Air Force general upholds maximum sentence for child rapist
By NANCY MONTGOMERY | STARS AND STRIPES Published: December 22, 2010
HEIDELBERG, Germany — Air Force officials have approved the prison sentence of life without parole for an Air Force staff sergeant convicted in November of raping and sexually abusing three young girls he baby-sat.
Lt. Gen. Frank Gorenc, commander of the 3rd Air Force at Ramstein Air Base, approved Staff Sgt. Joshua Adam Smith’s sentence on Dec. 16, denying defense requests for clemency.
The action marks a first in military justice history: Smith is the only airman to have received such a sentence, said Lt. Col. Tom Posch, Chief of Justice and Court Activities for the Air Force Legal Operations Agency at Bolling Air Force Base in Washington, D.C.
Gorenc, in a written statement, called Smith’s crimes “horrific.”
He went on to praise Air Force investigators, the military justice system and the children victimized by Smith.
“This was a horrific crime, and the 86th Airlift Wing should be lauded for their efforts from the moment it came to light through the entire UCMJ process,” Gorec’s statement said. “The wing’s priorities were to take every step necessary to care [for] and respect the victims and their families while also protecting the integrity of the investigation and judicial process.
“The brave children who stepped forward to help bring this problem to light are to be respected and commended. We wouldn’t have been able to stop this without them.”
David Court, Smith’s civilian lawyer, declined to comment.
Smith’s sentence places him among a very small segment of military convicts from any service.
Just 18 other men have been sent to the military prison at Fort Leavenworth with a sentence of life without the possibility of parole, according to officials at the prison, which houses all male servicemembers sentenced to five years or more. Of those 18 inmates, only one was convicted of an offense other than murder: a Marine sergeant convicted three years ago of assault and sex crimes against minors.
A sentence of life without parole has been available to military courts only since 1997, after a change to the Uniform Code of Military Justice.
“If it’s an option between the death penalty and life without parole, we’re in favor of [the latter],” said Michelle Lindo McCluer, executive director of the Institute for Military Justice.
Smith’s sentence will automatically undergo an appeal at the Air Force’s court of criminal appeals, and it’s likely he’ll argue that his sentence is too severe.
But the Marine sergeant sentenced to life without parole for sex crimes lost a similar appeal. Sgt. Harold B. Hammock, Jr. was convicted in 2007 of physically and sexually abusing three young family members for four years, including daily rapes of a 10-year-old, as well as raping a teenager he met online.
The Navy-Marine Criminal Court of Appeals, calling Hammock’s crimes “exceptionally heinous,” refused to reduce his sentence to allow a possibility of parole. In August, the U.S. Court of Appeals for the Armed Forces, the military’s highest appellate court, denied Hammock’s petition for further review.
But because the sentence is relatively new, how it will play out for military prisoners — and whether they’ll die in prison or eventually be released — is unknown.
Before 1997, a life sentence came with the possibility of parole after an inmate served 10 years. But life without parole sentences require an inmate to serve 20 years, then petition for clemency — a sentence reduction — then ask for parole.
No prisoner serving the sentence has yet served 20 years.
The military system traditionally has offered more clemency than the civilian system, experts said.
First, for most crimes, there are no sentencing guidelines.
“The minimum punishment can be no punishment,” Lindo McCluer said. “So for some child pornography crimes where you’d get 20 years in the federal system, you might get 18 months.”
Next, commanders are empowered to reduce sentences after court-martial.
And finally, military parole and clemency boards have tended to look more favorably on the idea that a prisoner can be rehabilitated.
“In the military, particularly in the Air Force, you’re likely at some point to get clemency,” Lindo McCluer said.
Just one female soldier is currently serving life without parole, said John Plansky, Parole and Release Director at the Consolidated Naval Brig Miramar in San Diego, where female troops are sent.
Army Spc. Ivette Davila, from Fort Lewis, Wash., was sentenced in August after pleading guilty to the 2008 shooting deaths of two other soldiers — a married couple. Her sentence was part of a plea agreement to avoid the possibility of a death sentence.