The death penalty is back in the news. In the past month alone, Virginia has executed a woman for her role in the murder-for-hire of her husband and stepson, despite claims that she was nearly mentally retarded. States have grappled with a looming shortage of lethal-injection drugs. A Federal court in Georgia has rebuffed a death-row inmate’s claim that he is an innocent man, falsely convicted—but defense lawyers insist the judge got it wrong. And in North Carolina, the vast majority of that state’s 156 death-row inmates have filed appeals based on a new law that permits them to challenge their sentences on grounds of racial bias.
For opponents of the death penalty, these and other events add up to more evidence that capital punishment in the United States is, in the words of one prominent study, “a broken system.” Of course, even a smoothly functioning death penalty would, in their view, violate basic human decency and basic human rights. Their emphasis on capital punishment’s operational flaws is a concession to political reality. According to the Gallup Organization, 65 percent of Americans favor the use of the death penalty for a person convicted of murder. Half of Americans say the death penalty is not imposed often enough; only 20 percent say it is imposed too often. So opponents’ best hope is to encourage doubts about the way it is implemented – an approach that offers the public a way to be against the death penalty, as it exists in the United States today, without necessarily ruling it out in principle.
Racial bias ranks high on the list of accusations. There’s a good reason for this: racial disparities in capital sentencing are an historical reality—and a particularly ugly one at that. Anyone who doubts the death penalty’s past connection with racism need only consider this statistic: Between 1930 and 1967 (at which point executions stopped pending a decade-long Supreme Court overhaul of the death penalty), 54 percent of the 3,859 people put to death under civilian authority in the U.S. were African American. This was not only out of proportion with the black share of the total population but also out of proportion with the percentage of serious crimes committed by blacks. Given that history, lingering racism is an undeniable risk factor looming over today’s system.
The question, however, is whether that risk is actually as large and as ineradicable as conventional wisdom maintains. And the answer is: probably not. In fact, much of the statistical evidence cited by death-penalty critics to show that blacks and whites fare differently in capital cases does not necessarily prove racism at all. To the contrary, it could well reflect racial progress.
In the past, the disproportionate impact of capital punishment against blacks reflected racism all across the country, but especially in the Southern states, which used execution to enforce a broader caste system. The South put blacks to death for rape far more often than whites—especially when the alleged victim was a white woman. Of the 455 men executed for rape in the United States between 1930 and 1967, 90 percent were African American.
These appalling facts formed the background for the Supreme Court’s consideration of the death penalty in the 1960s and 1970s. It was no accident that the Legal Defense Fund of the National Association for the Advancement of Colored People, known as the LDF, led the constitutional challenges. The litigation culminated in a 1972 case, Furman v. Georgia, in which the Supreme Court struck down all existing state death-penalty laws. Two of the three cases grouped under that title involved African American men sentenced to death for raping white women in the South. The third was a black man convicted of killing a white man in the course of a bungled burglary.
To be sure, the Supreme Court did not explicitly confront racial disparities during this period; it refused even to hear the argument that the discriminatory death penalty for rape violated the 14th Amendment guarantee of equal treatment under state law. However, in Furman, at least one justice in the majority, William O. Douglas, opined that racial disparities were part of what made the death penalty “cruel and unusual” under the 8th Amendment, and other justices alluded to race in their analyses of the penalty’s arbitrariness. “Race discrimination was not formally part of Furman, and Douglas was the only justice who emphasized it”, writes Professor Stuart Banner of the University of California at Los Angeles law school, a death penalty historian. “But everyone knew it was lurking not far beneath the surface.”
Furman left room for states to reinstate capital punishment – if they could purge their laws of the general lack of consistent standards, racial or otherwise, upon which the court had based its constitutional ruling. The states did so by requiring juries to weigh the defendant’s sentence separately from his guilt or innocence, and, in this “sentencing trial”, to take account of both “aggravating” evidence that supported the death penalty and “mitigating” evidence that argued against it. In 1976, the court approved of the changes, in a case known as Gregg v. Georgia. A three-justice plurality concluded that the revisions “narrowed the class of murderers subject to capital punishment” and “minimize[d] the risk of wholly arbitrary and capricious action”, thus curing the ills identified in Furman.
Though usually remembered as the court’s failed attempt to abolish the death penalty, Furman nevertheless had a lasting impact, rendering capital punishment less blatantly racist than it had been in the past. Most new state laws adopted in response to Furman omitted rape as a capital crime. Gregg provided at least some assurance that jurors would consider an individual defendant’s disadvantages in life, including those related to racial discrimination. Even more importantly, perhaps, Gregg created a basis for condemned men to claim on appeal that their juries had failed to consider such “mitigating” factors.
And finally, the court followed up Gregg in 1977 by banning the death penalty for rape of an adult woman, albeit in a decision that emphasized not race but society’s evolving notions of the appropriate punishment for such crimes. Though only Georgia still prescribed death for rape at that point, the court seemed determined to make sure it never came back.
Taken together, these changes helped transform the racial composition of death row. Whereas some 54 percent of those executed between 1930 and 1967 were black, as we have seen, 56 percent of those executed in the post-Gregg era have been white, while 35 percent have been black and 9 percent have been Latinos and other minorities. In other words, the African American share of executions dropped by a third. Whites also make up the largest portion of those sentenced to death during the post-Gregg period.
To be sure, this did not necessarily mean that racial imbalances had been eliminated. African Americans were still overrepresented on death row relative to their share of the population. And, in the aftermath of Gregg, death penalty critics discovered a new—but to them no less troubling—racial pattern in sentencing. The disparity involved not the race of the defendant, but the race of the victim. In a famous LDF-funded study of 2,484 murder cases in Georgia between 1973 and 1979, Professor David Baldus of the University of Iowa showed that, even after taking account of 39 non-racial variables, defendants charged with killing whites were 4.3 times as likely to receive the death penalty as defendants charged with killing blacks. Within the category of those who killed whites, black defendants were 10 percent more likely to receive a death sentence than were whites.
Armed with the Baldus study, the LDF took another shot at persuading the Supreme Court that the death penalty was hopelessly infected with arbitrary considerations such as race, even in Georgia, whose new statute the court had specifically approved in Gregg. Of course, the argument had extra plausibility in a Southern state that had recently emerged from a racist past. To the LDF, Baldus’s statistics showed that, consciously or not, Georgia’s legal apparatus placed a higher value on white life than black life, and thus punished murder of whites more harshly than murder of blacks, especially when a black man had the effrontery to kill a white person.
In a 1987 case, McCleskey v. Kemp, the court rejected this claim by a vote of 5–4. For the majority, Justice Lewis F. Powell wrote that the LDF had failed to show discriminatory intent by Georgia officials, and that the court could not infer unconstitutional motives from Baldus’s statistics. “We decline to assume that what is unexplained is invidious”, Justice Powell wrote. To hold otherwise, Justice Powell added, would undermine the entire justice system by rendering unconstitutional any statistical disparity in sentencing, capital or otherwise, among ethnic groups, men and women, or even attractive defendants and unattractive ones.
McCleskey foreclosed constitutional challenges based on statistics such as those in Baldus’s study, but it could not stop Baldus and others from continuing their research. They went on to produce additional studies showing similar race-of-the-victim disparities in states across the country. Most death-row inmates fighting their sentences in North Carolina today have cited a study by Michigan State law professors (including a former student of Baldus) showing that killers of whites are more than twice as likely to get death as killers of blacks.
As a result, McCleskey has acquired a bad reputation; some legal academics liken it to the 1857 Dred Scott decision that said people of African ancestry could not claim U.S. citizenship. After retiring from the court, Justice Powell himself told a biographer that he regretted his opinion in the case.
But Justice Powell may have been excessively self-critical. Though statistical research confirms Baldus’s observations, it does not necessarily support the interpretation of the data that death penalty opponents advanced in McCleskey—and still advance today. The fact that killers of whites have been more likely to receive the death penalty since Gregg does not necessarily reflect racism of the kind that pervaded the pre-Furman system; it does not necessarily reflect racism at all.
This assessment begins by acknowledging that African Americans commit a disproportionate number of murders in the United States: approximately half, according to government statistics. Yet in the death penalty states of post-Gregg America, black murderers have actually been somewhat less likely to wind up on death row than their white counterparts. Blacks committed 51.5 percent of murders nationwide between 1976 and 1998, according to a 2004 study by Professors Cornell law professors John Blume, Theodore Eisenberg and Martin T. Wells, but accounted for only 41.3 percent of those sentenced to death from 1977 to 1999. This relationship held true in every death penalty state, and—contrary to conventional wisdom—the under-representation of blacks on death row was greatest in the South. Only California, Utah and Nevada came close to sentencing black murderers to death in proportion to their share of the total.
The Cornell law professors (who oppose the death penalty) confirmed Baldus’s research in the sense that they also detected what they called “a racial hierarchy” in capital sentencing. Blacks charged with killing blacks were sentenced to death less often than whites charged with killing whites, and blacks charged with killing whites were sentenced to death most frequently of all.
Race, however, “tugs in two different directions”, they argued. The higher likelihood of a death sentence for black killers of whites tends to increase the black share of death row. The lower likelihood of a death sentence for black killers of blacks tends to decrease it. And the second effect is far larger than the first, since blacks are far more likely to kill other blacks than they are to kill whites. As the Cornell law professors put it, “Interracial crime is the exception, not the rule.” Therefore, the relative lack of black killers of blacks on death row “swamps” the relative excess of black killers of whites and largely explains the under-representation of black murderers among those sentenced to death.
That leaves the question of why black-on-black murder so seldom results in the death penalty. One possibility is that these killings are less likely than others to take place during the commission of an additional crime, such as rape, robbery or kidnapping, which is the usual standard for aggravated or capital murder under state death penalty statutes. According to recent data assembled by the non-profit Violence Policy Center in Washington, DC, black-victim homicides rarely include additional crimes. In 2006, for example, there was no other felony in 69 percent of the black-victim homicides for which the circumstances could be identified. The typical scenario, the study showed, was an argument between friends, family members, or acquaintances that escalated until someone impulsively reached for a gun and shot the victim.
According to the Cornell law professors, the main factor is the reluctance of local prosecutors to seek the death penalty in black-on-black homicides. What accounts for that reluctance? While not dismissing the possibility that white prosecutors—consciously or not—placed a lower value on black life, the Cornell professors emphasized another reason: prosecutorial realism. Above all, prosecutors do not seek the death penalty unless they think they can actually persuade a jury to impose it. In jurisdictions with large African American populations, where most black-on-black crime occurs, persuading a jury to sentence a defendant to death is relatively difficult. As much survey data confirms, African Americans are the one U.S. demographic group that largely opposes the death penalty, no doubt because of its terrible historical impact on blacks in the South. Also, in jurisdictions where elected prosecutors must appeal to black voters, prosecutors are that much less likely to support capital punishment.
This is how race-of-the-victim disparities can be said to reflect racial progress. After all, blacks neither voted in elections nor served on juries in substantial numbers, especially in the South, until the late 1960s. Now that they do, they appear to be using this power to limit capital punishment in the cases closest to them. In a separate study, published in 2005, Eisenberg found support for this hypothesis in county-level data for five death penalty states—Georgia, Maryland, Pennsylvania, South Carolina and Virginia. The death sentence rate in black defendant/black victim homicides decreased as the percentage of blacks in a county’s population increased. “This suggests that minority community skepticism about the justness of the death penalty is a contributing factor to low death sentence rates” in black-on-black murder cases, Eisenberg concluded.
Maryland presents a particularly suggestive case. Its pre-Furman death penalty practices resembled those of the South. A significant portion of its executions prior to 1972—about a third—came in rape cases. Maryland re-established the death penalty after Gregg in a 1978 statute that omitted the death penalty for rape and specified first-degree murder with certain aggravating factors as the only death-eligible crime. Since then, Maryland has not been a major locus of the death penalty; despite its relatively high murder rate, the state sentenced only 66 murderers to death after 1978. Of those, only five were eventually executed (the first in 1994), and five remain on death row.
The other thing that happened in post-Gregg Maryland was the rise of black majorities in the city of Baltimore and in Prince George’s County, a suburb of Washington, DC. These two jurisdictions account for the vast majority of homicides in the state, most of which involve both black victims and perpetrators. Yet public officials in both jurisdictions have generally eschewed the death penalty, consistent with their own views and the views of their constituents (who are also potential jurors). Baltimore city prosecutors last sought and won the death penalty in 1998 in a single case that was later overturned on appeal. The last Prince George’s County death sentence occurred in 1996.
The situation could not have been more different in Baltimore County, a 75 percent white suburb adjacent to the city of Baltimore. During most of the post-Gregg period, the county’s chief prosecutor adhered to a policy of seeking the death penalty in every eligible case. Ironically enough, she did so to avoid any appearance of racial discrimination; her view was that she could never be accused of exercising prosecutorial discretion in a discriminatory manner if she never exercised it at all.
Given Baltimore County’s relatively large population (750,000 in 2005) and its white majority—which meant that most homicide victims were white—and given the polar opposite policies pursued by its black-majority neighbors, it is no wonder that Maryland’s death penalty was meted out more frequently to killers of whites. But this was a consequence of county-level politics and demography, not statewide racial discrimination. Indeed, much if not most of the racial and jurisdictional imbalance in Maryland’s death penalty may demonstrate the increased power of black citizens during the post-Gregg era. Most African Americans in Maryland, like most African Americans generally, oppose the death penalty; and where they live, it has been abolished de facto.
It would be naïve to suggest that racism has been eliminated in the United States; but it would be equally mistaken to suggest that nothing has changed. To the extent that death penalty foes do the latter, they are misinterpreting the data and misleading public opinion.