LAW REVIEWS— Getting to Death: Examining the Role of Race in the Steps Leading to a Death Sentence

In an arti­cle in the Cornell Law Review, Professors Jeffrey Fagan, Garth Davies, and Raymond Paternoster show how arbi­trari­ness and race oper­ate at each stage of a cap­i­tal case, from charg­ing death-eli­gi­ble cas­es to plea nego­ti­a­tions to the selec­tion of eli­gi­ble cas­es for exe­cu­tion and ulti­mate­ly to the exe­cu­tion itself. The authors applied rig­or­ous ana­lyt­ic meth­ods to a dataset of 2,328 first-degree mur­der cas­es in Georgia from 1995 – 2004 and found that two fac­tors have sig­nif­i­cant influ­ence: the race and gen­der of the vic­tim in the underlying murder. 

Their research showed that ​“white vic­tim cas­es are more like­ly to progress from charg­ing to tri­al and then to a death sen­tence,” sug­gest­ing that each white-vic­tim case is about ​“70% more like­ly than Black vic­tim cas­es to progress to each suc­ceed­ing stage.” Moreover, in ​“cross- racial mur­ders, where Black defen­dants kill white vic­tims, cas­es are over 25% more like­ly than all oth­er race com­bi­na­tions to receive a death sen­tence.” Cases involv­ing ​“female and old­er mur­der vic­tims also are more like­ly to receive a penal­ty phase tri­al and a death sentence.”

The authors con­clude that, 50 years after the U.S. Supreme Court’s deci­sion in Furman v. Georgia, ​“race con­tin­ues to mat­ter, and that the statu­to­ry aggra­va­tors that dis­tin­guish death cas­es from oth­er killings are them­selves racial­ized,” inter­sect­ing with fac­tors such as the defendant’s race and the race of the vic­tim to increase the like­li­hood of par­tic­u­lar defen­dants receiv­ing the death penalty.

Professor Fagan is with Columbia University, Professor Davies is at Simon Fraser University, and Professor Paternoster, now deceased, was at the University of Maryland. The arti­cle will also be pub­lished as a forth­com­ing Columbia Public Law Research Paper.