« The latest data on the ever-growing federal criminal caseload | Main | The death penalty officially killed off in New Mexico »

March 18, 2009

An effort to use charging disparity to fend off death penalty in North Carolina

This story from North Carolina reports on a notable effort by capital defense attorneys to attack the way in which local prosecutors use their charging discretion in capital cases.  Here are excerpts from the article:

A couple of defense lawyers are using a local death penalty study that mirrors the racial disparities highlighted in national analyses to try and keep their client from being prosecuted capitally.

An analysis of 177 murder cases over five years shows that prosecutors are six times more likely in Durham, one of the most diverse counties in the state, to seek capital punishment when a black suspect has been accused of killing a white person compared with when the victim is black.

Jay Ferguson and Lisa Williams, two Durham lawyers, plan to use the analysis in their defense of Keith Kidwell, a 24-year-old black man who has spent the past four years in jail awaiting trial on charges that he murdered Crayton Nelms, a white Kangaroo convenience store clerk found beaten to death at work in February 2005.

Ferguson and Williams will argue in court this week that the death penalty should be taken off the table because of the racial disparity issue...

The Durham analysis was conducted by Isaac Unah, a political scientist at UNC-Chapel Hill. The researcher looked at all murder cases indicted by the Durham grand jury and followed them from start to finish.

Of the 177 murder suspects indicted by a Durham County grand jury between 2003 and 2007, 50 could not be prosecuted as death penalty cases because the defendants were too young.  Of the 127 other cases, only 20 were ever capital cases.  None of those went to jury as a death penalty case because prosecutors often use the threat of capital punishment in bargaining for pleas....

The researchers considered more than race. They also analyzed the cases by the number of victims and the number of charges the suspects faced. "Of all the factors analyzed," Unah concluded in the affidavit attached to his study, "the race of the victim had the greatest effect on the decision to seek the death penalty."

Of the 107 cases where the suspect was black and the victim was black, prosecutors sought the death penalty nearly 10 percent of the time.  Of the 20 cases where the suspects were black and the victims white, prosecutors sought the death penalty 35 percent of the time....

Kidwell, according to his attorneys, has been offered one plea deal that, had he accepted, would have put him behind bars for the rest of his life. "I believe they're using the death penalty to extract plea bargains," Ferguson said.

Disappointingly, this press account does not provide a link to the report with the basic data and analysis.  I will post the report if I can find it.

UPDATE:  A very helpful commentor from DeathWatch North Carolina provides this link to the defense motion discussed in this press report on this litigation.  It is an interesting read.

March 18, 2009 at 03:57 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2011169015f4a970c

Listed below are links to weblogs that reference An effort to use charging disparity to fend off death penalty in North Carolina:

Comments

I wouldn't trust this hack's garbage. He did another study in South Carolina a while ago and made same conclusion, but did not take into account the geographical issues.

Not every victim is equal. Socio-economic status, type of crime etc. matter.

Posted by: federalist | Mar 18, 2009 4:59:44 PM

Why in the world should the victim's socio-economic status matter?

Posted by: AFPD | Mar 18, 2009 5:11:20 PM

AFPD, all things being equal a locality is more likely to seek death where an upstanding citizen is murdered. That's life. It's justifiable on some levels, I guess. A prostitute murdered by a john or a gangbanger murdered by another banger isn't as much on the public radar screen, and there are certainly arguments that those who choose a criminal lifestyle are somewhat responsible for the predicaments they find themselves in. Personally, since I believe the death penalty should be the presumptive punishment for murder, I don't really delve too deeply into this issue. Johns who murder prostitutes should be executed, just as some guy who breaks into a home and kills a resident.

Posted by: federalist | Mar 18, 2009 5:31:24 PM

"The researchers considered more than race. They also analyzed the cases by the number of victims and the number of charges the suspects faced."

Those are the only variables they controlled for? It's hard to say based only on a press account, but if it is true the study shows nothing. Controlling for the relevant legitimate variables is an elementary requirement.

Also, there is nothing remarkable in the finding that cross-racial killings are more likely to result in a death sentence than same-race killings. (Almost all black-victim homicides are committed by black perpetrators.) Same-race killings are more likely to be between people who know each other and less likely to be the kinds of killings that are even eligible for the death penalty.

Posted by: Kent Scheidegger | Mar 18, 2009 5:44:09 PM

Prof. Berman's words from a prior post seem especially apt here:

I often stress to my students that modern research on sentencing and punishment is often incomplete and partisan, in part because few people with the interest and energy and money to conduct research in this field are willing to explore ideas and data that may not confirm their pre-existing beliefs.

Based on the press report, this sounds like one more study in which people started with the conclusion and went looking for the data to support it.

Posted by: ab | Mar 18, 2009 6:12:00 PM

federalist: I'm glad you clarified your comment about socio-economic status. What you meant is that an upstanding-citizen murder victim is more likely to result in the death penalty being sought than is a crime-committing murder victim. True enough. At first I thought you meant a rich, or at least middle-class, victim is more likely to result in the death penalty being sought than is a poor victim. Actually, this may well be true, too. But it couldn't possibly be justified.

Posted by: AFPD | Mar 18, 2009 9:29:56 PM

Federalist, I agree with you in part. The jury should be required to consider whether the victim was an upstanding citizen or not. Therefore, there Defense can (and should) introduce evidence the alleged victim’s education and conduct. And, if no evidence is presented that the “victim” was an upstanding citizen, the defendant is legally ineligible.

So:
If the alleged victim did not finish his schooling to a terminal degree, the defendant is therefore not subject to being killed by a government bureaucrat.

If the alleged victim made under $100,000 in 3 of the last five years, the defendant is therefore not subject to being killed by a government bureaucrat.

If the alleged victim watched more than an average of five hours of TV per seek in the last five years, the defendant is therefore not subject to being killed by a government bureaucrat.

If the alleged victim drank alcohol as a minor, the defendant is therefore not subject to being killed by a government bureaucrat.

Posted by: S.cotus | Mar 18, 2009 10:21:31 PM

AFPD, when I said "matter" I didn't mean in a normative sense. Apologies for confusion. It could be justified (not normatively) because you go for the murders you're more likely to get death for--a hate crime would qualify too. Personally, I just think murderers should generally be executed.

As for S.cotus, once again, he proves his inability to read the English language. I didn't endorse the view--I just said it's justifiable, on some levels, hardly an endorsement.

Once again, you mistake snark for erudition. Face it, you ain't that bright.

Posted by: federalist | Mar 18, 2009 10:57:52 PM

Oh no! Federalist called me "not that bright."

How ever, will I deal?

Posted by: S.cotus | Mar 19, 2009 12:39:00 AM

Doug - The motion is available here.

Federalist - Type of crime should matter, but according to the study, in Durham County, race matters more.

Posted by: deathwatch | Mar 19, 2009 10:03:57 AM

Will the prosecution team rely on the lacrosse cases to argue "we aren't racists, we overcharge rich white people on no evidence all the time. And we lie about it, too!" ?

Posted by: Observer | Mar 19, 2009 10:36:59 AM

PS- Like AFPD, I was a little worried there that federalist was equating a higher "socioeconomic status" with being an "upstanding citizen". But now I see that he isn't. Or at least he is saying he isn't. Of course, the fact that the only examples of lower-socioeconomic-status victims he gives are prostitutes, gangbangers, and others involved in a "criminal lifestyle" does give one pause. Though of course such murders exist, I would expect that just as many victims from the lower socioeconomic class are blue-collar, relatively hard-working family people who are victims of crime in their own neighborhoods. (The moral majority for lack of a better term.) As AFPD suggests, there is little legitimate justification for punishing such crimes less aggressively than any other -- unless simply living in a poor, crime-ridden neighborhood makes you somewhat responsible for the predicament you find yourself in. I would argue that it doesn't and shouldn't, but perhaps in practice it does.

Posted by: Observer | Mar 19, 2009 10:57:08 AM

federalist wrote: "AFPD, all things being equal a locality is more likely to seek death where an upstanding citizen is murdered. That's life."

And it just happens that "life" made white people smarter and therefore more likely to be "upstanding," am I right? Care to elaborate further on your acceptance of Charles Murray's bell curve?

Posted by: DK | Mar 20, 2009 12:47:28 AM

"Face it, you ain't that bright"

So says the guy who proposes mandatory death sentences.

Posted by: Brad | Mar 23, 2009 5:09:48 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB