40 The Death Penalty in the OSCE Area review of research published in 1990 purported to show a race-of-the-victim effect.51 As the Department of Justice pointed out, however, the GAO review was seriously flawed. Only 10 of the 23 studies reviewed by the GAO were, by the GAO’s own terms, “high-quality”.52 Furthermore, five of the seven of those high-quality studies that considered imposition of sentence actually showed no race-of-the-victim effect.53 As the Department stated in testimony to Congress, “[T]he high-quality studies support the conclusion that legally relevant considerations overwhelmingly account for any apparent race-of-the-victim effect.” Since that time, evidence is equivocal; some studies show no effect of the race of the victim when characteristics of the crime are controlled for, while some continue to show effects.54 (Again, no studies show statistically significant effects based on race of the defendant.) With regard to the federal system, figures released by the Department of Justice regarding federal death sentences in 2000 indicated that the proportion of minority defendants in federal capital cases exceeded the proportion of minority individuals in the general population. Subsequent analysis revealed that racial and ethnic bias was not the cause of this disparity. Rather, the cause was the focus of federal prosecutions on large-scale drug trafficking and associated lethal violence, which is disproportionately committed by gangs whose members are drawn from minority groups.55 In the most recent study on the subject, released in July 2006, the RAND Corporation found that controlling for legitimate considerations, such as applicable aggravating and mitigating factors, eliminated the race effects and demonstrated that decisions to seek the 51 General Accounting Office, “Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities”, GAO-GGD90-57 (February 1990). 52 Death Penalty Legislation and the Racial Justice Act: Hearings on H.R. 4618 Racial Justice Act of 1990 and H.R. 105, H.R. 380, H.R. 596, H.R. 1197, H.R. 1464, H.R. 1477, H.R. 2196, Title I of H.R. 2709, and Titles I and II of H.R. 3119 Establishing Procedures for a Federal Death Penalty Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 101st Cong. 76-120 (1990) (statement of Edward S.G. Dennis, Jr., Assistant Attorney General, Criminal Division, US Department of Justice). 53 54 Id. at 104-105, n.11. For no effect, see David S. Baime, Report to the New Jersey Supreme Court: Systematic Proportionality Review Project, 2001-2002 Term (1 June 2001), available at: http://www.judiciary.state.nj.us/baime/baimereport.pdf; David C. Baldus, George Woodworth, Gary L. Young, and Aaron M. Christ, “The Disposition of Nebraska Capital and Non-Capital Homicide Cases (1973-1999); A Legal and Empirical Analysis”, (25 July 2001), available at: http://www.ncc.state.ne.us/documents/other/homicide.htm; for effect, see Raymond Paternoster and Robert Brame, “An Empirical Analysis of Maryland’s Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction”, (no date) available at http://www. newsdesk.umd.edu/pdf/finalrep.pdf. The general lack of racial effects has led opponents of capital punishment to cite socalled geographic disparity as undermining the legitimacy of the death penalty. This claim is difficult to credit, however; differences in charging by prosecutors and convictions and sentences by juries in different jurisdictions (not motivated by racial animus) mean only that public opinions on the death penalty vary from one location to another, an entirely reasonable and legitimate outcome in a democratic society. 55 US Department of Justice, “The Federal Death Penalty System: Supplementary Data, Analysis, and Revised Protocols for Capital Case Review” (6 June 2001), available at http://www.usdjo.gov/dag/pubdoc/deathpenaltystudy.htm.