RACE, ETHNICITY, AND THE DEATH PENALTY Constitutionality

Public Opinion

Empirical Evidence

OVERVIEW

• Current statistics

• Who’s on death row?

• Constitutionality of capital punishment

• Supreme Court case law

• Public attitudes towards capital punishment

• Racialized support

• Empirical evidence of racial bias?

• Race of defendant

• Race of victim

• Contemporary issues

Virginia abolished the death

penalty in 2021.

Current state status:

• Death penalty = 24

• No death penalty = 23

• Governor imposed

moratorium = 3

Death Penalty Information Center, 2021

CAPITAL PUNISHMENT STATISTICS

• 1890-1984

• 5,726 executions – 54% (2,915) non-White

• Between 1976 and 2021 (post-Furman)

• 1,538 people executed

• 55.6% White, 34.3% Black, 8.4% Hispanic

• Five states have accounted for nearly two-thirds of all executions since 1977

• Texas, Virginia, Oklahoma, Florida, and Missouri

• 2,508 inmates under a death sentence as of April 1, 2021

• 98% male

• 42.37% White, 41.29% Black, 13.5% Latinx

• 51 females under a sentence of death in 2021

• 58.8% White, 23.5% Black; 11.7% Latina

BJS, 2021; Death Penalty Information Center, 2021

CONSTITUTIONALITY

• The Eighth Amendment of the U.S. Constitution prohibits “cruel and unusual punishments”

• Interpretations of cruel and unusual left up to the Supreme Court

• The Fourteenth Amendment provides equal protection of the law

• Legal challenges cite racial disparities in capital cases

• Furman v. Georgia (1972)

• Ruled the death penalty unconstitutional under existing administration practices

• Violation of Eighth and Fourteenth Amendments

• 5 to 4 decision; all 9 judges wrote separate opinions

• The death penalty was being applied in an arbitrary and capricious manner

• Little uniformity across states

• Lack of appropriate guidance for jurors informing when the sentence was appropriate

• The degree of discretion available opened the door for discrimination

• 3 of 5 judges in the majority cited racial discrimination in the application of the penalty

Walker et al., 2018

CONSTITUTIONALITY (CONT’D)

• Capital punishment was essentially illegal between 1972 and 1976

• Furman invalidated death penalty statutes in 39 states, DC, and the federal government

• Vacated 765 cases involving death row inmates

• Gregg v. Georgia (1976)

• Guided discretion statutes addressed the arbitrary and capricious concerns

• Requiring jurors to consider specific aggravating and mitigating circumstances sufficiently narrowed

the pool of death eligible cases

• Narrowed death-eligible offenses with mandatory death penalty ruled unconstitutional

• Coker v. Georgia (1977)

• Capital punishment for rape is unconstitutional

• Although not cited by the majority, between 1930 and the 1970s, 405 Black men were

executed in the South for rape, compared to 48 Whites

Walker et al., 2018

PUBLIC SUPPORT FOR CAPITAL PUNISHMENT

• Public opinion matters

• CJ actors weigh public opinions when exercising discretion in capital cases

• Since 1936, Gallup polling has included questions about CP

• 1936 = 61% in favor; low of 42% in 1966; high of 80% in early 1990s

• 1936-1986 average = 59% in favor

• 2020 = 55% in favor

• Racialized support?

• Pew (2019-20) public opinion poll = 63% of Whites and Asians, 56% of Hispanics, and 49% of Blacks

support the death penalty as an option for persons convicted of murder

• Whites consistently offer stronger support for the death penalty than blacks

• Correlates of support?

• Critics argue that broad in favor/oppose wording masks important nuance in the nature and

extent of support in the U.S.

Gallop, 2021; Pew, 2021; Walker et al., 2018

PUBLIC OPINION OVER TIME/BY RACE

Gallop, 2021; Pew, 2021

EMPIRICAL EVIDENCE OF RACE DISCRIMINATION

• Pre-Furman

• Research pre-Furman is not methodologically sophisticated

• Lack of sufficient controls for legally-relevant factors

• Strong race-of-defendant and race-of-victim effects

• Especially true in cases of rape; especially true in the South

• Post-Furman

• In 1990, the U.S. Government Accounting office (GAO) reviewed 28 empirical studies

• 82% of reviewed studies found a significant race-of-victim effect

• Mixed support for race-of-defendant effects

• About half found defendant race matters, half found it does not matter

• Baldus et al., (1990)

• 2,400 death-eligible cases in GA between 1973 and 1980

• Included controls for over 200 variables; including aggravating and mitigating circumstances

Walker et al., 2018

EMPIRICAL EVIDENCE (CONT’D)

• Baldus et al., (1990) findings

• Defendants who killed whites were 4.3 times more likely to receive the death penalty than defendants who

killed blacks

• A black defendant who killed a white was 21 times more likely to receive the death penalty than a black who

killed a black

• No evidence that race of the defendant significantly predicts outcome

• Conclusion: race (especially of victim) matters

• Katz (2005)

• Questions the conclusions drawn by Baldus et al., (1990)

• Black homicides of whites often include legally-relevant aggravating circumstances

• Felony murder statutes – blacks more likely to kill whites during the commission of a felony

• Over two-thirds of the black defendant-white victim cases in the Bladus data involved black homicide of whites during an armed

robbery

• Conclusion: racial disparities are legitimate

• Should committing a murder during a felony increase the culpability of the offender?

Walker et al., 2018

RACE-OF-DEFENDANT V. RACE-OF-VICTIM

Death Penalty Information Center, 2021

Data for 1,538

executions since 1976

THE SUBSTITUTION THESIS

• Some death penalty scholars have argued that the death penalty essentially

replaced lynching as a tool for the social control of Blacks

• This argument has been labeled as the substitution thesis

• Support for this position is based on:

• The disproportionate number of executions occurring in the South

• Where lynchings were also concentrated

• Racial disparities in the application of the death penalty – especially when Blacks victimize

Whites

• Alleged Black-on-White crime was a common characteristic of documented lynchings

• Higher rates of White support for the death penalty in states where more lynchings occurred

and larger Black populations reside

Gabbidon & Greene, 2019

MCCLESKEY V. KEMP

• McCleskey v. Kemp (1987)

• McCleskey, an African American, was charged with the killing of a White police officer

during a robbery

• Argued that the sentencing process was racially discriminatory (in Georgia)

• 8th & 14th Amendment claims

• Used the evidence from the Baldus study

• SC rejected his claims (5 to 4 decision)

• Accepted the Baldus study, but did not agree that those findings demonstrated that racial

discrimination occurred in the McCleskey case

• Some justices argued that ruling in favor of McCleskey may have opened a “Pandora’s box”

of litigation regarding the sentencing process

• Dissenting judges, legal scholars and others disagreed

Walker et al., 2018

CURRENT STATUS & ISSUES

• Death penalty moratorium movement

• 23 states and DC have abolished the death penalty

• 27 states, the federal government, and the military still allow the death penalty

• 3 of these states are under Governor-imposed moratorium

• Wrongful convictions

• Exonerations disproportionately involve African American defendants (about 40%)

• 57% of DNA exonerations involve African American defendants (Innocence Project)

• Judicial overrides

• Until recently, three states (AL, DE, and FL) allowed judges to change jury sentencing decisions in capital cases

• Judicial overrides abolished in FL (2016) and AL (2017) – racial bias in application alleged

• The Racial Justice Act(s)

• Legislative efforts to make it easier for capital defendants to appeal their sentences due to racial disparity

• Failed to pass in the U.S. (1994); Kentucky passed in 1998; North Carolina passed in 2009 but repealed in

2013

Gabbidon & Greene, 2019; Walker et al., 2018

SUMMARY

• The use of the death penalty is a controversial issue

• Public opinion about capital punishment is racialized

• People of color less likely to support – stable differences over time

• Historical context may shape contemporary opinions and/or the application of the death penalty

• The death penalty as a substitution for lynching for Blacks who victimize Whites

• Empirical evidence reveals racial disparities and discrimination

• Race-of-victim effects particularly strong

• SC upholds the constitutionality of capital punishment

• Guided discretion required for jurors

• Despite empirical evidence of racial disparities/discrimination

• Presence of racial disparity in jurisdiction deemed insufficient to establish bias in individual cases