The U.S. General Accounting Office (GAO) reviewed all of the research related to race and the death penalty and found “a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty. In 82% of the studies, race of victim influenced the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were… more likely to be sentenced to death…. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques” (U.S. Government Accounting Office, 1990, pp. 5-6).
Racial disparity and discrimination occur in virtually all phases of the death penalty process although it may be most egregious in some of the earlier stages. Baldus’s conclusions were dramatic:
- The chances of receiving a death sentence were 4.3 times greater for defendants whose victims were white than for defendants whose victims were black.
- Of the 128 cases in which the death penalty was imposed, 108 (84%) involved white victims.
- Prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims but in only 32% of the cases when both the defendant and victim were white.
- When there was a black defendant and a white victim 21% of the cases received a death sentence and when both the defendant and victim were white 8% received a death sentence. If both the defendant and victim were black only 1% received the death penalty.
The effects of race, however, are not uniform across the spectrum of homicide cases in this study. As might be expected, in the least aggravated cases very few defendants are sentenced to death regardless of race. Also as expected, in the most aggravated cases a high percentage of defendants are sentenced to death regardless of their race or their victim’s race. It is in the cases in the middle of the aggravation distribution that race has its greatest influence. In the aggravation mid-range cases death sentences are imposed on 34% of the killers of white victims and 14% of the killers of black victims.
Stating this differently, Baldus et al. said that 20 out of 34 defendants receiving a death sentence for killing a white person would not have gotten the death penalty if their victims had been black instead of white (Baldus et al. 1990).
Blume, et al. reach the same general conclusions as Baldus et al. finding significant disparities based on both race of the defendant and race of the victim. They did an analysis of death row populations in 31 states from 1977 through 1999 and reached the following conclusion:
A racial hierarchy clearly exists. Black defendants who murder white victims receive death sentences at the highest rate; white defendants who murder white victims receive death sentences at the next highest rate; and black defendants who murder black victims receive death sentences at the lowest rate. The hierarchy stems in part from prosecutors’ reluctance to seek death in cases involving black victims, and eagerness to seek death in cases involving black defendants and white victims (Blume et al, 2004, p. 167).
The Donahue study discussed earlier in terms of arbitrariness also examined racial discrimination and the death penalty in Connecticut. Similar to the Baldus study and the Blume study he found that the death penalty system resulted in racial disparity that did not disappear when controls are introduced for the type of murder, the egregiousness of the crime, and other aggravating factors related to the crime. Donahue also found that capital felony charging decisions by the prosecutor produced additional proof of the racially discriminatory manner in which the death penalty system works. For example, minority defendants who killed whites received more harsh treatment, being charged 25 percent more frequently than those who killed minorities. Donahue emphasized that the regression findings in this study showing that race is a major determinant of who receives the death penalty are extremely robust and varying the forms of analysis and using different samples and different regression models produced similar results (Donahue, 2013).
Justice Lewis Powell Jr. was the swing vote in a 5-4 decision and wrote the majority opinion in Mccleskey v. Kemp 481 U.S. 279 (1987) where the Baldus study results were presented. The majority ruled that although there was clearly racial discrimination in the death penalty system it could not be shown that it directly affected the outcome of this particular case. In other words, unless a defendant can show that there was racial discrimination in their specific case it is irrelevant how much discrimination exists in the death penalty system. After Justice Powell retired his biographer asked him if he would change his vote in any of the cases in which he had participated. “Yes,” Justice Powell said, “McCleskey v. Kemp” (The New York Times Print Archives, June 11, 1994).
Racial Prejudice and the Death Penalty
Studies have also been conducted on racial prejudice and the death penalty. Using data from the 1990 General Social Survey Barkan and Cohn examined reasons why more whites than blacks seemed to favor the death penalty in virtually every poll that had ever been conducted. Based on their research they concluded that, “White support for the death penalty in the United States has strong ties to anti-black prejudice…. racial prejudice emerges here as a comparatively strong predictor of white support for the death penalty” (Barkan and Cohen, 1994).
Stereotypical ‘Blackness’ and Death Sentencing
In a study by Eberhardt et al. photographs of African-American men who had been on trial for murder were shown to a group of research subjects who did not know that these photos were of people who had been on trial for murder. They were asked to rate each photo in terms of how strongly the person appeared to be ‘stereotypically black’. The researchers stated that,
… above and beyond the effects of other variables that were controlled, defendants whose appearance was perceived as more stereotypically Black were more likely to receive a death sentence than defendants whose appearance was perceived as less stereotypically Black. (If the victim was white) 24% of those Black defendants who fell in the lower half of the stereotypicality distribution received a death sentence, whereas 58% of those Black defendants who fell in the upper half received a death sentence” (Eberhardt et al., 2006 p. 384).
In other words, after a real-world conviction more than twice as many defendants who looked “more Black” received a death sentence than those who looked “less Black.” “We found that the perceived stereotypicality of Black defendants convicted of murdering Black victims did not predict death sentencing…. Defendants who were perceived to be more stereotypically Black were more likely to be sentenced to death only when their victims were white” (Eberhardt et al., 2006, p. 384).