Military Justice: The Forgotten Jurisdiction in Capital Punishment

The military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. This is particularly concerning for the military because the demographics of its jury pool are predominantly white male. The purported need for deviations from the Sixth Amendment right to trial by jury and deference to the military system in order to preserve discipline is undercut by the history of jurisdiction for murder in peacetime. The military has not historically had jurisdiction over murder in peacetime for the majority of this country’s history. These concerns of non-representative courts-martial, coupled with the need for heightened reliability in capital cases, warrant a change to Article 118 (the crime of murder) to only allow capital courts-martial for murder if there is a nexus to war or armed conflict.