Racial Disparity in the Military Death Penalty

Race discrimination has long been an issue in the administration of the military’s death penalty. With two African-American prisoners, one white prisoner, and one prisoner of Middle Eastern descent on the military death row as of September 2019, the current race disparity appears less pronounced than in the past. However, an analysis of military death-penalty charging and sentencing practices has shown that discrimination is deeply rooted in the military death-penalty system.

A two-decade study of U.S. military capital cases from 1984-2005 found “found compelling evidence that the race of the accused and of the victim has influenced charging and sentencing decisions in the processing of death-eligible murder cases in the [military justice] system.” The study found evidence of what it called “a substantial risk” of three distinct forms of racial prejudice in military death-penalty cases. First, it found evidence of discrimination based on the race of the victim, with capital outcomes more likely when there was a white victim. Second, it found that the death penalty was more likely to be pursued and death sentences imposed when a minority defendant was accused of killing a white victim. Third, it found independent race of defendant effects, with minority-accused defendants more likely to face the death penalty.

The study found race discrimination operating in different ways in different stages of capital proceedings. The race of victim effects were most pronounced in the selection of cases to be capitally prosecuted and in the degree of guilt decisions of military court-martial members that advance cases to a capital sentencing hearing. On the other hand, defendant-based racial bias was manifested in the life-or-death decisions of military court-martial members in capital sentencing hearings. The study found that “in white-victim cases, which constitute 97% of [military] capital sentencing hearing cases, minority accused face a significantly higher risk of a death sentence than do similarly situated white accused.”

According to military defense lawyer Dwight Sullivan, “While the number of servicemembers under death sentence is fairly small, the racial disparity in military death penalty cases has been distressingly persistent. During World War II, African-Americans accounted for less than 10 percent of the Army. Yet, of the 70 soldiers executed in Europe during the war, 55 [79%] were African-American. After President Truman ordered an end to the armed forces’ segregation in 1948, this racial disparity actually increased. The military carried out 12 executions from 1954 until the most recent one in 1961. Eleven of the 12 executed servicemembers were African-American.”

“The death sentences adjudged since 1961 have continued to fall disproportionately on minority servicemembers. In 1983, when the Court of Military Appeals issued its Matthews opinion invalidating the military death penalty, seven servicemembers were on death row. Five were African-American, one was Latino, and one was Caucasian.”

In addition to the racial disparity among death row inmates, there is also racial disparity among victims. Each time an African American has been sent to the military’s death row, the case has involved a white victim. (R. Serrano, “A Grim Life on Military Death Row,” Los Angeles Times, 7/12/94). For more information about racial disparities, see DPIC’s Race page.

For the most comprehensive review of race and the military death penalty, see 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), The Journal of Criminal Law and Criminology, vol. 101, issue 4, at 1227-1335 (2012).