Executing U.S. Soldiers in England, WWII: The Power of Command Influence and Sexual Racism * (First Draft) by J. Robert Lilly Sociology Northern Kentucky University Highland Heights, Ky. 41099-6103 Visiting Professor Sociology and Social Policy University of Durham, England and J. Michael Thomson Political Science Northern Kentucky University Highland Heights, Ky, 41099-2207 August 31, 1995 *All rights reserved. Summary Current capital punishment literature is overwhelmingly concerned with civilian executions. Overlooked is capital punishment by the non-civilian sector - the military. This paper researchs U.S. executions of soldiers during World War II in England. We conclude that the context of capital punishment is a powerful explainer of its use. The Visiting Forces Act of 1942 permitted the American military to use capital punishment in England as an extension of discipline. Its purpose was to control a perceived danger: the socializing of African American troops with British females, and the possible explosive violence between caucasian and African American troops. Given its resultant bias, this paper argues caution in continuing or expanding the use of capital punishment in the military (Kroll, 1985). Executing U.S. Soldiers in England, WWII: The Power of Command Influence and Sexual Racism I Introduction While the international opinion pendulum shifted from the humanitarian due process concerns of the sixties towards the more conservative crime control orientation of the nineties, (van der Haag, 1986; Wilbanks, 1987; Zimering and Hawkins, 1986b), no topic has sparked more debate in criminal justice literature, both popular and academic, than the use of capital punishment (Carrizosa, 1987, Civiletti, 1990; Clark, 1990; La Franchie, 1987; Moore, 1991; Neisser, 1987; Pace, 1991; Scanlan, 1990). This trend is especially clear in the United States where research on the imposition of the death penalty in the United States has a long and distinguished history. Beginning as early as 1919, capital punishment research has expanded to the point that between 1972 - 1988 alone, nearly one thousand scholarly books and articles have been published (Radelet and Vandiver, 1988). It has benefited from a wide range of scholars including some of the most respected names in sociology, criminology, law and philosophy. Overwhelmingly this research indicates that the death penalty has been dispro-portionaly applied to people of color, especially African Americans, and has an adverse impact on the financially disadvantaged. The latter point is not unique to the U.S. as demonstrated by exemplary socio-historical examination of capital punishment in England by Linebaugh (1992), Rule et.al. (1975) and Gatrell (1994). These findings, recently summarized in a review of the major research on the death penalty in the United States, is consistent for executions for murder and is more "clearly defined among executions for rape" (Aguirre and Baker, 1990:135-153). Additional research has also established that in the case of African Americans, disproportionately in the application of the death penalty amounts to racial discrimination. Aguirre and Baker's (1990) review concludes that racial discrimination has become so well entrenched and routinized it has developed into a systematic pattern of differential treatment for African Americans. More recently, former U.S. Attorney General Elliot Richardson (1994) called for its abolishment, a position at times supported by the press (Los Angeles Daily Journal, 1994). The direction of these conclusions are present from the earliest study on racial differentials in the administration of justice, through to and including the pre- and post- periods surrounding U.S. Supreme Court attempts to meliorate the undemocratic features of the death penalty. Two additional explanatory factors are also cited in the literature. Klein and Rolph (1991), along with many others, cite the victim - offender relationship as a crucial ingredient. They suggest that most captial cases are between not between strangers but family members. Some suggest that capital offenses stem from a need to dominate a victim. An even stronger newer emphasis is the socio-economic class of the offender. Morris (1993), Bright (1992), and Moore (1991) all argue that capital punishment is a struggle of means as well as justice. The socially disadvantaged are the least capable of utilizing the legal tools to fend off capital verdicts and executions. What is missing in capital punishement research is the context of its application. We find no better place to initiate this academic dialogue than the use of capital punishment in the military. II Capital Punishment in the U.S. Military Given the long and illustrious research and judicial attention devoted to the imposition of the death penalty within the United States, it is surprising to learn that few sociological or criminological research has been given to this topic in the one social institution other than our civilian courts where the death penalty has been imposed on U.S. citizens: the military (Perry, 1977a&b). The neglect of this topic, however, can not be adequately explained by the argument that the U.S. military's use of capital punishment has been beyond criminologists' opportunities to be aware of the subject. For at least the last decade the U.S. Department of Justice's Bureau of Justice Statistics' widely circulated annual bulletin Capital Punishment has without failure, reported that "An additional 160 executions have been carried out under military authority since 1930" (See U.S. Bureau of Justice Statistics 1984 to 1992). Criminologists' neglect of this aspect of capital punishment is even more surprising in view of the fact that military sociologists with an explicit concern with social control, have been silent on this subject (cf Burk, 1991; Janowitz, 1974; Moskos, 1966, 1970, 1973). Generally, the nearest scholars have come to connecting crime and the military has been Mannhiem's (1965) work on civilian crime during war, and Bryant's (1979) study of khaki collar crime. There has been little study of crime and military policy (Weiglay, 1967), and broad, unsystematic works depicting the harsh and negatively arbitrary features of military justice (Janowitz, 1974; Sherrill, 1970). A few authors have described the harsheness of the military justice system (Scheutler, 1980). One of the best works is by West (1977) who used case studies to document the power of command influence. In view of the fact that between 1798-1989 the United States has used its armed forces in approximately 215 excursions abroad, involving millions of conscripted and voluntary citizens, the neglect of social control in the military generally, and the imposition of the death penalty by the military in particular, suggests it is time to study this topic (Congressional Research Service, 1989). While it would be rewarding to search for the causes of this neglect, the purpose of this paper is more limited. It examines the imposition of the death penalty on U.S. soldiers in England during World War II under the Visiting Forces Act (1942). Specifically, we examine the use and context of the death penalty. This work provides a beginning for comparing the patterns of death penalty imposition between our civil society and the military. III WW II and the Visiting Forces Act (1942) Though it is impossible to describe World War II in a few paragraphs, space limitations here demand such a treatment. Suffice it to say that it was the largest geographical and most expensive and destructive human conflict ever recorded. SIZE: For the Allied Forces (Russia, Great Britain, France and later many other countries including the United Sates), World War II was divided into major "theaters of operations." Each theater included large geopolitical organizations, except for the United States which was itself a separate theater. The European Theater of Operations (ETO) included Britain, France, Belgium, Germany, Czechoslovakia and Austria. This paper focuses on the problems of mounting the largest invasion force in military history from a smallish island (Britain), especially the mixing of African American and white troops in both military and social settings (Ambrose, 1994). Military Personnel: Of the 16,112,566 military personnel engaged during WW II between 1941-1946, 26 percent (4,182,266) served in the ETO between 26 January 1942 and 13 May 1945 (The World Almanac, 1992: 306; USFET, 1945:3). The records of trial by general courts-martial in the ETO which were summarized in USFET provide an authoritative measure of the major breaches of military discipline and serious criminal offenses. Race: Of the total number of soldiers in the European Theater, it is uncertain exactly how many were African-American. According to Nalty and MacGregor (1981:133) President Roosevelt gave approval for "numbers not to exceed 10 percent of the crew" in the navy, marine corps and coast guard, a percentage which reflected the proportion of blacks in the civilian population. The same rule held for the Army, in which case no more than 10 percent or 418,227 were African American. Adams (1994:83) estimates that about 1,000,000 blacks served in WWII, or about 8% of the total military force, which agrees with the 1,000,000 blacks reported by the World Almanac (1991:339). Of these one million, about 78% were in "service-related" activities (Lee, 1966). "We were really stevedores." said one soldier, or as Secretary of War Stimson stated "leadership is not embedded in the Negro race" (Adams: 1994:83, 84). Given the differing projections, we opted for a mid-range estimate of 9.50% African American soldiers in the ETO. COSTS: The financial cost of the war was $360,000 millions of current dollars, or 816,300 millions of constant (1967) dollars. Compared to the Vietnam war which cost 14 percent of one year's GNP (Gross National Product), World War II cost 148 percent of one year's GNP (Information Please Almanac 1992:306;310; World Almanac, 1991:792;788). DESTRUCTION: For a variety of reasons including guerrilla warfare, changes in international boundaries and mass shifts in population, statistics on WW II casualties are inexact. Only for the United States and the British Commonwealth are official statistics cited with some degree of assurance. For the United States, World War II (1941-1946) engaged 16,112,566 soldiers, with casualties of 1,076,245, including 405,399 deaths, 291,557 of which were battle deaths. The emphasis here on U.S. deaths is by no means an effort to diminish the lost of military and civilian lives throughout World War II. By comparison to the U.S. losses, more than 380,000 civilian lives were lost every month of the entire war. Conservatively, this means that for the years 1942-45 alone, approximately 18,240,000 civilians died. One source estimates that the entirety of World War II cost more than 38,000,000 lives, 22 million of which died in Russia (Davis, 1990:310-311; Information Please Almanac, 1992:310). Still another source estimates that the total dead varied between 35,000,000 and 60,000,000. Compared numerically, however, the U.S. was relatively fortunate. VISITING FORCES ACT (1942): The British, in dire need for military assistance from the dreaded Blitzkrieg, solicited the help of American forces to mount an invasion that would put a stop to the incessant bombing of its military and civilian personnel. With surprisingly little debate, and with virtually no alteration, the British gave the Americans a carte blance to immigrate not only its troops, but its system of racial segregation and military justice (House of Commons, 1942a& ; House of Lords, 1942). What is even more surprising is that rape was considered a capital crime under the VFA, while not so in Britain. By studying executions under the Visiting Forces Act (VFA), we can discover capital punishment by a specific body (U.S. Military) in a specific place (Britain) and time (1942-1945). While the number of cases is small (18), they illustrate the importance for capital punishment to examine the context of executions. We explore why the military used capital punishment in these cases. IV Methods and Sources The following findings are based on the summaries of trials and punishments including executions, reported by the U.S. Army's History Branch Office of the Judge Advocate General with the United States Forces European Theater, Vol. and II (1945), hereafter USFET. This source contained statistical summaries and brief but detailed accounts of ETO soldiers' courts-martialed and their punishment(s). This data provides a general statistical overview of the death sentences in the entire ETO. The USFET report contains records for 70 executions between 1942 and November 1945, with another 38 executions scheduled for a total of 108. We will review this initial data for an overview of capital punishment in the ETO during WWII. Of the 70 executions, 18 occurred in England. Our primary data includes trial transcripts and records of the 18 soldiers executed in England during World War II. Of the 18, nine were convicted of murder, six of rape, and three of both. Eleven of the 18 were African American; with three others Latin-American or Mexican-American heritage. The transcript files includes memoranda, letters, and other material surrounding the execution of each soldier. This data is supplemented with a variety of other official documents from the Prime Minister's Office (1943, a thru d), Foreign Office (1942 a&b, 1943), War Cabinet (1942 a thru d), debates in Parliament (House of Commons, 1944 a thru d), and selected news articles both in the United States and from Great Britain. The primary data and supporting contextual material from a variety of authors form the primary basis for our conclusions (Ambrose, 1972, 1974, 1983, 1994; Ramsey, 1988). V Executions In England: Trail Record Examination The comparative data for England mirrors the overall statistics for the ETO theatre. Shepton Mallet was the station where all ETO executions took place. The vast majority were hung by a British hangman. (Ramsey, 1988). An initial counting of cases is reported in Table One with relevant victim and offender statistics in Table Two. Whites represented 27.8% of the executed soldiers, with African Americans accounting for 55.56%, and Mexican-Americans the remaining 11.1% of the 18 cases. As with the aggregate ETO data, soldiers of color are seleted far beyond their share of the ranks for this ultimate sanction. Another striking facet of the data is how many sex related executions occured. Including the murder of a pimp, Table Two reports 12 of the 18 (66.67%) crimes were rape, murder or a combination relating to a sexual encounter. Clearly, the military's selection of this severe penalty focused on some aspect of sexual encounters that it considered potentially disruptive to discipline and / or morale. The executed men were ovewhemingly from the lowest rank(s) (94.44% PRI/PFC), with many of them uneducated, and suffering from a mental disorder or other mitigating factors. No man above the rank of corporal was executed. This suggests that the military do not punish randomly, but selectively, especially to its lowest ranks, and most socially disadvantaged. Table Three indicates that the men were young (median age 21.50), non-career personnel (median length of service 1.75 years), having no prior incidents on their military record (55.56%). ------------------------------------------------------ Tables One Through Four About Here ------------------------------------------------------ Not surprisingly, the great majority of the victims were white (94.44%), mostly female (61.11%) and civilian (72.22%) (See Table Two). Also, of the 10 rape executions, age of the victim was probably a factor. Eight of the ten involved women over 60 or under 18, another involved a pregnant, married woman. Of the remaining crimes, the victims were mostly fellow NCO acquaintances from the camp - four murders (See Table Four). The exceptions were a private who shot his officer of the day, and a diagnosed schizophrenic who shot a 60 year old man while hunting squirrels near an air base. The victim relationships confirm the current data that death penalties are sought out for crimes of the strong against the weak, especially if they shock one's sense of propriety (e.g. raping a 75 year old woman, or raping and strangling a seven year old girl). The most powerful aspect of the data is that relating to the swiftness of justice, and the paucity of legal defense (See Tables Three and Four). The average execution (supposedly the most careful of military pro-secutions) took about one week to gather evidence and formally charge a defendant (median 7.50 days). Usually, defense counsel is of the same rank as prosecution, mostly captains. In only one case (Harrison) could we confirm that the defense team were non-career attorneys. The defense, if appointed at charging, had about two weeks to put together a case (median time 17 days). Many times the team had less time, and the Court was intolerant of granting motions to delay prosecution - only two were granted. All but two trials lasted one day, and most were over by early afternoon (See Table Four). In the Smith case, the trial lasted about two days, but took five days due to repeated hospitalizations of the defendant. In only one case (Harrison) was there a "trial" by modern standards; it lasted three and one- half days. After verdict, sentences are affirmed, reviewed and executed in about three months (median time 90 days). The defense took about 6.00% of trail time. Usually, the defense called one witness (the defendant), presented no exhibits and made few if any motions to the Court (61.11% no motions, 16.67% only one motion). Most of the time, defensive work was no more than a cross examination of prosecution witnesses. In a few cases, defense attorneys read a one page statement by the defendant. In two cases, there was NO presentation of any defense. Given the severity of sanction awaiting these men, the defensive work in these cases falls far short of most standards, including military standards. While in wartime, these 18 cases were conducted on friendly soil with no moving battle lines. All personnel were stationary, and time was not a factor in the decision. Clearly an unspoken message was made to not rock the military justice boat once launched down the capital charge path. Both West (1977) and Sherrill (1970) document several cases where defense attorneys were punished for advocating too strongly for their clients. The best comparison of the "standard of defense" is not to current standards (e.g. the Simpson trial defense), but to one of its own: the Harrison case. Private William Harrison was accused of raping and strangling a seven year old acquaintance on September 25, 1944, in a field of haystacks near Killycolpy, North Ireland. He had several "incidents" on his record, specifically AWOL. Harrison was a suspected amnesiac. Harrison admitted to being with the girl and desiring sexual contact, but claimed he blacked out. He did, however, tell CID officers where to find his boxer shorts at the crime scene. Harrison appeared factually guilty of a heinous crime, even by the standards of the 18 cases in the ETO data, yet his defense was substantial. Harrison was defended by the only known non-career attorney - Major Clarence Liggit, and his trained assistant, Ted Kadin. The case included a variety of legal maneuvers rarely seen in the other 17 cases. Those defensive actions included: a) a vigorous (20 pp) polling of court members for prejudice - both sides removed one court member; b) a motion for a continuance for lack of preparation - only two were made; c) a strong cross-examination of almost every witness - defense cross took over one-third of the prosecution's case time; d) a motion to dismiss the second charge (rape) for lack of evidence - no other case involved a motion to remove a charge for lack of evidence; e) several defense motions, especially relating to the chain of evidence pertaining to the defendants clothing, and medical evidence - no case did this; f) an objection to evidence gathered by CID officers gathered late at night or before the witness was warned of his rights - no case did this; g) an objection to labeling of boxed material "Harrison", references to a "crime scene" in relation to the defendant, and the introduction of graphics photos that might prejudice the court - no case did this; h) a reading of court martial manual to the Court for specific references on intent, mental disorder and standards of sobriety before the prosecution started its case - no case did this; i) a presentation of four medical witnesses that saw Harrison before the incident to establish his medical record and mental competence - no case called their own medical experts, a few did cross examine military doctors who were called in by the prosecution to assess competency; j) a strong four page closing statement - most cases closing arguments were one - two paragraphs, if any; k) a lengthy (32 pp) questioning of Harrison from early age through his service record to lay ground work for his mental competency defense - most cases featured a short (1 pp) written statement by the defendant or a 2 - 4 page testimony; l) a plea for clemency - 39% of cases involved a clemency plea by defense - usually a one page letter; m) a here-to-fore unheard of defense campaign to reduce the sentence after confirmation. Liggit orchestrated letters from home (including his mother and school teachers), prior psychiatric records, a letter by the defendant, involvement by two members of Congress (Jenkins & McCowan). The correspondence file was over twice as large as the 400 page official trial record. Most of the other cases had little if any record of defense counsel help after trial and correspondence was limited to family members and occasional Congressional representatives initiated state-side. Liggit's case featured strong questioning of prosecutorial evidence and witnesses that forced the prosecutor to substantiate a "chain of evidence" between a pair of boxer shorts and blood and blood to Private Harrison. Many evidentiary holes were brought to light, including the fact that blood samples were not taken until days after the crime, and that the physical evidence sat in an unsealed box on an open cupboard marked "Harrison" at the county police station. This box could have been accessed by dozens of personnel related to the case or town of Killycolpy. His second link was to put Harrison on the stand where he affirmed his problematic psychological background. Eventually, he linked his previous documented blackouts to the defendant's recollection of the events: "I started to fool around with her and she started crying and wanted to go. So, we got up to go. She wanted to go back to the house and I wanted to continue on to the pub to get the beer and minerals. We argued slightly and she had a hold of my hand and she let go of my hand and she started back towards the house. I told her to come on and go to the pub and get what we had started after and she started to cry more and I reached for her to get her by the hand and I slipped and fell down and she fell with me. Next, I found she was lying there and wasn't moving (Harrison trial transcript: 271)." He supported that testimony with several witnesses who reported that Harrison drank heavily that evening, effectively lessening his mental capacity. He established that Harrison had known the victim, her family, and was a frequent visitor to Killycolpy. He delved into several of Harrison's prior "incidents" that including a five day amnesiac AWOL. His final evidence was independent psychiatric testimony by Dr. Lothian who testified that: "I think that a constitutional psychopath suffers from a condition of mind which makes it either impossible or else immensely more difficult for him to resist impulses that can be resisted by a mentally normal person and, therefore, that the responsibility cannot be a full responsibility but can only be a partial one. I believe that applies in the Harrison's case (Harrison trial transcript: 311)." While Liggit did not win the Harrison case, he defense did not "rest" at trial's conclusion. His massive political and medical effort to plea for clemency reached the desk of the President. While Harrison was executed on April 7, 1945, it is clear that Liggit sets the standard of defense by which we evaluate the other England cases. Using that standard, clearly the other 17 fall short. The data analysis poses two important questions to be answered by an examination of second-ary sources relating to context: a) how does the system enforce the "don't rock the boat defense" even for the most serious of cases? b) why was the military so preoccupied with sex related offenses in a friendly country during WWII? We first discuss the U.S. military justice system for answerss to the first inquiry, and then to an examine military race-relations in Britian to answer the second contextual question. VI The Military as an Institution: A Constant Fight for Legitimacy The literature on the U.S. military as an institution is plentiful (Ambrose and Barber, 1972; Janowitz, 1974; Moskos, 1970; Sherrill, 1970; Weigley, 1967; Williams, 1989), including biographies from its most famous soldiers (Bradley, 1951; Eisenhower, 1948; Grant, 1982; MacArthur, 1964). Its ancestor Rule Britannia, the British military was viewed as an honerable "secondary" career, an alternative for the second son in the family, or preparation for the eldest's larger work in life. Americans did not share this respect for the military as a legitimate governmental instution. During the colonial period, professional soldiers were hated, especially the Hessians. Americans fought a revolution with militia volunteers from each state. The Federalist papers made it clear that while a strong central government was needed to combat the chaos of the initial Con- federation, a "well-armed militia" was America's fighting force, not a profes- sionalized standing army (Weigley, 1967). After the Constitutional ratification, it took an act of Congress by the newly formed govern-ment to finally pay back its war debt to veterans, and even then at only pennies on the dollar. Note that our first government created a Department of War, not one of military services. (Bishop, 1977: 1-18.) Early U.S. government saw the military as an occasional forice, dormant until times of conflict. While President George Washington, and future military figures such as Jackson, Grant, Roosevelt and Eisenhower would occupy the White House, the military has never been accepted as a "legitimate" institution in the United States (Eisenhower, 1948; Grant, 1982). Americans view the military as a necessary evil needed to repel foreign invasion, to fulfill their "manifest destiny" for conquest of the Western frontier, and finally to become a world power broker. Slowly, begrudgingly, the U.S. government permitted the military to train officers for military careers (Ambrose, 1974). However, the armed forces were manned by volunteers. Conscription or mass drafting of personnel was saved for a few occasions in history. Only after World War II did the U.S. create a standing army and Department of Defense (Janowitz, 1974). Even so, the U.S. zealously guarded the right of civilian rule, a point of civilian contention recently renewed as an aftermath of the Oklahoma City bombing of a federal building. A good example was that an unpopular President (Harry Truman) fired America's most popular general (Douglas MacArthur) when he he labeled Truman "a temporary occupant of the White House." Americans gave MacArthur a hero's farewell but ultimately backed Truman for his actions (Janowitz, 1974). Strong anti-military opinion and civilian rule doctrine, has impacted military mores. They have fought hard to create an image as a "profession". Military policies have been unpopular, especially in times of peace and prosperity. People have always been suspicious of the military, especially as a domestic peace keeper. It is not surprising that a young, ambitious J. Edgar Hoover was able to create a national "police" force, the Federal Bureau of Investigation, (FBI) given the reputation of the military in previous situations starting with Shey's Rebellion (1887) to the Houston riots of World War I (1917) (Felder, 1987). Like most societal subgroups (e.g. police), the military has closed ranks frequently to make sure that no taint of scandal would fuel the flames of its powerful political enemies who would use policy failures and other public catastrophes to slash budgets. Worse would be the occasonal call to disband the armed forces and rely solely on the reserves and a handful of career West Point officers. Uniformity (in dress, behavior and policy) is and has been, a prime objective of the military. Cohesion by military careerists on these policies is strictly enforced. Individual thought is literally drummed out of the corps, as one means by which the military protects its image, and persues its goals. These efforts have not been unquestionable successes. After fifty years of a standing army, the military is still not very popular. The U.S. service branches spend millions yearly in advertising not only to recruit, but increase institutional legitimacy, especially in times of peace. VII Military Justice: A System Under Fire? At no point can the closeness of ranks be more apparent then in military justice. While the military as an institution has been under fire at various times in our history, both law (Uniform Military Code, 1950) and precedent (Chappel v U.S., 1981) demonstrate the powerful use, and potential for abuse of military court martials and subsequent executions as a tool of discipline. Protected from civilian rule, this system is reinforced by strong command influence, where career officers who dare question the informal code are punished formally and informally (West, 1977). There have been several exposes of spectacular military cases in the U.S. (Chomsky, 1990; Sykes and Putkowski, 1989), including the celebrated court martial of African American West Point cadet James Whittaker (Marszlek, 1972), the execution of Private Eddie Slovak (Huie, 1954), and the court martial of Clayton Longtree (Headley, 1989). Aside from these case documentaries, several legal authors have written case commentaries on military law, e.g. Chappel (Conners, 1982; Gutter, 1984; Sylvester, 1983; Watson, 1990; Williams, 1989). Most are critical of the military justice system, and desire more control by the Supreme Court over the military. The contention has been over the purpose of military justice between civilian rulers who see military courts as extensions of civilian justice versus the career militarists who view court proceedings as an extension of discipline. The noteriety of the famous cases cited above suggest a leaning to discipline at the expense of justice. Despite the United States Supreme Court's strong stand for individual rights through procedural and substantive "due process" (e.g. Miranda v. Arizona, 1964), the courts have often sided with the careerists view of military courts as essentially internal to post-process public scruitiny and needed extensions of military discipline. "Military justice must support discipline at the same time it enforces the rule of law in the military community" (West, 1977:15). Occasionally posed as an oxymoron, military justice is viewed as an extension of military discipline. The Supreme Court supported this policy, and has given "exclusive perrogative" and "almost unlimited control over almost every facet of military justice" (West, 1977:16). Egregious military errors are therefore "beyond the scope of civilian review" because "only military authorities could correct errors that occurred in military courts" (West, 1977: 42). The landmark precedent is Chappel v US (1981) where the court stated: "The special nature of military life, the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel, would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command." (Gutter, 1984: 115). The result has been that there is virtually "no effort to check the illegal control of the courts-martial system by its over-zealous commanders and legal officers, but that it had, in fact, condoned the entire operation on the convenient basis that 'discipline is a function of command.' " (West, 1977: 44). Court martials have been provided as early as the Articles of War (1775) and are now entwined in the Military Code of Justice (1950). Court martials are ad-hoc tribunals convened by someone of the highest authority. It differs from American criminal process in that: "As a general proposition, the convening authority has the power to pick the officers of his command (a minimum of five for a general court and three for a special court) who will sit as members of the court to try the case or cases he refers to it, and who will not only determine guilt or innocence, but assess the sentence." (Bishop, 1974: 27). This top down control of the court by command leads to its most powerful variable: command influence. Though the military justice system has kept its authority over the decades, it certainly has not been without its critics (Bishop, 1974; Sherrill, 1970). The first cause celebre was the court martial of James Chestnut Whittaker (1983), a former slave under suspicious circumstances. Just this year, President Clinton granted a posthumous commission to one of Whittaker's descendants. Even without the death penalty, the military has used its justice system harshly on many occasions, such as the court martial of Clayton Longtree in 1986 for espionage (Headley, 1989). While individual cases do not an argument make, events in World War I illuminated the harshness and racial discrimination of the military justice system. In 1917, at Fort Bliss, Texas several soldiers were court martialed for mutiny when they did not attend a drill formation in a racially charged southern environment. All were promptly found guilty, dishonorably discharged and given 10 - 20 years in Leavenworth for their protest (Felder, 1987). The incident went largely unreported in the south, but fueled the fire of a racist army by northern politicians. More horrific than the Fort Bliss incident were the Houston riots of 1917. Admist a constant war between the African American 24th Infantry and the local white police, two non commissioned officers were arrested by Houston police for "disorderly conduct" and rumored dead. This sparked the soldiers to arms and an ugly scene. Several hours later, 15 whites were dead. A "state of war" was declared and 63 soldiers, all African American, were court martialed. Forty-eight were convicted and sentenced to lengthly prison terms, 14 more sentenced to death and 5 acquitted. The executions occurred the morning after the trial and before the records reached Washington for command review. Between April, 1917 and June, 1919 a total of 35 soldiers were executed, all black (Bishop, 1974; Felder, 1987). The military, realizing that severe public criticism from Ft. Bliss and Houston could result in severe sanctions, if not strong due process legislation revamping the military justice system by an enraged Congress, passed General Order Number Seven. This order created Boards of Review that would examine all serious sentences prior to execution. The Boards of Review were to insure that military justice was just that - justice and not discipline. However, Boards of Review did not stop executions in World War II. Between December, 1941 and February, 1946, 142 soldiers were executed (70 in the ETO), mostly for rape and murder, except the infamous desertion trial of Eddie Slovak. The average incident to execution time was four months, mirroring the data reviewed in Table Two. While no data was available at the time, Felder argues "I suspect that a significant number of soldiers executed were black." Five more soldiers were executed between 1945 and 1950. By 1950, the public was again critical of the military justice system, especially since the military was still clinging to racial segregation. The system was again overhauled by creating the Military Appeals Courts and Uniform Military Code (1950). From 1950 until the death penalty was halted by the Supreme Court (Gregg v Furman, 1972), only 10 more soldiers were executed, during which time it took an average of six years between the time of trial and the execution. Since 1972 there have been five death penalties decisions, four of them against African American soldiers. However, their sentences were commuted to life. The last execution was in 1961 (Felder, 1987:9). Currently, at least five soldiers sit on death row at Leavenworth, awaiting death by lethal injection (The Los Angeles Daily Journal, 1994). VIII Procedural Safeguards in ETO: A Case of Command Influence No clearer example of the military justice system's strong bent to protect its life and death power over its ranks exists than in the records of the 18 executions in Britain. In the initial British execution (Case #1: Private David Cobb), a 21 year old African American soldier shoot and killed the white officer of the day. After a conviction and subsequent death sentence, ETO Judge Advocate Hendrick appointed a Board of Review from his junior officers to examine this initial capital case in England, and give him a recommendation. Ultimately, they upheld the conviction, and Hendrick agreed. Cobb was hanged 66 days after his trial. In a surprising amount of memoranda surrounding the case, US Judge Advocate Maj. General Myron Cramer decided that Hendrick's actions were not compliant with Army policy. He noted that Hendrick was merely "Acting JA" in the ETO and that General Cramer, in Washington D.C. possessed ultimate procedural authority. He then instructed Cramer that in future ETO cases, a Board of Review would not be called until Hendrick had already upheld the sentence, altered the penalty or dismissed the case. Given that a Board of Review was created by Congress as a check on swift, untempered and unchecked justice, Cramer's actions were the military's method of carring out the letter, as opposed to the spirit of General Order Number Seven. By placing the process after a superior officer makes an official recommendation and (dis)confirmation, the military encourages command influence to supercede this new "due process." Despite Hendrick's protests, Boards of Review (BR) were appointed only after he made a determination of a case's validity. In these 18 cases, BR action by Hendrick's junior staff became no more than pro forma check sheets by junior officers who dared not contradict their superior once his decision was made. Some of the reviews were quite thorough (10 - 18 single spaced pages), but most of those focused on mitigatory issues such as insanity. They also provided good cover in case an occasional U.S. Senator or Representative inquired about a case (Cases 8, 10, 11: Pygate, Brinson and Smith). The JA office did not take kindly to convictions tempered by pleas for clemency. In Case 9 (Harold Smith), a 19 page Board of Review report felt that the court's conviction followed by a plea of clemency was "not easily understood" and "smacks of a lack of courage of their convictions." Ultimately, the Board decided "such a recommendation must fail to impress" the panel of senior officers. The 18 cases, when combined with the historical secondary material, indicate one clear context: the military justice system is an extension of discipline. While not unchecked by civilian rule, it was certainly shielded from politicians, and carried out as swiftly as possible. Command influence on career-oriented junior officers dictated that due process was not a consideration in military justice, or at least it takes a back seat to the paramount needs of the institution. We next turn to a second contextual argument surrounding just one of those paramount needs: the segregation of the armed forces both militarily and socially - the legacy of sexual racism. IX Race Relations in Britain While the problems of mounting a multi-front world war were formidable for the Allies, the victory lay in the weapons familiar to military operations: ground troops backed by air and naval support. When it came to another area of formidable challenge - race relationships, the keys to victory were not taught in the class rooms of West Point or the Naval Academy. The U.S. military approach to race relations mirrored American domestic societal social policies - segregation (Ambrose and Barber, 1972; Janowitz, 1974; Lee, 1966; Nalty and Mac Gregor, 1981; Perry, 1977a; Weigley, 1967). This policy had presented difficulties during World War I, as noted earlier in the Houston riots (Felder, 1987). The new twist to this two century old dilemma for the U.S. military was the massive build-up of troops on English soil for the D-day invasion of the continent. How would the military react to whites and African Americans in close quarters? How would they react to each other? As importantly, how would the English culture, unused to racial segregation, be convinced of the benefits of the segregation policy? Just as potentially explosive to the U.S. military was the issue of African American troops socializing with white British women, and the possible violent reaction from such encounters by white troops, many of whom were dating these same girls. Or worse yet, a picture of inter-racial fraternization appearing in southern US newspapers and the consequential ire of southern legislatures who controlled key congressional military commiteess and any chance of permanent military funding. Eisenhower wanted "discrimination against the Negro troops to be sedulously avoided" (Smith, 1987: 102). However, this initial "policy" was quite problematical. By 1942, troops of color were reported welcome in British pubs, and in the homes of British women. Before his own landing in Britian, Eisenhower learned that: "Censorship had been established by American headquarters on stories involving minor difficulties between Negro troops and other soldiers and civilians. These incidents frequently involved social contact be-tween our Negro soldiers and British girls... The small town British girl would go to a movie or dance with a Negro quite as readily as she would with anyone else, a practice that our white soldiers could not understand. Brawls often resulted and our white soldiers were further bewildered when they found the British press took a firm stand on the side of the Negro...Several reporters spoke up to ask me to retain the ban... They said that trouble-makers would exaggerate the importance of incidents and that the reports, taken up at home, would cause domestic dissension. " (by Eisenhower, in Schuman, 1975: 118). General Eisenhower did not like segregation, but understood that problems of racial violence, often involved white soldiers in acts of violence against African Americans. "There were some shootings, most by whites against blacks and a few killings -- all covered up by the army" (Ambrose, 1994: 148). Maj. Gen. Ira Eaker (8th Air Force Commander) thought that white troops were responsible for 90% of the trouble. Also, British press and official reports indicated that African American troops were well behaved and accepted (Bucks Constabulary, 1945, 1946). If anything, the concern was that African American troops were often shielded from "legitimate" women and were found in the company of prostitutes and young, lonely married women with husbands away (Prime Ministers papers, 1942 to 1946). An official policy was needed to stem this blatant unofficial consent of racially motivated violence. Despite early suggestions by ETO command, Eisenhower knew that it was impossible to segregate troops, especially on leave. Finally he wrote: "A more difficult problem will exist in the vicinity of camps where both White and Negro soldiers are stationed, particularly with reference to dances and other social activities. This Headquarters will not attempt to issue any detailed instructions. Local Commanding Officers will be expected to use their best own judgement in avoiding discrimination due to race, but at the same time, minimizing causes of friction between White and Colored troops. Rotation of pass privileges and similar methods suggest themselves for use.; always the guiding principle that any restriction imposed by the Commanding Officers applies equally with force to both races." (by Eisenhower, ETO USA, 16 July 1942 Add. Hist. 218, RG 332, NA). While Eisenhower took the morally high grouond to race relations, at least in public, it was essentially a policy of local judgement, one rarely used in military regulations. Empowered by Eisenhower's notion of local control, some officers painted a far different picture of the African American soldier to the British citizenry: "The colored soldiers are akin to well meaning but irresponsible children. As such they have to be given the best possible care by their officers at the same time be subjected to rigid discipline. Generally, they can not be trusted to tell the truth, to execute complicated orders, or to act on their own initiative except in certain individual circumstances. That among the peculiar characteristics of the colored race ... influences such as excitement, fear, religion, dope, liquor, or the accomplishment of something without their usual sphere, they individually or collectively can change form with amazing rapidity from a timid or bashful individual to brazen boldness or madness or become hysterical. (statement by Gen. JC Lee in White, 1945: 17). The inconsistencies of Eisenhower's racial policies were eventually solidified by "a comprehensive instruction how to operate jim crow in Britain ... on 25 October 1943, and it really was a confirmation of what had been happening for some time" (policy by Lt Gen Jacob Devers in Smith, 1987: 106). The policy eventually was dubbed "Blacks Tuesday, Whites Wednesday." Another Major General (ETO Southern Command), created Notes on Relations with Coloured Troops to instruct his field officers in racial relations. These policies included: "While there are many coloured men of high mentality and cultural distinction, they generally are of a simple mental outlook. They work hard when they have no money and when they have money they prefer to do nothing until it is gone. In short they have not the white man's ability to think and act on a plan." "White women should not associate with coloured men. They should not walk out, dance or drink with them. Soldiers should not make intimate friends with them, taking them to cinemas or bars...Try to find out from American troops how they treat them and avoid such action as would tend to antagonize the white American soldier." (In Schuman, 1975: 120). These notes, once published, were labeled "deplorable", but were approved by U.S. Secretary of War Grigg, who stated that troop relations improved considerably from such policy (Cabinet Paper, 3-Oct-42). Violations of any regulation, especially by African Americans, were "to be brought under control by imposing heavy punishments for major crimes ... sex crimes and the 'natural propensities of the coloured men.' " (by Gen Denver, in Prime Minister papers, 2-Dec-1943: 117-123). The British public and Parliament, offended by this policy had few choices. There was little debate of the 1942 Visiting Forces Act (VFA) in Parliament, despite the fact that rape was not a capital offense in Britain (Parliament debates, 29-July-1942). Several news reports in the Times of London, backed by similar official documents, described the official British position as "hands off" the American treatment of its own soldiers, and cooperation where possible. A.H. Richmond, a British sociologist, documented the cultural transplantation of jim crow to the British isles: "We are not treated as soldiers, but something to be gaped at and held up to ridicule not by the English people but by the American. They are the ones causing all the trouble. Instead of leaving our problems of this sort at home the American (white) have tried to instill their ways and actions over here and try to make the English do things like they have done and become indignant when they don't do all the things like they would like to see them done. Here in England, a few of the narrow-minded possibly southern white American soldiers have already poisoned the mind of a few British people towards us. States that we were 'bears without tails', 'wild', 'sex-crazy maniacs', etc." (by anonymous African American soldier in Richmond, 1954: 87). The policy did come under attack in U.S. newspapers (see Pittsburgh Courier, 1942, 1944a thru i), and by important U.S. African Americans: "A rigid pattern of racial segregation in Great Britain, community patterns in the country not withstanding ... it is increasingly interesting to note that the practices of Great Britain conform to those that exist in many parts of this country. Here, segregation goes much beyond their separation in military units...[T]he Army has taken to England practices that exist widely in this country and that are regarded by many persons as constituting the solution to the racial problem (by Truman K. Gibson, aide to Secretary Grigg, January-1943, in Graham, 1987: pp 108- 109). Despite its attack both in the US and in Britain, jim crow was operational in Britain ETO during the Second World War. Instead of British open-mindedness influencing the military, just the opposite occurred. A deliberate campaign to segregate U.S. soldiers both on and off its military bases, and censorship of racial stories was not only an effective tool, but eventually had great influence on how portions of the British culture responded. Resistance to jim crow meant severe sanctions. The risks of increased violence by white soldiers outweighed Eisenhower's official high road policy. The result was almost a paranoid and compulsive enforcement of military discipline on African American soldiers found guilty of sex related crimes. The censorship on US publicity of racial sex crimes, or attendant violence often meant that few Americans even learned of incidents, violence, or even soldier executions until well after the fact, if at all. This included, at times, the families of the executed. X Conclusion: The Power of Context The literature on capital punishment suggests important variables in its use: people of color, the socially disadvantaged and victim-offender relationships. All three are powerful predictors of who is selected for execution. It is not surprising that VFA England execution files are disproportionately represented by soldiers of color (African American and Mexican American), by soldiers from low ranks and by soldiers committing acts of violence. This paper uses an analysis of primary and secondary sources to examine another powerful explanatory tool: context. This is demonstrated by the paucity of defense in these 18 capital cases, and the predominance of sex-related crimes, especially in a country where rape is not a capital offense. Each represents an example of how the military as a context influenced the selection and outcome of capital cases. This paper argues that the U.S. military is a fragile institution which employs "military justice" as a disciplinary tool, using and occasionally abusing command influence, even at the highest levels of military discipline - executions. WWII ETO defenses of capital GCMs were especially weak because of overt and subtle command pressure to process cases without questioning due process. Also, the military embraced a policy of jim crow segregation to solve the powder keg of race relations, especially the fraternization of African American troops with British women. Violators were subject to the severest of penalties. This was especially important as the ETO war came to a close. The military was poised to ask civilian leadership for a standing army, to become World Policemen. An inability to handle racial conflict would have been a deep blow to this effort. When combined, the two context cited here dominate the trial process. It is not surprising, therefore, to understand the selection of racially mixed sex cases as a prime target for the hangman's noose during ETO occupation of Britain by American troops. Future study into capital punishment should give attention to its use by the military, past, present and future. Such a perspective may explain why the socially disadvantaged, especially minorities represent such a high proportion of current death row populations. Also, as the criminal justice pendulum swings back to crime control, let us consider carefully the inmates currently on military death row in Leavenworth. Should the U.S. military be permitted to execute these men by lethal injection? How about the executions from military forces from other parts of the globe? What context drives their decisions? Are other militaries more, or less command influenced in their justice systems? Do they use capital punishment to address societal tensions and problems, like sexual racism? As capital punishment is advocated more world-wide, questions of context should be examined before making decisions concerning the usefullness of this means to a society's judicial ends. ENDNOTES REFERENCES Academic Sources: Books and Articles Adams, Michael (1994), The Best War Ever: America and World War II. 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