Doomed to Repeat: The Legacy of Race in Tennessee’s Contemporary Death Penalty

The his­tor­i­cal use of cap­i­tal pun­ish­ment in Tennessee shows a clear con­nec­tion between the extra­ju­di­cial lynch­ings of the 1800s and 1900s and the state sanc­tioned death penal­ty prac­tices of today. As one lynch­ing expert notes, “[l]ocal tra­di­tions, sit­u­a­tions, and per­son­al­i­ties must be con­sid­ered in any attempt to explain pat­terns of lynch­ing.…” This empha­sis on local­i­ty par­al­lels mod­ern death penal­ty trends in Tennessee — as well as the rest of the nation — where­in death sen­tenc­ing is heav­i­ly depen­dent on local cul­ture, pros­e­cu­tors, and per­cep­tions. An impor­tant lega­cy from the lynch­ing era and ear­ly exe­cu­tions is the impor­tance of race in deter­min­ing how police, court sys­tems, and the gen­er­al pub­lic respond to crimes.

Given the inter­twined nature of race, his­to­ry, and the death penal­ty, law­mak­ers and Tennesseans who are con­sid­er­ing the future of cap­i­tal pun­ish­ment in their state may find it use­ful to reflect on how Tennessee arrived at its cur­rent cap­i­tal pun­ish­ment sys­tem. State House Representative Paul Sherrell’s sug­ges­tion to allow exe­cu­tions by hang­ing peo­ple on trees ear­li­er this year shows the con­tin­ued rel­e­vance of history.

At the time of pub­lish­ing this report, Tennessee is not active­ly exe­cut­ing peo­ple because a review of the Department of Correction’s lethal injec­tion pro­to­cols revealed mis­takes at every step in the lethal injec­tion process. New pro­to­cols are expect­ed to be released soon, allow­ing exe­cu­tions to resume. Best prac­tices for exe­cu­tion pro­to­cols may change, but the state can­not change the his­to­ry of cap­i­tal pun­ish­ment and how the lega­cies of racial injus­tice influ­ence its mod­ern cap­i­tal punishment scheme.

This report explores the cur­rent issues with cap­i­tal pun­ish­ment in Tennessee through a his­tor­i­cal lens, trac­ing the ori­gins of the use of the death penal­ty from lynch­ings and oth­er forms of racial vio­lence direct­ed at Black Tennesseans. The sto­ries of indi­vid­u­als and com­mu­ni­ties that have inter­act­ed with dif­fer­ent facets of Tennessee’s jus­tice sys­tem through­out his­to­ry sug­gest that, in many ways, even though cen­turies have passed, the expe­ri­ences of dis­crim­i­na­tion toward Tennessee’s com­mu­ni­ties of col­or con­tin­ue. A mean­ing­ful under­stand­ing of the state’s his­to­ry and its lega­cy of vio­lence and racism is essen­tial to avoid repeat­ing the mis­takes of the past.

To learn more, read DPIC’s full report Doomed to Repeat: The Legacy of Race in Tennessee’s Contemporary Death Penalty. 

Below are key facts from the Doomed to Repeat report. 

1. Historically, there were thir­teen offens­es for which Black peo­ple in Tennessee could receive the death penal­ty, com­pared to just two offens­es for white cit­i­zens.
   The Tennessee Slave Code of 1858­ — which com­piled all state laws rel­e­vant to slav­ery that were passed or revised fol­low­ing the state’s cre­ation in 1796 — out­lined 13 offens­es for which Black peo­ple, both enslaved and free, could receive a death sen­tence. Eleven of these offens­es car­ried a manda­to­ry death sen­tence, and two pro­vid­ed a dis­cre­tionary death sen­tence. From the begin­ning, the admin­is­tra­tion of the death penal­ty was large­ly depen­dent on the race of the defen­dant.
    
2. Historically, local offi­cials were often com­plic­it in lynch­ings and oth­er forms of racial vio­lence against Blacks in Tennessee.
   White peo­ple who par­tic­i­pat­ed in racial vio­lence oper­at­ed with impuni­ty in Tennessee. The com­plic­i­ty of local author­i­ties ranged from active par­tic­i­pa­tion in race mas­sacres — as demon­strat­ed by the Memphis Massacre of 1866 in which police direct­ed white mobs to ​“Kill every n***er, no mat­ter who, men or women” — to pas­sive inac­tion, when coro­ners and oth­er offi­cials refused to inves­ti­gate lynch­ings and deter­mined the vic­tims were killed by unknown par­ties. Those who par­tic­i­pat­ed in these vio­lent acts rarely faced con­se­quences, which may be at least par­tial­ly explained by the over­lap between the per­pe­tra­tors of vio­lence and pub­lic offi­cials. 
    
3. Almost 40% of Tennessee homi­cide vic­tims are white, but 74% of death sen­tences imposed in Tennessee since 1972 have involved white vic­tims.
   The race of vic­tim effect is the most per­sis­tent, unex­plained dis­par­i­ty in death penal­ty cas­es nation­wide, and the bias for white vic­tims holds true in Tennessee. A study of pros­e­cu­to­r­i­al deci­sion mak­ing in the state found that when the vic­tim is white, pros­e­cu­tors are 1.5 times more like­ly to seek a death sen­tence com­pared to cas­es with Black vic­tims. The dis­pro­por­tion­ate rate at which pros­e­cu­tors seek and juries impose death sen­tences for crimes involv­ing white vic­tims is rem­i­nis­cent of his­tor­i­cal death sen­tence and lynch­ing trends in which defen­dants accused of harm­ing white vic­tims were more like­ly to find them­selves on the receiv­ing end of some form of lethal pun­ish­ment. 
    
4. Shelby County is a death sen­tenc­ing out­lier in the state and nation­al­ly.
   Shelby County, where Memphis is locat­ed, is respon­si­ble for many of the state’s death sen­tenc­ing trends. Despite com­pris­ing just 13% of the state’s total pop­u­la­tion, Shelby is respon­si­ble for one-third of all death sen­tences in Tennessee. Further, 60% of death sen­tences for Black defen­dants in the state have orig­i­nat­ed in Shelby County. In addi­tion to being an out­lier with­in the state, Shelby County is an out­lier nation­al­ly. Compared to coun­ties of a sim­i­lar size (pop­u­la­tion between 750,000 – 1,000,000), Shelby County ranks third in the num­ber of death sen­tences imposed.
    
5. The most like­ly out­come of a death sen­tence in Tennessee is rever­sal, com­mu­ta­tion, or exon­er­a­tion. 
   Two of every three death sen­tences in the state from 1972 to 2021 have result­ed in a rever­sal, com­mu­ta­tion, or exon­er­a­tion. The rever­sal rate in Shelby County, the state’s pri­ma­ry out­lier coun­ty, is near­ly 62%. These sta­tis­tics point to the unre­li­a­bil­i­ty of the death penal­ty at both the state and coun­ty lev­el in Tennessee. 
    
6. In recent years, the state leg­is­la­ture has passed leg­is­la­tion that removes pow­er from local­ly elect­ed coun­ty pros­e­cu­tors to han­dle var­i­ous aspects of death penal­ty cas­es, allow­ing attor­neys gen­er­al to take con­trol of local issues.
   In 2021, the Tennessee leg­is­la­ture adopt­ed a law that allows the state’s attor­ney gen­er­al to seek to replace a dis­trict attor­ney in a case if they believe that the local­ly elect­ed dis­trict attor­ney is refus­ing to enforce the law. The state fur­thered their absorp­tion of local con­trol in 2023 by giv­ing the state’s Attorney General exclu­sive con­trol over post-con­vic­tion pro­ceed­ings in cap­i­tal cas­es; some have sug­gest­ed this law was a response to deci­sions by dis­trict attor­neys gen­er­al in Davidson and Shelby coun­ties to reduce sen­tences for death-sen­tenced peo­ple whose tri­als had been taint­ed by racism or who raised sub­stan­ti­at­ed intel­lec­tu­al dis­abil­i­ty claims. These laws remove the abil­i­ty of local elect­ed offi­cials to decide how to best rep­re­sent their con­stituents’ inter­ests. 
    
7. Many his­tor­i­cal issues relat­ed to race, includ­ing seg­re­ga­tion and Black vot­er dis­en­fran­chise­ment, are still preva­lent in Tennessee today.
   Remnants of Jim Crow and seg­re­ga­tion per­sist in Tennessee. Memphis, for exam­ple, is high­ly seg­re­gat­ed. A 2021 study found 17 of the city’s neigh­bor­hoods were at least 98% Black, and five were at least 90% white. Additionally, Tennessee has the high­est pro­por­tion of dis­en­fran­chised Black res­i­dents in the United States, with more than 1 in 5 Black peo­ple unable to vote.
    
8. Homicides involv­ing white vic­tims in Tennessee are more like­ly to be solved than homi­cides involv­ing Black vic­tims.
   A review of unsolved Tennessee homi­cides from 2013 – 2021 found that 29% of homi­cides of Black vic­tims in the state went unsolved, com­pared to 11% of homi­cides of white vic­tims. The racial dis­crep­an­cies in homi­cide clear­ing rates sug­gest that cas­es involv­ing white vic­tims may be more like­ly to be pros­e­cut­ed.
    
9. People on death row face legal bar­ri­ers to seek­ing relief for jury dis­crim­i­na­tion in Tennessee because of the ​“reluc­tance by appel­late judges to find racial bias when claims are pre­sent­ed.”
   A study on jury dis­crim­i­na­tion in the south con­duct­ed by the Equal Justice Initiative (EJI) sug­gest­ed that, even when pros­e­cu­tors used veiled race-based rea­sons to strike poten­tial Black jurors, Tennessee’s appel­late courts rarely reversed deci­sions. At the time of EJI’s study — and con­tin­u­ing for an addi­tion­al six years — Tennessee was the only state stud­ied whose appel­late courts had nev­er grant­ed relief in a crim­i­nal case because of jury dis­crim­i­na­tion. The report attrib­uted this anom­aly to the fail­ure of tri­al coun­sel to prop­er­ly raise objec­tions at tri­al and the ​“reluc­tance by appel­late judges to find racial bias when claims are pre­sent­ed.”
    
10. The Department of Justice’s inves­ti­ga­tion into Shelby County’s juve­nile jus­tice sys­tem found that ​“the data show that in cer­tain phas­es of the County’s juve­nile jus­tice sys­tem, race is — in and of itself — a sig­nif­i­cant con­tribut­ing fac­tor, even after fac­tor­ing in legal vari­ables.
    In 2013, the U.S. Department of Justice launched an inves­ti­ga­tion into Shelby County’s juve­nile jus­tice sys­tem. The inves­ti­ga­tion revealed that Shelby County was tar­get­ing youth of col­or, espe­cial­ly Black chil­dren, for pros­e­cu­tion in juve­nile court. The inves­ti­ga­tion also found that Shelby County was trans­fer­ring chil­dren — espe­cial­ly Black chil­dren — from juve­nile courts to adult courts at a very high rate and was fail­ing to ​“pro­vide ade­quate due process pro­tec­tions for chil­dren before trans­fer­ring them to the adult crim­i­nal court.” Investigators con­clud­ed that “[the Juvenile Court of Memphis and Shelby County] trans­fers Black chil­dren to adult crim­i­nal court more than two times as often than white chil­dren.… This dis­pro­por­tion­ate impact can­not be explained by fac­tors oth­er than race.“
    
    Criminal his­to­ries devel­oped as chil­dren have been shown to have a last­ing effect. A study that ana­lyzed the effect of juve­nile records on those con­vict­ed of first-degree mur­der in Tennessee found that juries returned death sen­tences in 51.9% of cap­i­tal con­vic­tions where the defen­dant had a juve­nile record.The like­li­hood of a jury return­ing a death ver­dict for a defen­dant with one or two pri­or felonies was actu­al­ly low­er than the like­li­hood of return­ing a death ver­dict for defen­dants with juvenile records.

Ten Facts You Should Know About Tennessee’s Death Penalty Administration