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http://www.nytimes.com/2011/09/01/opinion/the-military-and-the-death-penalty.html?ref=todayspaper
The Military and the Death Penalty
Minority service members are more than twice as likely as whites — after accounting for the crimes’ circumstances and the victims’ race — to be sentenced to death, according to a forthcoming study co-written by David Baldus, an eminent death-penalty scholar, who died in June.
The analysis is so disturbing because the military has made sustained, often successful efforts to rid its ranks of discrimination. But even with this record, its failure to apply the death penalty fairly is more proof that capital punishment cannot be free of racism’s taint. It is capricious, barbaric and discriminatory, and should be abolished.
The number of capital cases in the military system is small: of 105 cases in which the death penalty might have been applied between 1984 — when the military revamped its death penalty process — and 2005, 15 defendants were sentenced to death. (Another capital case in 2010 was not included in the study.) Eight have since been removed from death row because of various legal errors, and two were granted clemency.
In its analysis, the new report found a significant risk that minority service members would be given the death penalty in cases in which there was at least one white victim, while a similarly situated white defendant would more likely be spared.
This connection between race and the death penalty is notably different from the results found in state criminal courts. A landmark study of state cases by Mr. Baldus and others in the 1980s showed that a death sentence often hinged not on the race of the defendant, but on the race of the victim. People accused of killing white victims were four times as likely to be sentenced to death as those accused of killing black victims.
Clearly, the military has not succeeded in keeping racial bias out of its judicial process. The broad discretion of judges and jurors in military tribunals and the system’s lack of transparency may make it harder to root out discrimination.
Still, the number of military capital cases has dropped to roughly one every two years since life without parole became a military option in 1997, far fewer than in the previous decade. Military courts now generally avoid seeking the death penalty when the crime is no different from crimes handled in civilian courts except that the defendant is in the military.
Almost all the capital cases involve victims who were American troops on duty or otherwise significant to the military. The reversal rate on these cases has been shockingly high: eight out of 10 death sentences have been overturned, compared with a reversal rate of 3 to 8 percent in military non-capital cases. An important reason is inadequate counsel: the military often assigns inexperienced military lawyers incapable of mounting a strong defense.
The last military execution was in 1961. The de facto moratorium has not made the country or the military less secure. The evidence of persistent racial bias is further evidence that it is time for the military system to abolish the death penalty.
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