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. 
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Footnotes

  1. Frank Baumgartner’s data will soon be fea­tured on DPI’s Race pages.

  2. Mona Lynch & Craig Haney, Death Qualification in Black and White: Racialized Decision Making and Death-Qualified Juries, 40 Law & Pol’y, 148, 165 (2018); see also Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531, 1550 (2012). 

  3. Brooke Butler, Death Qualification and Prejudice: The Effect of Implicit Racism, Sexism, and Homophobia on Capital Defendants’ Right to Due Process, 25 Behav. Sci. & L. 857, 865 (2007).

  4. Bowers, Thomas W. Brewer & Marla Sandys, Crossing Racial Boundaries: A Closer Look at the Roots of Racial Bias in Capital Sentencing When the Defendant is Black and the Victim in White, 53 DePaUL L. Rev. 1497, 1513 (2004).