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Monday, November 9, 2009


If Major Nidal Malik Hasan, the Army psychiatrist who is alleged to have been the shooter in the horrific killings of 13 at Fort Hood last Friday, is convicted of these crimes, it is likely that he will face the death penalty. Texas is by far the most prolific capital punisher among the fifty states; roughly forty percent of those executed since the Supreme Court reversed the ban on capital punishment in 1976*, have been killed in the Lone Star state. But Texas’s history will likely be proven irrelevant here. Hasan will not be tried under Texas law or before a Texas court; as an army officer whose alleged crimes were committed on the army’s largest base, he will almost certainly be tried in a military court under the uniform code of military justice (UCMJ).

There are six people on the military death row now, all of them convicted of murder and all incarcerated at Fort Leavenworth, Kansas. In recent days, only one has been poised to take the needle (military executions are by lethal injection), the other five holding onto the hopes for a re-trial or appeal. It turns out that a holding pattern has proved a good policy for the convicted. Several of those on death row now have been there for upwards of ten years while the last military execution was in 1961, forty-eight years ago.

Hasan will be tried before a panel of superiors – the 12 people sitting in determination of his fate must by UCMJ stipulation outrank him – and if the panel awards a sentence of death, that fate must be affirmed by no one less than the president of the United States. Until 2008, when President George W. Bush signed a death sentence for serial murderer Private Ronald A. Gray, President Dwight Eisenhower was the last chief executive to confirm a death sentence in a capital case tried in military court. But at the last moment, even Gray received a stay of execution, joining the others who await their fates in the appeals process.

Though there are many Democrats whose personal attitudes about the death penalty would make it hard, if not impossible, for them to sign such an order, President Obama has made it clear that he favors capital punishment in cases “so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage.” Still, he has to be careful what he says. It is this ultimate life and death authority and his role as “commander-in-chief” that makes it very hard for Obama to speak candidly about his attitudes on this case. If he should base his reactions on his outrage at the suspected killer’s affiliations and obvious guilt, he may very well squelch the chances for a conviction by subjecting the panel to what in military justice is called “command influence,” or the burden imposed on a military court when those of superior rank express their attitudes about a case under trial.


*In 1972, the Court, in Furman v Georgia, found the death penalty unconstitutional for violating the eighth amendment prohibition on “cruel and unusual punishment,” but four years later it let stand state laws providing for capital punishment in cases with aggravated circumstances. With that, the short-lived American death penalty moratorium was over.

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