Editor's note: This is an updated version of a story originally published last June.
The cases of Staff Sgt. Robert Bales and another soldier court-martialed at Joint Base Lewis-McChord this year add to the U.S. military's track record of reluctance to use the death penalty on defendants whose crimes were committed in a combat zone.
Sgt. John Russell pleaded guilty to killing five U.S. servicemembers at a mental health clinic in Iraq's Camp Liberty three years ago. The death penalty was on the table, even though a judge recommended the Army withdraw that punishment because of Russell's well-documented, deteriorating psychological condition during his third deployment to Iraq.
In the end, Russell received life without parole.
Likewise, Bales started as a capital case that now apparently has ended in a plea deal. Bales, formerly of Lake Tapps, is accused of murdering 16 Afghan civilians the night of March 11, 2012. He'd been stationed at the local base for a decade and was on his fourth combat tour.
History suggests the Army is unlikely to carry out an execution even when it wins convictions. Its last execution took place in 1961. McClatchy Newspapers last year reported that 10 of the 16 servicemembers sentenced to death since 1984 had their punishments overturned.
"We don't fall all over ourselves in general to execute our own people, " said Eugene Fidell, who teaches military justice at Yale University.
"It's been over 50 years now since we've executed a U.S. soldier and there have been plenty of death sentences, but juries and the appellate courts and the reviewing authorities including presidents do not have itchy fingers when it comes to the death penalty, " Fidell said.
Today, five men are on death row at Fort Leavenworth, Kan.
Their crimes resemble the charges against Russell more so than the Army's case against Bales: All five are there for killing other Americans, not for crimes committed against foreign noncombatants.
However, only one of the five 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, the Army did not pursue a death sentence against any of the four Lewis-McChord soldiers who were convicted in 2011 in connection with the murders of three Afghan civilians in 2010. The ringleader of this so-called "kill team, " former Staff Sgt. Calvin Gibbs, received a life sentence with the possibility of parole.
Another convicted war criminal, former 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.
"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, " said Gary D. Solis, who teaches military law as an adjunct professor at Georgetown University.
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 noticed a similar trend during the Vietnam War, when reprehensible crimes against Vietnamese civilians did not result in equally serious punishment. The My Lai massacre is the most famous example. Then-Lt. William Calley, who was convicted of killing 22 civilians, served a three-year sentence on house arrest.
Solis, a former Marine officer, wrote a book about the massacre of 16 Vietnamese women and children at the village of Son Thang in 1970 by a five-man Marine patrol. The ringleader, former Lance Cpl. Randall Herrod, was acquitted.
Solis said the pattern could change if prosecutors believe they can demonstrate that servicemembers in situations like Bales' deliberately planned homicides, Solis said.
The Army alleges Bales intentionally murdered the 16 Afghan civilians, including women and children, in two villages after he sneaked out of a Special Forces outpost in the southern province of Kandahar.
"Given the nature of the deployments and some of the background information we are discovering, he should not face the death penalty, " Emma Scanlan, one of Bales' defense attorneys, said last year. "That's not an appropriate possible punishment for him."
Lead defense attorney John Henry Browne has criticized the Army's case as deficient in physical evidence. In past interviews, he has suggested that Bales was experiencing post-traumatic stress and possibly the effects of mood-altering steroids.
Russell's case diverges from Bales' because the victims wore U.S. military uniforms. But advocates for the soldier from Sherman, Texas, insist his circumstances are different than those of the five servicemembers on death row.
Russell's attorney argued that behavioral health specialists in Iraq mistreated Russell when he turned to them for help, once dressing him down and another time making light of his distress.
At the time, Russell was serving with a Germany-based combat engineer unit that was attached to a Lewis-McChord brigade. He was not stationed at Lewis-McChord at any time, and was only prosecuted here because his chain of command is based here.
Russell's unit sent him to a clinic on May 8, 2009, following six days of mood swings and paranoia. At the clinic, a major chose to make an example of Russell in front of a captain whom she regarded as too soft with patients, according to legal documents.
The captain remembered Russell's first visit to the clinic as "aggressive and hostile" because of the major's tough questioning, according to court testimony quoted in case documents.
Russell's follow-up visits to the clinic became even more argumentative. His condition worsened noticeably to the soldiers in his unit on May 10.
"He felt that everyone had lost hope in him and no one wanted him around, " remembered Lt. David Vasquez in a sworn statement.
On May 11, Russell stormed out of a meeting with another counselor, Lt. Col. Michael Jones. Russell did not believe Jones was willing to help him.
Later that day, Russell returned to the clinic and killed a Navy commander and four soldiers.
Army Judge Col. James Pohl wrote that Russell's trial should not be a capital case. Rather, Pohl in September 2011 wrote that Russell's "undisputed mental disease or defect makes the death penalty inappropriate in this case."
Pohl is the same officer who recommended that Maj. Nidal Malik Hasan face the death penalty for killing 13 people at Fort Hood, Texas, in 2009.
Defense attorney James Culp correctly predicted that a military panel would not sentence Russell to death.
"Do we kill some who is suffering from two severe mental defects when he snaps and does something in a combat zone? I think the answer is no, " Culp said.