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 opi.

1. 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

2. 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

3. • 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

4. • 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

5. 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?

6. • 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

7. • 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

8. • 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

9. 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

10. 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

11. 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

12. • 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

13. to establish bias in individual cases