Capital Punishment and Race Discrimination

Race detrimentally affects the administration of Capital Punishment in the United States. The origins of this situation are found in the former practice of chattel slavery. During this time, people of African descent had a greater risk of being sentenced to death. This risk increased if the victim was Caucasian. For example, slaves was automatically sentenced to death if they were convicted of killing a Caucasian. Conversely, since slaves were not considered human beings, Caucasians could murder blacks with impunity.

After the Civil War, the U. S. Supreme Court (‘‘the Court’’) held in Plessy v. Ferguson that the institutionalized racism doctrine of ‘‘separate but equal’’ did not violate the Equal Protection of Law. The Court’s endorsement of this doctrine facilitated the continued viability of these racial disparities in the administration of Capital Punishment. This was especially evident if a man of African descent was convicted of raping a Caucasian woman. For example, in Furman v. Georgia, Justice Marshall notes that between 1930 and 1972, ‘‘455 persons, including 48 whites and 405 Negroes, were executed for rape’’ Furman v. Georgia, 408 U.S. 238, 364 and note 151 (Marshall, J. concurring).

These concerns are aggravated by the impact race has on the selection of a capital jury. Since slaves were property, they were not afforded the same criminal procedural rights, including the right to trial by jury, as Caucasians. After slavery’s demise, many states enacted laws to continue this exclusionary practice. Consequently, the fate of capital defendants of African descent was historically decided by all white juries. In 1880, the Court held in Strauder v. West Virginia that using race to bar someone from serving on a jury violated the Equal Protection of Law. Nonetheless, this admonition was circumvented by prosecutors who exercised their peremptory challenges in a racially discriminatory manner. This was accepted practice until 1965, when the Court decided to prohibit the purposeful racially discriminatory use of peremptory challenges in Swain v. Alabama. Defendants alleging a violation had to prove that the prosecutor actually purposefully exercised the peremptory challenge at issue to strike the potential juror because of the juror’s race. States were able to continue exercising peremptory challenges in a manner contrary to the Court’s rule, because it was difficult for defendants to satisfy this Burden of Proof.

In the Court’s 1972 landmark opinion in Furman v. Georgia, several Justices acknowledged that race affects the administration of Capital Punishment. In 1986, in Batson v. Kentucky, the Court attempted to take remedial action by relaxing the Burden of Proof its earlier decision in Swain imposed on a defendant. Accordingly, the Court concluded that the Burden of Proof could be satisfied if the defendant could establish an inference that the prosecutor exercised a peremptory challenge in a purposefully racially discriminatory manner. The Court permitted the state to refute the inference by articulating a nonpretexual race neutral explanation for the challenge. The next year the Court rendered an opinion in McCleskey v. Kemp, a case presenting many of the issues of racial disparity identified and addressed in the Baldus Study. The Baldus Study’s findings confirmed the continued presence of the bias historically experienced by people of African descent: The murderers of Caucasians remain more likely to be sentenced to death than those who murdered people of African descent. This was especially the case if the offender was of African descent. Although the Court declined to grant the defendant relief, it did not contradict the validity of the Baldus Study’s findings. Subsequent studies examining the interaction between race and the death penalty in other jurisdictions reached conclusions similar to those made in the Baldus Study.

Execution statistics collected from 1976 when the Court’s decision in Gregg v. Georgia lifted the legal moratorium on the use of the death penalty in the United States reinforce the validity of these findings. Compared with Caucasians, people of African descent comprise a significantly smaller percentage of the population in the United States. In contrast, they are overrepresented on this nation’s death rows, because there the number of people of African descent almost equals the number of Caucasians. Two other statistics reveal that the United States’s history of racial discrimination continues to adversely affect the administration of Capital Punishment. First, the overwhelming majority of the victims of the people executed since 1976 were Caucasian. Similarly, the same disparity is found when the number of people of African descent executed for killing Caucasians is compared with the few number of Caucasians executed for killing people of African descent.

ROBERTA M. HARDING

References and Further Reading

• Baldus, David C., Charles Pulaski, and George Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, The Journal of Criminal Law & Criminology 74 (1983): 3:661–753
• Bedau, Hugo Adam, ed. The Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997
• Blankenship, Michael B., and Kristie R. Blevins, Inequalities in Capital Punishment in Tennessee Based on Race: An Analytical Study of Aggravating and Mitigating Factors in Death Penalty Cases, University of Memphis Law Review 31 (2001): 4:828–859
• Fleury-Steiner, Benjamin. Jurors’ Stories of Death: How America’s Death Penalty Invests in Inequality. Ann Arbor: University of Michigan Press, 2004
• Issac, Unah, and Jack Boger. Race and the Death Penalty in North Carolina: an Empirical Analysis, 1993–1997. Raleigh, NC: Common Sense Foundation, 2001
• Lyon, Andrea D., Naming the Dragon: Litigating Race Issues During a Death Penalty Trial, DePaul Law Review 53 (2004): 4:1647–1661
• McNally, Kevin, Race to Execution: Race and the Federal Death Penalty, DePaul Law Review 53 (2004): 4:1615– 1645
• Radelet, Michael L. ‘‘Executions of Whites For Crimes Against Blacks: Exceptions to the Rule?’’ The Sociological Quarterly 30, no. 4.(1989): 529–544

Cases and Statutes Cited

• Batson v. Kentucky,476 U.S. 79 (1986) 
• Furman v. Georgia, 408 U.S. 238 (1972) 
• McCleskey v. Kemp, 481 U.S. 279 (1987) 
• Plessy v. Ferguson, 163 U.S. 537 (1896) 
• Strauder v. West Virginia, 100 U.S. 303 (1880) 
• Swain v. Alabama, 380 U.S. 202 (1965) 

See also Brown v. Board of Education, 347 U.S. 483 (1954); Capital Punishment; Capital Punishment and the Equal Protection Clause Cases; Capital Punishment: Lynching; Coker v. Georgia, 433 U.S. 584 (1977); Discriminatory Prosecution; Dred Scott v. Sandford, 60 U.S. 393 (1857); Emancipation Proclamation (1863); Jury Trials and Race; Loving v. Virginia, 388 U.S. 1 (1967); Miscegenation Laws; Race and Criminal Justice; Scottsboro Trials; Segregation; Slavery and Civil Liberties; Thirteenth Amendment