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MEMBERS of the TASK FORCE the Honorable Stuart O. Simms

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MEMBERS of the TASK FORCE the Honorable Stuart O. Simms V • MEMBERS OF THE TASK FORCE The Honorable Stuart O. Simms, Chair Veda P. Allen The Honorable Patricia C. Jessamy Richard M. Karceski, Esq. The Honorable Kenneth Montague Richard B. Rosenblatt, Esq. James R. Sobers The Honorable Decatur Trotter Rodney C. Warren, Esq. ; ACKNOWLEDGEMENTS The Task Force extends its thanks to the following people and organizations for their expertise and dedication in assisting the Task Force with its work. The Task Force thanks several experts. Dr. Raymond Paternoster, a professor with the Institute of Criminology at the University of Maryland in College Park, and Dr. Joseph Katz, a professor with the Department of Decision Sciences at Georgia State University, provided the Task Force with information on regression analysis. In addition, John Morris, Esq. gave a presentation on minority representation in jury pools to the Task Force. The Task Force extends its appreciation to Joseph Cassilly, the State's Attorney for Harford County, who made a presentation to the Task Force on behalf of the State's Attorneys' Association of Maryland. In addition, the Task Force thanks Judith R. Catterton, a past president and a present member of the Board of Directors of the Maryland Criminal Defense Attorneys' Association, who also made a presentation to the Task Force. The Task Force also thanks the Office of the Attorney General which provided valuable legal research, case materials, and documents. The Task Force is indebted to those involved in the Task Force's meetings. Alexander Palenscar, Esq. arranged for the meeting location; Timmerman Daugherty, Esq. tape recorded each meeting; and Margaret Roberts, Esq. kept the minutes for each meeting. Thank you for your help and dedication. In addition, the Task Force thanks the Department of Defense Equal Opportunity Management Institute for sharing its program on diversity training and insight. The Task Force also thanks Major General Robert F. Foley, Commander of the Military District of Washington, for providing the Task Force with an opportunity to observe a diversity training program. Finally, a special thanks is extended to Lora A. Wilson, Esq. for her dedication and assistance to the Task Force. INTRODUCTION In November 1993, the Governor's Commission on the Death Penalty noted that racial disparity in the implementation of Maryland's death penalty was a "legitimate concern."1 Therefore, the Governor created the Task Force on the Fair Imposition of Capital Punishment by Executive Order signed on July 2, 1996. This Task Force was formed to determine the causes of racial disparities in the administration of the death penalty in Maryland.2 After discussing its task, the Task Force determined that it would develop appropriate recommendations for administrative or legislative action. Governor Parris N. Glendening stated that the "application of the death penalty must be absolutely non-discriminatory. The public must have confidence that the process is devoid of any discrimination." The Task Force has spent six months reviewing the issue of racial disparity within the administration of the death penalty. The Task Force was comprised of nine persons, seven of whom were African-American and two of whom were Caucasian. The Task Force was drawn from both the legal community and the general 'Specifically, Finding 10 of the Commission's Report states, "There is no evidence of intentional discrimination in the implementation of the death penalty in Maryland, but racial disparities in its implementation remain a matter of legitimate concern." THE REPORT OF THE GOVERNOR'S COMMISSION ON THE DEATH PENALTY AN ANALYSIS OF CAPITAL PUNISHMENT IN MARYLAND: 1978 to 1993, 201 (1993) (hereinafter "1993 REPORT"). 2In its Report, the 1993 Commission stated that this issue "is an extremely difficult one; clear answers are unlikely to be forthcoming regardless of the resources assigned to the task." 1993 REPORT, 202. public. Each Task Force member shared his/her time, dedication, and expertise to study carefully and to recommend solutions to this most difficult problem. Stuart 0. Simms, who was appointed by Governor Glendening to chair the Task Force, is Maryland's Secretary of Juvenile Justice. He is also the former Baltimore City State's Attorney and a past president of the State's Attorney's Association of Maryland. Veda P. Allen is a Baltimore resident and an account technician employed by the U.S. Naval Academy. She is active in victim rights organizations. Patricia C. Jessamy is the Baltimore City State's Attorney. Richard M. Karceski, a Howard County resident, was immediate past president of Maryland Criminal Defense Attorney's Association. Kenneth Montague, Esq. is an attorney in private practice in Baltimore City, a member of the Maryland House of Delegates, and a member of the House Judiciary Committee. Richard B. Rosenblatt, who represented the Attorney General's Office, is an Assistant Attorney General and is presently Deputy Counsel for the Department of Public Safety and Correction. James R. Sobers, who resides in Montgomery County, is a retired U.S. Army Master Sergeant and former State Equal Employment Manager for the District of Columbia National Guard. Decatur W. (Bucky) Trotter is a member of the Maryland Senate, the Chair of the Rules Committee, a member of the Finance Committee, a member of the Legislative Policy Committee, a member of the Joint Committee on Budget and Audit, and a member of the Joint Committee on Legislative Ethics. Rodney C. Warren, who represented the Maryland Public Defender's Office, is an Assistant Public Defender. # The Task Force extends its thanks to Ruth DeCoursey, Esq, an associate of Mr Karceski who assisted in the discussions of the Task Force. The Task Force is deeply indebted to the Governor's Commission on the Death Penalty (1993) for its report which improved the understanding of the death penalty process and identified a first layer of issued. Similarly, this report identifies another layer of issues and makes recommendations for application to future capital litigation in Maryland. The Task Force began its work in July 1996 by holding public meetings twice a month. In addition, two subcommittees met separately. Following these meetings, the Task Force began review of its draft report. The findings and recommendations were adopted by consensus. Most, but not all, represent the unanimous view of the Task Force members. December 1996 EXECUTIVE SUMMARY The charge of the Task Force was to determine the causes of racial disparity in the administration of the death penalty in Maryland. Based on its review of the death penalty process in Maryland and literature on the administration of the death penalty, the Task Force makes five (5) Findings and seven (7) Recommendations. The recommendations alone will not solve the issue. They will, however, improve the perception and administration of the process. The Findings and Recommendations are summarized below and also appear in Chapter IV of the Task Force Report. Each Finding and Recommendation listed in Chapter IV is followed by a Commentary which provides the reasons of the Commission's action. The first three chapters of the Report outline the death penalty process and information gathered by the Task Force. The extensive Appendices provide readers of the Report with references to an array of materials and information which can be further analyzed and discussed. Chapter I of the Report outlines the death penalty process. Since there are many decision points in the administration of the death penalty, the Task Force examined the order and context of the process. Chapter I sets the stage for Chapter II which describes how death penalty cases are prosecuted in Maryland. Chapter III of the Report describes how the Task Force gathered information on racial discrimination in the administration of the death penalty. The Supreme Court has established that in order to prove racial discrimination in the imposition of capital punishment, one must prove that the discrimination was intentional McCleskey v. Kemp. In McCleskev. a statistical analysis showing that race of the defendant was a significant factor in whether a death sentence would be imposed following a conviction for murder was not proof of a constitutional violation. Legislative responses to McCleskev have largely been unsuccessful. The state of New York has enacted an appellate review standard in death penalty cases that does allow the appellate court to determine whether the sentence was due to the "impermissible factor" of race of the defendant or victim. The Task Force reviewed reports of several states which have undertaken broad studies to determine whether race affects the dispensation of justice in their civil and justice systems. The Task Force•s inquiry included an extensive number of articles which have been published since McCleskey which contend that the race of the victim influences the likelihood of a defendant's being charged with murder or receiving the death penalty. Nearly all of the articles rely on a type of statistical analysis referred to as regression analysis. Regression analysis is a concept which demonstrates how different variables relate to an event or outcome. Conversely, the Task Force heard from experts who maintained that in the vast number of death eligible cases, the complexity of death penalty cases and the limitations of the statistical model make regression analysis unreliable to prove discrimination. The Task Force inquiry also included examining several specific hypotheticals as models for decision making in the death penalty process to determine potential areas of racial discrimination. Finally, the Task Force considered and reviewed diversity training and its usage in one large system, the United States Defense Department. It also reviewed Trial Judge Reports in Capital Sentencing in Maryland and the implications of those reports on victims and survivors and judicial training initiatives. The Task Force's Findings and Recommendations are as follows: FINDING 1: Racial Disparity. The high percentage of African- American prisoners under sentence of death and the low percentage of prisoners under sentence of death whose victims were African- American remains a causes for concern.
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