Death and Mr. Baker

THE FATE of Wesley Eugene Baker, a death row inmate, is now in the hands of Maryland's highest court. We hope that the Court of Appeals justices won't tolerate a penalty that has been shown to be seriously flawed - in both racial and geographic terms - in its application around the state. At the least, they should allow a lower court to consider whether those inconsistencies tainted Mr. Baker's case.

Mr. Baker, a black man who is now 47, was convicted of killing a 49-year-old white woman, Jane Tyson, in a shopping mall parking lot and was sentenced to death in 1992. He's one of five of the state's eight death row inmates who are using a major study by a University of Maryland criminologist to try to overturn their sentences.

That 2003 study by professor Raymond Paternoster showed inconsistencies in how death sentences are handed out in the state. Defendants, particularly blacks, who kill whites are much more likely to be charged with capital murder and sentenced to death than those who kill nonwhites. The study also showed that jurisdiction matters: Prosecutors in Baltimore County, for instance, are 13 times more likely to seek the death penalty than are prosecutors in the city.

In last week's argument - the first time that the study is being considered by the state's high court as part of a death penalty appeal - lawyers for the state argued that jurisdictional differences are inevitable and often based on factors such as economics and views of the electorate, rather than race. Regarding Mr. Baker, the state contends that the facts of the case, not racial bias, guided them in seeking a death sentence.

Some justices also questioned Mr. Baker's lawyer as to whether he could show actual evidence of bias and why the issue of racial discrimination had not been raised earlier. But the study's findings are troubling enough to suggest that, at the least, every precaution should be taken and the case should be sent back to a lower court for a hearing on the issue of bias.

Beyond the inconsistencies in administration of the death penalty highlighted by the study, there have also been enough instances around the country of death row inmates exonerated by new evidence that death as a state-imposed sanction should be reconsidered. Many tough prosecutors and juries have determined that life without parole is sufficiently harsh. We hope that the Court of Appeals will rule in a way that doesn't dismiss the serious questions raised by the Paternoster study or close the door on the larger death penalty debate.