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(1) Desertion (Table I, No. 1)-No one can approach the subject of sentences for desertion in time of war without keeping in mind the solemn and terrible warning recorded expressly for our benefit by Brig. Gen. Oakes, acting assistant provost marshal general for Illinois, as set forth in his report printed in the Report of the Provost Marshal General for the Civil War (Part II, p. 29). In impressive language he lays the following injunction upon us:

Incalculable evil has resulted from the clemency of the government toward deserters. By a merciful severity at the commencement of the war the mischief might have been nipped in the bud, and the crime of desertion could never have reached the gigantic proportions which it attained before the close of the conflict. The people were then ardent and enthusiastic in their loyalty, and would have cheerfully and cordially assented to any measures deemed necessary to the strength and integrity of the Army. They had heard of the "rules and articles of war,” and were fully prepared to see * that deserters from the Army would be remorsely arrested, tried by court-martial, and, if guilty, be forthwith shot to death with musketry.

This was unquestionably the almost universal attitude of the public mind when hostilities began, and the just expectations of the people should not have been disappointed. Arrest, trial, and execution should have been the short, sharp, and decisive fate of the first deserters. * * The Government was far behind the people in this matter, and so continued, until long and certain impunity had thrown such swarms of deserters and desperadoes into every State that it was then too late to avert the calamity.

* * I state these things so that, if we have another war, the Government may start right * * * put deserters to death, enforce military law, strike hard blows at the outset, tone up the national mind at once to a realization that war is war; and be sure that such a policy will be indorsed and sustained by the people.

There are other suggestions to be made in respect to deserters, but the one I have already advanced—the non-indorsement of the penalties provided by the military code for the crime of desertion, especially at the beginning-is, beyond all question, the grand fundamental cause of the unparalleled increase of that crime, and of the inability of district provost marshals, with their whole force of special agents and detectives, to rid the country of deserters.

This solemn warning was naturally in our minds at the opening of the present war. But, in spite of its urgency, it was decided to exhibit our faith in the American people, and to place our trust in that loyalty and devotion to duty which we felt sure would characterize the vast majority of to-day's young American manhood. We believed that the "short, sharp, and decisive fate of the first deserters” should not be the extreme penalty as urged by Gen. Oakes. And the view was generally accepted in the Army that terms of imprisonment should be ordinarily deemed the adequate repressive measure for the few who might need it. And it is a fact that of the (approximately) 3,000 convictions for desertion, during the war, the sentence of death was imposed in only 24 cases, and in every such case it was commuted or remitted.

It must, therefore, be kept in mind at the outset that the refusal to adopt the policy of death sentences for desertion was in itself a repudiation of the policy of extreme severity; and that the practice of limiting desertion sentences to terms of imprisonment is in itself the adoption of a policy of leniency. Reproach for severity must deal with the fact that the policy adopted disregarded both the extreme penalty authorized by Congress and the warnings of the Civil War.

Turning, then, to the recorded facts, we find in the table that the total number of convictions for desertions for the year October, 1917-September, 1918, was 2,025; that the average sentence was 7.58 years; that nearly 24 per cent of these sentences were for less than 2 years; that 64 per cent were for less than 10 years; and that only 35.90 per cent were for a greater period than 10 years. The Article of War reads:

Any person who deserts shall, if the offense be committed in time of war, suffer death, or such other punishment as the court-martial may direct.

It would seem, therefore, that in point of severity the result of courts-martial sentences for desertion can not be charged with erring on the side of severity.

You will notice that I do not here attempt to account for the justice of individual cases.

Certain of the sentences for 25 years, or even for lesser periods, are open to criticism as excessively severe under the circumstances of the individual case. But it must be kept in mind that these trials and sentences were found legally valid by the Judge Advocate General's Office; that the only issue of doubt that could arise concerns the quantum of the sentence; and that the scrutiny of the clemency section in the Military Justice Division of the office may be relied upon to detect cases of excessive severity before any excessive portion of such a sentence has been served. But the excessive severity of an individual sentence is not the question here; that question would call for the scrutiny of the particular case. The question here is of general conditions. What the above figures show in respect to general conditions, or the trend of conditions, is that the practice has been one of relatively moderate penalties instead of the severest one permissible under the law.

(2) Absence without leave (Table I, No. 2)—Absence without leave is an offense which represents, in many instances, cases of actual desertion; but, owing to the movements of the military unit and thus the difficulty of obtaining the necessary technical proof, the actual deserter is frequently convicted of no more than an absence without leave. It is, therefore, plain that the offense of absence without leave may, upon its circumstances, merit an extremely severe penalty, equal to that of desertion. In time of war this offense may lawfully be punished by any penalty short of death; in time of peace a presidential order limits the maximum penalty to six months' confinement.

For the year ending September, 1918, the total convictions for this offense number 3,362; the average sentence was 1.59 years (or only three times the small maximum allowed in peace times); 11 per cent of the offenses received no penalty of imprisonment; 67 per cent received a sentence of less than two years imprisonment; and only 22 per cent received a penalty of more than two years in prison. When it is remembered, as above pointed out, that this offense is in many cases virtually the offense of an actual deserter, it will be seen that the number of the sentences over two years is not disproportionate to the probable ratio of cases individually calling for the higher penalties. An average sentence of 1.59 years for this offense, committed in time of war, can not be deemed an exhibition of severity, where in fact the act of Congress establishing the Articles of War leaves the court-martial absolutely untrammelled (short of the death sentence) in the penalty to be fixed to this offense.

(3) Sleeping on post (Table 1, No. 3)—The offense of sleeping on post is punishable by death in time of war, and in time of peace "any punishment except death that a court-martial may direct." There were two sentences of death imposed by courts-martial in France for sleeping on post in the zone of operations and in the front-line trenches; those two individual cases I have already commented on in the first part of this letter. Of the whole 609 convictions, some 575 of the offenses took place in the United States, where it may be supposed that the highest penalty suitable for forces engaged with the enemy would hardly be applicable. And it is a fact that of the entire 575 there was only one sentence over 15 years and only four sentences over 10 years. For 10 per cent of the sentences no imprisonment at all was prescribed; for 62.40 per cent of the sentences, the period imposed was less than 2 years; and all told, only 27.42 per cent of the sentences were for more than two years. Having in view the maximum provisions of the Articles of War, it seems plain that the treatment of this offense by courts-martial can scarcely be called a harsh one.

(4) Assaulting a superior officer (Table 1, No. 4)—The offense of assaulting an officer is punishable, under the Articles of War, by "Death or such other punishment as the court-martial might direct"; and this irrespective of a state of war or of peace. The total convictions for this offense were only 31, giving an average sentence of 4.10 years; nearly 50 per cent of them being for a period of less than 2 years. Again, one may say that in the face of the capital punishment expressly authorized as a maximum by the Articles of War, courts-martial have not followed a practice which may be characterized as harsh or severe.

(5) Assaulting a noncommissioned officer (Table I, No. 5)The offense of assaulting a noncommissioned officer is liable to "any punishment that the court-martial may direct"; and this irrespective of a state of peace or war. The total number of such convictions was 132; the average sentence was 2.36 years; more than 6 per cent were punished without imprisonment, and more than 57 per cent were punished by imprisonment of less than 2 years. There are half a dozen sentences for upwards of 10 years; the justification for these must rest upon their individual circumstances. But the average sentence of 2.36 years, compared with the maximum allowable under the Articles of War, can not be admitted to exhibit a general disposition to severity, but quite the contrary.

(6) Disobeying a noncommissioned officer (Table I, No. 6)The disobedience of the lawful order of a noncommissioned officer is by the Articles of War placed under the same penalty as the assaulting of a noncommissioned officer, that is, the court-martial has complete discretion in choosing the penalties, except that of death. The total number of convictions was 411, and the average sentence was 3.04 years; 8.27 per cent of sentences gave no period of imprisonment; 50 per cent gave a period of less than 2 years.

In itself, this average sentence, comparing it with the maximum allowed by the Articles of War, can not be referred to as a severe one. It is notable, however, that this offense of disobeying a noncommissioned officer, received a higher average sentence, viz., 3.04 years,


than the apparently more heinous one of assaulting a noncommissioned officer, viz., 2.36 years. It may be admitted that some explanation remains to be sought for this apparently anomalous result, but it can be pointed out here that the disobedience of a noncommissioned officer is often of a deliberate character making the offense a highly serious one, whereas the offense of assaulting an officer is often the result merely of a quick temper without any deliberate intention of resistance to authority, and that it thus deserves considerate attention by the tribunal.

(7) Mutiny (Table I, No. 7)-There were 51 convictions for mutiny; the average sentence was 7.93 years; 27 per cent fell between 2 and 3 years, and 43 per cent fell between 10 to 15 years; the other sentences scattering over the various percentages. The Articles of War provide that a person guilty of mutiny "shall suffer death or such other punishment as the court-martial may direct," irrespective of a state of peace or war.

When committed in its most significant form, it is, of course, the most heinous offense of a soldier. But it may also be committed under much less culpable circumstances. In short, it gives an opportunity for the widest range of discretion in the imposition of sentences. This inherent quality is reflected in the wide range of sentences actually imposed. In view of the fact that, in an army numbering more than 3,000,000 men at the time covered by these records, there were only 51 offenses in the nature of mutiny or related thereto, out of a total number of offenses of 12,472, it is plain that the number of such convictions is extremely small; and it must be inferred that the commanding officers were not seeking relentlessly for offenses that could be characterized as mutiny, and that the offenses actually characterized as such were offenses which well deserved the name. From June, 1917, to June, 1918, when the Regular Army and National Guard together consisted of less than 300,000 men, the total number of convictions for mutiny was 43; and yet with an Army of 10 times the size, the number of convictions for mutiny increased only one-fifth. It seems obvious that the practice of courts-martial during the

year of the war could hardly justify a reproach of severity for the offense of mutiny.

(8) Disobeying standing orders (Table I, No. 8)—This offense is punishable under the Articles of War by such sentence of imprisonment as the court-martial may direct. The direct number of convictions for this offense was 208; the average sentence is 1.96 years; for 12 per

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