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Maryland’s Death Penalty, Race and Prosecutors

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attorneys filed a formal notification to seek the death penalty in 353 (27%) of those cases; however, 140 (40%) were withdrawn by the prosecutor or ended in guilty pleas that led to life in prison.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.