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.


Fagan, Jeffrey and Davies, Garth and Paternoster, Raymond, Getting to Death: Race and the Paths of Capital Cases after Furman (January 13, 2023). Columbia Public Law Research Paper, Forthcoming, Cornell Law Review, Vol. 107, No. 1565, 2022, Available at SSRN: https://​ssrn​.com/​a​b​s​t​r​a​c​t​=​4324073