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• U.S. military may reluctantly resume capital punishment

U.S. military inching to resumption of executions

Languishing cases, including 1 in Texas, may show Army's reluctance

After more than 40 years without an execution, the U.S. military could soon resume capital punishment as two death row inmates at Fort Leavenworth, Kan., are exhausting their final appeals and their cases move toward the Oval Office for a death warrant signed by the commander in chief.

The two death sentences — both affirmed by the U.S. Supreme Court and under review by the Department of Defense — have languished in recent years, and some say the war in Iraq and domestic politics render authorities reluctant to send two former active-duty soldiers into the death chamber.

"These cases are potential hot potatoes, and this administration may be in no hurry to approve the first military execution in over 40 years," said Eugene Fidell, a Washington lawyer and military-law expert.

The U.S. military prison at the Kansas base houses five men on death row, and military prosecutors are seeking to send a sixth.

Army Sgt. Hasan Akbar was convicted last week of killing two comrades and wounding 14 others in a grenade attack on his own camp in Kuwait at the start of the Iraq war. A military jury in Fort Bragg, N.C., sentenced Akbar on Thursday to death.

A Texas case is among the oldest on the military's death row, that of Army Pfc. Dwight Loving. A jury of five soldiers at Fort Hood convicted Loving in the 1988 killing of two cab drivers in Killeen. The U.S. Supreme Court upheld his death sentence in 1996.

Another case heading toward the president's desk involves Cpl. Ronald Gray, sentenced to death in 1988 for killing two women and raping a third near Fort Bragg. The Supreme Court declined to hear Gray's case.

After more than five years of consideration, the Army secretary's office recently affirmed the death sentences and sent them to the Department of Defense, said Martha Rudd, an Army spokeswoman.

The Uniform Code of Military Justice does not require a review by the Defense Department.

Less aggressive

He declined to speculate about when that may take place.

The military appears far less aggressive in seeking executions than many local Texas prosecutors and judges, said Houston military-law attorney and former Marine prosecutor Guy Womack.

"If these were Harris County cases, their time would have been up a long time ago," Womack said. "These military cases have been languishing for many years."

That may reflect the military's shifting priorities in recent years rather than a hesitancy to carry out the executions, said Theresa Norris, a South Carolina attorney and military-law expert who represents Loving.

"Obviously, with conflict going on in Iraq and the war on terrorism, I think the military has a larger focus," Norris said. "I don't know that it's so much a reluctance to focus on military death row as it is that there are larger problems that the military is trying to deal with."

Though the military rank and file may support the death penalty, the top-level officials charged with completing a capital case may feel differently, Womack said.

"The members of the juries who tried these capital cases were not afraid to give the death penalty, and they were officers and senior enlisted men out in the field.

But at the upper levels of the judicial process, there is a reluctance to mete out the death penalty," he said.

Senior military and civilian officials are likely mindful that President Bush presided over 152 executions while governor of Texas, Womack said.

"My suspicion is that they know we have a president with the moral courage to sign a death warrant when one is presented to him, and they may not want him to see one of those."

The last soldier executed was Army Pvt. John Bennett, convicted in 1955 of the rape and attempted murder of an 11-year-old Austrian girl. Bennett's death warrant was signed by President Eisenhower, but he was not hanged until 1961, after President Kennedy took office.

In state and federal death-penalty cases, a judge signs the death warrant and a governor or president has the option of granting clemency. In a military case, however, the president, as commander in chief, must sign the death warrant.

The last time a president took action in a military death-penalty case was in 1963, when Kennedy commuted to life imprisonment the sentence of a Navy enlisted man convicted of murdering an officer.

New guidelines in 1984

The U.S. Supreme Court struck down existing capital punishment statutes as unconstitutional in 1972, and President Reagan enacted new guidelines for capital punishment in military courts in 1984.

At least 10 men have been sentenced to death since then, although at least five later saw their sentences overturned or commuted to life in prison.

In 1997, President Clinton added life without parole as an alternative to the death penalty.

The electric chair that replaced the gallows was never used.

Injection is the method of execution, which would be carried out in the death chamber at Fort Leavenworth's prison.

The military's judicial process and death row are separate from those of the federal government, which houses 35 condemned killers with its own death chamber at a facility in Terre Haute, Ind.

Womack recalled prosecuting a death-penalty case in 1990, when he won a conviction and death sentence against Curtis Allen Gibbs, who tortured and murdered a woman near Camp Lejeune in North Carolina.

Reluctance to execute

Several months after the sentence, a Marine general commuted Gibbs' sentence to life, citing the first Gulf War and a reluctance to execute the man at a time of military conflict.

Although the former active-duty personnel on death row have been convicted of murder, military leaders may ultimately be hesitant to execute one of their own, said Richard Dieter, executive director of the Death Penalty Information Center.

"I think if it was some outside terrorist who somehow falls under military law, it might be different," Dieter said. "But these are clearly people who broke the law but also people who were part of the military community."

andrew.tilghman@chron.com

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