Misunderstandings cloud death penalty findings

December 20, 2005|By RAY PATERNOSTER

Before the recent execution of Wesley Baker, some advocates on both sides of the death-penalty question pointed to a comprehensive University of Maryland study to make their cases. This produced some serious misunderstandings and mischaracterizations of the research, and the confusion needs to be cleared up.

In 2003, I headed the Maryland research team that studied the fairness of the administration of the death penalty in the state. We concluded that race and geography were factors in the decisions that lead to death row. Put another way, whom you kill and where in Maryland you commit the crime make a difference.

We concluded this by sifting data on all 1,311 cases between 1978 and 1999 in which prosecutors could have pursued a death sentence. The question was not just who ended up on death row but who did not and what differentiated these two groups.

We looked at the four key moments in each case in which the prosecutor, judge or jury could decide whether to impose a death sentence - from the first filing of charges to final sentencing. We studied the details of each case, more than 100 factors in all. These factors captured the brutality of the crimes - the aggravating or mitigating circumstances that juries ultimately consider at sentencing time. Then we used statistics to account for and control all of these many differences among the cases.

After taking all these other factors into account, we found evidence that race mattered. We found even stronger evidence that the particular jurisdiction where the crime occurred mattered.

Yet, as the Baker execution approached, some newspapers and advocates described the study as finding just the opposite - that the Maryland death penalty process was race-neutral or that race of the offender made no difference. Some other advocates on the other side of the debate claimed that the study found the process to be racist. All of those descriptions are incorrect.

We found that both the race of the victim and, to a lesser extent, the race of the offender, make a difference:

Those who killed a white victim in Maryland were between two and three times more likely to be sentenced to death than those who killed a non-white.

Black offenders who killed white victims were nearly 2 1/2 times more likely to be sentenced to death than white offenders who killed white victims and nearly 3 1/2 times more likely to be sentenced to death than black offenders who killed black victims.

We found that these racial differences showed up early in the process, well before the case ever reached a courtroom, in the decisions made by the state's attorneys on whether to seek a death sentence. Further, these patterns held regardless of jurisdiction.

We described these as racial "disparities," not "bias" or "discrimination." We found a pattern, but could not say whether racial hatred or bigotry motivated decisions in Maryland's capital sentencing system. Certainly, other explanations are possible, and we think it does no good to hurl unfounded accusations of racial bigotry against state's attorneys, judges or jurors based on our study.

Whatever the reason, the data are clear and the relationships strong: the 21-year record of capital homicide prosecutions suggests that race and geography do play a role in prosecutors' decisions to pursue a death sentence in the state of Maryland.

There were stark differences in the way counties handled capital cases. This largely reflects the very different philosophies applied by the state's attorneys in these jurisdictions. We found the sharpest differences between Baltimore County and Baltimore City. But there were other significant differences as well:

Defendants who killed their victims in Baltimore County were about 23 times more likely to be sentenced to death than those whose victims lived in Baltimore City, nearly 14 times more likely than if they lived in Montgomery County and eight times more likely than if they lived in Prince George's County.

Harford County's state's attorney's office has a rate of seeking the death penalty that is nearly 11 times higher than Baltimore City and four times higher than Montgomery County.

We consider these findings disturbing. Maryland law spells out a series of aggravating and mitigating factors that alone are supposed to determine whether a convicted murderer gets a death sentence or life in prison. But our study indicated that race and jurisdiction also play a role, affecting cases long before juries ever get to vote - when prosecutors decide whether to pursue a death sentence.

Even so, our findings do not lead inexorably to the conclusion that the death penalty must be abolished in Maryland. There are other remedies to these problems.

For example, we found that patterns of racial disparity disappeared as the severity or level of aggravation of the case increased. Not all homicides are equally horrific.

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