Criminal Justice Legal Foundation


Maryland Study, When Properly Analyzed,
Supports Death Penalty

by Kent Scheidegger

Opponents of capital punishment in Maryland are calling upon newly inaugurated Governor Robert Ehrlich to break his campaign promise and maintain the death penalty moratorium imposed by his predecessor. They cite a study released January 7 as a reason to do so. However, a closer look at the numbers points to the opposite conclusion. The study confirms that Maryland should not only lift the moratorium, but it should use the death penalty more often.

The study was authorized by former Governor Parris Glendening. The lead author is University of Maryland Professor Raymond Paternoster, a well-known opponent of capital punishment. Its stated purpose is to examine "disparities" in capital sentencing by race or geography.

By far, the most powerful discrimination argument that could be made against capital punishment would be discrimination against minority defendants on the basis of their race. It was just such concerns that caused the Supreme Court to throw out all then-existing death penalty laws in 1972, resulting in a national overhaul of capital sentencing procedure. In Maryland, the study shows that the percentage of persons sentenced to death who are African-American is roughly the same as the percentage of persons who commit capital murder. After controlling for the legitimate differences in the cases, the study concludes "we have found no evidence that the race of the defendant matters in the processing of capital cases in the state."

This finding is particularly significant coming from a prominent opponent of capital punishment. It confirms similar results in studies in Georgia, California, New Jersey, and Nebraska, some of which were also conducted by death penalty opponents. The death penalty reforms put in place since the 1970s to eliminate discrimination are one of great successes of modern criminal law. Widespread opposition to capital punishment among the African-American community is understandable if there is reason to believe it is imposed discriminatorily based on the race of the defendant, but these studies should put those fears to rest.

The more difficult question is whether the death penalty is withheld in a discriminatory manner, i.e., whether murderers deserving of capital punishment are more likely to be let off with life when the victim is black.

Using statewide total numbers, the Paternoster study found that a death sentence is statistically more likely when the victim is white. However, when the various counties of Maryland are examined, a different picture emerges. The so-called race-of-victim effect nearly disappears when the county of prosecution is considered. "When the prosecuting jurisdiction is added to the model, the effect for the victim's race diminishes substantially, and is no longer statistically significant," the study's summary says. Prosecutors in Baltimore City, the jurisdiction with the highest percentage of African-American population, were the least likely to seek the death penalty in eligible cases.

The study calls the variation by county "geographic disparity." I call it local government. The people in politically more conservative areas elect more tough-on-crime prosecutors. Those prosecutors seek the death penalty in a larger percentage of the cases for which it is allowed. Those areas also tend to have relatively larger percentages of white residents and hence a larger percentage of white homicide victims. Conversely, prosecutors elected in politically more liberal areas tend to seek the death penalty less often, and these areas tend to have large proportions of minority residents and minority victims of crime. The statistics that show up as a "race-of-victim effect" are not the result of racism in prosecution decisions but rather of the tough or soft prosecution policies chosen democratically by the people of each county when they elect their state's attorney.

If the numbers are correct, they indicate that the death penalty is not being invoked often enough in the predominately African-American areas of Maryland, to the detriment of crime victims in those areas. Several recent studies have confirmed what common sense has always told us - a death penalty that is actually enforced is a deterrent and saves innocent lives. For much too long, America's civil rights leadership has reflexively sided with the defense in matters of criminal law. The tragic result is a loss of advocacy for minority crime victims.

Properly interpreted, this study provides powerful support for Governor Ehrlich's promise to lift the moratorium. The absence of any discernable race-of-defendant effect means that the defendants on death row are not there because of race. The insufficient numbers of death sentences in black-victim cases means that defendants who deserved the death penalty may have escaped it because of race, but the constitutional protection against double jeopardy precludes any correction of those injustices. The best we can do is strive to protect all victims equally in the future.

January 2003