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A study of proportionality review in New Jersey death penalty cases concludes that the race of neither the defendant nor the victim affects the likelihood that a capital sentence will be imposed, but county prosecutors more often seek the death penalty when the victim is white. In a report released last Monday, New Jersey Supreme Court Special Master David Baime found no evidence of bias against black defendants in seeking or imposing death during the period studied, August 1982 through May 2000. Instead, among defendants eligible for the death penalty, whites were sentenced to death at a slightly higher rate than blacks. Looking at only those cases where the prosecutor sought the death penalty, the rates for blacks and whites were about the same. Hispanic defendants faced death penalty trials at a rate slightly above blacks but those who did were sentenced to death at a rate that was one-third the rate for whites and blacks. “Simply stated, we discern no sound basis from the statistical evidence to conclude that the race or ethnicity of the defendant is a factor in determining which cases advance to a penalty trial and which defendants are ultimately sentenced to death,” concluded Baime. “The statistical evidence abounds the other way — it strongly suggests that there are no racial or ethnic disparities in capital murder prosecution and death sentencing rates.” Baime’s “Report to the Supreme Court: Systemic Proportionality Review Project 2000-2001 Term” is the first of a series of annual reports that the court ordered be done to monitor the potential impact of race on death sentencing. Two earlier proportionality reviews by Baime also found an absence of racial bias, but this is the first study to use three separate statistical methods: bivariate analysis, case sorting and multiple-regression analysis. The three methods yielded comparable results: � Bivariate analysis, which looks only at the correlation with race, showed that of 490 defendants, prosecutors sought the death penalty for 69 whites (46 percent); 91 African-Americans (32 percent); and 18 Hispanics (35 percent). Those sentenced to death included 22 whites (15 percent); 30 blacks (11 percent); and two Hispanics (4 percent). In penalty trials only, the rates were 32 percent of whites; 33 percent of blacks; and 11 percent of Hispanics. � The case-sorting method, which breaks down the data by various factors and combinations of factors, showed 43 percent of death-eligible whites versus 28 percent of blacks and 32 percent of Hispanics went to a penalty trial. Of those, 36 percent of whites were sentenced to death as compared with 33 percent of blacks and 12 percent of Hispanics. Of the entire death-eligible universe, 15 percent of whites, 9 percent of blacks and 4 percent of Hispanics received the death penalty. � Using multiple-regression analysis, which measures the data against multiple variables, Baime found “no statistically significant effect of race” — either the defendant’s or the victim’s — in seeking or obtaining the death penalty. THE ‘WHITE VICTIM EFFECT’ When the focus shifted to the race of the victim, the results were split. Though killers of white victims were not more likely to be sentenced to death, they were far more likely to face a penalty trial. But considering only those who had a penalty trial, a higher percentage of those whose victims were black got the death penalty. For example, applying the bivariate analysis to 544 victims who included 220 whites, 192 blacks, 61 Hispanics and 71 “other,” prosecutors sought the death penalty for the murders of 105 whites (48 percent), 49 blacks (26 percent) and 21 Hispanics (34 percent). Of those death penalty cases, death sentences were handed down as to 30 percent of white victims, 37 percent of black victims and 14 percent of Hispanics. Out of all death-eligible cases, 32 of those who killed whites (15 percent), 18 of those who killed blacks (9 percent) and 3 of those who killed Hispanics (5 percent) got the death penalty. The case sorting came out essentially the same. It found that the death penalty is more often sought in black-on-white murders (50 percent) than in black-on-black ones (23 percent). The report attributed what it called the “white victim effect” to differences among counties in how often they decide to seek the death penalty. Prosecutors in counties with lots of minorities tend to seek the death penalty far less often than those in whiter counties. Earlier proportionality studies found a similar pattern. For example, Essex, Camden and Union counties together had 42 percent of all death-eligible cases in New Jersey. The three counties sent only 21 percent of their eligible cases to a penalty trial as compared with 42 percent in the other 18 counties. The fact that only 20 percent of the eligible cases in those three counties involved white victims versus 62 percent in the other 18 counties skews the statewide figures, creating the white victim effect, according to Baime. Toward the other end of the spectrum were Gloucester, Middlesex and Monmouth counties. Those New Jersey counties, with, respectively, 54 percent, 61 percent and 74 percent of eligible cases going to death penalty trials had, collectively, only 4 percent of the black victim cases and 9 percent of the Hispanic victim cases, but 21 percent of the cases involving white victims. Accounting for those county differentials using regression analysis and case-sorting methods mostly eliminated the white victim effect, Baime found. Though he described the differences among counties as “beyond the contours of this report,” he was still troubled enough by them to suggest that the attorney general’s office do something about it. Describing the committee set up in each county to guard against disparate treatment of similar death-eligible cases, Baime suggests that those committees also try “to promote uniformity in charging decisions across county lines.” Lawrence Lustberg, president of the New Jersey section of the Association of Criminal Defense Lawyers, says of the county variations, “You can’t divorce what happens in each county from race … . Whether or not you face [the death penalty] depends on which county you live in. That’s something we should not tolerate.” Given that the supreme court has stated it will not tolerate race as a factor in application of the death penalty, “the court should now step up to the plate,” in light of Baime’s report, says Lustberg, a partner with Gibbons, Del Deo, Dolan, Griffinger & Vecchione in Newark, N.J. Neither the attorney general’s office nor the public defender’s office returned calls seeking comment on the report. BUILDING A BETTER MODEL Baime’s two prior reports on proportionality review were released in April and December 1999. In approving the latter one on Aug. 2, 2000, the supreme court requested annual reports and adopted Baime’s recommendations for revising the methodology to achieve more reliable results. In re: Proportionality Review Project (II), 165 N.J. 206. The present report describes Baime’s attempt to achieve a parsimonious model by reducing the number of variables used in the regression analysis to only those that might vary with race or ethnicity so that the small universe of death sentences would not have to be sliced so thin that results would be unreliable. At the time of the court’s decision last year, only 53 people had been sentenced to death since capital punishment was restored in 1982. The study had 54 cases to work with. Deputy Attorney General Catherine Foddai had argued before the court in February 2000 for a moratorium on statistical studies until the universe of cases expands to a point where more reliable results can be obtained. The attorney general’s and public defender’s offices and 16 judges with capital trial experience helped Baime compile the 94 nonstatutory factors to be used and assess their importance in death sentencing. Among the variables used in the survey were whether or not the defendant was mentally retarded, used drugs or alcohol, had prior convictions, a head injury or problems in school, resided in New Jersey or showed remorse; whether the victim suffered, pleaded for his life or was also committing a crime when killed; and the type of murder weapon. The statistical analysis Baime used as the basis for the report was done by Professor David Weisburd of Hebrew University in Jerusalem and University of Maryland, and Rutgers University Professor Joseph Naus.

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