www.eBarReview.com

Death Penalty Is Less Likely
For Blacks, Cornell Study Says

By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
February 14, 2004

Despite their teeming death rows and reputation for swift executions, some Southern states such as Texas and Virginia are less likely to impose capital sentences than many Northern states, a new study of nationwide sentencing data shows.

Moreover, although blacks make up a plurality of 6,000 convicts sent to death row between 1977 and 1999, they are less likely than whites to be sentenced to death for murder, the study found.

"The conventional wisdom about the death penalty is incorrect in some respects and misleading in others," conclude the authors, three Cornell University professors writing in the inaugural issue of the Journal of Empirical Legal Studies, published by Cornell Law School. 

Although the authors, law professors John Blume and Theodore Eisenberg and statistician Martin Wells, are critics of the death penalty, some advocates of capital punishment seized on the findings. "Their study knocks out a classic arguments against the death penalty: that it is racially-motivated," said Joshua Marquis, district attorney in Clatsop County, Ore., and chairman of the capital litigation subcommittee for the National District Attorneys Association.

The Cornell study, however, argues that race does play a role in sentencing, but in more subtle ways. "A racial hierarchy clearly exists," the authors contend, echoing previous surveys showing that killers of white victims are most likely to end up on death row.

The Cornell researchers found that blacks who kill whites are the likeliest to receive death sentences, followed by whites who kill whites and then blacks who kill blacks. But "because black offenders nearly always murder black victims, reluctance to seek death in black victim cases ... more than offsets the propensity to seek death sentences for blacks who murder whites," the authors report.

That results in African Americans comprising 41.3% of death row's population, even though they commit 51.5% of murders. In three states, California, Nevada and Utah, the death row's black population was slightly above the percentage of murders committed by African Americans. But in 28 states, including Georgia, South Carolina and Tennessee, blacks were underrepresented on death row.

The study analyzed U.S. Justice Department data compiling death sentences by state from 1976, when the U.S. Supreme Court reinstated capital punishment, through 1999, excluding seven states with fewer than 10 prisoners on death row. They cross-referenced data from the remaining 31 states, which identified the defendant's race, with homicide statistics from the Federal Bureau of Investigation detailing the victim's race and other circumstances of the murder, such as whether it took place during a burglary, rape or other crime. The analysis of 268,135 murder convicts found that a national death sentence rate of 2.2%, with the median death sentence rate of the 31 states 2%. The FBI crime reports don't break out racial data beyond black and white. Twelve states have no death penalty.

The Cornell study found that Nevada had the nation's highest death sentence rate, 6%, followed by Oklahoma at 5.1%, Delaware at 4.8% and Idaho at 4.7%. States with the lowest rates were Colorado, 0.4%, Maryland, 0.7% and New Mexico, 0.8%. Of the states with the largest death rows, Texas, with 776 condemned prisoners, had a rate of 2%, Florida, with 735 condemned, 3.4%, and California, with 652 condemned, 1.3%. Virginia, with 119 on death row, had a capital sentence rate of 1.3%. Texas's death-penalty reputation rests not on its capital sentencing rate, but on its propensity to actually carry out executions after sentences are imposed, the authors found.

Altogether, the 11 states of the former Confederacy had the same capital sentencing rate, 2.4%, as the 20 other death-penalty states.

[Map]
Journal of Empirical Legal Studies  

Tom Sargent, a spokesman for the Nevada Justice Department, said his state's death-penalty ranking was no surprise. "We're a highly transient state," he said. "There are a lot of people who come here and perpetrate crimes with the intention of getting out of here, and they don't get to leave."

That theory corresponds with the Cornell study, which shows a greater likelihood of death sentences in cases where the victim was a stranger to the victim, or when there were multiple victims.

The researchers also drew some conclusions on the effect of different types of sentencing laws and procedures. Contrary to some expectations, they found that the availability of a life sentence without the possibility of parole did not appear to decrease the chance that juries would impose death sentences. Two states with low or median death sentence rates, New Mexico and Texas, do not allow the life-without-parole option, meaning that jurors apparently were not influenced by the fear that a murderer sentenced to life in prison could someday be released.

The different structure of death penalty laws, however, did seem to affect the likelihood of a death sentence. States which required findings of particular aggravating factors before death could be imposed tended to have lower death-sentence rates. New Mexico's statute, for instance, lists such factors as murder of a witness or murder while escaping from prison, as conditions for imposing a death sentence. By contrast, North Carolina and Oklahoma, which ask juries to conclude more generally that a particular crime was "heinous, atrocious or cruel" before imposing death, had higher capital sentencing rates. Overall, the researchers found that states with "specific" conditions had a death sentencing rate of 1.9%, compared to 2.7% for states with more subjective standards.

In 2002, the U.S. Supreme Court ruled unconstitutional state laws that allow judges, rather than juries, to impose death sentences. The Cornell study suggests the decision is likely to lead to fewer death sentences. For the years surveyed, the researchers found that judges "vulnerable to election or recall" were more likely to impose death sentences than those who were more insulated from political pressure.

The researchers suggested that blacks are underrepresented on death row because they are less likely to kill strangers than are white murderers. But another reason, they suggest, is that prosecutors less often seek the death penalty against blacks because capital punishment itself is less popular among African Americans.

"Prosecutors are more likely to seek death sentences when they believe they can obtain them. In urban communities with a strong minority presences, prosecutors may face juries that are more reluctant to impose the death penalty," or may elect prosecutors less inclined to seek it.

Prof. Wells, the Cornell statistician, said the findings show that "it's fairly difficult to impose the death penalty fairly," and that should give pause to advocates of capital punishment.

But Mr. Marquis, the Oregon prosecutor, said that death-penalty abolitionists should drop the tactic of trying to find flaws in the administration of capital punishment. "The other side has avoided the moral argument, which is to say, as my parents do, that it's wrong to kill people," he said.