What to Know: Race and the Death Penalty

DPI’s ​“What to Know” series examines capital punishment from multiple angles, one topic at a time. Each installment provides essential facts and data on specific aspects of the death penalty.

Please visit DPI’s newly revamped Race landing page for a deeper dive into the issue.

Why it matters: Black people in the capital punishment system are disproportionately represented – currently comprising 40% of the death row population despite only being 12% of the U.S. population.

Key Facts

• Historically, capital punishment has been applied differently depending upon a person’s race, particularly in southern U.S. states. During slavery, capital punishment served as a tool for controlling Black populations and discouraging rebellion. Studies show post-Civil War, racial violence and lynchings led to the deaths of at least 2,000 Black people between 1865 and 1876. The Equal Justice Initiative has documented 4,425 ​“racial terror lynchings” in twenty states between 1877 and 1950. Studies and scholars have characterized the current capital punishment system as the modern application of racial terror and lynching.

• Data show that the race of victim disproportionally determines who is sentenced to death. Research from DPI and Frank Baumgartner¹ finds that among death sentences imposed from 1972 to 2025, 72% had at least one white victim. During the same time period, 23% of death sentences were imposed on Black defendants with one or more white victims while only 2% of death sentences were imposed on white defendants with one or more Black victims.

• Juries play a significant role in the disproportionate sentencing of Black defendants to death. Despite U.S. Supreme Court decisions, from Strauder v. West Virginia (1879) which determined racially discriminatory jury selection unconstitutional, to Batson v. Kentucky (1986), courts have not completely eliminated this practice. Death qualification — the formal process of determining whether potential jurors are willing to impose the death penalty in capital cases – has been found to have serious racial implications. Findings from key studies include:

1. Because Black communities are more likely than white communities to oppose the death penalty, the death qualification process disproportionately excludes Black people from serving on capital juries;²

2. Jurors who are death qualified exhibit higher levels of racial bias;³

3. Capital juries with five or more white men were more likely to impose a death sentence on Black defendants accused of killing white victims than juries with four or fewer white men. In those same cases, the presence of at least one Black man on the jury reduced the likelihood of a death sentence by nearly 30%.⁴

Racial Justice Acts

• Racial Justice Acts have been passed in three states: Kentucky (1998), North Carolina (passed in 2009, repealed in 2013, and partially restored in 2020), and California (passed in 2020, amended in 2022 and again in 2025). These Acts provide opportunities for statistics to be used by prisoners to establish that race was a significant factor in seeking or imposing their death sentences. The legislation has been interpreted as a ​“rejection” of the 1987 United States Supreme Court decision in McCleskey v. Kemp, a ruling which refused to accept powerful statistical disparities as evidence of racial discrimination and required defendants to prove that the alleged racism or bias was purposeful. Racial Justice Acts explicitly permit defendants to rely on statistical evidence of racial disparities rather than proving purposeful discrimination.

• On October 13, 2025, California governor, Gavin Newsom signed sweeping amendments strengthening the California Racial Justice Act (CRJA). The amendments, which took effect January 1, 2026, clarify the minimum threshold required to bring a claim, expand eligibility for appointed counsel for indigent people sentenced to death, and make it easier to obtain early discovery. They also require courts to provide a remedy when a violation is found, potentially including dismissal of charges. The revisions respond to court decisions that imposed procedural barriers and impediments to relief inconsistent with legislative intent, and instruct courts to consider evidence of racism’s origins, shifts, and current manifestations.