Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty

DPIC Releases Report Placing Death Penalty in Historical Context as a ​“Descendant of Slavery, Lynching, and Segregation”

Death Penalty Must Be Part of Current Debate About Criminal Legal System Reforms

(Washington, D.C.) As social move­ments pres­sure pol­i­cy­mak­ers to redress injus­tices in the crim­i­nal legal sys­tem and to insti­tute reforms to make the process more fair and equi­table, the Death Penalty Information Center (DPIC) today released, ​“Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty.” This report pro­vides an in-depth look at the his­tor­i­cal role that race has played in the death penal­ty and details the per­va­sive role racial dis­crim­i­na­tion con­tin­ues to play in the admin­is­tra­tion of cap­i­tal pun­ish­ment today.

“The death penal­ty has been used to enforce racial hier­ar­chies through­out United States his­to­ry, begin­ning with the colo­nial peri­od and con­tin­u­ing to this day,” said Ngozi Ndulue, DPIC’s Senior Director of Research and Special Projects and the report’s lead author. ​“Its dis­crim­i­na­to­ry pres­ence as the apex pun­ish­ment in the American legal sys­tem legit­imizes all oth­er harsh and dis­crim­i­na­to­ry pun­ish­ments. 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.” Ms. Ndulue pre­vi­ous­ly served as the NAACP’s Senior Director of Criminal Justice Programs and as a cap­i­tal appeals lawyer. 

“Racial dis­par­i­ties are present at every stage of a cap­i­tal case and get mag­ni­fied as a case moves through the legal process,” said Robert Dunham, DPIC’s Executive Director and the report’s edi­tor. ​“If you don’t under­stand the his­to­ry — that the mod­ern death penal­ty is the direct descen­dant of slav­ery, lynch­ing, and Jim Crow-seg­re­ga­tion — 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 report doc­u­ments the his­toric role of the U.S. death penal­ty as an instru­ment of social con­trol. During slav­ery, cap­i­tal pun­ish­ment was a tool for con­trol­ling Black pop­u­la­tions and curb­ing rebel­lions. After the Civil War, pub­lic offi­cials promised legal exe­cu­tions as a means to dis­cour­age lynch­ings. As lynch­ings decreased in the ear­ly 20^th cen­tu­ry, exe­cu­tions began to take their place in cir­cum­stances that ear­li­er would have drawn a lynch mob. Across the South, African-American men were 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. 

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 report pro­vides com­pelling evi­dence of racial bias in the mod­ern death penal­ty, including: 

• A 2015 meta-analy­sis of 30 stud­ies showed 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 showed 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. 
• Since exe­cu­tions resumed in 1977, 295 African-Americans defen­dants have been exe­cut­ed for the mur­der of a white vic­tim, while only 21 white defen­dants have been exe­cut­ed for the mur­der of an African-American victim. 
• A 2014 mock jury study of more than 500 Californians found that white jurors were more like­ly to sen­tence poor Latinx defen­dants to death than poor white defendants. 
• Exonerations of African Americans for mur­der con­vic­tions are 22 per­cent more like­ly to be linked to police misconduct.

The report high­lights sev­er­al pend­ing death penal­ty cas­es where racial dis­crim­i­na­tion played a role in dri­ving death sen­tences for Black defen­dants. For example: 

• Abu-Ali Abdur’Rahman, Tennessee. In 2019, Davidson County District Attorney General Glenn Funk con­ced­ed that Abu-Ali Abdur’Rahman’s tri­al had been infect­ed by overt racial bias. Abdur’Rahman had long argued that the pros­e­cu­tor struck two Black poten­tial jurors based on racial stereo­types. The tri­al court agreed to a reduced sen­tence, but the Tennessee Attorney General’s Office is currently appealing. 
• Julius Jones, Oklahoma. Julius Jones, who has a strong inno­cence claim, was con­vict­ed and sen­tenced to death by a near­ly all-white jury for killing a white busi­ness­man. His case was rid­dled with racial dis­crim­i­na­tion, includ­ing an offi­cer using a racial slur dur­ing his arrest, pros­e­cu­tors strik­ing every Black poten­tial juror but one, and a juror who used the n‑word to describe Jones. His peti­tion for clemen­cy is currently pending. 
• Federal Death Penalty. Although the first set of exe­cu­tions sched­uled by the fed­er­al gov­ern­ment in 2020 have been strate­gi­cal­ly direct­ed at white peo­ple, the fed­er­al death penal­ty has long been plagued by the same racial bias present in state death penal­ty sys­tems. Thirty-four of the 57 peo­ple cur­rent­ly on fed­er­al death row are peo­ple of col­or, includ­ing 26 Black men. Some were con­vict­ed and con­demned by all-white juries. In an action wide­ly regard­ed as an assault on Native sov­er­eign­ty, the sole Native American on fed­er­al death row was exe­cut­ed for an offense on trib­al lands over the repeat­ed objec­tion of his tribe and Native American lead­ers across the country.