CU law study reveals surprising state and racial death penalty findings

By Linda Myers

A new study by three Cornell faculty members that is the first to compare death row demographics with murder statistics produced some findings that are just as likely to surprise people on both sides of the political spectrum as they are to confirm popularly held beliefs.

For example, Texas, which in the public's mind tops the most-likely-to-execute list, has plenty of competition from other states when it comes to percentage of murderers on death row and sentencing rates.

Another surprise in the study: the U.S. South has the lowest percentage of black murder defendants on death row, when compared with the percentage of black murder defendants in the general prison population. However, the statistics represent a "racial hierarchy" shaped in part by prosecutors' unwillingness to seek the death penalty in black-on-black murder cases, rather than an unbalanced application of the law that favors black defendants, the authors wrote.

Blume

Eisenberg

Wells

The study, "Explaining Death Row's Population and Racial Composition," by John Blume, Theodore Eisenberg and Martin Wells, was published in the March 2004 issue of The Journal of Empirical Legal Studies. Cited in The New York Times Feb. 14, the study explored the population and racial makeup of states' death rows by relating them to the number of murders, and the race of murderers and victims (see http://www.blackwellpublishing.com/jels). The relatively large size of death rows in Texas, California and Florida "shape the conventional belief that these jurisdictions, especially Texas, have high death sentence rates," wrote the authors, "[but] after accounting for a state's number of murders, Oklahoma and Nevada are more death-prone states than any of the 'big three.' Oklahoma sentences at a rate of 6 percent; Nevada at 5.1 percent; and Texas at 2 percent. The national average is 2.5 percent. "The reality is that most death-prone states are under the radar," said Eisenberg, the Henry Allen Mark Professor of Law at Cornell Law School.

The view that Texas is the most death-prone state stems partly from the high number of murders committed in the state, 38,000 from 1976 to 1998, leading to 776 death sentences and 319 executions. While the study did not consider executions, Texas's rate is indeed high when compared with California, which had 50,000 murders in that same time period, sentenced 795 people to death between 1976 and 2002 and executed 10.

However, Texas is among the states that assign the death penalty only to certain kinds of murder, such as those of a police officer or witness, and as a result have lower death sentencing rates than those using more subjective standards, such as the heinous nature of a crime, the study noted. The states with the more objective laws assigned the death penalty less frequently than those with more subjective laws.

Race and sentencing is another subject that the study shed light on. Conventional wisdom holds that African Americans constitute a disproportionately large share of those on death row, noted the authors. The study did reveal that the higher the proportion of murders by African Americans, the higher the proportion of African Americans on death row. However, it also showed that African-American murder defendants represent 50 percent of all murder defendants in the United States, but comprise only 40 percent of those on death row, and the gap is even greater where least expected -- in the South.

"Death row's racial disparity, however, is not the result of race-neutral application of the death penalty or a perverse form of affirmative action," they wrote, but rather a "racial hierarchy" that stems in part from prosecutors' reluctance to seek death in cases involving black defendants and victims and eagerness to seek death in cases involving black defendants and white victims. Because the murder victims of black offenders are nearly always black, this "reluctance to seek the death sentence when the victim is black reduces the number of blacks in general on death row and more than offsets prosecutors' propensity to seek death sentences for blacks who murder whites," they wrote.

Black defendants who murder white victims continue to receive the highest rate of death sentences across the board; whites who murder whites receive the second highest; whites who murder blacks receive the third highest; and blacks who murder blacks receive the lowest, the authors noted. "The existence of a broad race-of-defendant effect, found here in different death sentence rates for black defendant-white victim cases has been virtually undetectable in more that 50 previous empirical studies," they wrote.

The authors used data on all death row inmates from 1977 to 1999 (primarily from the Bureau of Justice Statistics) and on most murders in the United States during the corresponding time (from the Federal Bureau of Investigation) to examine the relation between death sentences and murders and show the "death-proneness" of states' criminal justice processes. Because it drew some of its data from death row populations, the study offers a more in-depth perspective than other, earlier studies that only used data on capital sentencing.

Blume is an associate professor of law and director of the Cornell Death Penalty Project at the Law School. Wells is a professor of social statistics in the School of Industrial and Labor Relations and chair of the Department of Biological Statistics and Computational Biology.