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

Abstract

This Article presents evidence of racial discrimination in the administration of the death penalty in the United States Armed Forces from 1984 through 2005. Our database includes military prosecutions in all potentially death-eligible cases known to us (n=105) during that time period.

Over the last thirty years, studies of state death-penalty systems have documented three types of evidence of racial disparities in the treatment of similarly situated death-eligible offenders. The most common disparity or “race effect” is that capital charging and sentencing decisions are applied more punitively in cases involving one or more white victims than they are in similar cases with no white victims. These disparities are generally viewed as evidence of “race of victim” discrimination in the system. The next most common race-based disparity is the more punitive treatment of cases involving a black or minority defendant and one or more white victims compared to the treatment of cases involving all other similarly situated defendant/victim racial combinations. These disparities are viewed as evidence of “minority-defendant/white-victim” discrimination in the system. The least common racially based disparity is the more punitive treatment of cases involving black and minority defendants compared to the treatment of similarly situated white-defendant cases, regardless of the race of the victim involved in the case. These race effects are usually referred to as evidence of “independent” or “main effect” racial discrimination.

The data in this study document white-victim and minority-accused/white-victim disparities in charging and sentencing outcomes that are consistent with these findings. The data also document independent minority-accused disparities of a magnitude that is rarely seen in state court systems.

The principal source of the white-victim disparities in the system is the combined effect of convening authority charging decisions and court-martial panel findings of guilt at trial — decisions that advance death-eligible cases to capital sentencing hearings. The principal source of the independent minority-accused disparities in the system is the death-sentencing decisions of panel members in capital sentencing hearings.

The evidence in the sixteen cases with multiple victims, which are the principal source of the race effects in the system, supports Supreme Court Justice Byron White’s hypothesis that in death-eligible murder cases, the greatest risk of “racial prejudice” exists in highly aggravated minority-accused/white-victim cases.

There is, however, little or no risk of racial prejudice among the small group of cases that constitute the most aggravated military cases — those with substantial military implications because they involve lethal attacks on United States troops or commissioned officer victims.

Limiting death eligibility to death-eligible murders with substantial military implications could substantially reduce or entirely eliminate the risk of racial bias in the administration of the military death penalty. Without regard to the race of the defendant and victims, those cases uniformly receive more punitive treatment than “civilian-style” murder cases that have no military implications. This has particularly been the case between 1990 and 2005. Militarily implicated cases have accounted for 75% (6/8) of the military death sentences imposed during that period.

Keywords: capital punishment, criminal law, death penalty, empirical analysis, murder, race discrimination, sentencing, United States Armed Forces