He later acts to correct the mistakes or remedy the evil He first set in motion….. God may in fact be just and merciful, bestower of Grace, but the God of the Hebrews was, at least in the earliest books of the Torah, often bloodthirsty and vengeful, full of anger and vindictiveness, in short, a genocidal God (see Jack Miles’ God: A Biography, 1996). ‘We’ are holy and just to the degree that we become ‘Godlike,’ to the extent that we draw ourselves closer to God. God looked upon His creation and called it ‘good,’ among the reasons we are entrusted with its care, in other words, are to act as its stewards.

    As to the death penalty, Professor Heller is once more correct. If we look to the words and deeds of Jesus as they are found in the (especially synoptic) Gospels, there is no warrant whatsoever for those who strive to be Christians to enact the death penalty as criminal punishment. In such cases Christians would be acting ‘as God’, contrary to the nature of the coningent, fallible frame we’re endowed with by the Creator. For however much we may become God-like, we cannot by definition become God.

  10. read ‘contingent’

  11. My thanks, as always, to Seamus — aka “Patrick O’Donnell.” I wonder: which one is the real person, which the persona?

  12. Seamus is my middle name, so…. After an ad hominem attack I thought it would help matters to use a ‘pseudonym’ (of sorts) but it seems to make little difference one way or the other. (And when I decide to mail something to an interlocutor, the jig is up in any case.) I’ll be using my name in the remaining blog in which I held out, namely, Feminist Law Professors (a blog I highly recommend, and not just because I recently started commenting there!).

  13. >the death penalty is immoral, barbaric, and wrong no matter how reprehensible the crime.<

    Sez you, apparently — the omniscient, all moral, all seeing Prof. Heller. The death penalty is neither immoral, nor barbaric per se, nor represensible regardless of the crime to which it is implied. Further debate on this topic is clearly utterly fruitless since each side is firmly entrenched.

  14. By the way, I was not suggesting that I support the death penalty in these cases. Nor do I disagree with Professor Heller’s originall negative reaction to the recommendation that these cases be referred capital. I am grateful I never had to participate in such a case while in uniform.

    I think it is unlikely the Commanding General will accept this recommendation. I think it is even less likely that if he does the jury will impose a sentence to death.

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