Death penalty rarely used for desertion conviction

Sgt. Bowe Bergdahl


By WYATT OLSON | STARS AND STRIPES Published: March 26, 2015

While the death penalty is a possible punishment in cases of desertion or misbehavior before the enemy — the charges leveled Tuesday against Army Sgt. Bowe Bergdahl — that sentence has rarely been imposed.

“On the books, it is an option,” said Noel Tipon, an attorney in Hawaii who specializes in defending servicemembers facing Article 32 hearings and courts-martial.

But it would be an “unlikely event” for a case to be referred as capital where a death was not directly involved, he said.

RELATED: More Stars and Stripes coverage of Sgt. Bowe Bergdahl

Under the Uniform Code of Military Justice, the death penalty may be imposed for either desertion or misbehavior before the enemy — but only during times of declared war.

When the Army announced the charges against Bergdahl, it did not address the issue, saying only that his maximum penalty could be life in prison.

The only U.S. servicemember to be executed for a purely military offense — desertion — since the Civil War was Edward D. Slovik, who was executed by firing squad in January 1945 in France.

In a letter to Gen. Dwight D. Eisenhower, Slovik pleaded for leniency. But the American forces were rife with desertions at that time, and Eisenhower wanted to stem the tide by making the private’s execution an example.

Congress issued formal declarations of war on Germany and Japan for World War II, which clearly created a “time of war” in regard to the UCMJ’s requirements.

But the Authorization for Use of Military Force passed by Congress and signed by President George W. Bush on Sept. 18, 2001, is a slightly different creature than a “declaration of war.”

Tipon said it is “unclear” whether the 2001 authorization rises to the level of a declared war in regard to application of the death penalty.

He said it’s the prerogative of the court-martial convening authority to decide whether the charges will be referred as capital.

Desertion could lead to the death of soldiers left behind in certain extraordinary cases.

“I understand that argument,” Tipon said. “Sure, if something had gone wrong, then it could have led to the death of other soldiers, other servicemembers.”

But without Bergdahl being directly involved in one of those soldiers’ deaths, the convening authority would not likely refer it as a capital case, he said.

“The decision to refer something capital, especially in a case where an action didn’t lead to the death of another individual as a result of that misconduct, is undertaken very soberly and very deliberately,” Tipon said.

Some soldiers who served with Bergdahl say some soldiers died in the search for Bergdahl after he walked off his post in Afghanistan in June 2009. Some of his platoon mates have publicly held him responsible for those deaths.

“That might be a game changer for the powers that be who are making the decision whether or not to refer capital,” Tipon said. “But again, that’s such a tough call to make because typically a death-penalty-eligible case is for murder. It isn’t second- or third-order effects, as they say in the military, of what the misconduct was.”

Some in the military law community have questioned whether desertion still meets society’s expectation of a capital crime.

Navy attorney Lt. Cmdr. Rich Federico wrote a 2013 paper in the Berkeley Journal of Criminal Law calling for Congress to abolish the death penalty for unique military, nonhomicide offenses.

Since the military revamped its death penalty policies in 1984, no servicemember has been tried capitally for a crime that wouldn’t carry a death penalty in a civilian court, according to Federico.

The last servicemember to walk away from his unit in a combat zone was Marine Cpl. Wassef Ali Hassoun, who disappeared from a U.S. military base in Iraq in 2004 and who abandoned his Marine unit at Camp Lejeune in 2005. In February, he was found guilty of two counts of desertion and sentenced to 735 days in prison, reduction of rank, forfeiture of pay and allowances and dishonorable discharge.
Federico argued that crimes like desertion do not fit “the modern civilian view that the death penalty must be limited to a narrow class of defendants who commit … the most serious crimes and whose extreme culpability makes them the most deserving of execution.”

Stars and Stripes reporter Erik Slavin contributed to this report.

Twitter: @WyattWOlson

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