Arbitrariness and Racial Disparity

The fair administration of justice is one of the most basic goals of the American legal system. However, a large body of research indicates that the death penalty is not pursued fairly – there are disparities along racial, gender, and geographic factors. These studies cast serious doubts on the basic fairness of the death penalty.

Research and News

Baumgartner, Frank and Tim Lyman. “Louisiana Death-Sentenced Cases and Their Reversals, 1976-2015.” Journal of Race, Gender, and Poverty, 2016.

This analysis finds that, of the 155 resolved death penalty cases (those ending in an execution or reversal) in Louisiana, 127, or 82%, ended with the death sentence being reversed.

Blume, John H. and Lindsey S. Vann. “Forty Years of Death: The Past, Present, and Future of the Death Penalty in South Carolina (Or Still Arbitrary after All These Years).” Cornell Law School Legal Studies Research Paper Series, 2016.

This article examines the 187 death sentences since South Carolina reinstated the death penalty in 1977. The authors conclude that the death penalty is still applied arbitrarily in the state, noting disparities based on the gender and race of murder victims and which county the case is tried in.

Thaxton, Sherod. “Assessing and Ameliorating Arbitrariness in Capital Charging: A Doctrinally and Empirically Anchored Inquiry.” UCLA School of Law Public Law and Legal Theory Research Paper Series, 2016.

This paper applies a statistical model to 1,238 death-eligible cases in Georgia between 1993 and 2000. The analysis finds that the race of the defendant and victim affected the chances that a death-eligible case resulted in a capital charge, and that the odds of cases with similar facts resulting in a capital charge varied based on jurisdiction.

Baumgartner, Frank. The Impact of Race, Gender, and Geography on Ohio Executions. University of North Carolina, 2016.

Among the findings of this study of capital punishment in Ohio: just 4 out of 88 counties account for half the executions in the state, and though white victims comprise 43% of homicides, 65% of executions involved a white victim.

Baumgartner, Frank. “The Impact of Race, Gender, and Geography on Florida Executions.” University of North Carolina, 2016.

This analysis of Florida executions finds racial, gender, and geographic disparities in the application of the death penalty. Among the findings: executions are 6.5 times more likely in homicides with white female victims than homicides with black male victims, and there have been no executions in cases with a black victim and white perpetrator.

Baumgartner, Frank and Tim Lyman. “Race-of-Victim Discrepancies in Homicides and Executions, Louisiana 1976-2015.” Loyola University of New Orleans Journal of Public Interest Law, 2015.

This study analyzes Louisiana’s death verdict cases since 1976, finding large disparities based on the race and gender of the victim. Most notably, in those cases “80% of the victims are people other than black males,” even though black men comprise 61% of homicide victims.

O’Brien, Barbara et al. “Untangling the Role of Race in Capital Charging and Sentencing in North Carolina, 1990-2009.” North Carolina Law Review, 2015.

According to this analysis of North Carolina capital cases between 1990 and 2009, “the odds of a black defendant/ black victim case advancing to capital trial are 2.6 times lower than the odds” in all other cases.

Dieter, Richard. “The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Cost to All.” Death Penalty Information Center, 2013.

Since 1976, only 2% of counties have been responsible for the majority of death penalty cases that resulted in executions.

Donohue, John. “Capital Punishment In Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution.” Stanford Law School and National Bureau of Economic Research, 2013.

Data from 1973 to 2007 indicates that in Connecticut, defendants whose victims were white were more likely to receive death sentences than defendants whose victims were non-white.

Radelet, Michael and Glenn Pierce. “Race and Death Sentencing in North Carolina, 1980-2007.” North Carolina Law Review, 2011.

This study finds that in North Carolina between 1980 and 2007, those who murdered whites were more likely to receive a death sentence than those who murdered blacks, regardless of the number of victims or the number of additional felonies committed along with the murder.

Cohen, Ben and Robert Smith. “The Racial Geography of the Federal Death Penalty.” Washington Law Review Association, 2010.

This study analyzes federal trials, comparing cases with juries that are selected from a district-wide pool, rather than a smaller county-wide one, are more likely. The authors conclude that when switching to a larger pool dilutes minority representation juries, death sentences are pursued more disproportionately along racial lines.

Paternoster, Raymond et al. “An Empirical Analysis of Maryland’s Death Sentencing System With Respect To The Influence of Race And Legal Jurisdiction.” University of Maryland, 2003.

This report examines death penalty cases in Maryland and estimates that the probability that the state’s attorney will seek the death penalty is twice as high for a black offender who kills a white offender than for any other offender-victim race combination.

“United States of America: Death by Discrimination- The Continuing Role of Race in Capital Cases.” Amnesty International, 2003.

This report finds that while African Americans only represent 12% of the U.S. population, they “account for more than 40 per cent” of those on death row and a third of those executed since 1977.

“Issues of Consistency in the Federal Death Penalty: A Roundtable Discussion on the Role of the U.S. Attorney.” Vera Institute for Justice, 2002.

This discussion, between 11 former United States Attorneys, explores factors behind the lack of consistency in the application of the federal death penalty across districts. The conversation ranges from the decision-making process behind seeking the death penalty, to the impact of joint local and federal investigations, to the possibility of systemic racial bias.

“The Federal Death Penalty System: A Statistical Survey (1988-2000).” United States Department of Justice, 2000.

According to this Department of Justice report, of the 159 defendants against whom federal prosecutors sought the death penalty between 1995 and 2000, 44 (about 27%) were white, while 71 (about 44%) were black. From 1988-1994, 72% of federal capital defendants were black.