Racial Bias and the Death Penalty

The issue of racial bias in the death penalty has long been a significant concern in the system of capital punishment. Many studies across the United States have found the race of the defendant (combined with the race of the victim) to be a salient predictor of juror decision making in capital cases, with Black defendants convicted of killing White victims to be most likely to receive the death sentence. Racial bias in capital trials appears to be correlated with the following: (a) the ethnic background of the district attorney pursuing the death penalty; (b) the racial breakdown of the jurors in capital cases; (c) jurors’ failure to understand jury instructions in death penalty trials; and (d) jurors’ attitudes toward the death penalty and their death qualification status. Research also suggests that whether Blacks’ physical appearance resembles racial stereotypes may be a factor in jury decisions.

In the United States, 38 states use capital punishment as the ultimate penalty for defendants convicted of crimes such as first-degree murder, capital sexual battery, and treason. The United States is the only country in the Western world to employ the death penalty and, along with China, Iran, and Saudi Arabia, is responsible for 94% of the world’s executions.

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Clearly, capital punishment is an extraordinarily controversial issue. The debate about the death penalty appears to be several fold, involving issues such as its lack of financial feasibility, its questionable deterrent value, the execution of innocent persons, diminishing public support for capital punishment, increasing public support for the alternative penalty of life without the possibility of parole, and lethal injection constituting “cruel and unusual punishment.” One of the most salient controversies surrounding capital punishment is the fact that it appears to be arbitrarily and capriciously applied, with the majority of capital defendants and death row inmates being men of an ethnic minority charged with/convicted of killing a member of the ethnic majority.

Legal Background

The issue of racial bias was addressed by the U.S. Supreme Court 20 years ago in McCleskey v. Kemp (1987), in which the Court was forced to take a realistic look at the issue of social injustice in the application of the death penalty. In a brief submitted to the Court, social scientists concluded that prosecutors were 70% more likely to seek the death penalty against a Black person accused of killing a White person than in cases with any other racial composition.

In addition, the study found that when Black defendants were convicted of killing a White victim, they were 22 times as likely to receive the death penalty as Blacks convicted of killing Blacks and 7 times more likely to receive the death penalty than Whites convicted of killing Blacks.

In spite of the conclusions brought forth by the data, the Court said that the overall pattern of discrimination did not mean that racial issues actually entered into sentencing decisions in Georgia. The Court also argued that the study’s reliance on statistical probabilities was an inherent weakness in the data (as opposed to its greatest strength). The Court insisted that researchers must provide “exceptionally clear proof” that racism is a factor in jury decision making in capital cases. Because research has indicated that people with the most prejudices are often the least likely to admit them, this standard has proven to be difficult, if not impossible, to meet.

Statistical Analysis of Racial Bias

Although recent findings have suggested that racial bias appears to permeate the system of capital punishment, the issue is more complex than previously imagined. For example, roughly half the death row inmates in the United States are Black, Hispanic, or Asian. Although only 34% of defendants who have been executed have been Black, 80% of murder victims in capital cases in which the defendant was subsequently executed were White (while only 50% of murder victims are White). As of January 2007, 213 Black death-row inmates were executed for killing a White victim, whereas only 15 White defendants were executed for killing a Black victim.

In addition, research has found that in 96% of the states that have conducted systematic reviews of the correlation between race and the death penalty, there was a pattern of race-of-defendant or race-of-victim discrimination, or both. A recent study in North Carolina sug-gested that people who killed White victims were 3.5 times more likely to receive the death penalty. Another study found that capital defendants in California were 3 times more likely to receive the death penalty if their victims were White than if they were Black and 4 times more likely to receive the death penalty than if their victims were Hispanic. Another report released in New Jersey by the state Supreme Court found that the state is more likely to pursue capital charges against defendants who kill White victims. Indiana, Maryland, and Virginia have conducted similar studies and concluded that the race of both the defendant and the victim is a controlling factor in most capital cases.

Causes of Racial Bias

One possible cause of the aforementioned bias is the race of the person who decides to pursue capital charges at the outset. For example, in most states, the vast majority (by some counts, 98%) of chief district attorneys are White, whereas only 1% are Black.

Another probable explanation of the bias is that jurors make decisions based on their race and that of the defendant rather than on the evidence in the case. For example, a recent study found that White jurors were more likely to sentence Black defendants to death.

Failure to understand jury instructions may also lead to death penalty decisions in which race appears to be a factor. For example, research conducted by Mona Lynch and Craig Haney suggested that when instructional comprehension was poor, Black defendants were even more likely to receive the death penalty.

Certain juror characteristics also appear to affect racial bias in the system of capital punishment. For example, a study by Brooke Butler found that both attitudes toward the death penalty and death qualification status (i.e., jurors’ eligibility to hear a capital case based on their attitudes toward the death penalty and whether they would be able to disregard personal convictions that the capital punishment is wrong and consider the death penalty as an option) correlate with various forms of prejudice. Specifically, as support for the death penalty increased, venirepersons (i.e., jurors who are eligible to hear a capital case) were more likely to believe that discrimination against Blacks is no longer a problem in the United States; that Blacks have more influence in school desegregation plans than they ought to have; that Blacks are getting too demanding in their push for equal rights; that Blacks have gotten more economically than they deserve; and that, over the past few years, the government and news media have shown more respect toward Blacks than they deserve.

The same study also revealed that death qualification status was significantly related to jurors’ beliefs that racism remains a problem in the United States today. Specifically, death-qualified venirepersons were more likely to believe that discrimination against Blacks is no longer a problem in the United States.

It also appears that simply looking “more Black” affects the way jurors make sentencing decisions in capital cases. For example, recent findings suggest that in cases involving White victims, the more stereotypically “Black” a defendant is perceived to be, the more likely that person is to be sentenced to death.


  1. Amnesty International. (2003, April 24). Death by discrimination: The continuing role of race in capital cases. Retrieved June 26, 2015, fromhttps://www.amnesty.org/en/documents/AMR51/046/2003/en/
  2. Baldus, D., Woodworth, G., & Pulaski, C. (1990). Equal justice and the death penalty: A legal empirical analysis. Boston: Northeastern University Press.
  3. Bedau, H. (1997). The death penalty in America: Current controversies. New York: Oxford University Press.
  4. Butler, B. (in press). Death qualification and prejudice: The effect of implicit racism, sexism, and homophobia on capital defendants’ right to due process. Behavioral Sciences and the Law.
  5. Eberhardt, J. L., Davies, P. G., Purdie-Vaughns, V. J., & Johnson, S. L. Looking deathworthy: Perceived stereotypicality of Black defendants predicts capital sentencing outcomes. Psychological Science, 17, 383-386.
  6. Haney, C. (2005). Death by design: Capital punishment as a social psychological system. New York: Oxford University Press.
  7. Lynch, M., & Haney, C. (2000). Discrimination and instructional comprehension: Guided discretion, racial bias, and the death penalty. Law and Human Behavior, 24, 337-358.
  8. McCleskey v. Kemp, 481 U.S. 279 (1987).

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