# Capital punishment by the United States military

The use of capital punishment by the United States military is a legal punishment in martial criminal justice. Despite its legality, capital punishment has not been carried out by the U.S. military in over sixty years.

## Reinstatement of the military death penalty

The United States Court of Appeals for the Armed Forces ruled in 1983 that the military death penalty was unconstitutional, and after new standards intended to rectify the Armed Forces Court of Appeals' objections, the military death penalty was reinstated by an executive order of President Ronald Reagan the following year.
On 28 July 2008, President George W. Bush approved the execution of Former United States Army Private Ronald A. Gray, who had been convicted in April 1988 of multiple murders and rapes. A month later, Secretary of the Army Pete Geren set an execution date of 10 December 2008 and ordered that Gray be put to death by lethal injection at the Federal Correctional Complex, Terre Haute. The military publicly released Gray's execution date on 20 November 2008. On 26 November, however, Gray was granted a stay of execution by U.S. District Judge Richard Rogers of Kansas. In December 2016, a Kansas federal judge, US District Judge J. Thomas Marten, lifted Gray's stay.
The U.S. Military currently has four inmates (all men) on death row. The most recent added was Nidal Hasan, who murdered 13 people and injured 32 others during the 2009 Fort Hood shooting.

## Capital crimes

Currently, under the Uniform Code of Military Justice, 15 offenses are punishable by death. Under the following sections of the UCMJ, the death penalty can be imposed in both times of war and peace:
* 81 (10 U.S.C. § 881) – Conspiracy
* 94 (10 U.S.C. § 894) – Mutiny or sedition
* 99 (10 U.S.C. § 899) – Misbehavior before the enemy (including cowardice)
* 100 (10 U.S.C. § 900) – Subordinate compelling surrender
* 101 (10 U.S.C. § 901) – Improper use of countersign
* 102 (10 U.S.C. § 902) – Forcing a safeguard
* 103a (10 U.S.C. § 903a) – Espionage
* 103b (10 U.S.C. § 903b) – Aiding the enemy
* 110 (10 U.S.C. § 910) – Improper hazarding of vessel
* 118 (10 U.S.C. § 918) – Murder
Another five provisions of the UCMJ carry a death sentence only if the crime is committed during times of war:
* 85 (10 U.S.C. § 885) – Desertion
* 89 (10 U.S.C. § 889) – Assaulting a superior commissioned officer
* 90 (10 U.S.C. § 890) – Willfully disobeying a superior commissioned officer
* 95 (10 U.S.C. § 895) – Misbehavior of a sentinel or lookout
* 103 (10 U.S.C. § 103) – Lurking as a spy or acting as a spy
Under article 120, rape was once punishable by death, but the Supreme Court of the United States ruled in Coker v. Georgia and Kennedy v. Louisiana that the death penalty for rape is unconstitutional.

## Legal process

Capital cases are tried in courts-martial before a panel of at least 12 military members. If the defendant is an enlisted service member, he or she may opt for at least one-third of the panel to also be of enlisted rank. All members of the panel must outrank the accused whenever logistically possible per 10 USC 825 (e)(1) . The defendant cannot plead guilty to a capital offense if the government is seeking the death penalty for it. Unanimity is required for a conviction and is required separately to issue a death sentence during the penalty phase of the proceeding.
All death sentences are automatically appealed, first to the Court of Criminal Appeals for the military service concerned, then to the United States Court of Appeals for the Armed Forces. The sentence must be personally confirmed by the President of the United States.
Military executions would be conducted under regulations issued on 17 January 2006, and would ordinarily take place at the Special Housing Unit of the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, although alternative locations are possible (such as the Federal Correctional Complex, Terre Haute, Indiana, where federal civilian death-row inmates are housed and executed). Of four convicted servicemen awaiting execution, three are confined at the USDB's Special Housing Unit and one at Camp Lejeune. All have been convicted of murder.
Prior to 1991, the methods of execution approved by Headquarters, Department of the Army were hanging, firing squad (musketry) or electrocution. Electrocution was added as an option in the 1950s but could only be used at a specific confinement facility designated by Headquarters, and only be performed by a professional civilian executioner. An electric chair was installed at the old United States Disciplinary Barracks at Ft. Leavenworth, KS, but was never used. The last military execution occurred in 1961 by hanging. Currently, lethal injection is the only method.
Separately, military commissions may be also established in the field in time of war to expeditiously try and sentence enemy military personnel under the UCMJ for certain offenses.$^{:5}$$^{:16–18}$ Controversially, the Military Commissions Act of 2009 allows military commissions to try and sentence "'alien unprivileged enemy belligerent[s]'" accused of having "'engaged in'" or "'purposefully and materially support[ed] hostilities'" against the United States or its allies, without the benefit of some UCMJ protections.$^{:7–9}$ In a military commission trial, the death penalty may only be imposed in case of a unanimous verdict and sentencing decision.$^{:31}$

## Previous use
### The Creek War

In 1814, Private John Woods of the 39th United States Infantry was executed by a firing squad for assaulting a superior officer. Andrew Jackson was troubled by serious discipline problems with his militia and volunteers, particularly the militia from East Tennessee. So he prosecuted Private John Woods, only 18 years old, under allegedly false charges. Private Woods had spent his last month in the camp of the 39th. The night before his execution the officers of the 39th signed and sent Jackson a petition asking for mercy. He not only failed to grant it, he made the 39th shoot him. The 39th was never happy with Jackson after that. Colonel John Williams, the commanding officer of the 39th United States Infantry, said in a campaign pamphlet in 1828 that Private Woods cried "bitterly and loudly"; the Jackson camp claimed he was belligerent and deserved to die.

### American Civil War

Union General William Rosecrans approved the courts-martial and hanging of two Confederate officers, Lawrence Orton Williams and Walter Peters, on June 9, 1863, at Franklin, Tennessee, after the duo had disguised themselves as Union officers for the purposes of spying.
On June 21, 1864, Union Army deserter William Johnson was hanged in Petersburg, Virginia for attempted rape.
On March 15, 1865, Confederate captain Marcellus Jerome Clarke was hanged in Kentucky for guerrilla activities.
On March 25, 1865, Confederate captain Robert Cobb Kennedy was hanged in New York City for spying.
In July 1865, four involved in the assassination of President Abraham Lincoln were executed in Washington D.C. by hanging.
On September 6, 1865, two Union soldiers were hanged in Ohio for the murder of a military policeman.
On October 20, 1865, Confederate war criminal Champ Ferguson was hanged in Tennessee on murder charges.
On October 29, 1865, Henry C. Magruder was hanged in Kentucky for guerrilla activities, including several murders.
On November 10, 1865, Henry Wirz, Confederate commander of Camp Anderson (aka Andersonville POW camp) was tried, convicted and executed by hanging.

### First World War

The United States Army executed 35 soldiers during the First World War by hanging between November 5, 1917, and June 20, 1919, all for offenses relating to murder or rape. 11 of these hangings were performed in France while the remaining 24 were carried out in the continental United States.

### 1942–1961

The U.S. military executed 160 American servicemen between 1942 and 1961. There have been no military executions since 1961, although death is still a possible punishment for several crimes under the Uniform Code of Military Justice. Of these executions, 157 were carried out by the United States Army, including members of the United States Army Air Forces prior to September 1947. After becoming independent of the U.S. Army on September 18, 1947, the United States Air Force conducted the three remaining executions, one in 1950 and two in 1954. The United States Navy has not executed any of its own sailors since 1849, nor has the United States Coast Guard. Since its founding in 2019, the United States Space Force has not imposed death sentence on any of its Guardians or executed any.
Of the total, 21 were executed for both rape and murder, 85 for murder, 53 for rape, and one (Private Eddie Slovik) for desertion.