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Wednesday, August 19, 2009

Grosso, Baldus & Woodworth on Civilian Aggravating Circumstances and the Military Death Penalty

Catherine M. Grosso (Michigan State University - College of Law), David C. Baldus (University of Iowa - College of Law) and George G. Woodworth (University of Iowa - Department of Statistics & Actuarial Science) have posted The Impact of Civilian Aggravating Circumstances on the Military Death Penalty: Another Chapter in the Resistance of the Armed Forces to the Civilianization of Military Justice, 1984-2005 (University of Michigan Journal of Law Reform, Forthcoming) on SSRN: Here is the abstract:

In 1984 the U.S. Armed Forces adopted a capital punishment system modeled after those prevailing in over 30 states. This empirical study of charging and sentencing decisions in 104 death eligible military murders from 1984-2005 analyzes the extent to which the administration of the military death penalty has followed the civilian model required by military law or whether practice has overridden the law and rejected the intended civilianizing influence.

After a brief period between 1986 and 1990, the charging decisions of commanders and the 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 and essentially nullified the 1984 changes. Since 1990 a soldier accused of a 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 soldier accused of a murder connected to the military only by the identity of the defendant.

While many in the military have worked to incorporate the protections of the Bill of Rights such as those present in the 1984 reforms into military criminal justice, others have resisted each such change as unnecessary and a direct threat to the ability to run an efficient and effective military. This study documents contemporary resistance 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.

While this study has important implications for the military criminal justice system and adds to the work of others calling for limiting the reach of the military criminal justice system to crimes directly impacting the ability of military leaders to run an efficient and effective military, its value extends beyond the realm of military justice. It documents the power of individual decision makers to overrule the written law and to do so without disclosure or public debate. As such, it is a study of the law in action and the importance of context in understanding the influence of written law.

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