In 1998, the Death Penalty Information Center (DPIC) released an extensive report demonstrating “the infectious presence of racism” in the death penalty’s application throughout the United States. One study cited found that Black defendants were sentenced to death at nearly four times the rate of other defendants for similar crimes, while a second study – focused on decision-makers in capital cases – found those individuals to be “almost exclusively white.” The studies found that statistically, “[r]ace is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease.” The report concluded that these studies “add to an overwhelming body of evidence that race plays a decisive role in the question of who lives and dies by execution” in the U.S.
Although the 1986 Supreme Court case Batson v. Kentucky prohibited the removal of jurors on the basis of race, it’s often up to defendants to demonstrate that this has occurred, and prosecutors are often well-versed in justifications for striking Black jurors using language designed to circumvent Batson. A 2011 study found that among defendants on North Carolina’s death row, “prosecutors across the state removed qualified black jurors at more than twice the rate of non-black jurors.”
Another report released by the DPIC in 2020 drew on several studies from the 2010s that showed “cases with white victims being more likely to be investigated and capitally charged; systemic exclusion of jurors of color from service in death-penalty trials; and disproportionate imposition of death sentences against defendants of color.” Some of these studies demonstrate the role of racial bias in “putting a thumb on the scale in favor of death” in sentencing proceedings. For example, people with darker skin or features commonly perceived as African-American were more likely to receive higher culpability ratings given the same set of facts, and were also more likely to be sentenced to death, specifically in capital cases involving Black defendants and white victims. This pattern belies popular perceptions of criminal justice as blind and unprejudiced.
Both DPIC reports mention the case of death row exoneree Clarence Brandley, “one of two high school custodians who discovered the body of a white female student who had been raped and murdered” in 1980. Brandley was told by a Texas police officer, using a racial slur, that he was “elected” to be hanged for the crime because he was Black. In another example, South Carolina prosecutor Donald Myers compared Black defendant Johnny Bennett to “King Kong on a bad day,” also calling him “a ‘caveman,’ a ‘mountain man,’ a ‘monster,’ a ‘big old tiger,’ and a ‘beast of burden.’”
Sadly, statistical evidence suggests that such comments are not merely rare occurrences of individual prejudice but are “symbolic of a more systemic racism” pervading the U.S. legal system. As the 2020 DPIC report summarizes, “[s]tructural racism and implicit and explicit bias influence decisions made from the earliest stages of a case, before a crime has even been charged, all the way to its conclusion.”