ANALYSIS: Research Supports Assertion that U.S. Death Penalty ​“Devalues Black Lives”

The Movement for Black Lives has called for abol­ish­ing the death penal­ty in the United States, assert­ing that cap­i­tal pun­ish­ment is a racist lega­cy of slav­ery, lynch­ing, and Jim Crow that ​“deval­ues Black lives.” A Spring 2018 arti­cle in the University of Chicago’s phi­los­o­phy jour­nal Ethics, co-authored by Michael Cholbi, Professor of Philosophy at California State Polytechnic University and Alex Madva, Assistant Professor of Philosophy at Cal Poly Pomona, exam­ines the philo­soph­i­cal under­pin­nings of those asser­tions and con­cludes that they are correct. 

In Black Lives Matter and the Call for Death Penalty Abolition, the authors exam­ine ​“the two cen­tral con­tentions in the movement’s abo­li­tion­ist stance” — that the death penal­ty as prac­ticed in the United States wrongs Black com­mu­ni­ties as a whole, rather than just the indi­vid­ual Black defen­dants charged with cap­i­tal mur­der or the par­tic­u­lar Black vic­tims whose mur­ders were not cap­i­tal­ly pros­e­cut­ed; and that abo­li­tion of the death penal­ty in its entire­ty, rather than attempts at piece­meal reform, is ​“the most defen­si­ble rem­e­dy for this wrong.” Cholbi and Madva review numer­ous 21^st-cen­tu­ry death-penal­ty stud­ies and find that the data show two major class­es of racial dis­tinc­tions in American death-penal­ty prac­tices: a White-vic­tim pref­er­ence in both pros­e­cu­to­r­i­al choic­es to seek and jury ver­dicts to impose the death penal­ty and a sen­tenc­ing bias against non-White defen­dants once a case has been des­ig­nat­ed as capital. 

Cholbi and Madva con­clude that Black Americans are sub­ject to a cit­i­zen­ship class that ren­ders them vul­ner­a­ble to both ret­ribu­tive and dis­trib­u­tive injus­tice: ret­ribu­tive in the sense that indi­vid­ual Black cap­i­tal defen­dants are empir­i­cal­ly more like­ly to be sub­ject to exe­cu­tion than defen­dants of oth­er races and dis­trib­u­tive in that that those who mur­der Black peo­ple are empir­i­cal­ly less like­ly to be sub­ject to exe­cu­tion than those who mur­der non-Black peo­ple. As a result of, in part, implic­it racial bias­es that man­i­fest at every lev­el of the cap­i­tal pun­ish­ment sys­tem, Black cap­i­tal defen­dants face the ret­ribu­tive injus­tice of being more like­ly to be sen­tenced to death than any other group. 

“Preexisting bias­es regard­ing blacks’ pro­cliv­i­ty toward and insus­cep­ti­bil­i­ty to vio­lence that may oth­er­wise remain dor­mant are gal­va­nized when indi­vid­u­als are afford­ed the oppor­tu­ni­ty to ren­der judg­ments regard­ing who ought to be exe­cut­ed for their crimes,” Cholbi and Madva write. In one shock­ing study cit­ed by the pair, White respon­dents became more sup­port­ive of cap­i­tal pun­ish­ment when informed about the issue of racial bias in cap­i­tal sen­tenc­ing. Another study showed White mem­bers of a mock jury more like­ly to con­vict Black peo­ple and less like­ly to con­vict White peo­ple when informed that the max­i­mum sen­tence pos­si­ble was death as opposed to a life sentence. 

“Such results sug­gest that cap­i­tal pun­ish­ment is not just anoth­er are­na infect­ed with bias but instead rep­re­sents a dis­tinc­tive chan­nel for racial dis­crim­i­na­tion” where anti-Black bias­es are ​“activate[d] and amplif[ied].” To not address the dis­tinct and per­me­ative nature of this dis­crim­i­na­tion, Cholbi and Madva write, ​“amounts to a form of soci­etal or institutional recklessness.” 

Research sup­ports the Movement for Black Lives’ asser­tion that all Black peo­ple, not just indi­vid­ual Black cap­i­tal defen­dants, are unjust­ly affect­ed by cap­i­tal punishment’s sys­temic racial bias. Because the mur­der of a Black per­son is less sta­tis­ti­cal­ly like­ly to result in a death sen­tence, Cholbi and Madva argue, ​“the law fails to penal­ize killings of blacks in a man­ner con­sis­tent with their hav­ing the equal pro­tec­tion of the law.” 

Given that the law ​“rou­tine­ly pun­ish­es those who kill blacks less harsh­ly than those who kill oth­ers, killing blacks becomes com­men­su­rably less risky (espe­cial­ly if the killer is white).” This dis­trib­u­tive injus­tice ​“is one that all blacks face, not only those who actu­al­ly are murdered.” 

The authors ana­lyze attempt­ed state-lev­el death-penal­ty reforms and con­clude that they ​“have had mod­est suc­cess at best” at elim­i­nat­ing racial bias, and there­fore ​“abol­ish­ing the death penal­ty may itself be one among many nec­es­sary reforms for reduc­ing broad­er racial dis­par­i­ties in crim­i­nal impris­on­ment.” The task of ensur­ing that the lives of Black peo­ple are com­pa­ra­bly pro­tect­ed and their killers are equal­ly pun­ished in the U.S. crim­i­nal jus­tice sys­tem is impos­si­ble, they argue, with­out dis­man­tling the cap­i­tal pun­ish­ment sys­tem for good.