Maryland Race Study Author Finds Death Penalty Practices "Disturbing"

Professor Ray Paternoster of the Department of Criminology and Criminal Justice at the University of Maryland was the senior author of a 2003 state-commissioned review of the role that race and geography play in Maryland's death penalty practice.  He recently wrote about the study's findings in the Baltimore Sun:

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.
. . .
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.
. . .

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.
    . . .
    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.
    . . .
    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.

("Misunderstandings Cloud Death Penatly Findings," Baltimore Sun, Dec. 20, 2005).  See also Race.

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New Voices: Former Maryland Governor Criticizes State's Racial Disparities

In a recent op-ed, former Maryland Governor Parris Glendening criticized the "troubling" racial and geographic disparities that plague the state's death penalty. Glendening, who served as Governor from 1995 to 2003, commissioned a study of Maryland's death penalty during his time in office and implemented a moratorium on executions during his second term to allow time for action to be taken to prevent these on-going problems. He wrote:

In the eight years I served as governor of Maryland, I found the power to decide which condemned prisoners would live and which would die the most awesome and emotionally grueling of all my duties. I faced this decision four times.

I believed in the death penalty when I became governor and took seriously my constitutional responsibility to uphold Maryland law. I presided over two executions, those of Flint Gregory Hunt and Tyrone Gilliam. Both were black men whose victims were white. I heard from many civil rights leaders who rightly pointed out that this racial combination dominated cases on our state's death row, even though African Americans were and continue to be the victims in nearly 80 percent of homicides.

So in 1999 I commissioned a study of race and death sentencing from the University of Maryland, believing it my responsibility to ensure that justice was truly blind when applying this ultimate punishment.

A few months later I faced yet another execution of a black man with a white victim -- that of Eugene Colvin-el. I was not yet convinced that a moratorium on executions was necessary. But I was also not 100 percent certain of Colvin-el's guilt, so I commuted his death sentence to life without the possibility of parole.

The last execution I faced was that of Wesley Baker -- whom Maryland ultimately executed on Dec. 5. His was the fourth case to come before me in which an African American man was condemned to die for the murder of a white Marylander. And as with two of the three condemned men before him, he had been sentenced to die in Baltimore County.

I could not, in good conscience, go forward with another execution of a black man for killing a white person. I stayed Baker's execution in May 2002 and imposed a moratorium on all executions pending the results of the University of Maryland study.

Days before I left office in January 2003, the study was released. Examining the records of more than 1,300 death-penalty-eligible cases between 1978 and 1999, criminologist Raymond Paternoster concluded that both geographic and racial disparities existed.

Baltimore County was singled out as having a significantly higher rate of death sentences than other jurisdictions in the state. Murderers in Baltimore County were 26 times more likely to be sentenced to death than killers in Baltimore City and 14 times more likely than murderers in Montgomery County.

The significant racial disparities are troubling. Cases in which the victim was white were almost twice as likely to result in the death penalty as cases in which the victim was black, and blacks who killed whites were 2 1/2 times more likely to be sentenced to death than whites who killed whites.

These results lead to the unfortunate conclusion that we value white life more than black life. Intentional or not -- and I believe it is not -- this is an indefensible and untenable position for the state. Whether one supports or opposes the death penalty in principle, all reasonable people understand that before we exercise the ultimate sanction, we must be confident that the system is, at a minimum, fair and accurate.

The University of Maryland study received a great deal of attention and should have been a call to action for state leaders, but no solutions have been implemented. The General Assembly, despite conducting hearings on the issue, never passed legislation to deal with the inequalities highlighted in the study.

Gov. Robert Ehrlich, who lifted my moratorium on executions after assuming office despite acknowledging that race "plays a part all the way through the process," named Lt. Gov. Michael S. Steele as the new administration's point man on the issue. The lieutenant governor promised to conduct an assessment of our state's death penalty. To date, he has not.

Despite being ignored by the current administration, issues raised by the study remain. Maryland still faces serious questions about the impact of race and geography in capital sentencing.

I implemented the moratorium to allow for the thorough and fair study of our death penalty system and to allow for action to be taken to prevent racial and geographic discrimination. The study was completed, but the corrective action was not. It is time for our state to honestly and openly consider these findings and to find constructive remedies. To carry out executions under this scenario is simply wrong.

(Washington Post, December 18, 2005) (emphasis added). See Race and New Voices.

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Birmingham News Reverses Its Position on the Death Penalty

Editorial series calls for end to capital punishment

The Birmingham News, a consistent supporter of capital punishment in the past, is now advocating that the state abandon the use of the death penalty. In an editorial series that was published November 6 - 11, 2005, the paper stated that there are serious flaws in the application of the death penalty in Alabama. It also said that the death penalty is inconsistent with the paper’s commitment to a culture of life.

According to the News, “[These editorials] will document over the next several days how the death penalty is applied arbitrarily in Alabama, how the system for defending those accused in capital cases is deficient and how the argument that capital punishment deters crime is open to question. These findings will be troubling on their own. When you consider
these uncertainties in the context of a culture of life . . . it becomes harder to defend a flawed system for deciding who lives and who dies.”

Alabama is a leading death penalty state. According to DPIC there have been 34 executions in Alabama since 1976, and 191 people are currently on death row. According to the News report, 75% of those sentenced to die in Alabama had killed a white person, even though the majority of the state's murder victims are black. Five people have been freed from Alabama's death row on the basis of innocence.

By examining individual cases, the News series highlights injustices in the death penalty system. Though it recommended abolishing Alabama's death penalty, the paper said that short of that, the state should enact a lengthy list of reforms to ensure that the death penalty is applied more fairly. The following are excerpts from the editorial series.

Alabama’s Error Rate in Capital Cases Far Exceeds the National Average

The News notes: “It should be no comfort to death penalty supporters that in the process leading to execution, mistakes are so common.” In particular, The News provides the following example:

  • “A massive study by Columbia University Law School professors in 2000 put the national error rate for capital cases at 68 percent while Alabama’s error rate exceeded 77 percent for capital convictions and death sentences.”

Flaws in System Put State at Risk for Executing an Innocent Person

The News asserts, “[T]hose who value life must demand at minimum a fair, impartial system designed to prevent the abhorrent possibility of the state killing an innocent person,” and provides evidence of exonerations throughout the country and in Alabama: Name of Exoneree
Year of Conviction
Year of Release
Walter McMillian
Randall Padgett
Bo Cochran
Gary Drinkard
Wesley Quick

  • “Since 1973, 121 inmates in 25 states have been released from Death Row”
  • Anthony Ray Hinton is currently on death row in Alabama. The News provides evidence of his possible innocence. To read the editorial on Anthony Ray Hinton click here.

The Death Penalty is Applied in a Haphazard Fashion

According to the News, “[W]e should be assured the ultimate punishment is inflicted fairly and accurately. That's not the case. If it were, the horror of a particular crime and the guilt of a particular defendant would determine whether a case ended with a sentence of death. Instead, the outcomes often hinge on the status of the accused, the quality of the defense, the race of the victim, even the location of the crime.” Arbitrary factors influence who is sentenced to death. The News claims “ those who get the ultimate punishment are not necessarily the worst of the worst.”

  • “The factors that determine which cases end with death are arbitrary. Socioeconomic status of defendants, quality of defense, race of victim.”

Race Could Play a Role in Who Gets the Ultimate Punishment

According to the News, race plays a part in who is sentenced to death. For instance:

  • “In 2003, for instance, blacks made up 60 percent of the homicide deaths. Of murder victims whose killers were sentenced to death over the past 30 years, more than 75 percent were white.”

Race of Homicide Victims
in Alabama 1994 - 2003

Race of Victim for
Defendants Sentenced to Death
in Alabama 1994 - 2003

Race of Victim for Defendants Executed
in Alabama Since 1976

Source: Birmingham News

Source: Birmingham News
Source: NAACP LDF Death Row USA

Discretion Leads to an Arbitrary Application of the Death Penalty

“Alabama has one of the nation's broadest capital punishment laws, allowing the death penalty for 18 varieties of murder. Despite the sizable number of murders that qualify, only a fraction end up with a death sentence.” The News emphasizes how discretion can impact the decision of who is sentenced to death. “Even biases that are buried can emerge in capital cases because humans make the call about who gets life and who gets death.” There are several ways that discretion comes into the process. For example:

Prosecutors Determines Who is Charged with Capital Murder

“Eighteen varieties of murder but not everyone who commits one of these crimes is condemned to die.” Prosecutors must first decide whether to charge a person with murder or with capital murder. Prosecutors determine whether or not a person should be prosecuted capitally in different ways.

  • “How fair can it be when a crime in one county is deemed worthy of the state’s worst punishment, while an almost identical crime in another county is not?”
  • “Jefferson County District Attorney David Barber says his philosophy is to charge any crime that meets any of the legal criteria as capital murder - and to seek the death penalty. ‘That way we won't get in a situation of picking and choosing,’ he said.”
  • “Shelby County's Robby Owens does pick and choose. He says he doesn't go after the death penalty unless the murder was calculated, there's no question of guilt and he believes the defendant isn't worth saving.”

Source: Birmingham News

Judicial Overrides
Judges with the Most Overrides

Braxton Kittrell,
Mobile - 7

Ferril McRae,
Mobile - 5

Randall Thomas,
Montgomery - 5

  • "Judges, too, play a role - more so in Alabama than in most other states. Here, judges can impose a death sentence even when a jury recommends against it.”
  • “Since 1982, 53 judges have handed down 83 death sentences against a jury's wishes--20 percent of the people on Death Row. More than 1 in 5 overrides were the work of just three judges.”

Lack of Adequate Legal Representation Brings the Reliability of the System into Question

“Alabama must ensure a decent legal defense if it is going to embrace and encourage death for those who commit the most serious crimes against society. Anything less,” the News contends, “unconscionably devalues life.” The facts demonstrating how lack of legal representation influences the reliability of death sentences are:

Alabama Has No Public Defender System

  • “One of the most dangerous flaws in Alabama's capital punishment system is the lack of a statewide public defender system. Instead, the state offers a hodgepodge, bare-bones way of providing lawyers to defend poor suspects.”

Inexperienced Attorneys Often Handle Capital Cases

  • “Court-appointed lawyers often have little experience in capital cases, and limits on pay discourage highly qualified lawyers from taking cases.”
  • “Conversely, a district attorney's office, which prosecutes individuals charged with capital crimes, may have highly experienced attorneys who deal with homicide trials regularly.”

Attorney Pay Rates Are Low

  • “The great majority of today's death row inmates were convicted before 2000. Yet until 1999, court-appointed lawyers were paid $20 an hour for out-of-court work and $40 an hour for in-court work; until 2000, they got $30 an hour out of court and $50 an hour in court. Also until 2000, the court-appointed lawyers were capped at $1,000 for out-of-court fees, meaning they were limited in the pretrial hours they could work on a case, unless they worked for free.”

Attorneys Are Not Guaranteed for Appeals

  • “In a system like Alabama's that does not pay for or guarantee a high-quality, aggressive defense at trial for each death penalty case, it's even more important that the trial get a close examination on appeal. But the death penalty appeals process is stacked heavily against somebody fighting for his life.”
  • Alabama provides no “system of assuring lawyers for defendants for the crucial second and third round of appeals where miscarriages of justice are most often uncovered.”

The Majority of Alabamians Question Fairness of Death Penalty—Majority Favor Moratorium

  • “While more than 7 in 10 favor capital punishment, about 57 percent of those surveyed say they favor a moratorium until questions over the way the death penalty is applied can be worked out.”
  • “Only 47 percent believe the death penalty is applied fairly in Alabama, according to the poll.”
  • “80 percent of those polled think the state could execute someone who is not guilty.”

How do you feel about the use of the death penalty in Alabama?

Do you believe the death penalty is applied fairly in Alabama regardless of gender, race or income?

Do you believe an innocent person may be convicted and executed?

Source: Birmingham News

Source: Birmingham News
Source: Birmingham News

The News Offers Recommendations for Improving the Reliability of the Death Penalty in Alabama

According to the News: “The ultimate punishment is inflicted, at best, haphazardly. The outcome of capital murder trials can be affected by arbitrary factors such as the status of the accused, the race of the victim and more than a little luck. One of the most crucial factors is the quality of legal representation; Alabama doesn't provide for an adequate defense, much less the vigorous defense a life-or-death case demands. That raises the specter of the worst failure the state's criminal justice system could ever experience: the execution of an innocent man or woman.” Until the state abandons its use of the death penalty, the News suggests the following reforms:

Commission a Study on Capital Punishment in Alabama

  • “The people of Alabama - in the form of their state government - should conduct a thorough review of their own.”

Impose a Moratorium on the Death Penalty

  • “The Legislature, in the session that begins in January, quickly should pass a law suspending the death penalty while a commission examines problems with Alabama's system of capital punishment.”

Stop Jury Overrides

  • “Take away the power of circuit judges to impose death sentences when a jury recommends a sentence of life in prison without parole. Alabama is one of only a handful of states that grant judges this power and the only state where it is used liberally. Political pressure can be (and has been) used to urge judges, who are elected, to resort to the override power. The state should remove that temptation.”

Establish a Way to Review the Prosecutor’s Decision to Seek Death

  • “Establish a uniform system with state oversight to guide prosecutors in deciding when to seek the death penalty. The system should include a process of review so that defendants can challenge a prosecutor's decision on the front end.”

Require Full Disclosure by Prosecutors in Capital Cases

  • “Require prosecutors in a capital case to turn over every bit of evidence - helpful or not - to the defense. They already are required to turn over helpful information; but sometimes, disputes occur over whether a particular piece of information would aid the defense.”

Establish Safeguards for Unreliable Testimony

  • “Put safeguards in place to address chronic problems that crop up in death penalty cases with regard to eyewitness testimony, the use of jailhouse snitches and police interrogation procedures.”

Decrease Capital Offenses

  • “Reduce the number of crimes that qualify for a death sentence.”

Define Mental Retardation

  • “Set up reasonable guidelines about what constitutes mental retardation in keeping with the U.S. Supreme Court decision striking down executions of the retarded.”

Pass Law to Ban Execution of Juveniles

  • “Pass laws outlawing the execution of people for crimes they committed as juveniles in keeping with another U.S. Supreme Court ruling.”

Preserve Evidence in Capital Cases

  • “Make sure evidence in capital cases is preserved to allow for DNA testing where it could determine guilt or innocence, and ease the way for the testing to take place.”

Make Reforms Retroactive

  • “Devise a system to review death penalty cases prosecuted before these reforms (while lawyer pay was deplorably low) to try to ensure no innocent person is executed.”

Examine Proportionality of Capital Prosecutions and Sentences

  • “Study the correlation between race and the death penalty, and make changes to the law or in practices to try to ensure that the ultimate punishment is about the severity of the crime, not the skin color of the defendant and victim.”

Ban the Execution of Persons with Mental Illness

  • “Protect people with serious mental illness from being executed for crimes they committed while psychotic.”

Despite Reforms, The News Says System May Not Be Fixed

  • “Taken together, these proposals are not an inexpensive proposition. The state already spends $40 million a year paying court-appointed lawyers to defend poor suspects. A statewide indigent defense system likely would cost much more. That means it's even less likely the Legislature, which every year patches together an operating budget with smoke and mirrors, will undertake these reforms.”
  • Even if all these steps were taken, they would not be enough to satisfy the News' editorial board that the death penalty is appropriate for Alabama.

Read the Full Text of the Birmingham News' Editorials

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122nd Inmate Freed From Death Row

Harold Wilson is the 6th Person Exonerated in Pennsylvania

More than 16 years after a Pennsylvania jury returned three death sentences against Harold Wilson, new DNA evidence has led to his acquittal. During Wilson's 1989 capital trial, the prosecution used racially discriminatory practices in selecting the jury.

In 1999, Wilson’s death sentence was overturned when a court determined that his defense counsel had failed to investigate and present mitigating evidence during his original trial. A later appeal led to the overturning of his conviction and a new trial because of the race bias in selecting the jury. The court held that at the new trial the death penalty could not be sought. On November 15, 2005, a new jury that did not have to be "death-qualified" and that was properly chosen, acquitted Wilson of all charges. DNA evidence revealed that blood from the crime scene did not come from Wilson or any of the victims, a finding suggesting the involvement of another assailant.

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Pennsylvania Man Becomes the 122nd Inmate Freed From Death Row

More than 16 years after a Pennsylvania jury returned three death sentences against Harold Wilson (pictured), new DNA evidence has helped lead to his acquittal. Yesterday, Wilson became the nation’s 122nd person freed from death row according to the Death Penalty Information Center (DPIC). During his 1989 capital trial, Wilson was prosecuted by former Philadelphia Assistant District Attorney Jack McMahon, a man best known for his role in a training video that advised new Philadelphia prosecutors on how to use race in selecting death penalty juries.

In 1999, Wilson’s death sentence was overturned when a court determined that his defense counsel had failed to investigate and present mitigating evidence during his original trial. A later appeal led the Pennsylvania Supreme Court to call for a new hearing because of evidence that McMahon used racially discriminatory practices in jury selection. In 2003, a trial court found that McMahon had improperly exercised his peremptory strikes to eliminate potential black jurors and granted Wilson a new trial, a decision that the District Attorney’s office did not appeal.  The court stated that in the new trial the death penalty could not be sought.  The jury in this most recent trial acquitted Wilson of all charges on November 15, 2005, after new DNA evidence revealed blood from the crime scene that did not come from Wilson or any of the victims, a finding suggesting the involvement of another assailant.

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Racial Bias in Jury Selection Practices Leads to Vacated Murder Conviction A prosecutor training videotape featuring former Philadelphia assistant district attorney Jack McMahon discussing techniques to keep African Americans off of juries has resulted in yet another murder conviction reversal. Noting that the tape is "compelling evidence" that McMahon "regularly acted with discriminatory animus toward African-American jurors," a practice made unconstitutional by the U.S. Supreme Court's 1986 decision in Batson v. Kentucky, the U.S. Court of Appeals for the 3rd Circuit affirmed the reversal of the murder conviction of Zachary Wilson because McMahon improperly struck numerous African-Americans from Wilson's jury. The ruling upholds an April 2004 decision that found that McMahon used at least nine of his 16 peremptory challenges against African Americans and had discriminated on the basis of race for at least one of the jurors struck.

In the section of the tape involving death penalty cases, made one year after the Supreme Court's Batson decision, McMahon states, "Let's face it . . . the blacks from the low-income areas are less likely to convict. . . . There is a resentment for law enforcement, there's a resentment for authority and, as a result, you don't want those people on your jury. And it may appear as if you're being racist or whatnot, but, again, you are just being realistic. You're just trying to win the case." He also advised, "The best way to avoid any problems with it is to protect yourself. And my advice would be . . . when you do have a black jur[or], you question them at length. And on this little sheet that you have, mark something down that you can articulate at a later time if something happens."

(The Legal Intelligencer, October 15, 2005).  See Race and DPIC's report, "The Death Penalty in Black and White."

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Race and the Death Penalty in California RACE AND THE DEATH PENALTY IN CALIFORNIA

A recent study to be published in the Santa Clara Law Review found that the race of the victim in the underlying murder greatly affected whether a defendant would be sentenced to death.

Generally, there are more Hispanic and African American victims of murder in California:

--California Murder Victims 1990-1999 - Office of Vital Statistics; based on murders where race of victim was known;  Whites, African American, and Other are non-Hispanic members of those races.

But in death penalty cases, there are many more white-victim cases than Hispanic or African-American-victim cases:
--Victims of murder in California where the defendant was sentenced to death 1990-1999; based on 263 death sentences where there was a single murder victim.

Conclusions from the study:
Although more Hispanics and African Americans are victims of murder in California, white-victim cases are the ones most likely to end in a death sentence:
  • Those who kill non-Latino whites are more than three times more likely to be sentenced to die as those who kill African-Americans.
  • Those who kill non-Latino whites are more than four times more likely to be sentenced to die as those who kill Latinos.
  • A person convicted of the same crime is more than three times more likely to be sentenced to die simply because the crime was committed in a predominantly white, rural community rather than a diverse, urban area.
G. Pierce & M. Radelet, "The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999," 46 Santa Clara Law Review ___ (2005 forthcoming)).  See also  Race and Arbitrariness.

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Research Links Historical Lynchings to Modern Murder Rates and Capital Punishment

Recent research has revealed a close correlation between the U.S. states that historically carried out the most lynchings and the states that today have the highest homicide rates and most death sentences.  In a study led by sociologist Steven Messner of the State University of New York at Albany, county data from 10 southern states where historically reliable information on vigilante lynchings between 1882 and 1930 is available were examined (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee). The study then compared this information to more recent homicide data compiled from 1986 to 1995 by the FBI and National Center for Health Statistics. The comparison revealed that the counties with the most lynchings had the highest homicide rates, and the counties with fewer lynchings had comparatively fewer murders, even when researchers controlled for factors such as population, poverty, low levels of education, the percentage of young people in the population, the unemployment rate, and the percentage of single-parent households. Messner noted that "lynching seems to matter and is relevant to our understanding of contemporary lethal violence" in the South. The latest issue of the American Sociological Review contains more information about this study.

In a second study conducted by sociologists David Jacobs and Jason T. Carmichael of Ohio State University and Stephanie L. Kent of the University of Nevada, Las Vegas, research revealed that the number of death sentences for all criminals - black and white - was higher in states with a history of lynchings. The link was particularly strong when the researchers analyzed only death sentences for black defendants. The sociologists theorize that the death penalty became a legal replacement for the lynchings of the past, and that the number of death sentences in states with the most lynchings increased as the state's population of African Americans grew. The researchers noted that this trend suggests that "current racial threat and past vigilantism largely directed against newly freed slaves jointly contribute to current lethal but legal reactions to racial threat." This research will be published in an upcoming issue of the American Sociologial Review.

(Washington Post, September 25, 2005, Outlook section, p.B5). See Arbitrariness and Race.

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Study Finds Race of Victim, Geography Are Key Factors In California Death Sentencing

According to a new study to be published in the Santa Clara Law Review, a defandant in California is more likely to be sentenced to death for killing a white person than for murdering a person of any other race, despite there being more black and Hispanic murder victims in the state. The research also shows that geography plays a key role in whether the death penalty will be sought in a particular case.

The study implies that the loss of white lives is considered more important in the justice system than the loss of black or Latino lives.  Among the findings of the study were:

  • Those who kill non-Latino whites are over three times more likely to be sentenced to die as those who kill African-Americans.
  • Those who kill non-Latino whites are over four times more likely to be sentenced to die as those who kill Latinos.
  • A person convicted of the same crime is more than three times more likely to be
    sentenced to die simply because the crime was committed in a predominantly
    white, rural community rather than a diverse, urban area.

"To put it bluntly, there's apparently different values being placed on victims from different racial and ethnic groups. That's what the pattern would suggest," said Northeastern University criminal justice professor Glenn Pierce, a co-author of the study. Santa Clara University professor Ellen Kreitzberg added, "This study force[s] the people in California to confront the unfairness of how the death penalty is applied in this state. The decision of who will live and who will die in California turns on arbitrary and unlawful factors such as the race and ethnicity of the murder victim or the location where the murder was committed."

(Associated Press, September 22, 2005; ACLU of Northern Calif. Press Release, Sept. 21, 2005; G. Pierce & M. Radelet, "The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999," 46 Santa Clara Law Review ___ (forthcoming)).  See Race and Arbitrariness.

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RACE AND JURY SELECTION: Federal Judge Attempts to Seat a More Diverse Jury in Death Penalty Case

A federal judge in Boston presiding over the death penalty case of two black defendants has ordered a change in the process of summoning jurors in order to ensure a more diverse jury.  U.S. District Judge Nancy Gertner wrote a 95-page opinion and noted that it would be "profoundly troubling" if the defendants, Darryl Green and Branden Morris, were to face an all-white jury in a trial for their lives.  Gertner cited studies that showed that wealthier geographic areas keep more accurate jury rolls and hence have a higher response rate from summoning juries.  Poorer areas, where more minorities live, require a follow-up process when summonses are returned unanswered in order to reach the intended person.

The prosecution has challenged the judge's order and the District Court's Chief Judge has appointed a committee of 5 judges, including Gertner, to review the "profound issues" raised.  The Chief Judge has submitted his own brief to the U.S. Court of Appeals that is considering the prosecution's challenge. 

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