Fair and Equal Under the Law?
Race, Geography, and the Death Penalty
Just one percent of murders in the United States have resulted in a death sentence over the last decade. But are those individuals truly the "worst of the worst" – or simply those with the worst lawyers, the wrong geographic location, or the wrong skin color?
We all expect justice to be blind. Otherwise it’s not justice at all. Yet geography, poverty, and race continue to determine who lives and who dies. When the public sees this level of disparity in the death penalty, it compromises the integrity of the entire criminal justice system, sending a message that some lives are more valuable than others.
A Lottery of Geography
- Where a crime occurs can play as big a role as the nature of the crime in determining who will live and who will die. Similar murders might get 40 years in one county and death in the next county over.
- Numerous states, including Ohio, Illinois, Maryland, and Tennessee, have a large percentage of death sentences originate from just one or two counties.
- Geography plays a role across states and nationally as well. In 2012, over three-quarters all executions took place in just four states.1
Biased and Arbitrary
- Individual prosecutors have broad discretion to decide when to seek the death penalty. Such discretion is one of the hallmarks of our nation’s legal system. But the definition of “death eligible” is so broad that there is little guidance for prosecutors to make that decision. That leaves room for other factors to seep into the decision making process, despite a prosecutor’s best intentions.
- Many of the nation’s most high-profile murderers or serial killers don’t get the death penalty because they can afford better lawyers who negotiate deals. Meanwhile poor defendants are executed for robberies "gone wrong" or other murders that were not premeditated. There have even been instances of accomplices getting executed while the persona who actually committed the murder got life.
- All murder is horrible. Yet the death penalty is supposed to be reserved for only the "worst of the worst." Human beings have differing opinions on what counts the worst – making it impossible to create a human system that is objective and consistent in selecting people for death.
- The death penalty is largely reserved for the poor. The vast majority of those on death row across the country are too poor to afford their own attorney.2
Not Blind to Race
- Across the country, the race of the victim has a profound effect on which crimes receive the death penalty. Studies in states as diverse as California, Maryland, Ohio, and Georgia have found that people convicted of murdering a white victim were many times more likely to get sentenced to death than those who killed African Americans or Latinos.
- More than 80% of those executed in the U.S. were convicted of killing a white person, even though African Americans are the victims in about half of all murders.3
- Race exacerbates the risk of executing an innocent person. Eyewitness identification, which is the leading cause of wrongful conviction, is even less reliable when the witness is identifying someone of a different race.
A jury of your peers?
- People who do not support the death penalty are excluded from serving on capital juries. The result is that large segments of the population can’t participate in the most serious cases.
- Prosecutors have taken pains to strike black jurors in murder cases, even though the Supreme Court has expressly prohibited racially motivated strikes. One famous training tape for Philadelphia prosecutors instructed them on how to strike black jurors and get away with it. The tape's lessons spread across the nation. During one Florida trial, a black juror was rejected for wearing "pointy New York shoes."4
- In some communities, race-based exclusion from juries is extreme. For example, in Houston County, Alabama, 8 out of 10 qualified African Americans have been struck by prosecutors from death penalty cases.5
Fairness in the death penalty is a moving target. Tinkering will only make the system more complex – not more fair. After 30 years, we have not found a way to make the death penalty any less arbitrary. And when a life is on the line, good luck simply isn’t good enough.
- 1. "The Death Penalty in 2012: Year End Report," Death Penalty Information Center.
- 2. See EJUSA’s fact sheet, "Justice for a Few? A Punishment for the Poor," for more information on the impact of poverty on death sentencing.
- 3. According to "Death Row USA", NAACP Legal Defense Fund, 854 of 1057 executions were for white victim crimes. According to the 2006 FBI Uniform Crime Report, 49.5% of murder victims in 2006 were black. This number has been consistent over many previous years as well.
- 4. “The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides,” Death Penalty Information Center, 1998.
- 5. “The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides,” Death Penalty Information Center, 1998.
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