A year of inaction

December 22, 2003

IN ONE WAY, what was remarkable about criminologist Raymond Paternoster's study of Maryland's use of the death penalty is that it followed four other reviews. Each raised questions about the role race plays in capital punishment in Maryland. But their concerns went unanswered, and remain so still.

Let's recap: A 1987 review noted that prosecutors were more likely to seek the death penalty when the victim was white. In 1993, a governor's commission concluded that "racial disparities" in implementation of the death penalty remain "a matter of legitimate concern." In 1996: A high percentage of blacks on death row and a low percentage of death sentences in cases where the victim was black "remains a cause for concern." A 2001 analysis called for a more comprehensive study. Mr. Paternoster's was it.

Of the 1,311 death penalty-eligible cases that the University of Maryland researcher reviewed, he found the same troubling news: Defendants who are accused of killing white victims are more likely to be charged with capital murder and, if convicted, sentenced to death than those charged with killing non-whites. Nearly a year later, his disturbing findings have yet to compel a response from the state. What's it going to take?

Lt. Gov. Michael S. Steele, a death penalty opponent, publicly vowed to investigate the racial disparity issue. But he has marshaled neither the resources nor the attention that the issue deserves. Mr. Steele won't discuss publicly what he has done to date.

Trying to rectify racial disparities in the state's use of the death penalty will be inordinately difficult. It strikes at the core of criminal prosecutions - the right of state's attorneys under the Maryland constitution to bring criminal charges. Mr. Steele's boss, Gov. Robert L. Ehrlich Jr., doesn't believe the system needs fixing or fine-tuning. And perhaps that is the reason for Mr. Steele's silence. But if the lieutenant governor is serious about his intention to better ensure that the death penalty is applied fairly and equitably in Maryland, here are several avenues to explore:

Reserving the death penalty for the most heinous crimes by narrowing the circumstances under which a capital case can be charged. Maryland law says a death-eligible case includes a murder committed in connection with another felony (such as armed robbery, rape or kidnapping), a circumstance with broad implications under which many death penalty cases are filed.

Strengthening the requirement that prosecutors turn over material beneficial to the defense and instituting harsh penalties for withholding evidence.

Establishing an oversight commission to review prosecutors' decisions to charge a capital case; the state of Delaware gives its attorney general final approval on those choices.

Including as grounds for appeal studies that attest to racial inequities in the use of the death penalty; a 1987 U.S. Supreme Court decision in a Georgia case suggested use of such statistical analyses would be relevant if permitted by state law.

The death penalty is the ultimate punishment, yet concerns about racial disparity have been raised time and again for more than a decade. That's why the issue demands a vigorous response, a serious inquiry and a passionate advocate.

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