Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row. The military's appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men's guilt, but because of mistakes made at every level of the military's judicial system.The problems cited are the same as those typically seen in capital cases in civilian courts: "defense attorneys who bungled representation, judges who didn't know how to properly instruct a jury and prosecutors who mishandled evidence."
Unfortunately, the military has resisted any meaningful changes to its system that would require more experienced lawyers. As a result, as the legendary death penalty lawyer, David Bruck, says:
If you have a system where it's always amateur hour and where the lawyers are always trying their first capital case, you're going to guarantee the same kinds of mistakes that have resulted in many, many cases being reversed - because of ineffective assistance of counsel - for the last 30 years are going to be made over and over again. . . . Even worse, you may have cases where the person is not only sentenced to death because of their lawyers' mistakes but because the courts will say that it's close enough for government work.Another serious concern, which appears to be even more pronounced than in civilian courts, is racial disparity: "Ten of the16 men who've been sentenced to death since 1984 were minorities." According to a recent study, "minorities are twice as likely to be sentenced to death in courts-martial as their white counterparts."
Designing and implementing a capital punishment scheme in which defendants facing the death penalty are represented by experienced, competent counsel with access to sufficient expert and investigative resources, in which safeguards are in place to ensure non-arbitrary and non-discriminatory application of the death penalty is as elusive in the military as it is in civilian courts. While we fight to seek an end to the death penalty state-by-state, the military should simply cut and run. An 80% reversal rate in military death penalty cases might be "close enough for government work" but that is not nearly close enough for a fair system of criminal justice.