Race and the Death Penalty

Supreme Court Evaluation of Racial Bias in the Criminal Justice System
Ways in Which Race Can Impact Capital Sentencing
Issues of Race Raised by the Gary Graham Case
Related Links

Significant statistical research exists regarding race and the death penalty, and race is an issue that continues to be at the forefront of America’s capital punishment debate. Studies have indicated that race plays a decisive role in the question of who lives and dies by execution in this country. According to some studies, race can influence which cases are chosen for capital prosecution and which prosecutors are allowed to make those decisions. Racial disparities have been shown not just in isolated instances, but in many state studies over many years.

Supreme Court Evaluation of Racial Bias in the Criminal Justice System

Race and Jury Selection

Race was raised as an issue in the criminal justice debate when the U.S. Supreme Court held in Batson v. Kentucky (1986) that a prosecutor who strikes a disproportionate number of citizens of the same race in selecting a jury is required to rebut the inference of discrimination by showing neutral reasons for the strikes. In Miller-El v. Dretke (2005), the Court determined that the prosecutor's race-neutral explanations for the strikes of potential black jurors were so far at odds with the evidence that the explanations indicated discriminatory intent.

Race and the Application of the Death Penalty

Questions of whether or not the death penalty was applied fairly along racial lines surfaced in McCleskey v. Kemp. McCleskey argued that there was racial discrimination in the application of Georgia's death penalty. As evidence for this claim, McCleskey presented the results of an extensive statistical study by Professor David Baldus of the University of Iowa Law Schooland his colleagues. Baldus’ study collected information about all the capital defendants in Georgia—whether or not they were sentenced to death. This information allowed the researchers to control for hundreds of variables about the offender, victim and crime—thereby permitting a statistical comparison of cases in order to see what factors influenced whether a person was sentenced to death. Professor Baldus found, among other things, that:

• Fewer than 40% of Georgia homicide cases involve white victims, but in 87% of the cases in which a death sentence is imposed the victim is white. White-victim cases are roughly eleven times more likely than black-victim cases to result in a sentence of death.
• When the race of the defendant is added to the analysis, the following pattern appears: 22% of black defendants who kill white victims are sentenced to death; 8% of white defendants who kill white victims are sentenced to death; 1% of black defendants who kill black victims are sentenced to death; and 3% of white defendants who kill black victims are sentenced to death. (Only 64 of the approximately 2500 homicide cases studied involved killings of blacks by whites, so the 3% figure in this category represents a total of two death sentences over a six-year period. Thus, the reason why a bias against black defendants is not even more apparent is that most black defendants have killed black victims; almost no cases are found of white defendants who have killed black victims; and virtually no defendant convicted of killing a black victim gets the death penalty.)
• No factor other than race explains these racial patterns. The multiple-regression analysis with the greatest explanatory power shows that after controlling for non-racial factors, murderers of white victims receive a death sentence 4.3 times more frequently than murderers of black victims. The race of the victim proves to be as good a predictor of a capital sentence as the aggravating circumstances spelled out in the Georgia statute, such as whether the defendant has a prior murder conviction or was the primary actor in the present murder.
• Only 5% of Georgia killings result in a death sentence; yet, when more than 230 non-racial variables are controlled for, the death-sentencing rate is 6% higher in white-victim cases than in black-victim cases. A murderer therefore incurs less risk of death by committing the murder in the first place than by selecting a white victim instead of a black one.
• The effects of race are not uniform across the spectrum of homicide cases. In the least aggravated cases, almost no defendants are sentenced to death; in the most aggravated cases, a high percentage of defendants are sentenced to death regardless of their race or their victim's; it is in the mid-range of cases which, as it happens, includes cases like McCleskey's that race has its greatest influence. In these mid-range cases, death sentences are imposed on 34% of the killers of white victims and 14% of the killers of black victims. In other words, twenty out of every thirty-four defendants sentenced to die for killing a white victim would not have received a death sentence if their victims had been black.

The Supreme Court held, however, that a death-sentenced defendant cannot challenge his sentence as a violation of the constitutional requirement of "equal protection of the laws" by showing that it is consistent with a system-wide pattern of racial disparity in capital sentencing. To make out an equal-protection violation, a defendant is required to prove that some specific actor or actors in his or her individual case--the prosecutor or the judge or the jurors, for example, intentionally discriminated against the defendant on the ground of race in making a decision that resulted in the death sentence.

Studies from across the nation have examined the influence of race in the application of the criminal justice system. Some have shown that race remains a factor in various aspects of death penalty.

Ways in Which Race Can Impact Capital Sentencing

Race of the Victim

Nationally, nearly 80% of murder victims in cases resulting in an execution have been white, even though nationally only 50% of murder victims generally are white. A 1990 examination of death penalty sentencing conducted by the United States General Accounting Office noted that, "In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks." Individual state studies have found similar disparities. In fact, race of victim disparities have been found in most death penalty states.

Race of the Defendant

Nationally, the racial composition of those on death row is 45% white, 42% black, and 10% Latino/ Latina. Of states with more than 10 people on death row, Texas (70%) and Pennsylvania (69%) have the largest percentage of minorities on death row. Year 2000 census data revealed that the racial composition of the United States was 75.1% white, 12.3% black and 12.5% Latino/Latina. While these statistics might suggest that minorities are overrepresented on death row, the same statistical studies that have found evidence of race of victim effects in capital sentencing have not conclusively found evidence of similar race of defendant effects. In fact, while some studies show that the race of the defendant is correlated with death sentences, no researcher has made definitive findings that the death sentence is being imposed on defendants on account of their race, per se, independently of other variables (such as type of crime) which are correlated with defendants' race.

Race of the Jurors

In capital cases, one juror can represent the difference between life and death. A belief that members of one race, gender, or religion might generally be less inclined to impose a death sentence can lead the prosecutor to allow as few of such jurors as possible. For example, a Dallas Morning News review of trials in that jurisdiction found systematic exclusion of blacks from juries. In a two-year study of over 100 felony cases in Dallas County, the prosecutors dismissed blacks from jury service twice as often as whites. Even when the newspaper compared similar jurors who had expressed opinions about the criminal justice system (a reason that prosecutors had given for the elimination of jurors, claiming that race was not a factor), black jurors were excused at a much higher rate than whites. Of jurors who said that either they or someone close to them had had a bad experience with the police or the courts, prosecutors struck 100% of the blacks, but only 39% of the whites.

Race of the Prosecutor

Whenever and wherever capital punishment is authorized by law, the decision whether or not to seek a death sentence in particular cases is left to the discretion of the prosecutor. A 1998 examination of Chief District Attorneys in states with the death penalty found that nearly 98% are white, 1% are black, and 1% are Hispanic.

Issues of Race Raised by the Gary Graham Case

Concerns about the influence of race on the application of the death penalty in Texas were central to a 1993 civil rights claim raised by attorneys representing Gary Graham. A complaint filed with the U.S. Department of Justice by the NAACP Legal Defense Fund contended that Graham was on death row as a direct result of widespread racial discrimination within the Texas criminal justice system. The claim was filed just days before Graham’s first scheduled execution date, and it pointed to a series of troubling racial disparities in Harris County, where Graham was tried and sentenced to death. The NAACP’s complaint presented evidence that black Texans who reside in Harris County are arrested, imprisoned, and sentenced to death in numbers that are vastly disproportionate to their representation in the population. It noted:

• The incarceration rate in 1991 for black people in Harris County was nine times greater than the incarceration rate for white people.
• In the same year, 61% of all offenders sent to prison from Harris County were black (although only 18% of the county’s population was black).
• 55% of the people on death row from Harris County were black, while only 35% were white.
• Among people on death row from Harris County who, like Graham, were sentenced to death for crimes that occurred when they were teenagers, 73.3% were black and only 13.3% were white.

Graham's attorneys presented these disparities as “probable cause” for the Department of Justice to conduct a full investigation of the influence of racial bias in the criminal justice system in Texas.

Questions for Further Analysis

• If it were established by empirical studies in a particular State that the death penalty was being imposed with disproportionate frequency upon African-American defendants and that there was no other explanation than race for this pattern, what would be the policy implications (if any) of those facts? Suppose that the race-based disproportion established by the studies had to do with the race of the victim (murderers of white victims being sentenced to death with disproportionate frequency) and not with race of the defendant? What would be the policy implications (if any) then?

• Suppose that empirical studies in a State established that the death penalty was being imposed with disproportionate frequency upon African-American defendants as compared with white defendants who committed similar crimes under similar circumstances, but it could not be determined whether this disproportion was the result of race (or of race alone) rather than of other personal characteristics that were more frequently found in the case of African-American defendants than of white defendants (poverty, poor quality schooling, fewer years of school before dropping out, worse records of arrest, conviction and incarceration for juvenile delinquency, and so forth)? What would be the policy implications (if any) then?

• Should statistical evaluations of racial disparities be influential in determining whether or not a criminal defendant has been discriminated against? How are discrimination claims evaluated in employment or other discrimination cases?

• What safeguards could be put into place, either by statute or by court decisions, to address any racial inequities and disparities with regard to the death penalty?

Related Links

Racial and Geographical Disparities in the Federal Death Penalty
The Case of Gary Graham