Racial Discrimination in the Administration of the Death Penalty: The Experience of the United States Armed Forces (1984-2005)

Article excerpt

I. INTRODUCTION

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. …