United States v. Gay

16 M.J. 586

• Court: United States Court of Military Appeals
• Decided: June 3, 1983
• Docket: ACM 23492
• Status: Published

Opinions

DECISION

KASTL, Senior Judge:

Applying Supreme Court precedents, we hold in this case that the military system for imposing the death penalty under Article 118(1) of the U.C.M.J., 10 U.S.C. § 918(1) is constitutionally defective. Accordingly, we disapprove that portion of the accused’s sentence extending to death.

The accused, Airman Gay, was found guilty of murder and attempted murder of three security policemen, in violation of Articles 80 and 118(1), U.C.M.J., 10 U.S.C. § 880. His sentence, as approved by the convening authority, extends to death, dishonorable discharge, total forfeitures, and reduction to airman basic.

I

The accused was a 28-year old security policeman assigned to Holloman Air Force Base, New Mexico. On 31 July 1981, his supervisor, Technical Sergeant Rodriguez, gave him a letter of counselling regarding a haircut violation. This angered and agitated the accused. Over a two-day period, he complained to several persons that he was being subjected to unfair and discriminatory treatment. He also expressed his intention to do something about it.

On 2 August, the accused finished an eight-hour shift of duty at 0600 hours; he was joined by Airman Cox at 1000 hours. The two remained together throughout the day. There is evidence that the accused consumed six to nine seven-ounce beers and four to five drinks of whiskey and cola but that he showed no signs of intoxication. As the accused prepared for duty that evening, he told Airman Cox that “when they issue me 120 rounds tonight they will be making a mistake” and “my mother gets all my stuff.”

At approximately 2130 hours, the accused reported for duty at Building 107. He told Sergeant Mobley, in the presence of Sergeant Rodriguez, that he was “going to get” Rodriguez that night. The accused then proceeded to the Security Police armory, where he secured an M-16 rifle assigned to him, 120 rounds of ammunition, and a two-way radio. He then fell into formation for guardmount with 16 to 20 other security policemen.

At the conclusion of guardmount, the accused confronted Sergeant Rodriguez in front of Building 107 with regard to the counselling letter for the haircut violation. When the accused became boisterous and used profanity, Rodriguez broke off the conversation and entered Building 107. He reemerged some minutes later and was proceeding to his assigned vehicle when the accused shouted “turn around you mother fucker, I said turn around.” The accused then unshouldered his M-16 rifle and — after shouting again for Rodriguez to turn around — fired his rifle. Sergeant Rodriguez fell to the ground, mortally wounded.

The accused then pivoted to his right, “fanning” his weapon, and fired in the direction of Airman Brockett, who was about seven to ten feet away. Witnesses who ran for cover heard additional shots. Thereafter, Airman Lamberty, who had been standing in front of Building 107, was seen lying on the ground.

A doctor arriving at the scene determined that Sergeant Rodriguez was dead. Airman Lamberty was rushed to the Air Force hospital. Despite frantic efforts to save his life, he was pronounced dead at 2330 hours. The cause of death for both victims was exsanguination brought on by a bullet wound to the abdomen.

A search for the accused was initiated. At approximately 2330 hours he was apprehended near the on-base elementary school. When apprehended, the accused was found in a semi-fetal position, without his weapon, shaking and appearing hysterical. He was carried to a patrol vehicle and transported to the base hospital.

The case was referred as capital. The court-martial sentenced the accused, inter alia, to death; the sentence was approved by the convening authority. The case is now before us for resolution.

II

In a momentous decision, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court declared unconstitutional the procedures used in Georgia and Texas for imposing the death penalty. Since Furman will prove crucial in evaluating military capital punishment procedures, we turn first to historical examination of that case and its aftermath. We shall then apply that precedent to the military system in Part III.

The Furman Decision

Furman held that imposition of the death penalty pursuant to state discretionary sentencing statutes in Georgia and Texas constituted cruel and unusual punishment prohibited by the Eighth Amendment, made applicable to the states through the due process clause of the Fourteenth Amendment.

Furman’s precise rationale is evasive because, following a terse per curiam announcement, each of the nine justices submitted a concurring or dissenting opinion. To determine the Court’s exact teaching— and the effect of Furman upon the instant case — the opinions making up the 5-4 majority must be placed into proper perspective.¹

Justices Brennan and Marshall espoused an abolitionist view, believing the death penalty necessarily cruel and unusual and thus impossible to impose constitutionally.

Concurring on narrower grounds, Justices Douglas, Stewart, and White each found the capital punishment statutes under consideration arbitrary, thereby violating the Eighth Amendment.

Justice Douglas believed it cruel and unusual to apply the death penalty selectively. Statutes authorizing the imposition of death proved unfair in nature and application, “pregnant with discrimination ... an ingredient not compatible with the idea of equal protection of the laws.... ” He further reasoned that then-existing capital sentencing procedures provided no standards to govern the life-or-death decision, leaving to judges or juries “uncontrolled discretion,” dependent on whim.²

Justice Stewart concluded that the death sentences reviewed in Furman were “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” He asserted that “of all the people convicted of rapes and murders in 1967 and 1968 ... the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.” The Eighth Amendment, Justice Stewart concluded, “cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” ³

Justice White pointed out the infrequency with which the death penalty was adjudged and actually exacted, thus rendering its occasional application an ineffective deterrent. Consequently, the death penalty constituted a “pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” ⁴

Chief Justice Burger and Justices Black-mun, Powell, and Rehnquist dissented.

As a result of Furman and numerous allied cases decided the same day, the Supreme Court effectively invalidated capital punishment procedures contained in laws passed by Congress, 39 states, and the District of Columbia;⁵ as a practical matter, Furman had eviscerated the death penalty provisions of every pending Federal and state death sentence in the United States.⁶

The Aftermath of Furman

At least 35 state legislatures, without seriously disputing Furman, revised their death penalty statutes to preserve capital punishment and yet overcome the procedural deficiencies noted in that decision.⁷ Some adopted mandatory death penalty provisions; others provided detailed “guided discretion” statutes with aggravating and mitigating factors.⁸ On 2 July 1976, the Court rendered opinions regarding five of these revised statutes.

Was the death penalty unconstitutional under all circumstances? In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court responded to this question, the majority finding the death penalty constitutional under the Eighth Amendment — if properly administered. A plurality concluded that Georgia’s new death statute overcame the objections of Furman9 The principal plurality opinion clarified that:

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance, (emphasis added).

Gregg v. Georgia, 428 U.S. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at 887.

Two companion cases, Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950,49 L.Ed.2d 929 (1976), upheld the new Florida and Texas death penalty statutes, premised essentially on the reasoning of Gregg. In Proffitt, the plurality approved “an informed, focused, guided, and objective inquiry into the question of whether [the defendant] should be sentenced to death ....”¹⁰

Similarly, in Jurek, the plurality found that the Texas statute acceptably “guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.”¹¹

The Court invalidated two revised state statutes. Both North Carolina and Louisiana had responded to Furman by mandating execution of any person found guilty of certain offenses. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). In these cases, the plurality explained that neither the Louisiana nor the North Carolina statutes provided adequate standards to guide the jury in exercising its power to select those first-degree murderers who would receive the death sentence.

Later cases have refined the principles enunciated in Furman and the “2 July 1976 cases.” In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Ohio death penalty statute was ruled unconstitutional because it limited the range of circumstances to be considered in mitigation.¹² In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the Court reversed, largely because there was “no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not”;¹³ the jury had found the defendant’s homicides “outrageously or wantonly vile, horrible or inhuman” within the meaning of an aggravating circumstance in the revised Georgia capital statute. In an allied area, in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), the Court invalidated a Georgia statute providing a discretionary capital sentence for rape of an adult woman, stating that the punishment was disproportionate to the offense.¹⁴

The initial conclusion to be drawn from Furman and its progeny is this: Death penalty provisions which fail to clearly articulate restrictive guidelines to aid the exercise of sentencing discretion are constitutionally unacceptable.¹⁵

Federal and State Decisions

In the decade following Furman, numerous Federal and state courts have evaluated death penalty provisions.

Imposition of the death penalty under 18 U.S.C. § 1111, the unrevised federal murder statute, has been declared constitutionally improper on several occasions.¹⁶ The leading case is United States v. Kaiser, 545 F.2d 467 (5th Cir.1977). Judge Goldberg, joined by Justice Clark, retired Supreme Court justice sitting by designation, analyzed Fur-man and its progeny thus:

The Court’s five death penalty decisions confirmed the principle that a system of capital punishment that does not clearly define standards to guide the exercise of sentencing discretion is constitutionally intolerable. This statute fully violated that principle; the sentence of death by electrocution shall be set aside.

United States v. Kaiser, supra, at 470. The “unanimous post-Furman understanding of federal courts, federal prosecutors, and Congress appears to have been that the death penalty could not constitutionally be imposed under § 1111,” the court commented; to argue the provision’s continuing vitality “borders on the audacious.” United States v. Kaiser, supra, at 471.

Other Federal courts have declared capital punishment under Section 1111 unconstitutional, a result in which the United States has acquiesced.¹⁷ Similarly, the legislative history of the Anti-hijacking Act of 1974 suggests Congressional understanding that Furman had invalidated the death penalty for Federal crimes. See 1974 U.S.Code Cong, and Admin.News 3977, 3981.

For their part, state courts have carefully reviewed their new capital punishment statutes against the guidance of Furman. Virtually without exception, only finely-tuned post-Furman statutes have won judicial approval.¹⁸

The Military Death Penalty

The precise impact of Furman on Article 118(1) of the Uniform Code of Military Justice has not been addressed directly by the Supreme Court.¹⁹ Several justices presently sitting have commented in dicta that the Code’s death provisions must fall. Thus, for example, Justice Powell’s dissenting opinion in Furman (in which Chief Justice Burger, Justice Blackmun, and Justice Rehnquist joined) suggested that “... numerous provisions of the Criminal Code of the United States and of the Uniform Code of Military Justice also are voided.”²⁰ Similarly, Justice Blackmun’s dissenting opinion to Furman prophesied that “[a]lso in jeopardy, perhaps, are the death penalty provisions in various Articles of the Uniform Code of Military Justice.”²¹

In Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), the Supreme Court declined to address the constitutionality of a death sentence imposed by court-martial but commuted prior to Furman.22 However, a dissent by Justice Marshall, joined by Justices Douglas and Brennan, specifically noted that a military death sentence would be unconstitutional, in light of Furman.23

In military practice itself, upon at least five separate occasions in the post-Furman era military trial judges have treated referred capital cases as non-capital.²⁴ This Court, in passing, commented in United States v. DeChamplain, 46 C.M.R. 784, 791, n. 5 (A.F.C.M.R.1972) that Furman “raises doubts as to the validity of imposing the death sentence under any circumstances.”

However, in United States v. Matthews, 13 M.J. 501 (A.C.M.R.1982) and United States v. Rojas, 15 M.J. 902 (N.M.C.M.R.1983) the Army and Navy-Marine Courts of Military Review upheld the constitutionality of Article 118 despite a defense attack directly predicated upon Furman.

Ill

Applying Furman v. Georgia, we hold that the military system for imposing the death penalty under Article 118(1) is constitutionally defective.

The Required Standard

We focus now upon the standard mandated by the Supreme Court. Furman and the “2 July 1976 cases” declare that unguided jury discretion in imposing the death penalty is impermissible. A sentence of death is constitutionally sui generis, and the sentencing procedure must reflect such uniqueness.²⁵

To satisfy this requirement, the Supreme Court has mandated that juries employ specifically legislated criteria to segregate— out of the infinite variety of crimes formerly considered capital murder — those deemed peculiarly deserving of the death penalty. As Justice Stewart clarified in Gregg v. Georgia:

No longer can a Georgia jury do as Fur-man’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime ... ,²⁶

The solution, Justice Stewart explained, was a carefully-drafted statute which eliminated unbridled discretion and insured “that the penalty of death not be imposed in an arbitrary or capricious manner ....”²⁷

Furman and its offspring thus .have revolutionized capital sentencing procedures. A radically different system now is required: The sentencing decision must be channeled by clear, objective standards as required by Gregg; specific and detailed guidelines must be utilized by the jury to minimize arbitrariness as required by Proffitt; the particularized circumstances of the individual and the offenses must be considered, as required by Jurek; and the sentencing decision must be rationally reviewable by an appellate court, as required by Godfrey.

The “2 July 1976 cases” exemplify three systems satisfying this standard: The Supreme Court found that Georgia, Florida, and Texas each had successfully tempered the discretion of their juries by rational statutory guidelines. Contrariwise, the Court rejected the Louisiana and North Carolina mandatory death statutes; the Ohio mandatory system fell two years later.

The Supreme Court clarified in Gregg that other arrangements also might pass muster, for “each distinct system must be examined on an individual basis.” ²⁸ Cognizant of this fact, we canvass the three Supreme Court-approved systems for a sampling of statutes illustrating how Furman objections can be translated into a constitutional death sentence.

Georgia’s bifurcated system requires the sentencing authority to find, beyond reasonable doubt, the existence of one or more of ten specific, statutorily-defined aggravating circumstances. The jury must specify the particular aggravating circumstance(s) in writing. The jury’s attention must properly focus on the nature of the particular crime and the specific characteristics of the defendant. The jury is not compelled to sentence the defendant to death under any circumstances. A separate report by the trial judge is forwarded on appeal. Since the sentencing authority’s discretion is effectively guided, the specter of imposing the death penalty in an arbitrary and capricious manner is eliminated. Gregg v. Georgia, 428 U.S. at 189, 96 S.Ct. at 2932, 49 L.Ed.2d at 883.

Florida’s bifurcated procedure requires the jury to find one or more of eight statutory aggravating circumstances and to weigh them against any mitigating factors — including seven mitigating circumstances set out by statute. Based on these factors, the jury considers whether sufficient mitigating circumstances exist to outweigh the aggravating circumstances. The judge then receives the jury’s recommendation and himself weighs the statutory circumstances and determines the sentence. A judge imposing the death penalty must set forth in writing the statutory aggravation found sufficient and also rule that the mitigation is insufficient to outweigh such judgment. Proffitt found that the Florida statute:

... passes constitutional muster. That legislation provides that after a person is convicted of first-degree murder, there shall be an informed, focused, guided, and objective inquiry into the question whether he should be sentenced to death.²⁹

Texas has narrowed the categories of murder for which the death penalty is authorized. Capital murder can occur under five specific circumstances;³⁰ any murder of lesser culpability is excluded from capital sentencing consideration. A separate proceeding is held in which the jury must respond to two (sometimes three) specific questions, the responses to which determine the sentence. If the jury unanimously finds that the state has met its burden on all of these questions, the death penalty is adjudged; if not, a life sentence results. Furthermore, the defendant, by Texas Court of Criminal Appeals practice, may bring mitigating factors to the jury’s attention. Jurek v. Texas, 428 U.S. at 276, 96 S.Ct. at 2958, 49 L.Ed.2d at 941. Jury assessment must set forth the reasons why a death sentence should or should not be imposed.

What lessons can be garnered from these cases? The procedures endorsed in GreggProffitt-Jurek all contain the following common factors:

(1) a bifurcated procedure is employed with evidence relevant to the death penalty developed at the separate sentencing proceeding;

(2) sentencing discretion must be channelled by factors established by statute — either an extremely narrow range of specific capital offenses (Texas) or an exposition of specific aggravating factors (Georgia/Florida) which, if present, tend to increase the severity of the offense;

(3) the sentencing authority must find the existence of at least one such qualifying factor in addition to finding the elements of murder, statutorily provided;

(4) specific findings must be made regarding the qualifying factor;

(5) the opportunity to present mitigation must be virtually unrestricted, whether statutorily specified or not; and

(6) a capital sentence must be meaningfully reviewed by the state’s highest court.

A later case, Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), further defines the required standard for a constitutional death penalty. In Godfrey, the defendant killed both his wife and mother-in-law with a shotgun. He was sentenced to death on the basis of a facially obscure provision — murder which was “outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.” Godfrey v. Georgia, 446 U.S. at 422, 100 S.Ct. at 1762, 64 L.Ed.2d at 402. The Court held that since the jury had received no instruction or explanation as to the meaning of such an inherently ambiguous provision of the sentencing statute, the sentence of death must be overturned.³¹ Although Godfrey addresses the responsibility of appellate courts to independently review death sentences, it also clearly condemns the acceptance of wide-open terminology sufficiently broad to cover any murder.

The Military System

Given our analysis of Furman, the “2 July 1976 cases,” and Godfrey, we hold that the Supreme Court’s mandated sophisticated requirements for imposing the death penalty are not met by the unrevised procedures of Article 118(1) of the Code.³²

Measured by Furman and its progeny, Article 118(1) fails. It permits the jury unlimited and undirected discretion, lacking either a narrow range of specific capital offenses (Texas) or specific aggravating factors (Florida and Georgia) for imposition of capital punishment. Under the military system there are no mandatory factors to be found; no required weighing of aggravating versus mitigating factors; no insistence that the members make specific findings or answer specific questions. In sum, no specific consideration needs be given the death penalty as a unique sentence, over and above the usual, so as to avoid arbitrariness. Instead, absolute discretion is permitted the sentencing authority, unchecked by articulated standards. In contrast to Furman et al, a convicted murderer is sentenced to death or life imprisonment in military jurisprudence simply “as a court-martial may direct.” Article 118, U.C.M.J.

United States v. Matthews, 13 M.J. 501 (A.C.M.R.1982), addresses this precise issue. In lucid, thoughtful majority and minority opinions, the Army court, voting 8 — 4, found that: (a) court-martial procedures for imposing a death sentence for premeditated murder were constitutional; and (b) the members’ sentencing decision was properly focused and guided under Furman and its progeny.

The majority reasoned that premeditation was the acceptable military statutory aggravating factor; and that the progressive military presentencing procedure was “sufficiently focused and guided to pass constitutional muster.” In particular, the Army court noted that court-martial members are entitled to consider the facts and circumstances of the offense as aggravating factors and that the accused enjoys broad latitude in submitting mitigating evidence. United States v. Matthews, supra, at 526-527. Since “premeditation” appears so crucial, we turn to an analysis of that term.

Premeditation

Article 118(1) covers a broad range of murders, committed under all conceivable circumstances, encompassing “any person ... who, without justification or excuse, unlawfully kills a human being, when he ... has a premeditated design to kill.... ”

We find it most significant that Article 118(1) parallels numerous statutes struck down in Furman and its companions. A review of these Furman follow-on cases clearly reveals decisions “on all fours” with the present case, involving convictions for premeditated murder, followed by a jury determination on the issue of death versus life. The array of deliberate and premeditated murders there depicted reveals crimes of such a heinous, atrocious nature as to defy the imagination. Yet the Supreme Court — finding inadequate standards — vacated the death sentences and spared the lives of these unworthy individuals. The crucial point is this: Over and over again in the trailer cases, decided the same day as Furman, premeditation statutes much akin to Article 118(1) failed to win Supreme Court approval. Accordingly, on the basis of such precedent, we must disagree with the Matthews rationale that premeditation can serve as a satisfactory narrowing factor.³³

A comparison of Article 118(1) to the 35 finely-honed, sophisticated state statutes reenacted since Furman also clearly illustrates how far the military system falls short. It provides voting members no guidance as to the circumstances under which premeditated murder warrants death and when it merits life imprisonment. In sum, nowhere in Article 118(1) can be found explicit aggravating or mitigating factors or delimiting definitions to narrow the class of those who will die.

“Premeditation” cannot fill that void since it is an element of each and every Article 118(1) crime; therefore, premeditation provides no handholds for the crucial jury question of distinguishing which accused deserves capital punishment.³⁴ In short, “premeditation” falls fatally short as the explicit aggravating predicate enabling jurors to avoid arbitrariness as they decide the life-or-death issue.³⁵ To the contrary, this shapeless concept fails to rivet the sentencing decision in an objective, rational manner.³⁶

Arguably, the state statute most similar to Article 118(1) is that of Texas, since it lacks specific aggravating or mitigating considerations. Close examination shows crucial differences between the Texas and military provisions. First, as the Supreme Court found in Jurek, Texas has severely narrowed the range of capital crimes to one — murder with malice aforethought in five specific situations: (a) murder of a police officer or fireman; (b) murder for hire; (c) murder of a penal institution émployee; (d) murder in a prison escape; and (e) certain felony murders. Second, Texas requires a sentencing decision upon three statutory questions (deliberateness of the crime; the offender’s continuing threat to society; and any provocation for the killing) which serve to properly focus the minds of the jurors away from discretionary considerations. Furthermore, mitigating factors, under Texas procedure, may be advanced by the defendant even though the statute is silent on the matter. The important point to be made is this: Though the Texas statute contains no aggravating or mitigating factors, the legislature has nevertheless attenuated severely the class of capital offenders eligible for the death penalty.

Differences between the Court-approved Texas statute and Article 118(1) are startling. They refute any viable argument that “premeditation” is sufficient to save Article 118(1) as its aggravating factor. In Texas, “malice aforethought” defines a category of killings — a definition generally equivalent to Article 118’s “premeditation.” But defining the word is only one-fourth of the Texas response. The five narrow categories of capital murder, the mitigating matters permitted by state practice, and the three statutory questions become a trinity of additional factors dramatically shrinking the numbers facing capital punishment.

The gut issue behind Furman —arbitrariness in the administration of capital punishment — is thus tempered and channeled in Texas; nothing within Article 118(l)’s treatment of the term “premeditation” assuages this concern. In military courts, it is as if Furman et a1. never had been announced. Clearly, then, the Texas statute is inapposite to Article 118(1)³⁷

Unanimity

If premeditation is the determinant of life or death, we also discern a fatal voting problem concerning unanimity.

Initially, only two-thirds of the members need concur in findings of guilty. There is no guarantee of unanimity at this stage since no procedure exists to discover if any member voted for a finding other than premeditated murder. M.C.M., 1969 (Rev.), para, lid (3).

Later, however, it becomes the duty of each member to vote for a proper sentence for premeditated murder; this is so, regardless of his or her possible earlier vote on findings that the accused is either innocent or guilty of some lesser offense not requiring the forced choice of death or life imprisonment. See M.C.M., para. 16b (2) and (3) and Article 118, U.C.M.J. At this point, a death penalty sentence must be unanimous. A “hold out” member who voted during findings for other than premeditated murder is compelled to vote the appropriate sentence for a premeditated murderer— without regard to his or her earlier opinion that the accused is not guilty of that specific crime.

It follows that — even assuming that premeditation somehow becomes the military statutory aggravating/narrowing factor— there is no guarantee that the members found premeditation unanimously.

Sentencing Instructions

In this case, the members received no instruction or explanation as to the significance of the term “premeditation” in sentencing.

The members likely would be nonplussed to learn that premeditation was pivotal in their imposing the death penalty; to the contrary, the record reveals no communication expressed to them of any realistic, direct nexus between premeditation and their unanimous finding of the ultimate penalty.

In regard to sentencing we find that neither the Code nor Manual for Courts-Martial provides adequate standards for how the voting members should exercise their discretion in a capital case. See M.C.M., paras. 75, 76. No standards or factors appear in these sources or in the military judge’s sentencing instructions in this case. The court members were left, at this stage, in a position similar to that of the jurors in Furman; they were merely told to punish the accused “as a court-martial may direct.” The uninhibited standard instructions employed in this case are no substitute for meaningful standards.

Bifurcation; appellate review; a protective system

Neither bifurcation nor meaningful tiered appellate review — both clearly present in military practice — can save an otherwise inadequate statute.³⁸ The claim of mandatory, meaningful review is quixotic at best absent some objective standard which an appellate court conscientiously can review to ascertain if the results were capricious or unsound. In military practice, there is no way to tell. It is significant to note, once again, that some of the companion cases overturned on the same day as Furman boasted such progressive features, but they did not survive scrutiny.³⁹

Nor can it be said that Article 118(1) is saved simply because the military justice system is enlightened and protective of individual rights. Substantial protections are enjoyed by those tried under Federal murder statutes as well — including some benefits not present in the U.C.M.J. These include 20 peremptory challenges; two statutorily-appointed attorneys; a 12-member jury and a requirement for unanimous findings.⁴⁰ Yet despite such enlightened procedures, the Federal murder statute has been consistently declared unconstitutional in application vis-a-vis the death penalty.⁴¹

Conclusion

It is important to spell out what this case is not about. We do not express today our personal views on capital punishment. Neither do we rule on the constitutionality of the military death penalty in combat or wartime situations. Nor do we opine whether this accused should have received the death penalty under a properly-drawn statute. We do not enter the quicksands of legal philosophy to analyze whether Fur-man et a1. were wisely decided. Finally, we do not address whether the forum for change must be Congress, rather than the Executive or even the Judicial branch, with a Furman -type instruction composed by the military judge and placed before a military jury without an amendment to Article 118(1).

Our obligation, rather, is to measure the Code’s premeditated murder provision, given the yardstick of Supreme Court precedent. Doing so, our analysis leads to an inexorable conclusion: Any death penalty statute failing to channel the discretion of the determining authority — whether judge or jury — will not meet the constitutional safeguards established by the Supreme Court.

Article 118(1) cannot stand alone as an exception to such principle. Its constitutionality must be weighed in the same manner as state and Federal death penalty statutes. Given Supreme Court precedent, it is apparent that Article 118(1), which authorizes a court-martial to mete out the death penalty simply upon a showing of premeditation, fails to provide objective standards to channel the discretion of the court-martial.⁴²

Article 118(1) is a constitutionally-deficient anachronism, typical of “murder one” statutes existing in many states prior to Furman. In the post-Furman era, however, it is a fatally flawed throwback.

This deficiency, in our view, cannot be cured by standard instructions on sentencing given to the court; nor can it be avoided by the fact that sentencing is undertaken in a separate bifurcated proceeding where free play is permitted both aggravating and mitigating evidence. In the absence of standards to prevent arbitrariness, there remains no assurance that the untrammeled determination to take the life of an accused is not arbitrary or capricious.

To summarize: Furman and its follow-on cases are a major departure from earlier precedent; they have fundamentally changed the law of the land. Now that the Supreme Court has spoken, Article 118(1) cannot stand as an exception to that teaching. Military jurisprudence must conform to Furman and its progeny; we are persuaded that it does not. Accordingly, we will not approve that portion of the accused’s sentence extending to death; we will approve a sentence of life imprisonment, dishonorable discharge, and accessory penalties.

IV

The accused contends that the military judge erred as to the charge of unpremeditated murder of Airman Lamberty by instructing the court that:

In the absence of evidence to the contrary, it may justifiably be inferred that a person intends the natural and probable consequence of an act purposely done by him. Thus, if a person does an intentional act likely to result in death or great bodily harm, you may infer that he intended to inflict death or great bodily harm, (emphasis added)

To support this thesis, the accused relies principally on Mann v. United States, 319 F.2d 404 (5th Cir.1963) cert, denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964); there, the court rejected a similar instruction. The heart of the accused’s position is this: If an “inference” from a set of facts must be overcome with opposing evidence, that “inference” is in reality converted to a presumption; in turn, this impermissibly shifts the burden of proof to the accused. See also Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

Mann v. United States, supra, contains a jury charge similar to that in the instant case which is quoted above. However, Mann has been often distinguished, limited, and criticized. See, e.g., United States v. McCollom, 664 F.2d 56 (5th Cir.1981); United States v. Apfelbaum, 621 F.2d 62 (3rd Cir.1980); United States v. Haldeman, 559 F.2d 31, 116 (D.C.Cir.1976); United States v. Chiantese, 560 F.2d 1244 (5th Cir.1977), cert, denied, 441 U.S. 922, 99 S.Ct. 2030, 60 L. Ed.2d 395 (1979) (extensive history of Mann, “one of the most discussed ... cases in our circuit.”); Helms v. United States, 340 F.2d 15, 18 (5th Cir.1964).

We do not agree that the inference was improperly converted to a presumption or that the burden of proof was impermissibly shifted to the accused on the issue of intent. United States v. Miller, 8 U.S.C.M.A. 33, 23 C.M.R. 257 (1957) appears dispositive of the matter. See also United States v. Cuffee, 10 M.J. 381 (C.M.A.1981) (distinguishing shifting burden of production from burden of persuasion) and United States v. Speer, 2 M. J. 1244 (A.F.C.M.R.1976) (“In our jurisprudence ... the trial judge, in his discretion, may instruct the court members on recognized justifiable inferences which may be drawn from the evidence.”).

Furthermore, the military judge’s instructions must be weighed as a whole to determine if reversal is required. In this case, the record contains numerous additional instructions which clearly advised the court, inter alia, that the Government has the burden of proving the accused’s guilt beyond a reasonable doubt; that this burden never shifts throughout the trial; and that the law imposes no duty upon an accused to produce any evidence. Viewing the instructions in their overall context, we are satisfied that the members were not misled by the challenged instruction. Capp v. Naughten, 414 U.S. 141,146-146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973); United States v. Duke, 527 F.2d 386 (5th Cir.1976); Guichard v. Smith, 471 F.Supp. 784, 790-791 (E.D.N.Y.1979).

V

We are invited to consider whether the pretrial advice to the convening authority induced in him a disqualifying personal interest in the outcome of the case. Premised upon United States v. Crossley, 10 M.J. 376, 378 (C.M.A.1981), the defense asserted at trial that the pretrial advice was misleading and insufficient because the convenor’s “focus was drawn away from the question of ... referring this case as capital or non-capital.” The specific flaw advanced by the defense is a passage in the advice counselling the convening authority to decide now whether he could ultimately approve capital punishment, should it be adjudged;⁴³ to the defense, this invited the convenor to “state a personal interest” in the outcome. The military judge denied the motion.

We have reviewed the extremely able pretrial advice; we find that it presented a thorough, balanced discussion on the question of capital punishment — both as it related to this case and to the general status of the death penalty since Furman.

Far from attempting to fan the convening authority’s personal interest in a pro-capital punishment direction, the advice actually recommended against referring the case as capital. Furthermore, in our view the specific language in question' did not commit the convening authority in advance to ultimately approving a death sentence; it simply sought to confront him with the gravity of his pretrial determination.

United States v. Crossley, supra, is plainly inapposite. Crossley involves a convening authority who was present at an event while the misconduct charged took place. It offers no support to this assignment of error. We conclude that the military judge did not err in denying trial defense counsel’s motion.

VI

The accused claims error in the alleged failure of the convening authority to grant a defense post-trial motion for a new psychiatric examination pursuant to M.C.M., para. 124. The thrust of this contention is not that the convenor failed to authorize a post-trial psychiatric examination — which was done — but that he “erred in not submitting the entire question of the accused’s sanity for a complete re-evaluation.” We find this assignment without merit.

The defense motion was based on an examination of the accused performed by a New Mexico state forensic evaluation team. Earlier, the accused had been evaluated by an Air Force sanity board, which found him legally responsible and competent to stand trial. Because the New Mexico state board provided only tentative findings, the convening authority directed a post-trial psychiatric examination by Doctor James Corcoran, an eminent forensic psychiatrist specifically requested by the accused. Doctor Corcoran had retired from active military duty but his services were obtained under a special consultation contract.

The convenor requested that Doctor Corcoran “identify and discuss any mental disorders currently present in Airman Gay.” A letter to Doctor Corcoran from the deputy chief of military justice further instructed him not to redo what the pre-trial sanity board had already done; however, Doctor Corcoran was advised to notify the deputy chief of military justice immediately if the doctor believed it necessary to further explore the issues of criminal responsibility or competency. If he found no basis for such exploration, he was to provide his rationale therefor.

Doctor Corcoran conducted an extensive in-patient psychiatric evaluation of the accused at Wilford Hall USAF Medical Center which extended over two days. It included a neurological examination, a sleep-deprived electroencephalogram, and an alcohol-induced encephalogram. Doctor Corcoran found no evidence of either an overt or underlying psychiatric disorder such as schizophrenic process or organic brain syndrome. Furthermore, he saw no reason that the accused’s behavior stemming from chronic alcoholism should warrant the diagnosis of a personality disorder. In regard to the guidance of the deputy chief of military justice, Doctor Corcoran apparently felt that expanded inquiry was unnecessary into the matter of criminal responsibility and competency.

Based on our analysis of the circumstances presented, we hold that a re-evaluation of the accused’s criminal responsibility or competence was not justified. Such matters were fully considered prior to trial, and they were not raised by the accused at trial. Nothing in the record, we believe, suggests that yet another inquiry into the accused’s mental responsibility is warranted. See United States v. Triplett, 21 U.S.C.M.A. 497, 45 C.M.R. 271 (1972); United States v. Wimberley, 16 U.S.C.M.A. 3, 36 C.M.R. 159 (1966).

VII

The accused argues that the convening authority erred in this death sentence case by ordering the adjudged forfeitures to apply on or after the date of his action. In United States v. Matthews, supra, at 533-534, the majority reasoned that: (1) a death sentence imposed by court-martial does not automatically include confinement; and (2) criminal statutes must be strictly construed. Thus, confinement of the accused was seen as a necessary incident to the death sentence while the accused awaited execution — but confinement was not inevitably a part of the sentence. Accordingly, the Matthews majority could find no authority to apply forfeitures as of the date of the convenor’s action.

We disagree. Confinement for life is an inherent part of a sentence to death, in our judgment. To hold otherwise would be to permit a convicted murderer sentenced to death to draw pay and allowances while a prisoner sentenced to confinement for the simplest of delicts would not. This we do not discern to be Congress’ intent.

VIII

The accused further claims that the evidence is insufficient to show premeditation in the murder of Sergeant Rodriguez or specific intent as to the attempted murder of Airman Brockett. We have painstakingly reviewed the record and are convinced beyond peradventure that the evidence is sufficient to sustain the findings of the court-martial as to these two matters.

We believe these issues have been resolved by the superb staff judge advocate’s review in this case. In making our own independent assessment of the evidence in regard to premeditation, we find persuasive the accused’s assertions that he intended to act upon the perceived wrong of the haircut reprimand; his warning of how he would injure someone; his comments as to the violent way in which such a matter would be handled back in his home town; his statements about Sergeant Rodriguez that “I am going to get him tonight”; his forecast that the authorities would be making a mistake that night in issuing him his M-16 rifle and 120 rounds of ammunition; and his comment that “my mother gets all my stuff.” We also find worthy of note the accused’s extensive training with the M-16 rifle and his performance with that weapon at the time in question. We have weighed all the evidence, including that relating to voluntary intoxication. We find no error.

IX

We have considered the other matters raised by the defense and resolve each adversely to the accused. We have also considered the Petition for New Trial under Article 73, U.C.M.J., 10 U.S.C. § 873. Since we find that the death penalty may not be imposed in this case, the factual matters alleged in the Petition for New Trial are mooted. Accordingly, the Petition for New Trial is denied.

X

The findings of guilty are approved. Only so much of the sentence as extends to life imprisonment, dishonorable discharge, forfeiture of all pay and allowances and reduction to airman basic is approved. The findings of guilty and the sentence, as modified, are

AFFIRMED

HEMINGWAY, Senior Judge, and CANEELOS, RAICHLE and SNYDER, Judges, concur.

1 . When the United States Supreme Court is fragmented and no single rationale enjoys the assent of five or more justices, the holding is the position of the members concurring on the narrowest of grounds. See Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

2 . Furman v. Georgia, 408 U.S. 238, 257, 92 S.Ct. 2726, 2735, 33 L.Ed.2d 346, 359 (1972) (Douglas, J., concurring).

3 . Id. at 309-310, 92 S.Ct. at 2762-2763, 33 L.Ed.2d at 390 (Stewart, J., concurring).

4 . Id. at 312, 92 S.Ct. at 2764, 33 L.Ed.2d at 391 (White, J., concurring).

5 . Id. 408 U.S. at 411, 92 S.Ct. at 2815, 33 L.Ed.2d at 449 (Blackmun, J., dissenting); id. at 465, 92 S.Ct. at 2842, 33 L.Ed.2d at 480 (Rehnquist, J., dissenting).

6 . On the same day that Furman was announced, the Supreme Court passed upon 117 other death penalty cases. See Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972) and the numerous memorandum cases accompanying Stewart. See generally Trogolo, Capital Punishment Under the UCMJ After Furman, AJF.L.Rev. 86, 91 (Winter 1974) and Dawson, Is the Death Penalty in the Military Cruel and Unusual? 31 Navy JAG J. 53 (Summer 1980). Furman abruptly changed the constitutional status of discretionary sentencing in capital cases. For the former view, now disavowed, see McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).

7 . Gregg v. Georgia, 428 U.S. 153, 179, 96 S.Ct. 2909, 2928, 49 L.Ed.2d 859, 878 (1976) (Stewart, J.). A painstaking analysis of 35 follow-on state statutes appears at Gillers, Deciding Who Dies, 129 U.Pa.L.Rev. 1, 101-119 (Nov. 1980).

8 . See Dawson, supra note 6, at 64.

9 . Georgia retained the death penalty for the crimes of premeditated murder, felony murder, rape, armed robbery, treason, aircraft hijacking, and kidnapping for ransom or where the victim is harmed. Once a defendant has been convicted of a capital offense by a judge or jury, the second stage of a bifurcated trial is held. The death sentence may be imposed by the jury for aircraft hijacking or treason, in any case. Otherwise, the jury must find, in writing, and beyond a reasonable doubt, the existence of at least one of ten statutory aggravating circumstances before it may impose the death sentence.

In summary form, the aggravating circumstances are:

(1) the defendant’s prior record of conviction for capital felony, or “substantial history of serious assaultive criminal convictions;”

(2) felony murder;

(3) knowingly created a great risk of death to persons in public by weapon or device;

(4) murder for hire;

(5) murder of judicial officer;

(6) solicitation of murder or as agent or em-' ployee;

(7) “offense horrible” — torture, depravity, or aggravated battery;

(8) murder of peace officer, corrections employee, or fireman engaged in performance of duty;

(9) defendant in custody or confinement, or escapee;

(10) murder to avoid lawful arrest.

The judge instructs the jury to consider any mitigating or aggravating circumstances and any statutory aggravating circumstances. If the death sentence is imposed by the jury, a complete record of trial and a separate report by the trial judge are forwarded on appeal. In addition to the conventional appellate process, there is an expedited direct review by the Supreme Court of Georgia and the possibility of executive clemency. See Gregg v. Georgia, 428 U.S. at 165-169, 96 S.Ct. at 2922-2923, 49 L.Ed.2d at 870-872; Ga.Code Ann. §§ 26-1101, 26-1902, 26-2401 (1972) and 27-2534.1 (Supp. 1975). See generally Richey, Death Penalty Statutes: A Post-Gregg v. Georgia Survey and Discussion of Eighth Amendment Safeguards, 16 Wash.L.J. 497 (1977).

10 . Proffitt v. Florida, 428 U.S. at 259, 96 S.Ct. at 2970, 49 L.Ed.2d at 927 (1976).

Florida retained the death penalty for premeditated murder and murder in the course of arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, use of a destructive device or bomb, or the unlawful distribution of heroin. Florida also employs the bifurcated trial. After conviction of a capital offense, the jury considers whether there exists any of seven statutory mitigating factors or any of eight statutory aggravating factors.

The mitigating circumstances are:

(1) no significant prior criminal history;

(2) extreme mental or emotional disturbance at time of crime;

(3) victim a participant or gave consent;

(4) accomplice whose participation was relatively minor;

(5) extreme duress or under domination of another;

(6) impaired mental capacity;

(7) age.

The aggravating circumstances are:

(1) committed while under sentence of imprisonment:

(2) prior capital felony or violent felony;

(3) knowing creation of great risk of death to many persons;

(4) felony murder;

(5) offense committed to avoid arrest or escape custody;

(6) murder for hire;

(7) offense committed to disrupt government function or law enforcement;

(8) offense especially heinous, atrocious, or cruel.

The jury is then directed to consider whether sufficient mitigating circumstances exist to outweigh the aggravating circumstances. Based on this balancing process, the jury renders an advisory opinion by majority vote to the trial judge as to whether the sentence should be life imprisonment or death. The judge then reweighs the statutory aggravating and mitigating circumstances, and if the aggravating fac-

tors outweigh the mitigating factors in a manner “so clear and convincing that virtually no reasonable person could differ,” the judge must sentence the defendant to death and make written findings to that effect. There is automatic review, including an independent review of the relevant factors by the Supreme Court of Florida.

Id. at 248-253, 96 S.Ct. at 2964-2966, 49 L.Ed.2d at 920-923. See also Fla.Stat.Arm. §§ 782.04(l)(a) and 921.141 (Supp.1976-1977).

11 . Jurek v. Texas, 428 U.S. at 274, 96 S.Ct. at 2957, 49 L.Ed.2d at 939 (1976).

The Texas statutory scheme retains the death penalty solely for the following five categories of murder: of a police officer or fireman, for hire, of a penal institution employee, in a prison escape, and felony murder. Upon conviction, the jury considers two statutory questions: (1) whether the evidence established beyond a reasonable doubt that the murder was committed deliberately and with the reasonable expectation that the death of the victim or another would result; and (2) whether the evidence established beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. A third statutory question is asked, if applicable: “[I]f raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”

If the jury unanimously finds that the state has met its burden of proof as to these questions, the death penalty is adjudged. If not, a life sentence is imposed. Additionally, the statute provides for an expedited review by the Texas Court of Appeals. Id. at 265-268, 96 S.Ct. at 2953-2954, 49 L.Ed.2d at 934-936; see also Tex.Penal Code Ann. Tit. 5, § 19.03 (Vernon 1974), Tex.Code Crim.Proc., art. 37.071 (Vernon Supp.1975-1976). For a critique of Jurek, see Black, Due Process for Death, 26 Cath.U.L.Rev. 1, 3 (1976).

12 . Lockett v. Ohio, 438 U.S. at 608-609, 98 S.Ct. at 2966-2967, 57 L.Ed.2d at 998 (1978).

13 . Godfrey v. Georgia, 446 U.S. at 433, 100 S.Ct. at 1767, 64 L.Ed.2d at 409 (1980). See Occhino, Constitutional Procedure for the Imposition of the Death Penalty — Godfrey v. Georgia, 30 DePaul L.Rev. 721 (1981).

14 . Coker v. Georgia, 433 U.S. at 593, 97 S.Ct. at 2861, 53 L.Ed.2d at 989 (1977).

15 . See United States v. Kaiser, 545 F.2d 467, 470 (5th Cir.1977). For excellent analysis by commentators evaluating the dominant themes underlying the Court’s decisions and articulating the present state of the law, see Wheeler, Toward a Theory of Limited Punishment II: The Eighth Amendment After Furman v. Georgia, 25 Stan.L.Rev. 62 (Nov.1972); Hancock, The Perils of Cahbrating the Death Penalty Through Special Definitions of Murder, 53 Tul. L.Rev. 828 (Apr. 1979); and Mitchell and Wein, Evolutions of the Eighth Amendment and Standards for the Imposition of the Death Penalty, 28 DePaul L.Rev. 351 (1979).

16 . The full text of 18 U.S.C. § 1111 reads as follows:

§ 1111. Murder.

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b) Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto “without capital punishment”, in which event he shall be sentenced to imprisonment for life;

Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. June 25, 1948, c. 645, 62 Stat. 756.

At times the courts have directly ruled Section 1111 unconstitutional; on other occasions the prosecution proceeded on the premise that the death penalty was unavailable. See United States v. Dufur, 648 F.2d 512 (9th Cir.1980); United States v. Shepherd, 576 F.2d 719, 729 (7th Cir.1978) cert, denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 155 (1978); United States v. Weddell, 567 F.2d 767, 770 (8th Cir.1977); United States v. Watson, 496 F.2d 1125, 1126 and n. 3 (4th Cir.1973); United States v. Woods, 484 F.2d 127, 138 (4th Cir.1973), cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875 (1974); United States v. Freeman, 380 F.Supp. 1004 (D.N.D.1974); United States v. Quinones, 353 F.Supp. 1325 (D.P.R.1973); see also United States v. Bohle, 346 F.Supp. 577 (N.D.N.Y.1972) (Federal Air Piracy statute condemned due to unfettered “lottery of jury composition and the roulette of judicial selection”).

17 . See Brief of the United States Department of Justice as Amicus Curiae on behalf of the United States Army at 2, 13, United States v. Matthews, 13 M.J. 501 (A.C.M.R.1982), appeal docketed, No. 43,538 (U.S.C.M.A. May 6, 1982).

18 . In response to Furman, at least 35 states adopted radically new and sophisticated statutory death penalty systems. The degree to which these new statutes seek to channel discretion of the sentencing authority by providing aggravating and mitigating factors is revealed in the following typical statistics:

NUMBER OF NUMBER OF

STATE AGGRAVATING FACTORS MITIGATING FACTORS

Alabama 8 7

Arkansas 7 6

California 21 9

Colorado 9 13

Connecticut 6 5

Georgia 10 None listed but unlisted circumstances may be considered

Illinois 7 5

Indiana 9 6

Kentucky 7 8

Louisiana 9 7

Maryland 10 7

Massachusetts 12 5

STATE NUMBER OF AGGRAVATING FACTORS NUMBER OF MITIGATING FACTORS

Missouri 10 7

Nebraska 8 7

Nevada 9 6

New Hampshire 7 5

New Mexico 6 9

North Carolina 11 8

Oregon 3 3

Pennsylvania 10 7

South Carolina 7 9

Tennessee 11 8

Utah 8 6

Virginia 2 5

Wyoming 8 ' 7

These statistics appear in Gillers, supra, note 7 at 102-119.

State courts have played an important role in refining the implementation of these new statutes, in a determined effort to comply with Furman and overcome constitutional objections. See, e.g., State v. Shaw, 273 S.C. 194, 255 S.E.2d 799 (1979) (upholding death penalty with bifurcated system similar to that of Georgia); Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977) cert, denied 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977) (approving constitutionality of 1973 statute with bifurcation and aggravating and mitigating factors); Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert, denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979) (upholding death penalty under 1977 statute prescribing aggravating and mitigating circumstances in bifurcated system); Jacobs v. State, 361 So.2d 640, cert, denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979) (new Alabama statute analogous to Florida’s, with eight aggravating and seven mitigating factors, held valid).

Several state courts have ruled legislative efforts to comply with Furman insufficient. See, e.g., State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert, denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979) (Arizona statutory provision struck down confining defendant to limited number of specific mitigating matters); People v. Dist. Ct. of State, 196 Colo. 401, 586 P.2d 31 (1978) (legislature tried to conform to Gregg and Proffitt by setting forth aggravating and mitigating factors, but exclusion of other relevant factors made statute invalid); Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert, denied, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978) (Pennsylvania statute, revised in 1974, held unconstitutional because it limited consideration of mitigating circumstances); Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976) (Georgia statute allowing death penalty where murder is committed by person having “substantial history of serious assaultive criminal convictions” found vague and unable to withstand constitutional scrutiny); People v. Sup. Ct. of Santa Clara County, 31 Cal.3d 797, 183 Cal.R. 800, 647 P.2d 76 (1982) (California Penal Code provisions based on Proffitt defining circumstances under which death penalty can be assessed ruled unconstitutionally vague).

This last group of cases suggests that even where states have adopted standards to guide a determination of the death penalty, such standards will be carefully scrutinized by the courts and do not easily pass muster. Even in a state such as Florida, with its Supreme Court-approved statutory scheme, departures from or improper application of established standards have been rejected. See, e.g., Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982) (consideration of non-statutory factors and unconstitutional application of aggravating factors impermissible); Henry v. Wainwright, 661 F.2d 56 (5th Cir.1982) (consideration of non-statutory aggravating factors rejected since it broadens discretion rather than channelling it).

19 . Article 118 reads:

Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he—

(1) has a premeditated design to kill;

(2) intends to kill or inflict great bodily harm;

(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life; or

(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson;

is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.

For comments on the U.C.M.J. vis-a-vis the death penalty see Trogolo, supra note 6, at 91; Dawson, supra note 6, at 69; English, The Constitutionality of the Court-Martial Death Sentence, 1979 A.F.L.Rev. 552, 560 (1979); and Russelburg, The UCMJ’s Death Penalty: A Constitutional Assessment, The Advocate, Vol. 13, No. 2 (March-April 1981) 74, 79. Trogolo, Dawson, and Russelburg conclude that the current military death penalty provision for premeditated murder cannot withstand constitutional challenge; English reasons that the military system passes constitutional muster.

20 . Furman v. Georgia, 408 U.S. at 417-418, 92 S.Ct. at 2818, 33 L.Ed.2d at 452 (Powell, J., dissenting).

21 . Id. at 412, 92 S.Ct. 2842, 33 L.Ed.2d 480 (Rehnquist, J., dissenting) (desertion in the face of the enemy). See also id. at 465, 92 S.Ct. at 2815, 33 L.Ed.2d at 449 (Blackmun, J., dissenting). A contrary view appears in United States v. Denson, 588 F.2d 1112, 1121 n. 9 (5th Cir. 1979) (Article 118, U.C.M.J., not affected by Furman).

22 . Schick v. Reed, 419 U.S. at 260, 95 S.Ct. at 382, 42 L.Ed.2d at 435.

23 . Id at 271, 95 S.Ct. at 387, 42 L.Ed.2d at 441. In the District of Columbia Federal Circuit Court below, Judge Wright commented in dicta for the 2-1 majority that if the military death sentence had arisen after Furman, excision of the death sentence would have been required. Schick v. Reed, 483 F.2d 1266 (D.C.Cir.1973).

24 . See United States v. Fountain, 2 M.J. 1202 (N.C.M.R.1976); United States v. Day, 1 M.J. 1167 (C.G.C.M.R.1975); see also United States v. Vaughn, 48 C.M.R. 726 (A.F.C.M.R.1974) and United States v. Collier, 49 C.M.R. 719 (A.F.C. M.R.1975), where Air Force Military Judges Allan C. Smith and William W. Gobrecht held that Furman was applicable to the military and then treated these cases as non-capital. See Trogolo, supra note 6, at 95; see also United States v. Chriss, cited in English, supra note 19, at 552. For a case treated as non-capital by the convening authority on the basis of Furman, see Wood v. McLucas, 22 U.S.C.M.A. 475, 47 C.M.R. 643 (1973).

25 . See also Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382, 389 (1980); Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393, 401 (1977). See generally, Trogolo, supra note 6, at 91; Gillers, supra note 7, at 33; Meagher, Capital Punishment: A Review of Recent Supreme Court Decisions, 52 Notre Dame Law. 261, 274 (Dec. 1976).

26 . Gregg v. Georgia, 428 U.S. at 197, 96 S.Ct. at 2936, 49 L.Ed.2d at 888.

27 . Id. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at 887 (1976). See also Lockett v. Ohio, 438 U.S. at 602, 98 S.Ct. at 2963, 57 L.Ed.2d at 985.'

28 . Gregg v. Georgia, 428 U.S. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at 887.

29 . Proffitt v. Florida, 428 U.S. at 259, 96 S.Ct. at 2970, 49 L.Ed.2d at 927.

30 . See note 11, supra. The Texas statute may set the constitutional minimum for an acceptable death penalty. See Mitchell and Wein, supra note 15, at 368.

31 . Godfrey v. Georgia, 446 U.S. at 433, 100 S.Ct. at 1767, 64 L.Ed.2d at 409 (1980). See Mitchell and Wein, supra note 15, at 731-38; Occhino, supra note 13, at 721, 730-38.

32 . When the U.C.M.J. was passed in 1951, the judiciary was concurrently expressing its faith in the capabilities and responsibilities of a discretionary sentencing system. This philosophy may well have been at its zenith when Justice Harlan wrote in McGautha v. California, 402 U.S. at 208, 91 S.Ct. at 1467, 28 L.Ed.2d at 726 (1971), with the concurrences of Justices White and Stewart: In light of history, experience and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to the Constitution. The states are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision ....

A year later, in a dramatic disavowal of McGautha, the Furman decision was announced.

33 . Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972).

We synthesize the Furman companion cases in three ways. First, we note cases where the defendant clearly was found guilty under a premeditated murder statute and the sentence was overturned by the Furman trailer cases. Second, we list capital sentencing cases where premeditation appears to be crucial but the court does not specifícally address premeditation. Third, approaching the subject from a slightly different perspective, we surface specific statutes overturned by Furman and compare those statutes to Article 118(1).

First, the following premeditation cases, decided the same day as Furman, fall within the initial category:

Connecticut — Davis v. State, 158 Conn. 341, 260 A.2d 587 (1969) (six counts of first degree murder with a carbine, trial by three judges, defendant “going to hurt someone tonight”).

Delaware — Steigler v. State, 277 A.2d 662 (1971) (first degree murder, three charges, arson). Seeney v. State, 277 A.2d 670 (1971) (first degree murder, defendant shot fiancee).

Florida — Brown v. State, 245 So.2d 68 (1971) (first degree murder; robbery at motel).

Georgia — Lee v. State, 226 Ga. 162, 173 S.E.2d 209 (1970) (defendant shot victim in his apartment; admitted to earlier burglaries of the apartment). Kentucky — Williams v. Commonwealth, 464 S.W.2d 244 (1971) (deliberate murder of wife’s ex-husband in her presence for $1,000.00).

Massachusetts — Commonwealth v. French, 357 Mass. 356, 259 N.E.2d 195 (1970) (conspiracy to murder, six defendants).

North Carolina — State v. Hamby, 276 N.C. 674, 174 S.E.2d 385 (1970) (heinous murder of 74-year old man).

Pennsylvania — United States ex rel. Phelan v. Brierley, 427 Pa. 265, 234 A.2d 540 (1967), 453 F.2d 73 (1971) (defendant confessed to planned double murder).

Texas — Thames v. State, 453 S.W.2d 495 (Tex.Cr.App.1970) (murder of operator of night club).

Virginia — Brown v. Commonwealth, 212 Va. 515, 184 S.E.2d 786 (1971) (atrocious murder of four-year old).

Washington — State v. Tyler, 77 Wash.2d 726, 466 P.2d 120 (1970) (defendant deliberately shot women in elevator).

Second, we consider the Furman companion cases in which premeditation is indicated from the factual circumstances presented but the reviewing court does not specifícally address premeditation. This category includes: Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968) (strangulation — murder of woman); Thacker v. State, 226 Ga. 170, 173 S.E.2d 186 (1970) (defendant deliberately shot detective arresting him); Bartholomey v. State, 260 Md. 504, 273 A.2d 164 (1971) (escapee murdered two police officers); Koonce v. State, 456 P.2d 549 (Okl.Cr.1969) (heinous murder in Oklahoma of two women; apparent rape); State v. Atkinson, 253 S.C. 531, 172 S.E.2d 111 (1970) (defendant shot officer in head from rear seat of patrol car); McKenzie v. State, 450 S.W.2d 341 (1970) (arson; defendant murdered eight people).

Third, we inspect several state statutes voided by Furman et ai. which prove remarkably similar to Article 118(1) of the Code. Thus, e.g., in § 53-10 of the Connecticut General Statutes, the legislature had provided that on conviction for murder in the first degree “the determination of the penalty of life imprisonment or death shall be in the discretion of the court or jury trying the issue of fact on the evidence presented.” Pursuant to this statute the Connecticut Supreme Court in State v. Delgado, 161 Conn. 536, 290 A.2d 338 (1971) affirmed a conviction and death sentence for the exceptionally heinous murder of a police officer. Despite Connecticut’s bifurcated procedure, the U.S. Supreme Court vacated the death penalty in a trailer case to Furman. Delgado v. Connecticut, 408 U.S. 940, 92 S.Ct. 2879, 33 L.Ed.2d 764 (1972). For examples of other discretionary state statutes invalidated by the Furman trailer cases providing for death or life imprisonment to be determined by the sentencing authority — as does Article 118(1)— see Okla.Stat.Ann. Tit. 21 § 1707 (West 1971), overruled in Fesmire v. Oklahoma, 408 U.S. 935, 92 S.Ct. 2855, 33 L.Ed.2d 749 (1972); Miss. Code Ann. § 97-3-21 (1972), overruled in Irving v. State, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); N.C.Gen.Stat. § 14-17 (1949), overruled in Miller v. North Carolina, 408 U.S. 937, 92 S.Ct. 2863, 33 L.Ed.2d 755 (1972).

We note that in the 1972 decisions, the Supreme Court failed to discover one satisfactory statutory scheme for imposition of the death penalty. See Furman v. Georgia, 408 U.S. 845 at 934-942, 92 S.Ct. 2726 at 2845-2879, 33 L.Ed.2d 346 at 745-765. Yet in these cases, “premeditation statutes” accounted for 61 death sentences in 19 states. United States v. Matthews, supra, at n. 22 (Jones, S.J., dissenting). Therefore after analysis of these cases and statutes, we believe precedent fails to support the rationale of the Matthews majority that premeditation can serve as a satisfactory narrowing factor to avoid arbitrariness in assessing the death penalty.

34 . MCM, 1969 (Rev.) para. 197b provides:

b. Premeditation. A murder is not premeditated unless the thought of taking life was consciously conceived and the act or omission by which it was taken was intended. Premeditated murder is murder committed after the formation of a specific intent to kill someone and consideration of the act intended. It is not necessary that the intention to kill shall have been entertained for any particular or considerable length of time. When a fixed purpose to kill has been deliberately formed, it is immaterial how soon afterwards it is put into execution. The existence of premeditation may be inferred from the circumstances surrounding the killing.

See also Dawson, supra note 6, at 70. In the instant case, the defense attempt to introduce specific mitigating factors was rejected by the military judge.

35 . Arbitrariness has been condemned in the selective enforcement of the death penalty. See Furman v. Georgia, 408 U.S. 238, 245, 251-252, 92 S.Ct. 2726, 2786, 33 L.Ed.2d 346, 356-357 (1972) (Douglas, J., concurring); see Mitchell and Wein, supra, note 15 at 383; Wheeler, supra, note 15 at 80-83.

The accused in this case is black. In view of our disposition today, we do not reach the question of racially discriminatory application of the military death penalty. For a provocative argument as to the disproportionate impact of the death sentence on black military personnel under the U.C.M.J., see Brief of the N.A.A.C.P. Legal Defense and Educational Fund, Inc., et al., as Amicus Curiae on behalf of the United States Army at 28, United States v. Matthews, 13 M.J. 501 (A.C.M.R.1982) appeal docketed No. 43,538 (U.S.C.M.A., 6 May 1982) (“of the 12 servicemen executed since 1950, at least 8, and perhaps as many as all 12, were black.”)

Over and above the problem of racially discriminatory application is the more general problem of whether only the most vile military murderers receive the death penalty. It has been argued that if the U.C.M.J. escapes the defects inherent in pre-Furman statutes, statistics pertaining to implementation of military death penalties will disclose consistent, evenhanded application. For a critical view that there is no such consistency, see Russelburg, supra note 19, at 81-83 and Dawson, supra note 6, at 54 and 57.

36 . It is important to understand how far short the present Article 118(1) falls from the standards required by Furman. See the cases gathered at note 18, supra. The point might best be illustrated by comparing the present article with a proposed Article 118 purportedly meeting Furman standards. Dawson, supra, offers the following proposal:

10 U.S.C. § 918 might be amended to add the following: (5) If a guilty finding under clause (1) is entered, the determination whether sentence of death shall be imposed shall be in the discretion of the members. In exercising such discretion, the members shall take into account the aggravating and mitigating circumstances herein enumerated and any other facts deemed relevant but shall not impose sentence of death unless they find unanimously and beyond a reasonable doubt, in writing, the existence of at least one of the aggravating circumstances enumerated herein.

A. Aggravating Circumstances

(i) The murder was committed by a service member actually serving a sentence to confinement at hard labor awarded by a general court-martial or a special court-martial.

(ii) The defendant was previously convicted of an offense punishable by imprisonment for five or more years pursuant to the Table of Maximum Punishments, Manual for Courts-Martial, 1969 (Rev.).

(iii) At the time the murder was committed the defendant also caused the death of another person.

(iv) The defendant knowingly created a great risk of death to many persons.

(v) The murder was of another person subject to this Chapter, in time of war.

(vi) The murder was committed for pecuniary gain.

(vii) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.

B. Mitigating Circumstances

(i) The defendant has no significant history of prior criminal activity.

(ii) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(iii) The victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.

(iv) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.

(v) The defendant is a principal under Article 77, Uniform Code of Military Justice, in a murder committed by another person and his participation in the homicidal act was relatively minor.

(vi) The defendant acted under duress or under the domination of another person.

(vii) At the time of the murder, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.

Another suggestion is contained in the proposed Rule 1004 of the new draft Manual for Courts-Martial.

We neither endorse nor disapprove these proposals, but advance them to show how radical the required surgery might be to square the current version with Furman standards.

37 . See Jurek v. Texas, 428 U.S. at 270-272, 96 S.Ct. at 2950, 49 L.Ed.2d at 937-38. See also English, supra note 19, at 567.

One writer has commented that the Texas statute is paralleled in four other states:

Texas is the only state with a bifurcated sentencing procedure which requires the jury to consider three questions of a general nature concerning the offender and his crime. However, the Texas “laundry list” murder statute is similar to death penalty statutes of four other states [Connecticut, Arkansas, Ohio, and Utah.] Three of these states require, in addition to consideration of the “laundry list,” a consideration of aggravating circumstances in the sentencing stage of the trial. Consequently, in order to impose a death sentence these statutes require either a premeditated murder or a murder occurring under an aggravating circumstance. A second aggravating circumstance must then be found during the sentencing stage of the trial which must outweigh any mitigating circumstances considered at that time. [Ohio] requires an indictment to be returned specifying both a murder conviction and an aggravating circumstance. If this is returned, the sentencing authority must then consider mitigating circumstances ... these statutes should meet Court approval (footnotes omitted; emphasis added)

Richey, supra note 9, at 505-506.

38 . See Godfrey v. Georgia, 446 U.S. at 426 and 429, 100 S.Ct. at 1763 and 1765, 64 L.Ed.2d at 405 and 407; see Richey, supra note 9, at 507 n. 78.

39 . See note 33, supra.

40 . See Fed.R.Crim.P. 24(b) (peremptory challenges); 18 U.S.C. § 3005 (two attorneys to defend capital cases); Fed.R.Crim.P. 23(b) (twelve-member jury); and Fed.R.Crim.P. 31(a) (unanimity of verdict).

41 . See notes 15 and 16, supra.

42 . Members of a military jury are generally knowledgeable in matters of command. However, does this mean such members are so automatically free of impulse and emotion so as to be immunized from the arbitrariness against which Furman militates? See generally Occhino, supra note 13, at 727.

The claim that pretrial protections in the military surpass civilian counterparts is particularly diminished in this case; the convening authority referred the case as capital despite the recommendation of his staff judge advocate.

43 . The paragraph reads as follows:

The decision to refer Specification 1 of Charge II to trial as capital or non-capital rests solely with you as the general court-martial convening authority. Aside from this pretrial advice, neither the Uniform Code of Military Justice, Manual for Courts-Martial, nor case law provides you with any guidance upon which to base your decision. I believe the decision must be premised upon fairness and due process for both the accused and our society. In the final analysis, I feel you must ask yourself if you are willing to approve a capital sentence in this case (should one be adjudged by the court-martial) and forward it to the President of the United States for his ultimate decision. I also believe the procedural safeguards, which must be followed in capital cases, would overly complicate the proceedings, prolong the court-martial, and increase the potential for reversible error. Aside from the serious constitutional issues surrounding the military death penalty, I believe the facts and circumstances of this case would not unanimously convince a court-martial, or eventually the President, of the propriety of the death sentence in this case, (emphasis added).