The Army’s decision to pursue the death penalty for a longtime Tacoma-area soldier might seem like an inevitability.
But as a News Tribune story in June pointed out, military capital cases are never straightforward. Recent history suggests a jury would be reluctant to use that punishment on defendants whose alleged crimes were committed in a combat zone.
History also suggests the Army is unlikely to carry out an execution even if it wins a conviction.
Its last execution took place in 1961. McClatchy Newspapers last year reported that 10 of the 16 service members sentenced to death since 1984 had their punishments overturned.
Even when an Army general orders a death penalty trial, there’s no guarantee he will follow through. In 2006, then Fort Lewis commander Lt. Gen. James Dubik changed his mind after first ordering capital charges against a soldier accused of fatally shooting a soldier and another soldier’s wife outside a Lakewood tavern. Spc. Jamaal A. Lewis was later convicted and sentenced to life in prison.
Bales is one of two potential capital defendants now moving through the courts at Joint Base Lewis-McChord. The other is Sgt. John Russell, who allegedly shot five U.S. service members to death outside a mental health clinic at his base in Iraq three years ago. Russell has not made a plea in his case, but his attorney is preparing a defense based on a mental breakdown Russell was having in the war zone.
Today, six men are on death row at Fort Leavenworth, Kan. All six are there for killing other Americans, not for crimes committed against foreign noncombatants. And only one of the six committed his crimes while deployed overseas.
Soldiers who murder civilians in war zones are more likely to face a life sentence as their most serious punishment.
For instance, convicted war criminal Pfc. Steven Dale Green received a life sentence without parole for raping and killing a 14-year-old Iraqi girl, then leading a group of soldiers in killing her family in 2006.
The Army also did not pursue a death sentence against any of the four Lewis-McChord soldiers who were convicted last year in connection with the murders of three Afghan civilians in 2010. The ringleader of this so-called “kill team,” Staff Sgt. Calvin Gibbs, received a life sentence with the possibility of parole.
But the “kill team” cases played out differently than Bales’ case has so far. Army investigators did not uncover evidence of the kill team homicides until May 2010, months after the first two took place. The Army also did not obtain physical evidence connecting Gibbs to a specific homicide victim, and it did not call on witness testimony from Afghan civilians. It relied on Gibbs’ platoonmates to describe a conspiracy.
By contrast, the Army uncovered Bales’ alleged killing spree on the morning it reportedly took place. And he was the only soldier missing from his base the morning of the murders.
Gary D. Solis, who teaches military law as an adjunct professor at Georgetown University, notes that it’s unusual to see a death penalty case for crimes in which the victims are foreigners.
“History and experience would seem to indicate that (court-martial) convening authorities will more readily send a case to trial as a death penalty case if the victims are Americans than they would if the victims are civilian noncombatants,” he told The News Tribune in June.
The factors weighing on that decision include the “fog of war” argument: The American public and combat commanders understand that civilians die in every conflict because of accidents and split-second judgment calls.
Solis said the pattern could change if prosecutors believe they can demonstrate that service members in situations like Bales’ deliberately planned homicides.
Bales’ attorneys have suggested their client was experiencing post-traumatic stress and possibly the effects of mood-altering steroids at the time of the March massacre.