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Nidal Malik Hasan and Military Death Penalty

By Kamika Dunlap on November 09, 2009 | Last updated on March 21, 2019

Major Nidal Malik Hasan, the accused Fort Hood gunman who last week opened fire in a processing center on the base, killing 13, now will likely face a long and complicated legal proceeding.

As he lay injured and under heavy guard at Fort Sam Houston, Hasan could become the first serviceman executed through military death penalty in almost 50 years.

Though, death penalty cases are rare in the military, this case could be the first to run its entire course in quite a while.

The last American serviceman to be executed was killed by a firing squad in 1961.

A key question concerning Hasan's fate hinges on whether civilian prosecutors find that he was part of a terrorist plot that might justify moving his case into the federal criminal courts under U.S. anti-terrorism laws. However, if prosecutors determine that Hasan acted alone, he could face the death penalty in a military court-martial.

But military justice system experts say that any case against Hasan could take several months and would be delayed by medical assessments of the Army officer's physical and mental health.

Hasan's family is demanding that he be allowed to consult with a lawyer before speaking to investigators or mental health professionals.

In the meantime, the Dallas Morning News discusses in detail why pursuing death penalty in Fort Hood shooting may be difficult. 

As mentioned in the article, there are some differences from between civilian and military death penalty cases:

  • A service member is entitled to an Article 32 hearing before he or she can be charged with a serious crime and face a court-martial.  It is similar to a grand jury proceeding and such a hearing is held in open court with attorneys for both sides present.
  • A military jury in a capital case must be unanimous in both its verdict and the sentence. But if no death penalty is sought, a conviction can be secured with the assent of only two-thirds of the jury.
  • The commanding general who convenes the court-martial must approve the sentence and the conviction and can commute sentences he or she thinks are too harsh.
  • Before a condemned service member can be put to death, the president must sign an affirmative order explicitly approving the execution.

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