DPIC Releases Major New Report on Race and the U.S. Death Penalty

The Death Penalty Information Center has released a major new report on race and the U.S. death penal­ty, pro­vid­ing an in-depth look at the his­tor­i­cal role race has played in the death penal­ty and detail­ing the per­va­sive impact racial dis­crim­i­na­tion con­tin­ues to have through­out every stage of a death penal­ty case today. Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty. released on September 15, 2020, also makes the case for why redress­ing dis­crim­i­na­tion in the American death penal­ty is essen­tial if the United States is seri­ous about cre­at­ing a fair and just crim­i­nal legal system.

In ear­ly news cov­er­age of the report, the Associated Press wrote: ​“The report from the Death Penalty Information Center is a his­to­ry les­son in how lynch­ings and exe­cu­tions have been used in America and how dis­crim­i­na­tion bleeds into the entire crim­i­nal jus­tice sys­tem. It traces a line from lynch­ings of old — killings out­side the law — where Black peo­ple were killed in an effort to assert social con­trol dur­ing slav­ery and Jim Crow, and how that even­tu­al­ly trans­lat­ed into state-ordered executions.”

“The death penal­ty is inex­tri­ca­bly linked to our his­to­ry of slav­ery, of lynch­ing, and Jim Crow seg­re­ga­tion, and we want­ed to put what is hap­pen­ing today in its appro­pri­ate con­text,” DPIC Executive Director Robert Dunham told Associated Press. “[W]hat the data tells us and what his­to­ry tells us is that they’re all part of the same phenomenon.”

The Memphis Commercial Appeal not­ed that the report was released in an envi­ron­ment of social upheaval in which “[o]pponents of the death penal­ty are find­ing their argu­ments about the his­to­ry of state-sanc­tioned exe­cu­tions fit into a wider dis­course about racial injus­tice amid nation­wide protests against police bru­tal­i­ty and racism.” 

Ngozi Ndulue, DPIC’s Senior Director of Research and Special Projects and the author of the report, agreed. ​“We have seen more explic­it ref­er­ence to the con­tin­ued racial dis­crim­i­na­tion in the death penal­ty in the last few months,” she told the Commercial Appeal. ​“This is a moment that advo­cates are real­ly look­ing for con­crete changes and what we’re try­ing to do with this report — the bulk of it was writ­ten before the deaths of Ahmaud Arbery, Breonna Taylor, George Floyd — ties real­ly into the moment of reck­on­ing of racial jus­tice the coun­try is hav­ing right now.”

The report doc­u­ments the his­toric role the U.S. death penal­ty has played as an instru­ment of social con­trol, trac­ing its use dur­ing slav­ery as a tool for con­trol­ling Black pop­u­la­tions and curb­ing rebel­lions through the post-Civil War era in which lynch­ings and oth­er extra­ju­di­cial vio­lence rose in promi­nence and pub­lic offi­cials promised legal exe­cu­tions as a means to dis­cour­age ​“vig­i­lante jus­tice.” As lynch­ings decreased in the ear­ly 20^th cen­tu­ry, the report says, exe­cu­tions began to take their place in some of the same cir­cum­stances that ear­li­er would have end­ed in lynchings.

The report cites Virginia as an illus­tra­tion of the racist deploy­ment of cap­i­tal pun­ish­ment. ​“Before the Civil War, Virginia explic­it­ly pro­vid­ed dif­fer­ent penal­ties for white peo­ple and its enslaved pop­u­la­tion,” the report says. ​“By 1848, white peo­ple could be sen­tenced to death only for first-degree mur­der while enslaved Black peo­ple could be exe­cut­ed for a num­ber of non-homi­cide offens­es.” By the 20^th cen­tu­ry, the racial cat­e­go­riza­tion of crimes was gone from the law books but was retained in prac­tice. From 1900 through 1969, the report shows, 258 African Americans were exe­cut­ed, as com­pared to 46 whites. Forty-eight Black men were exe­cut­ed for rape, 20 for attempt­ed rape, and 5 for armed rob­bery. No white per­son was exe­cut­ed for any crime that did not result in death. The same pat­tern pre­vailed across the South, with hun­dreds of African-American men con­demned and exe­cut­ed for the alleged rape or attempt­ed rape of white women or girls. No white man was ever exe­cut­ed for rap­ing a Black woman or girl.

The report also explains that racial bias per­sists today, as evi­denced by cas­es with white vic­tims being more like­ly to be inves­ti­gat­ed and cap­i­tal­ly charged; sys­temic exclu­sion of jurors of col­or from ser­vice in death-penal­ty tri­als; and dis­pro­por­tion­ate impo­si­tion of death sen­tences against defen­dants of col­or. ​“The death penal­ty has been used to enforce racial hier­ar­chies through­out United States his­to­ry, begin­ning with the colo­nial peri­od and con­tin­u­ing to this day,” Ndulue said.

Among the evi­dence of con­tin­u­ing dis­crim­i­na­tion in the use of the death penal­ty, the report references:

• A 2015 meta-analy­sis of 30 stud­ies show­ing that the killers of white peo­ple were more like­ly than the killers of Black peo­ple to face a capital prosecution.
• A study in North Carolina show­ing that qual­i­fied Black jurors were struck from juries at more than twice the rate of qual­i­fied white jurors. As of 2010, 20 per­cent of those on the state’s death row were sen­tenced to death by all-white juries.
• Data show­ing that since exe­cu­tions resumed in 1977, 295 African-American defen­dants have been exe­cut­ed for inter­ra­cial mur­ders of white vic­tims, while only 21 white defen­dants have been exe­cut­ed for inter­ra­cial mur­ders of African Americans.
• A 2014 mock jury study of more than 500 Californians that found white jurors were more like­ly to sen­tence poor Latinx defen­dants to death than poor white defendants.
• Data show­ing that exon­er­a­tions of African Americans for mur­der con­vic­tions are 22 per­cent more like­ly to be linked to police misconduct.

“Racial dis­par­i­ties are present at every stage of a cap­i­tal case and get mag­ni­fied as a case moves through the legal process,” Dunham said. ​“If you don’t under­stand the his­to­ry, … you won’t under­stand why. With the con­tin­u­ing police and white vig­i­lante killings of Black cit­i­zens, it is even more impor­tant now to focus atten­tion on the out­sized role the death penal­ty plays as an agent and val­ida­tor of racial dis­crim­i­na­tion. What is bro­ken or inten­tion­al­ly dis­crim­i­na­to­ry in the crim­i­nal legal sys­tem is vis­i­bly worse in death-penal­ty cas­es. Exposing how the sys­tem dis­crim­i­nates in cap­i­tal cas­es can shine an impor­tant light on law enforce­ment and judi­cial prac­tices in vital need of abo­li­tion, restruc­tur­ing, or reform.”

The death penalty’s ​“dis­crim­i­na­to­ry pres­ence as the apex pun­ish­ment in the American legal sys­tem legit­imizes all oth­er harsh and dis­crim­i­na­to­ry pun­ish­ments,” Ndulue said. ​“That is why the death penal­ty must be part of any dis­cus­sion of police reform, pros­e­cu­to­r­i­al account­abil­i­ty, revers­ing mass incar­cer­a­tion, and the crim­i­nal legal sys­tem as a whole.”