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Originally published in The Washington Post February 9, 2005 Metro Section; B01

Copyright 2005 The Washington Post

By: Courtland Milloy

At a news conference Monday, Prince William Commonwealth's Attorney Paul B. Ebert announced the indictment of Carlos Diangilo Williams, a black, 26-year-old college-educated man, in the murder of his pregnant former girlfriend, Cheri Washington, a black 17-year-old high school student.

Williams allegedly used a baseball bat to beat the girl into having a miscarriage and ended up killing her and the fetus. But while calling the crime "horrendous," Ebert -- who has placed more convicts on Virginia's death row than any other prosecutor in the state -- announced that Williams, if convicted, would face life in prison plus 50 years, not death.

"His intention was only to kill the fetus," Ebert said. "Otherwise, it would have been capital."

In a telephone conversation with Ebert yesterday, I mentioned that his decision was yet another reminder that the death penalty as practiced in the United States is riddled with racial disparities. For it sure seems as if black-on-black murders are not taken as seriously as black-on-white killings -- which are frequently prosecuted as capital crimes.

"I would have liked [to see] his case fall into a category where we could prove the willful and premeditated killing of the mother with the intent to terminate the pregnancy," Ebert told me. "Trouble is, after he beat her up, he dressed her and told her to leave and said if she told anyone what happened he'd kill her mother. Those are the facts, and I haven't found a way around them."

Still unconvinced, I asked him would he have found it easier to press for the death penalty if Cheri Washington had been white -- if some black man calling himself a former boyfriend had held a white teenager who was five months pregnant against her will at his home for several hours while kicking her, stomping her and pounding on her stomach with a baseball bat.

Surely there would have been more of a community outcry and more demands that Williams get the death penalty if convicted?

"In this jurisdiction, I don't believe race makes that much difference," Ebert said. "The people are integrated enough where it wouldn't matter that the girlfriend was black or white. That might be a concern to some, but to most of the people in this county, it would not."

And yet, according to an ACLU report about capital punishment in Virginia from 1978 to 2001, a death sentence was imposed in only 5.3 percent of the cases in which the victim was black but 16.7 percent of the cases in which the victim was white.

"In cases of rape-murder, the data suggeststhat a defendant whose victim was white is 2.3 times more likely to receive the death penalty than one whose victim was black," said the report, "Broken Justice: The Death Penalty in Virginia," which was published in 2003. "In cases of robbery-murder, the data suggests that a defendant whose victim was white is 3.2 times more likely to receive the death penalty than one whose victim was black.

". . .While the death penalty was imposed in 70.8 percent of all potentially capital rape-murders, black defendants charged with raping and murdering a white victim were sentenced to death in nearly every case, while black defendants charged with raping and murdering a black victim were sentenced to death in only 28.6 percent of the cases."

Ebert cited a study of the death penalty published in 2000 by the Virginia General Assembly, which noted that prosecutors appear to be "over three times more likely to seek the death penalty if the victim is white." But, astonishingly, the report concluded that the disparities had nothing to do with race. The data, according to the authors, "revealed that black victims in death-eligible cases were more likely to be involved in illegal activities such as drug use, drug dealing, and prostitution," which made them less-sympathetic victims.

Once the "character of the victim" was factored in, the authors wrote, racial disparities lost their statistical significance. Rather than exonerate the system, that conclusion -- that white victims somehow have more character than black victims -- strikes me as more evidence of the problem. And as fair as Ebert might try to be, he still works within a system in which racial bias taints all outcomes.