Mercy Killings in Combat: Ending the Suffering of Gravely Wounded Combatants -- A Brief History, Applicable Law, Recent Prosecutions, and Proposals for Much Needed Change

Abstract

Abstract : A Soldier who kills a gravely wounded combatant to end his suffering likely will be charged with premeditated murder. If convicted of premeditated murder, the Soldier will be sentenced to life in prison -- there is no discretion. Life in prison is the mandatory minimum sentence for a premeditated murder conviction. A mandatory life sentence for combat-related mercy killings is unjustifiable for three reasons. First, it subjects the Soldier to a punishment that does not correspond with the moral wrongfulness of the crime. Second, the mandatory minimum sentence constructively coerces the Soldier into a posture to plead guilty to a lesser charge to avoid the risk of the mandatory life sentence. Third, it deprives the Soldier of any meaningful sentencing case by making matters in mitigation and extenuation irrelevant. By constructively coercing the Soldier to plead guilty, the government undermines the integrity of the military justice system by avoiding the burden of proving the Soldier's actions were the cause of the victim's death, by shielding itself from possible defenses, and by avoiding the real risk of jury nullification by the panel members. Furthermore, when the Soldier pleads guilty to avoid the harshness of the potential life sentence, he is required to accept terms of the pretrial agreement that limits his ability to fully litigate the sentencing case. Since mercy killings have been a part of armed conflict for thousands of years, and since the United States is currently engaged in multiple military operations that require long-term commitments, the likelihood that Soldiers will be charged with premeditated murder for combat-related mercy killings is greater now than at any time in U.S. history. The time is right to amend the Uniform Code of Military Justice (UCMJ) to criminalize more appropriately homicide, and to establish an equitable sentencing range for Soldiers convicted of combat-related mercy killings.