Sunday, April 12, 2009

HUGE military scholarship news: Professor Baldus and colleagues examine the military death penalty

Professor David Baldus of the University of Iowa College of Law is a giant in the field of social science and the law. He was the lead author of the statistical study at issue in McCleskey v. Kemp demonstrating "a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant." McCleskey v. Kemp, 481 U.S. 279, 286 (1987).

Now Professor Baldus and his colleagues have turned their attention to the military death penalty system. They have authored a remarkable article that will be published in the University of Michigan Journal of Law Reform. Catherine M. Grosso, David C. Baldus & George G. Woodworth, 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, __ U. Mich. J. L. Reform __ (forthcoming). The article is now available here on the Social Science Research Network. [Unfortunately SSRN is down for the weekend, but it's scheduled to be up tomorrow at 0700 EDT.]

The article analyzes an interesting evolution in the use of the current military death penalty system, which was created in 1984. While early application of the current military death penalty (1984-1990) appeared relatively indifferent to a murder's military nexus, over time the military death penalty has come to be reserved almost exclusively for murder offenses that bear a strong connection to military good order and discipline, rather than simply serving as a military alternative to a civilian capital prosecution. The article documents this evolution -- which I hadn't recognized before reading the article -- and explores its implications. The article also includes a data-rich series of appendices that will no doubt be extremely valuable to both counsel litigating capital cases and legal scholars.


Anonymous said...

I know it is a draft, but it was hard to read because of the glaring sentence structure errors.

As to the conclusion...


let's see...

What else might have happened in 1990-92 that changed the number of lower tier scumbags in the military and thus resulted in less death cases for killing their babymomma/cousin/SgtMaj/barracks roomie/pizza guy/some random victim?

It was a draw something.

Draw-up? Draw sideways? Draw down with all the lower tier non-hackers getting kicked out?

Anonymous said...

Maybe Anon1206 should try attacking Baldus again once s/he persuades four out of nine SCOTUS votes with a research paper. I'd say that's pretty impressive.

John O'Connor said...

Yeah, though 5 - 4 > 1.

Anonymous said...


Convincing four Justices on the Supreme Court that 'the death penalty is racist and must be banned as violating the constitution'?

I suspect I could write that sentence in crayon on the back of a Denny's placemat and submit it to the Supreme Court and at least four would cite it as proof that the death penalty must be banned.

There are two choices here:

1) He and his team made a boo-boo (there is a chance of that, based on the poor writing); or

2) He wanted to prove something about the death penalty and the .mil and thought no one would notice the data point he picked and why it is wrong.

John O'Connor said...

Picking up on a point made by Anon 0746, I also don't think it's accurate to say that Baldus's prior death pernalty research "persuaded" 4 of 9 Supreme Court Justices of anything. Without going back and reading McCleskey v. Kemp, I am certain that several of the 4 dissenters were already on record with their belief that the death penalty was unconstitutional under any and all circumstances (Brennan and Marshall are two who I believe would fit that category). They didn't need any persuading.