Why is the death penalty pursued and imposed in some cases and not in others that, at first glance, seem facially indistinguishable? Surveying the academic literature, Daniel Medwed, the University Distinguished Professor of Law and Criminal Justice at Northeastern University School of Law, points to one of the factors that “seeps into charging and sentencing decisions in meaningful and disturbing ways“—race: first, the race of the victim and then the race of the defendant.

In a new article, Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment, in the Northeastern University School of Law Public Law and Theory Faculty Research Papers Series, Medwed examines the nuances of the race-of-victim effect in capital punishment. Such an effect has been well-documentedinnumerousstudiesacrossthe United States, and Medwed writes that “the race of victim weighs more heavily in the capital calculus than that of the defendant.”

“Decisionmakers all too often place a higher value on white crime victims than black ones,” he suggests. “[T]his tendency has ripple effects that flow throughout the capital punishment process.”

The bottom line, Medwed explains, is that “[r]egardless of the perpetrator’s race, those who kill whites are more likely to face capital charges, receive a death sentence, and die by execution than those who murder blacks.” But the race of the defendant matters, too: in same-race murders, white-victim cases are more likely to produce capital charges, but, Medwed says, “blacks who kill whites—a rare event—are the most likely offenders to receive the death penalty.”

Medwed believes the disparate treatment of death-penalty cases based upon the race of victim provides a window into broader social issues. “[T]he devaluation of black lives that lies at the core of [death penalty] race-of-victim data is consistent with larger criminological (and societal) trends,” he says. The way this plays out in the capital punishment system, he concludes, is fundamentally unjust because “Black lives—and deaths—matter.”


Daniel S. Medwed, Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment, Northeastern Public Law and Theory Faculty Research Papers Series, January 282020.