California native Hasan K. Akbar joined fellow convicted killer Dwight J. Loving on the military’s death row 11 years and several legal curves ago.
Now, aided by some prominent allies, Akbar wants the Supreme Court to reverse his death sentence by revisiting its own decades-old decision in a case brought by Loving. It’s a capital punishment challenge that gives justices a rare opportunity to march into matters of military law.
It’s also a challenge that illuminates the hard, close quarters of the military’s Leavenworth, Kansas-based death row, where Akbar and Loving account for one-third of the doomed inmate population.
Akbar’s appeal, moreover, reaches the Supreme Court just as Justice Stephen Breyer is making clear his own readiness to revisit the underlying question of whether capital punishment is constitutionally permissible.
“Not only is (Akbar) offering a substantial constitutional challenge to a death sentence, but his challenge, if affirmed, would invalidate the entire scheme by which the military justice system currently imposes capital punishment,” attorneys for the National Institute of Military Justice wrote in a brief filed in support of Akbar’s case.
In 1996, when the Supreme Court decided Loving’s case, Akbar was studying engineering at the University of California, Davis. The Los Angeles native, born Mark Fidel Kools, had struggled through college but was within a year of completing the academically rigorous double-degree program.
Akbar’s father had served time in prison, as had Loving’s father, whom a defense lawyer described as “an alcoholic, with a rap sheet four pages long.” Akbar’s father, though, converted to Islam while incarcerated and Akbar excelled in high school, while Loving dropped out.
Convicted of murdering two men while stationed in 1988 at Fort Hood in Texas, Loving began appeals that, against the odds, reached the Supreme Court in 1996. Few soldiers get that far. In the last five terms, the high court has decided 385 cases. None came via the U.S. Court of Appeals for the Armed Forces, the summit of the military justice system.
In what amounted to a 9-0 decision, the Supreme Court upheld Loving’s death sentence. The justices reasoned that the president, as commander in chief, could set the aggravating factors that might justify a death sentence.
Akbar’s case, some think, gives the court a strong reason to revisit the issue.
“If the court was ever going to pay any attention to the military justice system, this would seem to be a compelling case in which to do so,” Stephen Vladeck, a professor at American University’s Washington College of Law who co-wrote a brief supporting Akbar, said Wednesday.
Several factors were subsequently considered in Akbar’s sentencing, after he was convicted of killing two soldiers and wounding 14 in a March 23, 2003, attack at a U.S. Army staging base in Kuwait.
“This case involved many aggravating circumstances, including (Akbar’s) murder of two military officers, his use of grenades, the extensive injuries to some officers and the impact of the attack on the unit as it prepared for battle,” the Court of Appeals for the Armed Forces concluded last year.
But in the 20 years since the Supreme Court rejected Loving’s challenge to his sentence, some law has also changed. The question pushed by Akbar’s attorneys and allies is whether this change undermines the 1996 Loving decision and thereby earns Akbar another chance.
In particular, the Supreme Court, in a landmark 2000 decision called Apprendi v. New Jersey, concluded that facts that enhance a punishment must be submitted to a jury and proved beyond a reasonable doubt. A follow-up 2002 decision added that this standard applied to aggravating factors used in imposing the death penalty.
“This revolution in the court’s understanding of aggravating factors has swept away Loving’s foundations,” Akbar’s attorneys wrote in their Supreme Court petition, adding that “the fundamental nature” of aggravating factors has changed.
Citing these Supreme Court cases, the defense attorneys argue that Congress must determine the elements that make for a military capital offense, because it is Congress that’s responsible for writing the law that the president executes.
Potentially boosting the odds that the Supreme Court will take Akbar’s case, the National Association of Criminal Defense Lawyers, the National Institute of Military Justice, and the Air Force and Navy-Marine Corps appellate defense divisions all filed briefs on his behalf.
The government’s response, which is due next Wednesday, will rely at least in part on the military court’s 3-2 decision rejecting Akbar’s challenge and concluding that any legal error was “harmless.”
“We will continue to adhere to the holding in Loving unless the Supreme Court decides at some point in the future that there is a basis to overrule that precedent,” Judge Kevin A. Ohlson wrote.