Race and the Death Penalty

Document Date: February 26, 2003

The color of a defendant and victim’s skin plays a crucial and unacceptable role in deciding who receives the death penalty in America. People of color have accounted for a disproportionate 43 % of total executions since 1976 and 55 % of those currently awaiting execution. A moratorium of the death penalty is necessary to address the blatant prejudice in our application of the death penalty.

The jurisdictions with the highest percentages of minorities on its death row:

U.S. Military (86%)
Colorado (80%)
U.S. Government (77%)
Louisiana (72%)
Pennsylvania (70%)

While white victims account for approximately one-half of all murder victims, 80% of all Capital cases involve white victims. Furthermore, as of October 2002, 12 people have been executed where the defendant was white and the murder victim black, compared with 178 black defendants executed for murders with white victims.

For many years reports from around the country have found that a pervasive racial prejudice in the application of the death penalty exists.

Maryland Residents Take Urgent Action!

In January 2003, researchers at the University of Maryland concluded in a study commissioned by the Maryland Governor that defendants are much more likely to be sentenced to death if they have killed a white person. Urgent: Maryland residents can take action to send a free fax to their state legislators about a pending death penalty bill!

In August 2001, the New Jersey Supreme Court released a report which also found that the state’s death penalty law is more likely to proceed against defendants who kill white victims.

In April 2001, researchers from the University of North Carolina released a study of all homicide cases in North Carolina between 1993 and 1997. The study found that the odds of getting a death sentence increased three and a half times if the victim was white rather than black.

Supreme Court Decisions on Race and the Death Penalty

Miller-El v. Cockrell

In the 2003 Supreme Court case Miller-El v. Cockrell, the Supreme Court ruled in his favor that Miller-El should have been given the opportunity to prove that his death sentence was the result of discriminatory jury practices. Such practices included the so called “”Texas shuffle”” to limit or eliminate African American jurors. Other practices included disparate questioning of potential jurors based on race, and a training memo instructing prosecutors on ways to skew juries based on race.

McClesky v. Kemp
In the 1987 Supreme Court case McClesky v. Kemp, counsel on behalf of death row prisoner Warren McClesky argued that death penalty sentences in Georgia were racially biased related to the race of the victim. The court ruled against McClesky who was executed by electrocution in 1991, ruling that racial disparities in the death penalty were not a violation of one’s Constitutional right of “equal protection of the law.”

Batson v. Kentucky
In this 1977 case the Supreme Court ruled that prosecutors may not use race as a factor in eliminating potential jurors from the jury pool. Likewise, a former Assistant District Attorney in Philadelphia, Pennsylvania, wrote explicit directions to his prosecutors on how to strike African-Americans from juries, without violating the Supreme Court’s ruling.


In 1998, Kentucky became the first death penalty state to pass the Racial Justice Act, a law that prohibits the death penalty from being sought on the basis of race. Following this victory, Racial Justice Act legislation was introduced, but was not passed, in Florida, Georgia, Illinois, Nebraska, North Carolina, and South Carolina.

In 1997, David Baldus and statistician George Woodworth examined the death penalty rates among all death eligible defendants in Philadelphia, Pennsylvania between the years of 1983 and 1993. The results of their study proved that the odds of receiving the death penalty in Philadelphia increased by 38% when the accused was black.

Nationwide, a 1990 General Accounting Office (GAO) report reviewed numerous studies of patterns of racial discrimination in death penalty sentencing. Their review found that for homicides committed under otherwise similar circumstances, and where defendants had similar criminal histories, a defendant was several times more likely to receive the death penalty if the victim was white than if his victim was African American.

University of Iowa law professor David Baldus found that during the 1980s prosecutors in Georgia sought the death penalty for 70 % of black defendants with white victims, but for only 15% of white defendants with black victims.

Prosecutors have unfettered discretion in deciding which cases become capital cases, seeking the death penalty in approximately 1 percent of all capital eligible cases. Notably among the 38 states that allow the death penalty, approximately 98% of the prosecutors are white.

In the Okmulgee Judicial District of Georgia, District Attorney Joseph Briley tried 33 capital cases between 1974 and 1994. Twenty-four of the cases were against black defendants. In cases in which the defendant was black and the victim was white, Briley used 96 out of his 103 jury challenges against African-Americans.

In addition, between 1983 and 1993 prosecutors in Philadelphia voted to remove 52% of potential black jurors while trying to remove only 23% of other potential jurors.

In the fall of 2000, The U.S. Department of Justice (DOJ) released the results of an initial survey of federal death penalty prosecutions. The report shows that the federal death penalty, like its application in the states, is used disproportionately against people of color. Of the 18 prisoners currently on federal death row, 16 are either African-American, Hispanic or Asian. From 1995-2000, 80% of all the federal capital cases recommended by U.S. Attorneys to the Attorney General seeking the death penalty involved people of color. Even after review by the Attorney General, 72% of the cases approved for death penalty prosecution involved minority defendants.

The DOJ study also revealed the influence that the race of the victim has in determining potential capital cases. U.S. Attorneys recommended the death penalty in 36 % of the cases with black defendants and non-black victims, but only recommended the death penalty in 20 % of the cases with black defendants and black victims.

The DOJ study left many questions unanswered, prompting calls for a more thorough review. In June 2000, Attorney General John Ashcroft announced that the follow-up review of 950 cases had shown no evidence of racial bias. These results are unreliable because they were not based on the total number of cases that prosecutors could have submitted to former Attorney General Janet Reno for review, but only on those that were actually submitted. Following hearings chaired by Senator Russell Feingold (D-WI) on oversight of the federal death penalty in June 2001, Attorney General Ashcroft ordered the National Institute of Justice to undergo a study on the possibility of racial and geographic biases in the federal death penalty.

Since taking office two years ago, Ashcroft has overturned local U.S. district attorneys’ decisions not to seek the death penalty 28 times, which is more than the number of “overrides” during Attorney General Janet Reno’s tenure. Of these 28 “”overrides,”” two involved suspects who are white; 23 involved suspects who are black, Latino or Native American; and three involved suspects whose race could not be determined.

A systemic racial bias in the application of the death penalty exists at both the state and federal level. A moratorium on the death penalty is needed to address this miscarriage of justice.

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