He'd Should Have Still Been In Prison

It has been widely reported that the Air Force had erred in not forwarding the conviction for domestic violence of the killer in the Sutherland Springs, TX church murders. The Air Force has acknowledged their error in not forwarding this information for inclusion in the FBI's National Instant Criminal background check system. If they had done so, the killer - who was legally prohibited from owning a firearm - would never have passed NICS background checks in both Colorado and Texas. There was another error in my estimation as I make clear in my discussion of the potential sentences the killer could have gotten in both the military and civilian courts.

The first document is a record of the killer's general court martial held at Holloman AFB in New Mexico. It is clearly marked a Crime of Domestic Violence.

Court Martial Record of Devin P. Kelley by jpr9954 on Scribd

If you read this document carefully, the killer pled guilty to two charges of assault and had another five dismissed or withdrawn. This was obviously a plea bargain though there is no mention of it in the document. Later mentions in the press confirm it.

Looking at the Air Force's Manual for Courts-Martial that was in effect in 2012, Specification 2 meets the UCMJ's definition of "aggravated assault". Remember, he hit the child so hard that he fractured his skull according to Col. Don Christensen (USAF-Ret.) who was the prosecutor in the case.

(4) Aggravated assault.
(a) Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm.
(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;
(ii) That the accused did so with a certain weapon, means, or force;
(iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and
(iv) That the weapon, means, or force was
used in a manner likely to produce death or grievous bodily harm.
(Note: Add any of the following as applicable)
(v) That the weapon was a loaded firearm (vi) That the person was a child under the age of 16 years.

The manual goes on to add that inflicting grievous bodily injury upon a child under the age of 16 increases the maximum punishment. The sentence for the aggravated assault on the step-son in which he intentionally inflicted grievous bodily injury could have been dishonorable discharge, forfeiture of pay, and eight years of confinement. Even if they deemed it a simple assault, he still would have gotten a dishonorable discharge and two years of confinement. He got a bad conduct discharge and one year of confinement.

Let's compare this to how a civilian court would have defined the crime and what sentence a civilian judge would have imposed. Because I am most familiar with North Carolina law, I'll use it for my purposes. Other states will have different definitions and different sentencing guidelines.

North Carolina differentiates between "physical injury" and "serious bodily injury". The former causes great pain and suffering. By contrast, "serious bodily injury" is an injury that "creates a substantial risk of death", permanent disfigurement, coma, extreme and prolonged pain, etc. I think a reasonable person would agree that a fractured skull is a serious bodily injury.

North Carolina law also differentiates between assaults on adults and those on children. The assault on the former wife which included strangulation (among other things) would be covered by NCGS 14-32.4. It only needs to cause physical injury or pain. That would be treated as a Class H felony.

The more serious charge would be the assault on the child and would be covered by laws detailing child abuse. NCGS 14-318.4.(a3) states:

A parent or any other person providing care to or supervision of a child less than 16 years of age who intentionally inflicts any serious bodily injury to the child or who intentionally commits an assault upon the child which results in any serious bodily injury to the child, or which results in permanent or protracted loss or impairment of any mental or emotional function of the child, is guilty of a Class B2 felony.

Looking at the sentencing guidelines for felonies that were in effect in North Carolina for the time period in question, Specification 1 of the charges against the killer would have been a Class H felony. The presumptive range for incarceration for this charge as a first time offense would be 5 to 6 months in prison. However, it is the charge for the attack on the step-son that brings serious time. It is a Class B2 felony which has a range of 94 to 196 months in prison. The presumptive range is 125 months to 157 months imprisonment. In other words, even if the sentences ran concurrently and he got the absolute minimum sentence for his vicious attack on the child, he would not have gotten out of prison until sometime in 2020.

I have a great respect for the military. My father served 28 years in the Army. Likewise, the Complementary Spouse's dad, brother, and sister-in-law all were Air Force officers. I have been assured that the Air Force takes child abuse seriously and every base has a Commanders Council on Child Abuse. That said, I think the military justice system failed the people of Sutherland Springs, Texas and the people of the United States. In my opinion, the main goal of this General Court Martial and the attendant sentence was to get rid of an undesirable airman and the quicker the better. The less the Air Force had to deal with him in the future, the better in their (grossly incorrect) estimation.