The Impact of Civilian Aggravating Factors on the Military Death Penalty (1984-2005): Another Chapter in the Resistance of the Armed Forces to the Civilianization of Military Justice

In 1984, the U.S. Armed Forces amended its capital punishment system for death eligible murder to bring it into compliance with Furman v. Georgia. Those amendments were modeled after death penalty legislation prevailing in over thirty states. After a brief period between 1986 and 1990, the charging decisions of commanders and the conviction and sentencing decisions of court martial members (jurors) transformed the military death penalty system into a dual system that treats two classes of death eligible murder quite differently. Since 1990, a member of the armed forces accused of a killing a commissioned officer or murder with a direct impact on the ability of military commanders to run an effective and disciplined military is significantly more likely to face a capital court martial and be sentenced to death than a similarly situated member accused of a murder connected to the military only fry the identity of the accused. This empirical study of charging and sentencing decisions in 104 death eligible military murders from 1984-2005 documents contemporary resistance to the civilianization of the military death penalty as manifest in charging and sentencing decisions. We conclude that a limitation of death eligible murder to those directly impacting military command and control could reduce the risk of arbitrariness in the administration of the military death penalty

Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973–1999)

PART A ... I. Introduction ... II. Review of the Literature ... III. Law and Practice in the Nebraska Death Penalty System ... A. Judicial Sentencing ... B. Death Eligibility, Fact Finding, and the Weighing of Aggravation and Mitigation ... C. Comparative Proportionality Review ... 1. Proportionality Review in Penalty Trials ... a. Pre-1978 ... b. Post-1978 ... 2. Proportionality Review in the Nebraska Supreme Court ... a. Pre-1978 ... b. Post-1978 ... D. Prosecutorial Charging Practices ... E. The Implications of Ring v. Arizona for Capital Sentencing in Nebraska ... F. Conclusion PART B ... IV. Methodology, Research Design, and Measures ... A . Introduction ... B. Measures of Defendant Culpability ... 1. The Number of Statutory Aggravating Circumstances Found or Present in the Cases ... 2. Number of Statutory Aggravating and Mitigating Circumstances Found or Present in the Cases ... 3. The Salient Factors Measure ... 4. Logistic Regression-Based Measures ... C. A Measure of Geographic Disparity ... D. A Note on Unadjusted and Adjusted Disparities ... E. Convergent Validity and Triangulation of Empirical Findings ... F. Omitted Variables ... V. The Disposition of Homicide Cases: 1973–1999 ... A. Capital and Non-Capital Cases ... B. The Disposition of Capital Cases ... VI. Evidence of the Impact of Defendant Culpability on Prosecutorial and Judicial Decisionmaking ... A. The Impact of Individual Statutory Aggravating and Mitigating Circumstances ... B. The Number of Statutory Aggravating and Mitigating Circumstances in the Cases ... 1. The Number of Aggravating Circumstances ... 2. The Number of Statutory Aggravating and Mitigating Circumstances ... C. Salient Factors of the Cases ... D. Regression-Based Measures and Scales PART C ... VII. Evidence of Disparate Treatment in Charging and Sentencing Outcomes Based on the Race of the Defendant and Victim ... A. Disparate Treatment and Disparate Impact Legal Theories ... B. Evidence of Disparate Treatment Based on the Race of the Defendant ... 1. Unadjusted Statewide Minority-Defendant Disparities in Charging and Sentencing Outcomes ... 2. Statewide Minority-Defendant Disparities in Charging and Sentencing Decisions Controlling for Offender Culpability ... 3. Race-of-Defendant Disparities in the Exercise of Prosecutorial Discretion After Adjustment for the Place of Prosecution (in Major Urban Counties v. the Counties of Greater Nebraska) ... C. Evidence of Disparate Treatment Based on the Race of the Victim ... D. Evidence of Minority-Defendant/White-Victim Disparate Treatment ... VIII. Evidence of the Disparate Impact of State Law and Policy on Minority Defendants ... A. Evidence of a Statewide Disparate Impact on Minority Defendants in the Rates that Death-Eligible Cases Advance to Penalty Trial ... B. Evidence of an Adverse Impact on Minority Defendants in the Execution of Death-Sentenced Offenders PART D ... IX. Evidence of Disparate Treatment in Charging and Sentencing Outcomes Based on the Socioeconomic Status (SES) of the Defendant and Victim ... A. Defendant SES ... B. Victim SES ... 1. Statewide Disparities ... 2. Disparities in the Major Urban Counties and Greater Nebraska ... X. Evidence of Geographic Disparities in Charging and Sentencing Outcomes ... A. Unadjusted and Adjusted Geographic Disparities ... B. Geographic Disparities Over Time ... C. Alternative Explanations for Geographic Disparities in the Rates that Cases Advance to a Penalty Trial ... 1. Disparities in Financial Resources ... 2. The Experience of Prosecutors in Capital Litigation ... 3. Judicial Sentencing Practices as a Proxy for Judicial Attitudes ... 4. The Imminence of Prosecutorial Elections ... 5. Differences in the Frequency of Problems of Proof that Compel Plea Bargains PART E ... XI. Evidence of Consistency and Selectivity in Charging and Sentencing Outcomes ... A . Introduction ... 1. Consistency ... 2. Selectivity ... B. Evidence of Inconsistency and Comparative Excessiveness ... 1. The Nebraska Data ... a. Quantitative Analysis ... b. Qualitative Analysis ... c. A Note on Proportionality Review in the Nebraska Supreme Court ... 2. Testing the Proffitt Hypothesis with a Comparative Assessment ... a. Death-Sentenced Cases in Which 70% or More of the Defendant\u27s Near Neighbors Receive a Death Sentence ... b. Death-Sentenced Cases in Which Fewer than 50% of the Defendant\u27s Near Neighbors Receive a Death Sentence ... c. Death-Sentenced Cases in Which the Death-Sentencing Rate Among the Defendant\u27s Near Neighbors is Less than the Overall Average Rate ... C. Evidence of Selectivity in the Imposition of Death Sentences ... 1. Quantitative Analysis ... 2. Qualitative Analysis PART F ... XII. Summary of Principal Findings, Conclusions, and Recommendations ... A. Principal Findings and Conclusions ... 1. Race-of-Defendant and Race-of-Victim Disparate Treatment ... 2. Adverse Disparate Impact on Minority Defendants ... 3. Minority-Defendant Adverse Impact among Death Row Prisoners Executed ... 4. Disparate Treatment Based on the Socioeconomic Status (SES) of the Defendant and Victim ... 5. A Trend of Declining Death-Sentencing Rates ... 6. Geographic Disparities in the Exercise of Prosecutorial Discretion ... 7. Consistency and Selectivity of Charging and Sentencing Outcomes ... 8. Legislative Ambiguity Concerning Prosecutorial Charging and Judicial Sentencing Discretion ... B. Policy Recommendations ... 1. Legislative Amendments to Satisfy the Requirements of Ring v. Arizona ... 2. Legislation to Clarify the Scope of Prosecutorial and Judicial Discretion Under Section 29-2521, Which Defines the Procedure for a First-Degree Murder Sentencing Hearing ... 3. Legislation to Limit the Power of the Court to Impose a Death Sentence to Cases in Which It Believes That the Facts of the Case Clearly Justify the Imposition of a Death Sentence and That as a Matter of Law the Statutory Aggravating Circumstances Substantially [or Clearly] Outweigh the Statutory Mitigating Circumstances ... 4. Legislation to Limit the Power of Prosecutors to Seek a Death Sentence to Cases in Which the Prosecutor Believes That the Facts of the Case Justify or Clearly Justify the Imposition of a Death Sentence ... 5. Legislation to Limit Death Sentencing to Cases in Which the Defendant Had a Substantial Level of Mental Culpability (Mens Rea) ... 6. Legislation to Limit Death Sentencing to Cases in Which the Defendant\u27s Level of Criminal Culpability is Comparable to That Historically Found in Cases with Two or More Statutory Aggravating Circumstances ... 7. Legislation (a) to Require the Development of Statewide Standards for the Exercise of Prosecutorial Discretion in Capital Cases, and (b) to Require Prosecutorial Consultation with a Prosecutorial Advisory Committee as a Condition for the Court\u27s Convening of a Penalty Trial ... 8. Legislative Adoption of a Fairness in Death Sentencing Act ... 9. Legislation to Require the Nebraska Law Enforcement and Criminal Justice Commission to Maintain a Database of All Death-Eligible Cases for Use by Courts, the State, Defense Counsel, and Scholars in the Fiel

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

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