Race and Capital Punishment in the US

Published 16 Feb 2017

Capital punishment is the ultimate and harshest penalty courts implement for man’s heinous crimes that has continued to raise differing views in the civilized American society. Bedau upholds in the American Civil Liberties Union that death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantee of due and the equal protection of the laws. This idea is based on the premise that the state should not usurp the power of taking human life especially in a premeditated fashion and ceremony.

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Despite prevailing issues against death penalty, the courts have maintained its constitutionality as a deterrent factor to the commission of a crime premised on man’s common fear of death. Pro-life advocates also insist that death penalty has been applied randomly at best and discriminatorily at worst upon criminals whose victims were white and on colored offenders (van den Haag). With 38 states and the federal government authorizing the capital punishment, capital punishment challenges most basic notion of fairness and equity in criminal sentencing according to Free(2003:177). In the imposition of the capital punishment, the public is left with the question whether the observance is applied in a manner without significant racial disparities in between. The American Justice System therefore faces the moral question on the implementation of death penalty and the continuous history of racial discrimination.

Americans cannot deny the fact that as of 12 April 2007; only 364 blacks have been put to death compared to 609 white defendants amid speculations that a bias exists (NAACP, 2007). African Americans are not really disproportionately represented among people condemned to death in the USA as a whole. As of January 2007, the death row inmate population consists of 41.7% blacks and 45.4% whites while 13% is owed to Hispanic and other minority races (NAACP records). A disparity may exist among death sentences by state with Philadelphia having 137 blacks compared to only 68 whites on death row. Likewise in Texas of the 393 inmates on death row, 161 blacks are awaiting execution while only 121 are whites.

The race of the defendant is not supposed to influence the sentencing but apparently in Philadelphia, it does. In the essence of justice, this paper aims to provide an insight for criminal justice professionals a better understanding on the people they work with. The theory of African Americans getting a harsher sentence when the victim is white can be tested rather easily using the national statistics. A comparative result can be gleaned on the ratio of imposed capital punishments on African American homicide defendants whose victims were white person against the ratio of African American homicide defendants whose victims were black. Further, this paper will examine the factors that possibly promote the continuance of racial discrimination in capital sentencing.

The race of the victim is also an important factor in determining whether in the implementation of the death penalty, racial discrimination exists. Although this is entirely a secondary predictor for cases that result in a death sentence, the dynamics of the disproportionate minority shall be examined to provide an alternative perspective in examining the significance of the race of the victim in American society and criminal justice responses to crime. NAACP records reveal that among the number of victims where an execution has occurred since the restoration of the death penalty, 1269 victims were white while 225 victims are black.

Based on criminal histories committed under similar circumstances, a defendant is more likely to receive the penalty of death if his victims is white than if his victim belongs to a minority race. In most validly conducted studies, the defendant was four or five times as likely to get the death penalty if the victim was white than if the victim was African American (Henderson, 2000:19) This critical examination discusses the marginalization of African Americans in the criminal justice system that requires an examination at racial profiling and representation of African Americans in hate crime victimization. This research therefore aims to discuss the discriminatory treatment of the black Americans and analyze the possible ameliorative solutions to treat the current racial imbalance on the criminal justice as a whole.

In the imposition of death penalty as the capital punishment, Henderson provided that the evidence normally reveals the application that are legally endorsed by the state prosecutors (2000, 17). Individuals charged with killing white victims are likely to receive the death penalty that at least 82% of the impositions are committed on a white victim (GAO, 1990:5). Henderson also added that the race of the defendant when combined with the race of the victim yields a significant disparity in the application of the death penalty (2000:17). This is supported by a study conducted by Baldus, Woodworth, Zuckerman, Weiner and Broffitt (1998) which also revealed that there is a pernicious pattern of racial discrimination in Philadelphia capital punishment cases based on the race of the defendant and on the race of the victim. Blacks who kill whites are sentenced to death several times more than blacks who kills blacks and black defendants will likely receive the capital punishments when their victims are white as most studies reveal (Henderson, 2000:18).

Despite data supporting that the death sentences has been imposed and carried disproportionately among the black defendants and the poor unpopular groups, government lawyers continue to insist that racial discrimination in capital punishment does not exist. Race has a great impact on a prosecutor’s decision to ask the death penalty that GAO also revealed in 1990 when the district attorney’s office in PA used a training video to teach prosecutors how to keep Black jurors off jury service. In 1994, Congress also rejected the Racial Injustice Act that would have afforded the condemned prisoner the right to challenge their death sentence as racially motivated upon the prodding of state and federal prosecutors (Free, 2003: 178). It is an undeniable fact that the application of capital punishment is racially motivated that starts at the discretion of the prosecutors and reflects the stance of the American government against race-neutrality.

The reasons why racial discrimination persist in capital sentencing

There are 38 states and the federal government endorsing capital punishment and grants prosecutorial discretion for any intentional murder committed. The decisions are guided by legal factors according to Henderson (2000:17) depending on the severity of the crime and prosecutors deciding when to seek death. In California for example, prosecutors have 600-800 cases to choose from annually to endorse death sentences. Along with the jury, they have a great discretion in coming up with their current 660 death row inmate persecution (NAACP, January 2007). Baldus, et al contradicted that California’s records include the mid-range crimes, not necessarily the most heinous but not the least heinous as well where racial disparities exists.

Counsels likewise play a determining role in capital sentencing. Their ineffectual defense and representation for their client in the case of capital defendants boast of their negligence to claim merits and likewise deny capital punishment. The legal system may not be able to pinpoint the ineffective assistance of the counsel for the defendant because the Supreme Court has not laid down a standard measure for proof thus making it extremely difficult to show that defense is ineffectual.

In Gates v. Zant, death row inmate Johnny Lee gates provided how an ineffectual counsel illustrates the problem. With an all-white jury, Gates, a black American was accused of killing and raping a white woman. His defense lawyer failed to object to an all-white jury during the selection process; failed to present mitigating evidence like the defendant’s impoverished childhood which could have been noted as a psychological incapacity to function and behave in a manner typical of a normal child. Although the lawyer was not found to be ineffective, the federal court was barred from challenging the Eleventh Circuit’s decision that his case reeked of unconstitutional racial discrimination.

Juries and venue can also lead to racial disparities in capital sentencing. Often prosecutors choose venues primarily in a central city that result in an all-white jury. Problems also arise when jurors upon questioning would give out “politically correct” responses in group settings that they would never be willing to impose the death penalty yet after sequestration would often reveal racism and opt for the death penalty after a capital conviction. A certain line of questioning before the guilt or innocence phase of the trial also leads to the exclusion of African Americans because a higher percentage of African Americans oppose the death penalty compared to the general public. Few jurors are excluded for being automatically pro-death penalty thus presenting a lower proportion of African Americans in jury service participation in many capital cases. The capital defendant’s fate is also at the hands of a sometimes racially discriminating jury even with at least one African American among them. One single contradiction during a “death-a-vote” can reduce the sentence to a life-verdict in some states, particularly in Georgia; a unanimous vote for death though would help execute the defendant.

To safeguard against racial discrimination in capital punishment, the legal system has provided a review and clemency proceedings where an appellate court can compare otherwise similar cases to evaluate whether a death sentence is disproportionate in similar cases (Baldus et al, 1998). This could necessarily lead to relief being granted where similar circumstances exist and a defendant would have been unlikely to have gotten the death penalty if he had been white or if his victim had been African American. However in some cases, Baldus et al countered that in some cases, the Court held that such review is not constitutionally required and states like Arizona, Maryland, Idaho, Connecticut, and Wyoming abandoned any pretense of allowing a proportionality review. Executive clemency proceedings may also be granted but these days clemency is granted far less frequently due to elected officials’ fear of being attacked as “soft on crime.” More often when it is granted, it is usually due to unusual compelling evidence of innocence and not to any concern about racial discrimination.

African Americans account for 41.7% of the United States’ 3,350 death row inmates. The United States population is approximately 70 per cent white and 14 per cent black and yet blacks have been six to seven times more likely to be murdered than whites, with the result that blacks and whites are the victims of murder in about equal numbers. Yet, 79.3 per cent of the more than 1,600 people put to death in the USA since 1976 were convicted of crimes involving white victims, compared to the 14 per cent who were convicted of killing blacks. Less than five per cent of the executions carried out since 1977 in the USA were for crimes involving Hispanic victims despite Hispanics representing about 12 per cent of the US population. Such statistics alone do not prove a bias in the justice system but could reflect on the patterns of offending relative to wider social inequalities. Studies will however indicate that race, particularly the race of the murder victim influences the rate of capital sentencing in the USA. US General Accounting Office (GAO) reviews in 28 studies conducted around the country concluded that “in 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving a death sentence than those who murdered blacks. Race, ethnic origin and economic status usually appear to a determinant factor in the imposition of a death sentence.

Efforts to Rectify the Problem

If the United States is sincere in its effort to rectify the problem of the prevalent racial discrimination in capital sentencing, it should address the problem in its core. Policies including those designed to minimize racial discrimination in capital sentencing should completely be implemented. The Racial Justice Act, which has been stymied because of elected officials’ fears of being branded and attacked as being soft on criminals, should be passed to Congress. The public perception that advocates death for criminals led Congress to completely restrict funding on capital punishment resource centers which had endeavored to provide or find representation for indigent death row inmates. Cases in which Black Americans are demanding for clemency and crying out for relief under certain circumstances should be reevaluated in conjunction with the pardon and parole board recommendations. Death sentences could also be reviewed to consider if there has been a pattern of racial discrimination based on the race of the victim or the race of the defendant without being limited to capital offenses alone. Likewise, an increase in the presence of African American jurors can help assess the ameliorative impact to restore the current imbalance in the criminal justice system.

Since death penalty is so severe, there must be a system of “check and balance” set up to enforce the sentence fairly free from racial, gender, religious, or socio-economic bias. An automatic appeal to the Court of Appeals to review the district court’s guilty verdict would likely help in order to filter out cases which the defendant may be falsely convicted. Apparently the system does not try hard enough with American society banking on retributive justice as the main reason other than the society’s moral action on the crime. Thus, it is always better to understand and eliminate institutional racism if the legal system wishes to refine. Stricter guidelines will have to be drafted in order to protect all persons accused of capital offenses if its elimination would continuously be overruled.


Although the NAACP 2007 over-all report revealed a steady decline in black people executed for heinous crimes, the imposition of capital punishment on black defendants do not paint the same picture in some states. More particularly where a victim’s race is concerned, there exists a clear disparity when crimes committed against a white victim is often declared as heinous. Often, during a criminal procedure for a colored defendant, colored jurors are under-represented in capital trials as if the state appears to have unfairly removed them during jury selection. This is outlined to reflect on the attitudes of capital jurors suggesting that conscious or unconscious racism can infect juror decision-making. Likewise, prosecutorial decision-making in tandem with justice tactics has criminalized race and crime which in turn provides a devastating effect on minority communities in the US. The apparent failure of the federal authorities to also offer remedial leadership on the issue of racial bias in the capital justice system has also produce links between race and the error-prone nature of the US capital justice system. Majority of countries have abolished the death penalty in law or practice, leaving the USA as the egalitarian society to treat this fundamental human rights issue free from social and racial injustice. Such racial unfairness should have no grounds for existence in the US fight for equality.

Works Cited

  • Bedau, Hugo Adam. “The Case Against Death Penalty”. 2000.08 Mar, 2006.http://users.rcn.com/mwood/deathpen.html
  • Free, Marvin. Racial Issues in Criminal Justice: The Case of African American. Greenwood, 2003.
  • United States. General Accounting Office. Death Penalty Sentencing: Research Indicates Patterns of Racial disparities, 1990.
  • NAACP Legal Defense and Educational Fund Inc. Death Row USA. 2007.
  • Baldus, David C., Woodworth, G., Zuckerman, D., Weiner, N.A., and Broffitt, B. Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia. Cornell Law Review 1638, 1998.
  • United States. Gates v. Zant, [863 F.2d 1492]. 1498 (11th Circuit) 493 U.S. 945, 1989.
  • United States. Department of Justice. Capital Punishment Statistics. 2006.
  • Henderson, Wade. Justice on Trial: Racial Disparities in the American Justice System. Diane Publishing, 2000.
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