Last updated on: 1/13/2017 | Author:

Does a Person’s Race Affect the Likelihood of Receiving the Death Penalty?

PRO (yes)


Martin O’Malley, JD, former Governor of Maryland, stated the following in his Nov. 6, 2015 article “Why the Death Penalty Needs to Go,” available at

“There is a particular, fundamental flaw in our justice system that other candidates appear to lack the commitment to address — our failed reliance on the death penalty. This is a tragedy both because it is a racially biased punishment, and also ineffective in deterring crime…

Our nation’s legacy of slavery and racial injustice find continued offense in our use of the death penalty. Our death row population is more than 40% black — nearly three times the proportion of the general population.

Reforming our criminal justice system to save and redeem more lives is not as simple as changing just one thing. But we should be able to admit that we must do more of what works to save lives, and we should stop doing things that do not work.

As a prosecutor, I saw that the death penalty’s racial legacy could not be excused or explained away — and that too many innocent lives were being taken by this profoundly flawed practice.

So I decided to fight for the death penalty’s repeal.”

Nov. 6, 2015 - Martin O'Malley, JD


Barack Obama, JD, 44th President of the United States, stated the following during a May 2, 2014 news conference, “Remarks by President Obama and German Chancellor Merkel in Joint Press Conference,” available at

“In the application of the death penalty in this country, we have seen significant problems – racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence.”

May 2, 2014 - Barack Obama, JD


The National Association for the Advancement of Colored People (NAACP) wrote in a June 28, 2007 article titled “NAACP Remains Steadfast in Ending Death Penalty & Fighting Injustice in America’s Justice System,” published on, that:

“Despite the fact that African Americans make up only 13 percent of the nation’s population, almost 50 percent of those currently on the federal death row are African American. And even though only three people have been executed under the federal death penalty in the modern era, two of them have been racial minorities. Furthermore, all six of the next scheduled executions are African Americans.

The U.S. Department of Justice’s own figures reveal that between 2001 and 2006, 48 percent of defendants in federal cases in which the death penalty was sought were African Americans…

To the NAACP, the biggest argument against the death penalty is that it is handed out in a biased, racially disparate manner.”

June 28, 2007 - National Association for the Advancement of Colored People (NAACP)


The American Civil Liberties Union (ACLU) wrote in a Feb. 26, 2003 article titled “Race and the Death Penalty,” published on, that:

“The color of a defendant and victim’s skin plays a crucial and unacceptable role in deciding who receives the death penalty in America. People of color have accounted for a disproportionate 43% of total executions since 1976 and 55% of those currently awaiting execution. A moratorium of the death penalty is necessary to address the blatant prejudice in our application of the death penalty.

The jurisdictions with the highest percentages of minorities on its death row:

U.S. Military (86%)
Colorado (80%)
U.S. Government (77%)
Louisiana (72%)
Pennsylvania (70%) …

The federal death penalty, like its application in the states, is used disproportionately against people of color. Of the 18 prisoners currently on federal death row, 16 are either African-American, Hispanic or Asian. From 1995-2000, 80% of all the federal capital cases recommended by U.S. Attorneys to the Attorney General seeking the death penalty involved people of color. Even after review by the Attorney General, 72% of the cases approved for death penalty prosecution involved minority defendants…

A systemic racial bias in the application of the death penalty exists at both the state and federal level. A moratorium on the death penalty is needed to address this miscarriage of justice.”

Feb. 26, 2003 - American Civil Liberties Union (ACLU)


Leigh Bienen, JD, Senior Lecturer at Northwestern University School of Law, provided the following response to the question “Is the death penalty an area of our criminal justice system that, today, can be called racist or discriminatory?” published in the Spring 1997 issue of Focus on Law Studies:

“The criminal justice system is controlled and dominated by whites, although the recipients of punishment, including the death penalty, are disproportionately black. The death penalty is a symbol of state control and white control over blacks. Black males who present a threatening and defiant personae are the favorites of those administering the punishment, including the overwhelmingly middle-aged white, male prosecutors who – in running for election or re-election – find nothing gets them more votes than demonizing young black men.”

Spring 1997 - Leigh Bienen, JD


David Baldus, LLM, Professor of Law at the University of Iowa Law School, made the following statement at the Oct. 12, 2000 American Bar Association forum, “Call to Action: A Moratorium on Executions”:

“There is today a substantial basis for concern about race discrimination in the administration of the death penalty. For example, research in Georgia in the 1970’s, and in Kentucky, New Jersey and Philadelphia in the 1980’s and the 1990’s, clearly documents the risk of race of defendant and race of victim discrimination. Specifically, our Georgia and Philadelphia research suggests that such discrimination can produce a 25 to 30% excess death sentencing rate compared to what we would see in an evenhanded system.”

Oct. 12, 2000 - David C. Baldus, LLM

CON (no)


Edward Koch, LLB, former Mayor of New York City, stated the following in his Sep. 27, 2011 article “Statistics Show Death Penalty Not Racist,” available at

“Death penalty opponents state it is inherently unfair and racially biased. The facts, I believe, are otherwise…

The racial breakdown for those sentenced to death since 1977 is as follows: 48.6 percent white; 40.9 percent black; 8.9 percent Hispanic; and 1.6 percent other. The race of defendants executed in the U.S. since 1976 is 56 percent white; 35 percent black; 7 percent Hispanic; 2 percent other.

The reason for the discrepancy in the execution rate between blacks and whites is that juries deciding whether to impose the death penalty have concluded in more cases involving black defendants that there were extenuating circumstances militating in favor of a lesser penalty…

The American public still supports the death penalty, notwithstanding the hammering capital punishment receives each year… I’m glad the American public does.”

Sep. 27, 2011 - Edward Koch, LLB


Roger Clegg, JD, General Counsel at the Center for Equal Opportunity, wrote the following in his June 11, 2001 article “The Color of Death: Does the Death Penalty Discriminate?,” published by the National Review Online:

“[T]he fact that blacks and Hispanics are charged with capital crimes out of proportion to their numbers in the general population may simply mean that blacks and Hispanics commit capital crimes out of proportion to their numbers. And, of course, they do. Randall Kennedy, an African-American Harvard Law School professor, and Professor Michael Tonry, a leading liberal expert on sentencing, acknowledge the high rate of black street crime.

The fact is that capital criminals don’t look like America, and no one should expect them to. No one is surprised to find more men than women in this class. Nor is it a shock to find that this group contains more twenty-year-olds than septuagenarians. And if — as the left tirelessly maintains — poverty breeds crime, and if — as it tiresomely maintains — the poor are disproportionately minority, then it must follow — as the left entirely denies — that minorities will be ‘overrepresented’ among criminals.”

June 11, 2001 - Roger Clegg, JD


Kent Scheidegger, JD, Legal Director of the Criminal Justice Legal Foundation, stated the following in his Apr. 11, 2008 submission to the California Commission on the Fair Administration of Justice:

“The issue of racial bias is one that has been extensively studied. The most important finding that we see in state after state, including studies sponsored by the defense side or done by defense-oriented researchers, is an absence of any discernible bias on the race of the perpetrator. This is the kind of bias that is of greatest concern because it is the only kind that indicates anyone is on death row because of his race. Absence of such an effect is a great accomplishment and one that should be celebrated. Yet when studies are announced, that finding is typically buried in the fine print…

Research we have to date does not prove or even raise a reasonable suspicion that race is a significant factor in either the charging decision or the sentencing decision in California capital cases. Further research can be done, but if any research is commissioned by the government, we should be very careful that the results will be properly analyzed and not distorted to serve a predetermined agenda.”

Apr. 11, 2008 - Kent Scheidegger, JD


David B. Muhlhausen, PhD, Senior Policy Analyst at the Heritage Foundation Center for Data Analysis, wrote in his Aug. 28, 2007 article “The Death Penalty Deters Crime and Saves Lives,” posted on, that:

“As of December 2005, there were 37 prisoners under a sentence of death in the federal system. Of these prisoners, 43.2 percent were white, while 54.1 percent were African–American. The fact that African–Americans are a majority of federal prisoners on death row and a minority in the overall United States population may lead some to conclude that the federal system discriminates against African–Americans. However, there is little rigorous evidence that such disparities exist in the federal system…

Americans support capital punishment for two good reasons. First, there is little evidence to suggest that minorities are treated unfairly. Second, capital punishment produces a strong deterrent effect that saves lives.”

Aug. 28, 2007 - David B. Muhlhausen, PhD


David S. Baime, JD, retired appellate division judge, provided the following conclusions in his July 8, 2002 report to the New Jersey Supreme Court titled “Systemic Proportionality Review Project: 2001-2002 Term”:

“[W]e state our conclusions: (1) there is no sustained, statistically significant evidence that the race of the defendant affects which cases advance to penalty trial; (2) there is no sustained, statistically significant evidence that the race of the defendant affects which cases result in imposition of the death penalty.”

July 8, 2002 - David S. Baime, JD


John C. McAdams, PhD, Associate Professor of Political Science at Marquette University, wrote in his Autumn 1998 article “Racial Disparity and the Death Penalty,” published in Law and Contemporary Problems, that:

“It is indeed the case that blacks are over-represented on death row. The Sourcebook of Criminal Justice Statistics shows 41.7% of the death row population to be black, and 38.7% of all prisoners executed since 1977 have been black. But then suppose we look a bit further. We come face to face with the reality…

The data…shows that forty-eight percent of murder victims are black. It also shows that the vast majority of murders are intraracial not interracial. Among murders involving black and white persons, ninety percent involve a white killing a white or a black killing a black. Almost three-quarters of the rest involve blacks murdering whites, and only a small handful involve whites murdering blacks. Knowing this, the number of blacks on death row and the number of blacks executed do not look far out of line.”

Autumn 1998 - John C. McAdams, PhD