Role of Intimacy in the Prosecution and Sentencing of Capital Murder Cases in the United States Armed Forces, 1984-2005

Abstract

Scholars interested in the intersection between domestic violence and criminal law have posited that the existence of an intimate relationship between a defendant and a victim may act as an automatic mitigator in the prosecution of violent felonies. This tendency to discount the severity of domestic homicide has been called the domestic discount. While a number of scholars have studied the influence of a domestic discount on other crimes, very little work has been done in capital prosecutions and sentencing.

This article seeks to advance the discussion by considering whether such a discount exists in the United States military’s prosecution of 104 death eligible homicides between 1984 and 2005. More specifically, this paper considers whether, after all legitimate factors are considered, the 25 death eligible cases involving a domestic homicide are less likely to be prosecuted as a capital case, convicted of a death eligible murder, or sentenced to death than similarly situated cases that are not domestic homicides. Ten additional cases allow this paper to explore the merit of excluding predatory domestic homicides as well as cases in which the accused killed only his or her child or children from the primary definition of domestic homicide.

These results lend qualified support to the proposition that a domestic discount may operate in death sentencing decisions in the military capital punishment system. In contrast, they do not find a domestic discount in charging decisions. As such, the results highlight the importance of focusing on individual decision points in case analyses and of including appropriate controls, including controls for time where appropriate.

Finally, this study lends support to Prof. Elizabeth Rapaport’s recommendation that predatory domestic homicides be excluded from primary analyses in research considering the presence of a domestic discount. In every instance where the domestic homicide subset included the predatory domestic homicides, the evidence of discount diminished and the evidence of aggressive prosecution increased. For example, the odds of the prosecution seeking death more than doubled with the inclusion of the predatory cases. Given the limited sample size in this study, it would be useful to replicate this model in a larger study.

Keywords: death penalty, capital punishment, empirical studies, military law