Race has played a disturbing role in the death penalty’s application throughout its long history in the United States. During slavery, this discrimination was explicitly written in many states’ laws. Blacks and slaves faced the death penalty in cases where the same crime committed by a white person would not even be eligible for death. For example, in Virginia before the Civil War, there were over 60 capital crimes for slaves but only one – murder – for whites. Executions became so closely tied to the punishment of blacks in some regions that executing a white man was, according to one local account from Virginia, a “strange spectacle.”1
The 14th Amendment made these black-only capital crimes unconstitutional. But racial bias still continued in practice during the Jim Crow era. Some saw the death penalty as a necessary response to what they believed to be the inherently violent nature of black people. George Hays, Governor of Arkansas, for example, wrote in 1927 that states needed the death penalty to address the “negro problem.”2
Black defendants often received little due process, as trials and executions sometimes both took place in a single day. This expedited system could blur the line between executions and lynchings. As lynchings declined in the first part of the 20th century in response to mounting criticism, executions became more common, in effect replacing lynching as a tool of racial violence against African Americans.3
Capital punishment’s youngest victim during this era was George Stinney, a 14-year-old African American executed in South Carolina in 1944. After a two-hour trial and only 10 minutes of deliberation, an all-white jury sentenced Stinney to death for the murder of two white girls. The testimony of an alibi witness and other evidence now point to Stinney’s innocence, which resulted in him receiving a posthumous exoneration in 2014 – 70 years after his execution.4
The statistics back up these examples of racial inequity. A full 75% of those executed in the South from 1910 to 1950 were black, even though black people were less than a quarter of the South’s population.5 The racial disparities for certain crimes, such as rape, were especially stark. Of the 455 men executed for rape in the U.S. between 1930 and 1967, 90% were black.6
The biased and arbitrary application of capital punishment led the Supreme Court to declare it unconstitutional in 1972. In response, states rewrote their death penalty statutes to create more consistency in death sentencing. After reviewing these revised statutes, the Supreme Court allowed the death penalty to return in 1976. But – not surprisingly – the revised death penalty laws failed to eliminate racial bias as promised.
The race of the victim has a significant impact on who lives or dies. Nationally, less than half (47%) of all murder victims since the 1970s are black. But for cases ending in an execution, only 17% of murder victims are black.7 Such patterns carry the implication that white lives matter more in the justice system. Critical of how the death penalty elevates some victims above others, many murder victims’ families have called for its repeal.8
The issue of racial bias came back to the Supreme Court in 1987 in a landmark case called McCleskey v. Kemp. In that case, the Court considered statistical evidence that those accused of murdering white victims in Georgia were significantly more likely to be sentenced to death than those accused of murdering black victims. The research controlled for dozens of variables besides race that could explain these disparities.
The Court did not question the research. Yet they denied that such racial disparities violated the Constitution in a close 5-4 decision. The decision’s author, Chief Justice Lewis Powell, later said that his vote to uphold the death penalty in McCleskey was the one vote he regretted during his time on the Supreme Court.9
Clearly, the problems of racial bias present in today’s death penalty are far from new. Attempts to eliminate such bias while keeping the death penalty in place have repeatedly failed. It’s time to end the death penalty – a practice so closely tied to the history of racial oppression in the U.S. – and to address racial disparities in the broader justice system.
- Stuart Banner, “Traces of Slavery: Race and the Death Penalty in Historical Perspective,” in From Lynch Mobs to the Killing State: Race and the Death Penalty in America, ed. Charles Ogletree, Jr., and Austin Sarat (New York: New York University Press, 2006), 99.
- Banner, “Traces of Slavery,” 101.
- Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror, 2nd ed. (Montgomery, AL), 6.
- Lindsey Bever, “It Took 10 Minutes to Convict 14-year-old George Stinney Jr. It Took 70 Years After to Exonerate Him,” Washington Post, December 18, 2014.
- Equal Justice Initiative, Lynching in America, 21.
- David Oshinsky, Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America (Lawrence: University of Kansas Press, 2010), 74.
- Frank Baumgartner, Amanda Grigg, and Alisa Mastro, “#BlackLivesDon’tMatter: Race-of-victim Effects in US Executions,” Politics, Groups, and Identities 3 (2015): 209-21.
- Paul Bass, “Her Plea Counted Less,” New Haven Independent, May 20, 2011.
- Editorial, “Justice Powell’s New Wisdom,” New York Times, June 11, 1994.
Photo Credits: National Archives, Records of the U.S. Senate, Records of Rights; George Stinney mugshot, 1944, public domain; The Execution of Troy Davis, September 19-21, 2011, Wednesday 7:00 pm: Protesters at the Capitol in Atlanta, by Scott Langley, Death Penalty Photography Documentary Project.