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CounterPunch
January
8, 2003
Maryland's Death
Penalty
Race and Prosecutors
By ELAINE CASSEL
When outgoing Maryland Governor Parris Glendening
put a hold on all executions and commissioned a report on the
administration of the death penalty in 2000, he was primarily
concerned with finding out the answer to one question: Is the
death penalty more often imposed when the murder victim is white
and the defendant black?
The comprehensive report, released January
7, 2003, is entitled "An
Empirical Analysis of Maryland's Death Sentencing System with
Respect to the Influence of Race and Legal Jurisdiction."
Lead author is University of Maryland criminology professor Raymond
Paternoster. Backed up with methodology that can withstand any
skeptic's scrutiny, it answers Glendening's question with an
unequivocal "yes." Race matters. Eighty percent of
death sentences were imposed in cases of white victims. A case
is seventy-five percent more likely to result in death when the
killing is black-on-white than when it is white-on-white. Put
another way, one is three times more likely to be put to death
for killing a white person than a black person; a black defendant
is twice as likely to be put to death as a white person if the
victim was white.
The authors considered all of the 6,000
first and second-degree murders that were committed in the state
of Maryland from August of 1978 (when Maryland's death penalty
statute became effective) until September of 1999. Using a panel
of experts to sort the cases according to the aggravating and
mitigating factors that must be taken into consideration when
ordering death, they came up with 1,311 death eligible cases.
Of these cases, they found that state's attorneys filed a formal
notification to seek the death penalty in 353 (27%) of those
cases; however, 140 (40%) were withdrawn by the prosecutor or
ended in guilty pleas that led to life in prison. Prosecutors
abandoned the death penalty in some cases, leading to 180 cases
that went to trial and to the penalty phase (a death penalty
case takes place in two parts-guilt is first voted on, then the
penalty).
Why is it that a white victim is more
death-worthy than a black victim? The answer to this question
is also unequivocal: Prosecutors more often ask for the death
penalty when the victim is white. Baltimore County State's Attorney
Sandra O'Connor at least lays claim to this fame-you can't call
her a racist. She asks for the death penalty in all cases in
which it could be supported by the statute. Her self-serving
reason? So she won't be considered a racist. I guess you cannot
argue with that logic.
The methodology studied the patterns
by geography (county), not personalities of prosecutors. But
since prosecutors are elected, then it is safe to bet that their
death-penalty stances gets votes and that it is just that-getting
votes rather than being irrationally fair, that is in minds of
heartless prosecutors (surely a redundancy there) like O'Connor.
However, the report sticks to the data, and does not suggest
that prosecutors are bigots. Rather, it points to other factors,
like victim families' wishes and types of crime that influence
prosecutor decisions.
To its credit, the legislature of Maryland
has crafted a decent death penalty, as capital statutes go. Unlike
the more bloodthirsty states of Virginia, Texas, and Florida,
Maryland does not allow the death penalty unless the defendant
pulled the trigger or paid someone to do so (what in the law
is called a "principal in the first degree"). The defendant
must have been over the age of 18 at the time of the offense
and must not be mentally retarded.
These constraints on the death penalty is why Attorney General
John Ashcroft snatched "Beltway snipers" John Allen
Muhammad and John Lee Malvo (Malvo is a juvenile) right out of
their Maryland jail cells and awarded them to Virginia jurisdictions,
a move that he admitted was designed to insure that they died
for their alleged crimes.
Incoming Gov.-elect Robert Ehrlich promised
during his campaign that everyone on Maryland's death row will
die as expeditiously as possible. The report will have no bearing
on his policy. (This may be a Republican tradition-- President
Bush told author Robert Woodward that he does not listen to the
opinions of others-they listen to him.) After the report was
released, he said he would have his Lieutenant Governor review
each case before death warrants are signed (no rubber stamp,
that). One can wonder how he will deal with another aspect of
Maryland's racism-racial profiling in routine traffic stops-led
to a settlement agreement with the U.S. Justice Department a
few days before the death penalty report was released. Will he
find a way to thwart its mandate to stop harassing black drivers
on Maryland's highways?
Lest we be unfair to Maryland, if similar
studies were conducted in all death-penalty states, the results
would no doubt be similar. Virginia has some death-happy prosecutors
(Ashcroft handed over one sniper to each). Texas's Harris County
prides itself in executions. Some Louisiana prosecutors wear
ties with nooses on them, give each other plaques with needles
affixed, and have toy electric chairs in their offices. The passion
for killing, if it could be measured, would probably outrank
even racism a motive for the policies of such prosecutors. And
governors who brag about their immunity from second-thoughts
about ordering executions are in the best of company with our
current President, who never, ever ordered the execution of an
innocent man and who never, ever lost a moment's sleep worrying
about it, either.
But setting aside menacing meanness and
bigotry in Maryland (or elsewhere), which can hardly be operationalized,
the authors of this landmark report have controlled for every
conceivable measurable confounding variable. The results-that
a white life means more than a black life when meting out the
ultimate punishment is inescapable. As of this writing, all thirteen
men on Maryland's death row were sentenced to death for killing
whites; eight of the defendants are black.
As Gov.-elect Ehrlich takes office January
15, 2003 and lifts the moratorium on the death penalty, let the
killing begin.
Elaine Cassel
practices law in Virginia and the District of Columbia and is
a contributor to Counterpunch and Findlaw.com. She is the chair
of the American Bar Association's Behavioral Science Committee
of the Science and Technology Law Section and is the author,
with Douglas Bernstein, of Criminal Behavior (Allyn &
Bacon, 2001). She also teaches law and psychology. She can be
reached at: cassel@counterpunch.org.
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