Capital Punishment is Systemically Biased against Minorities

RACE OF THE VICTIM IN OHIO

In an expansion of GAO's research for the American Bar Association in 1997, Professors Baldus and Woodworth found that studies of Ohio's statistics suggest the same: the chances of a defendant being charged with a capital crime and of being sentenced to death row were significantly increased if the murder victim was white. David Bodiker, OPD, concurs: "The race of the victim [i.e., if the victim is white] has a great deal to do with who gets the death penalty."

Seventy-two percent of the victims whose murderers are on Ohio's death row were white and 27% were black victims (as of Nov. 19, 2003). This is consistent with the proportions examined in 1999 by the Ohio Commission on Racial Fairness, which said of race-of-victim disparities, "The numbers speak for themselves. A perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black."

RACE OF THE DEFENDANT IN OHIO
In a state with a population that is 85% white and 11.5% black (U.S. Census, 2000), about half of the inmates on death row are black. More specifically, while black males over the age of 18 comprise less than 5% of Ohio's population aged 18 or over (U.S. Census, 2000), they make up 49% of the inmates on death row.

The U.S. Court of Appeals for the 6th Circuit said in 2001 that the racial imbalance in Ohio's death penalty is 'glaringly extreme' and 'extremely troubling.' It was, however, not able to order the state to address the imbalance because of the U.S. Supreme Court's 1987 ruling in the McCleskey case. where In that case the court found "that 'apparent disparities in sentencing are an inevitable part of our criminal justice system,' and that for a defendant to be successful in an appeal, he or she would have to provide 'exceptionally clear proof' that the decision-makers in his or her particular case had acted with discriminatory intent."

The Report of the Ohio Commission on Racial Fairness, published by the Ohio Supreme Court and the Ohio State Bar Association in 1999, argued, "The issue is the integrity of the criminal justice system, whether black males are looked upon as expendable and treated differently than white males resulting in disparate sentencing…."

RACE OF PROSECUTORS IN OHIO
Prosecutors have discretion in determining which cases are capital cases, and as shown above, cases in Ohio that involve white victims are more likely to result in the death penalty than other cases. One reason proffered for this is that the vast majority of prosecutors-those in whose hands the decision resides-are white. Of the 88 county prosecutors in Ohio in 1998, 99% (87 of 88) were white and one was black.

RACE OF JURORS IN OHIO
The Ohio Commission on Racial Fairness noted that "the American legal system is based upon peer decision making….Exclusion and other kinds of bias deprive citizens of the benefits of a diversity of perspectives, especially if the perspective absent in a jury pool is that of a party's community, class, age, race, ethnicity, gender or religion….Many people expressed concern that in the various public hearing testimonies that minority defendants, particularly black defendants, are being tried before all-white juries."

In fact, the Commission reported that there was evidence that Ohio juries, like those in states across the U.S., were likely to have a pattern of minority under-representation, "especially…poor people of color."(47) For example, the prosecutor in a Hamilton County death penalty case excluded nine of eleven qualified black members from the jury pool with no reason given in the trial of an African American executed in 2002 for the murder of a white woman. During the appeals process, the issue of discrimination was defaulted as the basis for an appeal because the inmate's original appeal lawyers had failed to raise the issue.

UNEQUAL QUALITY OF REPRESENTATION IS AN ISSUE
I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial. …[P]eople who are well represented at trial do not get the death penalty.
- Supreme Court Justice Ruth Bader Ginsburg, April, 2001

In Ohio, David Bodiker, Director of the office of the Ohio State Public Defender's Office, reported that "[The cost of a death penalty defense] is so expensive that unless you're in the top one percent of wage earners, you're probably content to have a defense attorney appointed." Appointed defense attorneys in capital cases must be death-penalty certified by the Ohio Supreme Court prior to assignments, i.e., they must receive special training, although private-pay defense attorneys are not required to do so. While the OPD does not track the statistics, it estimates that four or fewer defendants of the 80 to 90 capital cases brought each year pay for private attorneys. OPD reports, however, that private-pay attorneys are no more successful than appointed public-pay attorneys in preventing their defendants from being sentenced to death.

But Bodiker also argues that while there are very good court-appointed lawyers who work very hard for little pay, they are not universal. "Inadequate representation is a problem. Money really isn't the cause of it. There are cases where really bad lawyers make stupid mistakes." First, lawyers may be death penalty-qualified, but that does not necessarily mean they will be able to devote their full attention to a capital case."

Bodiker notes, "When lawyers from private practice are appointed to do death penalty work, it's difficult because they have to do a very demanding and time-consuming function while they are handling the remainder of their practice. No matter how hard they work and how capable they are, they-and OPD-are all subject to missteps and mistakes. There are obviously some who do not work as hard as others, even though they have the qualifications."

In addition, the caps on attorney fees (determined by each county's commissioners) varied across Ohio counties from $3,000 to $50,000 per trial, total, for appointed defense counsel in 2001. Thus for capital cases that may involve a year and a half of pre-trial work and two or more weeks at trial, court-appointed defense attorneys typically end up being paid a low hourly fee. The low limits raise due process issues: Is there enough money allotted to provide for an adequate defense? Will qualified attorneys work for extremely low pay? Compounding the problem, the maximum amount allotted for expert witness fees (e.g., a mitigation expert, psychological and IQ testing) varies from county to county, but many counties do not make available what appointed defense attorneys regard as the minimum, $10,000. As David Bodiker said, "[T]here is never enough public money for appointed attorneys to get the expert witnesses and mitigation experts they need."

Thus, the quality of representation varies from capital case to capital case, and those who are poorly represented are more likely to end up on death row. Witness, for example, the cases of Richard Frazier and Shawn Williams-two recent instances in which the death sentences were overturned, at least in part, because of inadequate representation.

THE TRIAL LOCATION IS A DETERMINANT
The county in which the crime is committed also seems to influence whether a defendant is charged and convicted of a capital crime. The higher costs of death penalty cases are a significant financial burden on local and state governments. Exemplifying this, a Vinton County, Ohio, judge initially ruled in 2002 that local prosecutors could not seek the death penalty in the case of Gregory McKnight. Judge J.L. Simmons cited the high cost of the trial and the probability that the county would not be able to pay for an adequate defense team.

Mr. Bodiker of the OPD notes: "As managers of the county government, [county commissioners] are concerned about the costs of time, money, and resources which encourages them to want to avoid death penalty cases as an extravagant use of limited resources."

Therefore, Bodiker continued, "Many counties do not have anyone on death row, not necessarily because there have not been any potential death penalty cases, but because the death penalty process is time-consuming and difficult."

Forty-nine of Ohio's 88 counties do not have any inmates on death row. In contrast, almost one out of every four men (23%) on Death Row comes from Hamilton County, the third largest county in the state and home to 7.4% of the total state population . Cuyahoga is second, being home to 17% of the Death Row inmates. In terms of potential new death row inmates, as of October, 2003, Mr. Bodiker of the OPD reports that Franklin County had 32 of the 101 pending death penalty cases.

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