The two civilian-style cases that resulted in a death sentence since 1990 present factors that reason- ably would overcome a presumption against seeking death for civilian-style crimes. The fi rst defen- dant in Line 15 of Table 28.2, Witt (2005), is a brutal two-victim case with fi ve aggravating factors. The second defendant in Line 16 of Table 28.2, Hennis (2010), involved a military prosecution for a triple murder following an improper state court acquittal. The military recalled Hennis to active duty and sought jurisdiction of this case in order to work around the double jeopardy bar facing the state court and seek a death sentence. 11
The nearly complete absence of death sentencing for civilian-style murder since 1990 other than these two is not explained by the absence of highly aggravated civilian murders since then. What seems to explain the decline is a substantial shift by convening authorities and members away from death sentencing in civilian-style murders.
Convening authorities may lack incentives to seek death in run-of-the-mill civilian murders, espe- cially those with a single victim. Offi cers and commanding generals likely see little professional advantage from such prosecutions. In contrast, when the authority and effectiveness of the military mission is threatened, convening authorities experience pressure to maintain discipline.
Similarly, one can imagine how commanders, particularly in the combat units from which the majority of the death eligible cases arise, can identify with the commissioned offi cer victim cases, while having much less concern with death-eligible cases whose Rule 1004 aggravating factors do not implicate military discipline. When troops are engaged in active combat, commanders focus on things that really matter to the military, which include civilian murders to a much lesser extent.
Opposition to capital punishment in Western Europe may also have had an impact on command- ers. Before 1990, commanders in Western Europe capitally referred 59% (10/17) of the civilian mur- der cases prosecuted in Western Europe, but from 1990 through 2005, none (0/7) of the civilian cases from Western Europe were capitally referred. This explanation could not, however, explain fully the discrepancies documented earlier. Even after the European cases are removed from consideration, a 39-point civilian versus military disparity, signifi cant at the .005 level, persisted in the decision to seek a capital court martial, and a 20-point disparity, signifi cant at the .07 level, persisted in death sentenc- ing among all death-eligible cases.
Commanders may also hesitate to commit the time and expense of a capital prosecution given apparent diminishing likelihood that members will return a death verdict or that a death sentence actually imposed will ever be executed. In contrast to civilian jurors for whom capital defendants are normally complete strangers, members in a capital court martial are also members of the accused’s military organization. Enlisted members may be more able to understand the circumstances of the accused’s situation that resulted in the murder than their counterparts on a civilian jury. On the likeli- hood of an execution, no one has been executed in the military since 1961. Most recently, President
28 The Death Penalty and the U.S. Armed Forces
Barack Obama commuted the death sentence of Dwight Loving, 28 years after his death sentence was imposed.
Overall, the military approach to civilian murder resembles the approach of civilian prosecutors in large urban communities. With resources scarce and the prospects of a death sentence and execution uncertain, capital prosecutions are limited to highly aggravated, highly publicized cases that clearly implicate the interests of justice in civilian eyes. For the military convening authorities, the calculus appears quite comparable with the overriding concern being the maintenance of discipline and the protection of the authority and effectiveness of the military command.
This chapter presents a brief overview of the administration of capital punishment by the U.S. armed forces. The fi ndings presented here also suggest that narrowing the reach of capital murder into civilian-style death eligible murders may be an advisable course of action. These kinds of amendments would bring law into line with practice and may also eliminate some of the race effects document by the Baldus study.
1 The chapter combines and revises, rather than rewrites, two articles published with the late Professor David C. Baldus of the University of Iowa College of Law. He remains my silent and missed co-author. I am grateful to the Journal of Criminal Law and Criminology and my co-authors for graciously granting permission to reprint and edit the following article: David C. Baldus, Catherine M. Grosso, George Woodworth, and Richard Newell, “Racial Discrimination in the Administration of the Death Penalty: The Experience of the United States Armed Forces (1984–2005),” Journal of Criminal Law and Criminology , vol. 101 (2011), p. 1227 and to the University of Michigan Journal of Law Reform and my co-author a for the following article: Catherine M. Grosso, David C. Baldus, and George Woodworth, “The Impact of Civil- ian Aggravating Factors on the Military Death Penalty (1984–2005): Another Chapter in the Resistance of Armed Forces to the Civilianization of Military Justice,” University of Michigan Journal of Law Reform , vol. 43 (2010), p. 569.