AUG 02, 2001

Nebraska Is Said to Use Death Penalty Unequally


A new study of capital punishment suggests that it is applied unequally in rural and urban areas and that defendants whose victims are affluent are more likely to get the death penalty.

Regarding race, the study, which looked at cases that were eligible for the death penalty in Nebraska, found that white and nonwhite defendants were about equally likely to receive the death penalty. It also found no significant evidence that members of minorities who killed whites were more likely to be sentenced to death.

But the study found striking differences in the way that urban and nonurban counties handled the death penalty, discrepancies that had more subtle racial implications.

Prosecutors in urban counties, namely the Omaha and Lincoln areas, were more likely to seek the death penalty and were more likely to take death penalty cases to trial rather than accept plea bargains. The reasons for this were not clear, but experts said it might be because urban counties have more money and experience than rural areas to handle complicated cases.

At the same time, judges in urban counties were less likely to impose a death sentence than judges in rural areas, perhaps, experts suggested, because urban areas had many more murders and judges waited for an especially severe crime to impose the most severe sentence.

The effect of the rural-urban differences, the study concluded, was that minority defendants, the vast majority of whom were prosecuted in Omaha and Lincoln, were more likely to face the prospect of capital punishment at trial. But because urban judges were less inclined to impose the death penalty, members of minorities in Nebraska were ultimately no more likely than whites to be executed.

The Nebraska report, released by the Nebraska Crime Commission yesterday, is the first of eight death penalty studies commissioned by states in the last few years. The other states are Arizona, Connecticut, Illinois, Indiana, Maryland, North Carolina and Virginia.

The Nebraska study looked at 177 homicides that were eligible for the death penalty in 1973 through 1999. Of those, 27 received the death penalty, and 3 have been executed.

National experts on both sides of the capital punishment debate said the most significant finding was that prosecutors were more likely to seek the death penalty and judges more likely to impose it in cases where the victim was well-off. The study's authors, led by David C. Baldus, a law professor at the University of Iowa, wrote that this might be because "press coverage and manifestations of community concern" are greater when the victim is wealthy or prominent or that prosecutors and judges may unconsciously identify more with the victim.

"I'm not aware of another study that made a confident finding about the effect of socioeconomic status," said James S. Liebman, a law professor at Columbia University who has represented defendants in death penalty appeals. "This is something that people have long suspected, that in essence it is a penalty only for crimes committed that are seen as important crimes and that people don't think of it as an important crime unless it's against a high status person."

Michael Rushford, president of the Criminal Justice Legal Foundation and a death penalty advocate, said the death penalty was not being imposed often enough against people whose victims were poor.

"There are going to be disparities," Mr. Rushford said. "Look, there's a rich neighborhood and somebody gets killed and it wasn't his wife killed him and the district attorney knows he's going to get campaign contributions, so he says death penalty."

Nebraska's death penalty system is different from other states in several ways. The decision about whether to impose a death sentence is made by a panel of judges appointed by the governor. In most states, juries impose death sentences, and in the few states where judges do, the judges are usually elected.

Nebraska law also requires judges to measure a capital case against comparable cases to ensure that the sentence is not wildly out of sync.

Both factors probably mean Nebraska's system is more controlled and perhaps fairer than those in other states, the study's authors and other experts suggested.

In addition, Nebraska has a small minority population highly concentrated in two cities, which experts said may make the conclusion on lack of racial disparities less representative of the national picture.

The study was commissioned in 1999 by the legislature after Gov. Mike Johanns vetoed the legislature's proposal for a moratorium on executions. Governor Johanns, a Republican, also vetoed the proposed study, but was overridden.

But yesterday, he hailed the study and said it would bolster efforts to speed up executions.

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