Racial discrimination in the administration of the death penalty: the experience of the United States Armed Forces (1984-2005).

Author:Baldus, David C.

    This Article presents the results of an empirical study of racial discrimination in the administration of the death penalty in the United States Armed Forces between 1984, the year military law was brought into conformity with the requirements of Furman v. Georgia (1972), and 2005. (1) A main theme of this paper is the difference between the military system and the civilian systems that have been similarly studied in the operation, outcomes, racial disparities, and the sources of those disparities.

    Our military evidence takes two forms. The first is evidence of systemic racial disparities in the charging and sentencing decisions of convening authorities and court-martial members that non-racial case characteristics do not explain. (2) The second is quantitative and qualitative assessments of the risk of racial discrimination in each case in which a minority accused was sentenced to death.

    Our database includes military prosecutions for all "potentially death-eligible" murder cases known to us (n = 105), including all "factually death-eligible" murder cases that resulted in a capital murder conviction (by plea or at trial) with one or more statutory aggravating factors found or present (n = 97). (3) The sentencing dates of these cases range from July 16, 1984, to October 13, 2005. Fifteen of these cases resulted in a death sentence.

    Part I of the Article identifies death-eligible offenses under military law, including premeditated and felony murder, which are the focus of this study. Part II describes the military capital charging and sentencing process for death-eligible murder cases. Part III explains our methodology. Part IV presents evidence of systemic racial disparities. Part V assesses the risk of racial discrimination in ten cases in which a minority accused received the death sentence. Part VI contrasts the findings of racial disparities in death-eligible capital cases with the evidence of racial disparities in non-capital sentencing outcomes among the sixty-six death-eligible murder cases that did not advance to a capital sentencing hearing.

    Part VII presents our conclusions and policy recommendations. We found compelling evidence that the race of the accused and of the victim has influenced charging and sentencing decisions in the processing of death-eligible murder cases in the system since 1984. There is, however, an important distinction between the decisions made in the processing of these cases. The risk of racial prejudice is confined entirely to the decisions of convening authorities and members that lead up to and include the members' death-sentencing outcomes. Among the sixty-seven cases that did not advance to a capital sentencing hearing, the first sentencing issue was whether a life sentence or a term of years would be given. In the cases where an individual was sentenced to a term of years, the second issue was the duration of that sentence. There is no evidence of systemic racial effects in either of these decisions. (4)

    Among the 105 cases in our study that potentially implicate the death penalty, there is evidence of a substantial risk of three forms of racial prejudice: white-victim discrimination, minority-accused/white-victim discrimination, and independent minority-accused discrimination. There is a risk of all three forms of prejudice in the imposition of death sentences among all death-eligible cases. (5) Closer scrutiny reveals that the source of the white-victim and minority-accused/white-victim effects in the imposition of death sentences among all death-eligible cases is convening authority decisions seeking death sentences (6) and the guilt trial decisions of court-martial members that advance cases to a capital sentencing hearing by a unanimous verdict on the accused's liability for capital murder. (7) The combined effects of these two decisions produce a substantial and statistically significant white-victim disparity in the rates that cases advance to a capital sentencing hearing. (8) The evidence further suggests that the principal source of the independent minority-accused racial disparity documented in the imposition of death sentences among all death-eligible cases is members' life/death decisions in capital sentencing hearings. Specifically, in white-victim cases, which constitute 97% of capital sentencing hearing cases, minority accused face a significantly higher risk of a death sentence than do similarly situated white accused. (9)

    Our evidence also supports the hypothesis propounded by Justice Byron White that the risk of racial prejudice is greatest in highly aggravated minority-accused/white-victim cases, which are illustrated in this study by sixteen multiple-victim cases. (10)

    Finally, our findings suggest that the risk of racial prejudice in the administration of the military death penalty for death-eligible murder would be greatly reduced if death sentencing in such cases were limited to cases with significant military implications in which the risk of the imposition of a death sentence has been low to non-existent since 1984.


    There is a long tradition of the use of capital punishment in the United States Armed Forces. There are currently fifteen death-eligible offenses in the Uniform Code of Military Justice (UCMJ). (11) All but two of them currently relate to crimes with important national security or military implications that have no counterparts in civilian death-penalty systems. Mutiny, sedition, and espionage are in the first, national security category. (12) There are also eight death-eligible offenses with serious military implications that apply only "in time of war" or during combat operations against a foreign power. (13) In addition, two other offenses have important military implications but no "time of war" requirement. (14) These are long-standing offenses that to our knowledge have not been applied since the Korean War. (15)

    The fourteenth and fifteenth death-eligible offenses are murder (premeditated and felony murder) (16) (Section 118) and rape (17) (Section 120(a)) committed by U.S. military personnel during peacetime anywhere in the world. (18) A murder conviction is the basis of all of the military death sentences imposed since 1960. With one exception, murder and rape are the most recently established death-eligible military offenses, having been enacted by the UCMJ in 1950. (19)

    Death eligibility for murder requires no connection between the murder and military interests or functions. Military status alone makes the statute applicable to military personnel and gives courts-martial jurisdiction. (20) In terms of the definition of capital murder, therefore, the UCMJ mirrored the provisions of typical 1950s civilian death-penalty statutes that defined first-degree and felony murder as capital offenses. Like the civilian systems of that era, the UCMJ also vested in the sentencing authority complete and untrammeled discretion to decide whether a sentence for capital murder should be death or life imprisonment.

    This second feature of the military death-penalty system became important after Furman v. Georgia (1972), which held that the unguided discretion of sentencing authorities in civilian jurisdictions violated the cruel and unusual punishments provision of the Eighth Amendment to the United States Constitution. (21) Furman facially applied only to state death-penalty systems. Nevertheless, the military procedures in place in 1972 were identical to the civilian death-penalty procedures condemned in Furman. More than a decade passed, however, before a military court acknowledged the relevance of Furman to the military system.

    In the meantime, the United States Supreme Court ruled in Gregg v. Georgia (1976) and Proffitt v. Florida (1976) (22) that the adoption of statutory lists of aggravating circumstances comparable to those found in the Model Penal Code (23) and the use of bifurcated guilt and penalty trials satisfied the requirements of the Eighth Amendment because they materially reduced the breadth of capital charging discretion. In the Court's view, these reforms limited death sentences to the most aggravated cases, thereby eliminating the risk of arbitrariness and discrimination in the administration of capital punishment. (24)

    In 1983, eleven years after Furman, military courts ruled that Furman v. Georgia did apply to the military death-penalty system and that existing military procedures did not meet the requirements of Furman and Gregg. (25) To cure this defect, President Reagan issued a 1984 executive order that limited death eligibility to capital cases in which the fact-finder determined that one or more statutory aggravating circumstances were present in the case and "any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances." (26) The aggravating circumstances, known as aggravating "factors" in current military parlance, embrace a number of situations with distinct military and national security implications (27) that facially apply to all death-eligible offenses, but in practice have no applicability to "civilian-style" premeditated and felony murders, which constitute the vast majority of death-eligible murders committed by military personnel in peacetime. Another distinctly military aggravating circumstance applies to murder and rape "committed in time of war"--a condition that has not existed since the Korean War. (28)

    The executive order does, however, specifically exclude from murder offenses two omnibus aggravators with significant military implications. (29) In fact, only one of the omnibus aggravators applicable to all death-eligible military offenses (grave risk to non-decedent victims) has frequent relevance to murder cases. (30)

    The executive order also defines, for premeditated murder cases under Article 118(1) of the UCMJ, an extensive list of distinctly...

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