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.