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September 1, 2011

"It is capricious, barbaric and discriminatory, and should be abolished."

The title of this post is a sentence assailing  capital punishment from this editorial, headlined "The Military and the Death Penalty," appearing in this morning's New York Times.  Here is the context:

Racism in the application of capital punishment has been well documented in the civilian justice system since the Supreme Court reinstated the penalty in 1976.  Now comes evidence that racial disparity is even greater in death penalty cases in the military system.

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.

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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.

So the sample size here is either five or seven? This seems like a rather vacuous and fact-free entry from the New York Times. How can you derive anything meaningful out of a sample size like this? I would like to point out, secondly, that crying "racism" is not only decidedly unhelpful in most conversations, especially one as stolid and honor-bound as the military, but is a nonsensical claim in that the military is much more minority-friendly than any other institution I can name. The Army, for example, had a black general (Benjamin O. Davis, promoted to BG in 1941) before the Armed Forces desegregated (Executive Order 9981 - 1948).

Posted by: Steven Druckenmiller | Sep 1, 2011 9:57:16 AM

The military desegregated in 1948. Why should we assume that 63 years eradicated all vestiges of racism? And why is having conversations about it unhelpful?

Posted by: Mike | Sep 1, 2011 10:44:15 AM

Mike --

We need not have "eradicated all vestiges of racism" (or anti-Semitism or what have you) in order for the criminal justice system, military and civilian, to impose the penalties prescribed by law.

If an individual defendant can make the case that he's been singled out for ANY invidious reason, then the trial (or penalty phase) will have to done over until we get one without if. But just to throw overboard a priori a perfectly legal and historically well grounded punishment because we have not eliminated "all vestiges of racism" is vastly, wildly overbroad.

Posted by: Bill Otis | Sep 1, 2011 11:32:46 AM

Mike, I never said that having a conversation is unhelpful. Calling an institution or a process "racist" is the new in vogue way to win an argument(along with asserting "privilege" in academic circles) that is code for "Trump Card! I win, you lose, and the argument is over!"

If you want to talk about disparate impact, whether that doctrine should be relevant, what are concerns should be, and what it means for the justice system and for society at large, I am all for it. If one wants to yell "RACIST", take his ball and go home, I have no interest in that.

Posted by: Steven Druckenmiller | Sep 1, 2011 11:52:39 AM

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