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

Statistical Proof of Racial Discrimination in the Use of Peremptory Challenges: The Impact and Promise of the Miller-El Line of Cases As Reflected in the Experience of One Philadelphia Capital Case

The jurisprudence that has developed in the last twenty-five years under Batson v. Kentucky may be fairly described as indeterminate, unprincipled, and generally ineffective. Scholarly literature points to a variety of reasons for this state of affairs. This Article focuses on one source of the problem— the lack of clarity in the law concerning the evidentiary framework (methodology) needed for a reliable analysis of statistical evidence in Batson cases. United States Supreme Court decisions beginning with Miller-El v. Cockrell (2003) and continuing through Miller-El v. Dretke (2005), Johnson v. California (2005), and Snyder v. Louisiana (2008) clarified a number of issues related to the use of statistical evidence and laid the foundation for the development of a more rigorous and principled methodology for use in Batson cases. In that regard, this line of cases may be usefully compared to the Supreme Court’s Title VII decisions in the 1970s, which laid the foundation for the development of an exhaustive body of evidentiary and methodological law that informs the use of statistical evidence in employment cases. In this Article, we first consider the issues, rulings, and likely impact of the Miller-El line of cases. We then discuss research developed in connection with a recent capital case with complicated Batson issues to both illustrate and build on that foundation in an effort to provide useful guidance for future policymakers and litigants. In the next part, Part II, we provide background information on Batson and the evidentiary issues this paper seeks to address. Part III then introduces the Supreme Court cases that form the centerpiece of our analysis and considers, again, the contribution these cases make to the appropriate use of statistical analysis in Batson claims. This part presents a preliminary evaluation of how some courts have applied the Supreme Court’s guidance in these areas. Part IV focuses on the case of Commonwealth v. Harold Wilson, a capital case from Pennsylvania in which the defendant successfully litigated a complex Batson claim using statistical evidence. The evidence presented in this case can serve as a model of how to present statistical evidence of discrimination in jury selection. The conclusion appears in Part V