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.