Eighty-five years ago, America’s last public execution transpired in Kentucky and 20,000 people gathered to watch it as a grotesque form of crowd entertainment akin to modern circuitry (Ndulue, 2020). In 2021, the closest contact most people have had with lethal punishment is a controversial topic for discussion. Rates of capital sentences and executions have been showing a downward trend during the last two decades, further exacerbated by the increased politicization of modern society, mistrust in government, and the rise of online social movements. The institution of capital punishment is coming under closer scrutiny for official misconduct and systemic racial discrimination.
Current Statistics
Currently, capital punishment is legally sanctioned in 27 states and the federal Justice Department and Military (Death Penalty Information Center, [DPIC], 2020). Around 2,500 prisoners are awaiting execution in the United States after having been convicted of murder (DPIC, 2021c). As of April 2021, California, Florida, and Texas have the highest amount of death row inmates (DPIC, 2021c). The amount of people currently on death row or facing possible resentencing has been declining as reversals, executions, and natural deaths are outpacing new sentences (DPIC, 2021c). Choosing the death penalty as the appropriate form of punishment has been decreasing in popularity since late 1990s.
Seventeen executions and eighteen death sentences took place in 2020 (DPIC, 2020). While these numbers were undoubtedly artificially affected by the pandemic, it is not a significant departure from the previous year’s data and still matches the general downward trend of capital punishment. Death sentences have fallen by 85% since their peak in the late 1990s, when 300 sentences were passed in 1996, and 100 executions carried out in 1999 (Ndulue, 2020). Ten were executed through lethal injections by federal institutions, three by the state of Texas, and one each by Georgia, Alabama, Tennessee, and Missouri (DPIC, 2020). In general, it is evident that rates of capital sentencing and executions have been steadily going down since the dawn of the twenty-first century.
Changing Public Opinion and Causes
The decreasing popularity of the death penalty is partly due to the legislative limitations placed on the possibility of capital sentencing. The death penalty is illegal in 22 states as of 2021, compared to sixteen in 2011. Another 12 have not carried out an execution in at least ten years, including the states of California, Oregon, and Pennsylvania, with an imposed formal moratorium on executions (DPIC, 2020; Pew Research Center, 2021). Even previously heavy-use death penalty states are favoring legislative reform. Virginia, with the second-highest rate of executions within the last fifty years, abolished capital punishment in 2021 (Pew Research Center, 2021). Courts in Washington and Delaware recently ruled that capital punishment laws are unconstitutional (DPIC, 2020). The Supreme Court ruled the death penalty as unconstitutional, cruel, and unusual punishment for mentally disabled and juvenile offenders (DPIC, 2020). State legislation is progressively recognizing the inappropriateness of capital punishment in certain cases.
The shift in legislation reflects the changing public opinion regarding the death penalty. Support is at a half-century low, with opposition at its highest since the 1960s (DPIC, 2020). Six in ten U.S. adults see the death penalty as morally justifiable for convicted murderers (Pew Research Center, 2021). However, belief in moral justice is quite different from trust in legal institutions to carry it out. Sixty-three percent believe the death penalty does not successfully deter crime, and 78% are afraid that innocent defendants might be executed (Pew Research Center, 2021). The South consistently has the highest rate of murder per capita in the country yet accounts for 80% of all state executions, proving that the death penalty is in fact not a useful crime deterrent (DPIC, 2021b). Unprecedentedly since the survey’s inception, the majority of Americans believe that life without parole is more appropriate than the death penalty (Ndulue, 2020). Furthermore, the financial burden of upholding death row is also a point of criticism. Sentencing first-degree murderers to life without parole is three to four times cheaper than enforcing a capital sentence (DPIC, 2020). Given the death penalty’s ineffectiveness at deterring crime, rising costs, and the general risk of innocence, fewer Americans than ever support the death penalty.
A closer analysis of the 17 executions carried out in 2020 exposes that fears of miscarriages of justice are well-founded. Although that number was the lowest in 37 years, the purpose and moral value of executing even these seventeen prisoners were questionable at best. Every one of the executed had significant mental and emotional impairments or was younger than 21, the accepted threshold for psychological maturity, when the crime was committed (DPIC, 2020). Several had more culpable co-defendants who got away with lighter sentences, and the victims’ families opposed the execution (DPIC, 2020). Two prisoners were likely innocent. Donnie Lance was denied “potentially exculpatory” DNA testing before his execution by the state of Georgia, despite the high rates of death sentences that were later exonerated by similar testing (DPIC, 2020). Nathaniel Woods was executed in Alabama regardless of recorded official misconduct, coerced informant testimony, and ineffective representation (DPIC, 2020). Five innocent men were exonerated after decades in prison, and several others were granted retrials or plea deals on the same basis of official misconduct (DPIC, 2020). Public and governmental support for capital punishment is declining because the system’s fallacies are coming to light under the scrutiny of mass media and online social movements. Historical systemic racism in police procedure and unequal access to legal protections is inherent to capital punishment and demands thorough investigation.
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Racial Disparities
Various empirical studies have proven that racial disparities have pervaded the institution of capital punishment since its inception. Nearly half of the 17 defendants executed in 2020 were black, Latinx and Native American (DPIC, 2020). Seventy-six percent of the executions were for the deaths of white victims, despite only half of the murder victims being white (Ndulue, 2020). Two hundred and ninety-five black defendants “have been executed for the murder of white victims, while only 21 white defendants have been executed for the murder” of black victims (Ndulue, 2020, p. 29). The overrepresentation of black men and white victims in execution rates reveal an implicit bias within the justice system.
Racial disparities also emerge upon analyzing the demographic profiles of prisoners on death row. Black prisoners accounted for 41% of death row inmates, far higher than their 13% share of the nation’s adult population (Pew Research Center, 2021). White prisoners accounted for 56%, compared with their 77% share of the adult population (Pew Research Center, 2021). Since 2013, the country with the highest amount of death sentences has been Riverside in California, and 96% of the sentenced were either Black or Latinx (Ndulue, 2020). The issue of racial inequity within the death penalty apparatus has already been recognized as an undeniable reality.
Reasons Behind Racial Disparities
There are various explanations for the disproportionate racial representation in capital punishment, based on either consensus or conflict theoretical orientation (Blevins & Minor, 2017). Consensus accounts state that black prisoners simply have higher instances of prior legal records and are more involved in violent crime. However, this viewpoint ignores the historical background of current societal structures. Conflict theoretical orientation states that interactions between different societal groups are usually rooted in conflict, and more powerful groups seek to retain their authority through legalized forms of oppression (Blevins & Minor, 2017). Racial hierarchization is quite prevalent in the United States, and some posit that a death row is a form of maintaining societal control by white people. One more radical criticism aimed at the institution of capital punishment is that it is a “direct descendant of lynching” and the final stage of the “school-to-prison pipeline”. Whatever theoretical framework is applied, it is evident that the U.S. law has not protected its citizens on an equal basis.
Prior History of Racial Bias in Capital Punishment
Since the inception of the capital punishment system, citizens of different races were not equal before the law. Different legal codes existed for whites and blacks, and crimes committed by minority populations were punished more harshly (Blevins & Minor, 2017). Some counties stipulated that a black man could be executed for any crime committed (Blevins & Minor, 2017). A death sentence was imposed on any rape of a white woman by a black person; a white man could be incarcerated for two to twenty years for the same crime (Ndulue, 2020). In contrast, the rape of a black woman could be dealt with a fine or imprisonment “at the discretion of the court” (Ndulue, 2020). Black people were also subject to more gruesome execution methods. Although most prisoners were hung, they were “burned at the stake, broken on wheels, gibbeted, decapitated, and dismembered” (Ndulue, 2020). From the outset, black prisoners have been punished more severely with higher probabilities of a death sentence despite committing the same crimes.
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Although this separation was abolished by 1877 and the law became theoretically egalitarian, vigilante groups enforced a system of public lynchings to preserve the racial hierarchy (Blevins & Minor, 2017). Black people were publically tortured and hung by white mobs without any judicial proceeding or legal processing. A total of 4,425 lynchings were documented from 1877 to 1950, and less than 1% resulted in any criminal conviction (Ndulue, 2020). It became a form of mass terrorization and entertainment spectacle (Ndulue, 2020). The victim’s body parts were taken as trophies; commemorative postcards were sold; newspapers published the expected time and location (Ndulue, 2020). It was virtually indistinguishable from legally sanctioned capital punishment. Although it has been mythologized as lawless vigilante justice, lynchings were closely connected to the criminal legal system and had a specific message for the black population: “you live or die at the whim of the white community” (Ndulue, 2020, p. 6). If the law professed to be equal for all, white groups took it upon themselves to prove otherwise in a lethal form with the support of law representatives.
Lynching was not a bizarre deviation from established social norms, but simply another manifestation of the same sentiment that reinforced the death penalty. The promise of a legally approved lethal punishment was used to deter lynching mobs (Ndulue, 2020). In later debates about death penalty abolition, public officials were concerned that repealing it would cause a return to lynching (Ndulue, 2020). Several connections have been noted between unlawful lynchings of the past and today’s executions, mainly the common attitude of proponents, geographic distribution, justification of states’ rights against federal interference, and the conception of both as a form of community-approved violence by whites against black people (Vandiver, 2017). The pattern of lynching predicts the regional distribution of modern executions more closely than historical executions: the South had 88% of lynchings and 81% of executions; Midwest had 7% of lynchings and 10% of executions, the Northeast had under 1% of both lynchings and executions (Vandiver, 2017). Although lynching was a statistical rarity even at its peak, the culture of violence and hatred that fed it still manifests in our only remaining legal form of lethal punishment.
From the beginning, black men were significantly overrepresented in state executions. Black men have historically faced high rates of persecution for sexual misconduct against white women (Blevins & Minor, 2017). Between 1945 and 1965, 89.1% of men convicted for rape were black (Ndulue, 2020). In contrast, “no white man has never been executed” for the rape of a black woman “in which the victim was not killed” (Ndulue, 2020, p. 16). In 1944, a 14-year-old black boy, George Stinney, was executed after ten minutes of jury deliberation based on a coerced confession in Georgia (Medwed, 2020). He was posthumously pardoned and remains the youngest person to ever be executed by the state (Medwed, 2020). His case was only one of several tragedies. Racial inequities and the government’s disregard for black lives led to the common belief that capital execution was merely a legalized version of lynching.
Due to widespread public frustration, the National Association for the Advancement of Colored People (NAACP) argued that capital procedures were unconstitutional before the Supreme Court in 1972 (Medwed, 2020). The NAACP lawyers knew that it would be impossible to tackle the racial bias underlying the whole institution and therefore focused on specific discriminatory procedures in the Deep South (Medwed, 2020). The Supreme Court conceded that the enforcement of lethal punishment was “arbitrary and capricious” because “juries have a practically untrammeled discretion to let an accused live or insist that he die” (Blevins & Minor, 2017, p. 559). The application of the law could not be uniform if particular people were sentenced to death while others went to prison for committing the same crime (Blevins & Minor, 2017). It was ruled as a violation of the Constitution’s clause against “cruel and unusual punishment” and “equality protection of the law” (Blevins & Minor, 2017, p. 559). A moratorium was placed on capital punishment from 1972 to 1976. Five hundred and fifty inmates on death row had their sentences changed to life in prison (Blevins & Minor, 2017). The NAACP secured a victory against capital punishment by targeting its constitutionality.
In response to Furman backlash, states modified their death penalty procedures by curbing jury and prosecutorial power. Prosecutors had the right to pursue capital punishment only in specific legislatively prescribed cases, and two separate trials and juries would evaluate the defendant’s guilt and appropriate punishment (Medwed, 2020). A mandatory appellate review was imposed on all death sentences (Medwed, 2020). The court continued to disregard the fact that the system of capital punishment was rooted in racial discrimination and perpetrated the idea that problems with the death penalty could be remedied through legislation (Blevins & Minor, 2017). In 1976, the Supreme Court decreed that modified state procedures met constitutional requirements and re-established the death penalty. The prevalence of discrimination within the death penalty apparatus continued to be overlooked by judicial bodies.
In 1987, the U.S. Supreme Court openly faced the issue of racial discrimination in capital punishment for the first time during the case McCleskey v. Kemp (Blevins & Minor, 2017). Although the court confirmed one study’s validity on black overrepresentation in death sentences, it rejected constitutional claims of discrimination. Instead, it reasoned that the court’s domain is the constitutional application of the law, not its creation (Blevins & Minor, 2017). Therefore, it is the responsibility of legislative bodies to safeguard against discriminatory practices. This decision once again perpetuated the idea that the problem with the death penalty is incorrect legislation, not the institution at large. The ruling signaled the court’s refusal to outlaw capital punishment even though it recognized it as a racially biased institution (Blevins & Minor, 2017). Justice Brennan filed a dissent stating that the court’s decision was based on fear that otherwise it would “open the door to widespread challenges to all aspects of criminal sentencing” (Ndulue, 2020, p. 21). Despite numerous attempts by civil rights groups to abolish capital punishment on the basis of racial discrimination, the Supreme Court has refused to openly recognize its existence.
Reviewing the judicial and extrajudicial history of the lethal punishment in the United States reveals that it was never intended to be an egalitarian system of bringing criminals to justice. Black people always were, and are currently being, unfairly targeted by the institution to maintain the current social order. If white people did not have a legally sanctioned method to punish black men, they resorted to extrajudicial mob killing. The overrepresentation of black prisoners on death row and state executions does not reveal a particular racial affinity for crime or legislative oversight, but that the system is running according to its initial aim. The aim is to uphold the white hierarchy and that is why the Supreme Court refuses to acknowledge the racial disparities within capital punishment.
Cumulative Racial Disadvantage in the Criminal Justice System
Racial overrepresentation is not a singular discrepancy within capital punishment, but is the ultimate expression of racial bias the pervades the whole criminal justice system. Disparities permeate the stop, arrest, prosecution, and sentencing stages in a phenomenon known as “cumulative racial disadvantage” (Chin, 2016, p. 441). Rather than a one-time flagrant act of racism perpetrated by a single actor, minuscule biases of multiple actors across multiple stages accrue and result in significantly variable treatment according to race (Chin, 2016). This phenomenon results in Black or Latino felons being 26% more likely to go to prison than their white peers (Chin, 2016). Cumulative racial bias is a particularly insidious form of entrenched racism because it is hardly seen and therefore cannot be properly addressed.
School-to-prison pipeline
Cumulative racial disadvantage begins far before the first encounter with the police. The “school-to-prison pipeline” is a disciplinary policy system that unfairly targets minority youth by routing them out of school and toward prison (Heitzeg, 2016). Zero-tolerance policies were popularized in the 1990s and have resulted in increased school police presence, metal detectors, security cameras, and locker searches (Heitzeg, 2016). Teachers monitor black and Latinx students more closely and discipline them more severely (Kovera, 2019). Black students face more odds of out-of-school suspension, getting expelled, or being apprehended by police at school for the same infractions as white students (Kovera, 2019). They are removed from school and more likely to subsequently drop out and face difficulties with law enforcement (Kovera, 2017). Inequities in school disciplining measures account for “a significant portion of the racial differences in arrest rates” (Kovera, 2019, p. 1148). Overrepresentation of the black population on death row begins with inequitable educational policies.
Arrest, charge, and plea deal bias
Civilian encounters with the police are often a point of entry into the criminal justice system (Kovera, 2019). Law enforcement usually targets low-income, urban neighborhoods populated by communities of color which distorts the final pool of criminal defendants (Petersen, 2016). Consequently, black people are 60% more odds of being stopped by law enforcement officers and 127% more odds of being searched (Chin, 2016). When investigating both severe and relatively minor violations, police are likely to be less lenient and use more force with black offenders (Kovera, 2019). The police are more likely to arrest black people for committing the same offenses as white people (Kovera, 2019). Both black juveniles and adults face higher chances of being charged with more punitive sentences, detained in jail prior to trial, and denied bail (Kovera, 2019). Black defendants are offered less lenient plea deals involving community service or a fine; instead, they receive deals involving prison time (Kovera, 2019). Thus, the criminal justice mechanism is more likely to target black people for arrest, charges, and disadvantageous plea deals than their white peers.
Even after controlling for crime severity and socioeconomic status, black people are more likely to be given harsher sentences involving incarceration. Defendants with more typically African facial features such as darker skin, wider nose, and thicker lips receive longer sentences compared to black defendants with a more European phenotype (Kovera, 2019). Black juveniles are usually placed in discipline-based rehabilitation programs, and white juveniles in therapeutic ones (Kovera, 2019). Statistical studies prove that black people, particularly with more classically African features, are imprisoned at higher rates and are thus at a disadvantage at every point of criminal processing.
Prosecutor bias
This cumulative racial bias becomes even more significant when it comes to capital punishment, the one system that can “literally determine whether someone lives or dies” (Blevins & Minor, 2017). It has been proven that the race of the victim and the defendant strongly affects the prosecutor’s decision to pursue the death penalty regardless of the crime’s other features (Blevins & Minor, 2017). Research has confirmed that black defendants receive a death sentence at a “significantly” higher rate than non-black defendants, and one-third would have received life sentences instead of death row if they had not been black (Chin, 2016). One study in Maryland revealed that black people charged with killing whites “were the most disadvantaged at each stage of the process, resulting in a cumulative biasing effect” (Chin, 2016, p. 457). In general, cases involving minority offenders and white victims are likely to be categorized as a felony, which leads to higher rates of a capital conviction in the future (Petersen, 2016). Despite its egalitarian aims, the criminal justice system is more likely to do its job in cases with a specific racial combination.
Prosecutor Misconduct
In addition to subconscious biases, it is also important to acknowledge official misconduct cases resulting in a wrongful conviction. The risk of an execution resulting in an innocent person’s death is the foremost reason Americans do not support the death penalty (Pew Research Center, 2021). However, the 1972 Supreme Court invalidation of capital punishment barely mentioned the issue of innocence, and prosecutors do not suffer any disciplinary action for misconduct (DPIC, 2020). Since 1973, 186 former death-row prisoners have been exonerated (DPIC, 2021b). One hundred of the defendants exonerated from death row were black prisoners (DPIC, 2021b). Prosecutorial misconduct is the leading reason for wrongful capital convictions (Harmon & Falco, 2017). Studies have proven that the defendant’s race is a significant factor leading to errors and wrongful convictions (Harmon & Falco, 2017). Innocent black people are “3.5 times more likely than innocent white people to be convicted of sexual assault, 7 times more likely to be convicted of murder, and 12 times more likely to be convicted of drug crimes” (Kovera, 2019, p. 1147). Prosecutor misconduct directly leads to the wrongful persecution of innocent black people.
Even a quick assessment of recent death penalty exonerations reveals egregious miscarriages of justice. Firstly, in 2020, the Las Vegas court dismissed all charges against Paul Browning after thirty years on death row (DPIC, 2020). Police and prosecutors purposefully withheld forensic evidence that did not match Browning, and a witness was allowed to testify against him despite claiming that “all Black people looked alike” (DPIC, 2020, p. 13). Browning’s lawyer had less than a year of defense experience and failed to adequately challenge the prosecutor investigation (DPIC, 2020). Secondly, Curtis Flowers was officially exonerated in 2020 after six trials that resulted in death sentences passed by all-white or nearly all-white juries (DPIC, 2020). These convictions were overturned due to prosecutorial misconduct since the only direct evidence of Flowers’ guilt depended on a fabricated confession from an informant (DPIC, 2020). Thirdly, Kareem Johnson spent thirteen years on death row after prosecutors wrongfully claimed that his sweaty blood-splattered hat was found on a murder scene (DPIC, 2020). In actuality, the hat was absent of any blood, and the DNA sample from the sweat did not match Johnson’s (DPIC, 2020). All three of the falsely accused men were black. Whether these cases were accidental errors or a malicious misrepresentation of evidence, it is clear that prosecutor misconduct results in innocent black men spending decades on death row.
Juror Bias
A contributing factor of cumulative racial inequality may be the result of juror biases, which have been proven to be influenced by personal beliefs and characteristics such as religion, race, sex, and political affiliation (Blevins & Minor, 2017). Both white and black individuals are likely to view young black males as violent, threatening, and more deserving of punishment (Blevins & Minor, 2017). A study of jury-eligible individuals revealed that whites were associated with “worth” and “value” while blacks with “worthless” and “expendable” (Blevins & Minor, 2017). Furthermore, many capital jurors do not fully understand the legal process and are likely to depend on knowledge gleaned from the media and secondhand experience (Blevins & Minor, 2017). Consequently, their decisions may be based on inaccurate media representation of particular races and the criminal justice system (Blevins & Minor, 2017).
Although it is prohibited to exclude jurors based on gender and race intentionally, in Uttecht v. Brown (2007), the Supreme Court granted prosecutors the right to exclude jury members who have any reservations about the death penalty (Nasif, Sriram & Smith, 2017). Only fervent supporters who are comfortable passing death sentences are likely to serve on capital cases (Nasif et al., 2017). Death penalty supporters are usually conservative white males with higher income and fewer years of education (Nasif et al., 2017). As a result, prosecutors remove black people from capital juries twice as often compared to whites (Chin, 2016). The 2007 Supreme Court ruling allows prosecutors to legalize their discriminatory jury selection.
Minority underrepresentation in juries significantly influences the outcomes of capital cases. An all-white jury is more likely to convict a black defendant than a jury that includes at least one or two black jurors (Nasif et al., 2017). Seventy-two percent of death sentences are given without any black jurors (Blevins & Minor, 2017). Additionally, an all-white jury is less likely to convict white defendants, and more likely to give out a capital sentence to homicides with white victims (Nasif et al., 2017; Petersen, 2016). Skewed jury representation has resulted in biased sentencing for minority perpetrators and white victims.
In conclusion, racial discrimination within the establishment of capital punishment is an undeniable fact. It is not the result of unintended legislative omission, but rather the foundation of the American system of criminal justice that aims to uphold the current racial hierarchy. The death penalty was initially devised as a legally sanctioned form of lethal punishment for black people. As a result, both implicit and explicit racial biases permeate every aspect of legal proceedings by affecting which populations are targeted by law enforcement, who gets a plea deal, and whether capital punishment is even pursued as an option.
References
Blevins, K. R., & Minor, K. I. (2017). Race and the death penalty. In R.M. Bohm & G. Lee (Eds.), Routledge handbook on capital punishment (pp. 555-574). Routledge.
Chin, W. Y. (2016). Racial cumulative disadvantage: The cumulative effects of racial bias at multiple decision points in the criminal justice system. Wake Forest Journal of Law & Policy, 6(2), 441-458.
Death Penalty Information Center. (2020). The death penalty in 2020: Year end report.
Death Penalty Information Center. (2021a). 2021 newly discovered exonerations.
Death Penalty Information Center. (2021b). Exonerations by race.
Death Penalty Information Center. (2021c). Death row.
Doherty, C., Kiley, J., Asheer, N., & Jordan, C. (2021). Most Americans favor the death penalty despite concerns about its administration. Pew Research Center.
Harmon T.R., & Falco, D. (2017). Wrongful capital convictions. In R.M. Bohm & G. Lee (Eds.), Routledge handbook on capital punishment (pp. 575-588). Routledge.
Heitzeg, N. A. (2016). The school-to-prison pipeline: Education, discipline, and racialized double standards. Praeger.
Kovera, M. B. (2019). Racial disparities in the criminal justice system: Prevalence, causes, and a search for solutions. Journal of Social Issues, 75(4), 1139-1164.
Nasif, N., Sriram, S. K., & Smith, E. R. (2017). Racial exclusion and death penalty juries: Can death penalty juries ever be representative. Kansas Journal of Law and Public Policy, 147-166.
Ndulue, N. (2020). Enduring injustice: The persistence of racial discrimination in the U.S. death penalty. The Death Penalty Information Center.
Petersen, N. (2017). Examining the sources of racial bias in potentially capital cases: A case study of police and prosecutorial discretion. Race and Justice, 7(1), 7-34.
Vandiver, M. (2017). Capital punishment and lynching. In R.M. Bohm & G. Lee (Eds.), Routledge handbook on capital punishment (pp. 30-52). Routledge.