86 Pages Posted: 20 Jan 2007
Date Written: November 2006
This paper examines the clemency process in military courts martial. Unlike civilian courts, defendants in a military trial can seek sentencing relief before, during, or after the trial process, and for the official post-trial review, they are guaranteed assistance of counsel in presenting their case for clemency. Statistics for military sentencing and clemency are not available, however, anecdotal evidence from public sources suggests that sentencing is often lenient and clemency is exercised frequently. The paper argues that the opportunities for clemency are less troubling in soldier vs. soldier cases, for the clemency-givers are at risk from the defendant in the future, and clemency often creates and strengthens bonds of loyalty and trust necessary for teamwork. More troubling are the lenient sentences in war-related crimes, where the victims are outsiders to the military. Yet even here, clemency may be a recognition of the moral sacrifices and ambiguities combat requires. Where a defendant's crime seems not to be an outgrowth of the exigencies of military service, but a settled feature of a defendant's character, sentencing in war-related crimes is not so lenient.
Keywords: clemency, mercy, forgiveness, military, courts martial, mitigation, leniency, sentencing, retribution, crime, war crime, soldier
JEL Classification: K14
Suggested Citation: Suggested Citation