The Leadership Conference on Civil and Human Rights

Capital punishment provides one of the most glaring manifestations of racial disparity in the criminal justice system. Simply put, whether a defendant eligible for capital punishment lives or dies depends in large part on the skin color of the defendant or victim. Poor defendants are also at substantially greater risk of receiving the death penalty than their wealthier counterparts. Of the approximately 3500 prisoners currently on death row in American prisons, almost all are poor and the vast majority are people of color.

The importance of race as a factor in the imposition of capital punishment has been well documented. First, the evidence reveals disparity in the application of the death penalty depending on the race of the victim. Individuals charged with killing white victims are significantly more likely to receive the death penalty than individuals charged with killing non-white victims. One of the most thorough death penalty studies, conducted by Professors David Baldus, Charles Pulaski, and George Woodworth, found that Georgia defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing black victims. The effect of the victim's race on the sentencing outcome appears to be particularly pronounced at the earlier stages of the judicial process, such as the prosecutor's decision to charge the defendant with a capital offense and then whether or not to accept a guilty plea to lesser charges.

Moreover, the evidence further demonstrates significant disparities in the application of the death penalty when the defendant's race is combined with the victim's race. The Baldus study concluded that blacks who killed whites were sentenced to death 22 times more frequently than blacks who killed blacks, and seven times more frequently than whites who killed blacks. Again, this discrepancy appears to hinge on the exercise of prosecutorial discretion. Georgia prosecutors sought the death penalty in 70 percent of the cases involving black defendants and white victims, while seeking the death penalty in only 19 percent of the cases involving white defendants and black victims, and only 15 percent of the cases involving black defendants and black victims. During this period, only 9.2 percent of Georgia homicides involved black defendants and white victims - while 60.7 percent involved black victims.

Professors Baldus and Woodsworth also conducted a statistical analysis of the death sentence in Philadelphia between 1983 and 1993, and concluded that for similar crimes, black defendants were almost four times more likely to receive the death penalty as white defendants, and that 38 percent of black defendants sentenced to death would not have been so sentenced had they been white.

Statistics on the imposition of the federal death penalty are similarly disturbing. In 1988, Congress authorized the death penalty for murders committed by those involved in certain drug trafficking activities under 21 U.S.C. (a7)48. From 1988 to 1994, 75 percent of those convicted under 21 U.S.C.(a7)48 were white. However, 89 percent of those who faced death penalty prosecutions under that law were Hispanic or black (33 out of 37) while only 11 percent (four out of 37) were white. And, indeed, the first defendant scheduled to be executed under the 1988 law is Hispanic.

The death penalty is also biased in terms of economic status. The quality of legal representation in a death penalty case is a major determinant in whether or not a defendant is sentenced to death. Poor defendants are often assigned overworked or incompetent public defenders, and are thus more likely to receive substandard legal representation. Wealthier defendants who can afford to hire their own lawyer are significantly more likely to avoid a death sentence.