Race

Race and the death penalty is a complicated issue that is reflected in a variety of ways, and whether statistically significant evidence of racial bias is found may often depend upon the question that is asked. Advocates of Prop 62 claim that minorities are overly represented on death row, while advocates of Prop 66 claim that studies have shown no bias against minority defendants. While the representations by advocates of Prop 62 are closer to the truth, neither side’s claims tell the full story.

It is true that African Americans and Latinos make up 67% of death row while they only make up 45% of the state population. However, as death penalty proponents point out, the fact that minority groups are disproportionately represented on death row does not automatically mean that they are disproportionately represented because of racial bias in the administration of the death penalty itself.^1-132 Indeed, minority groups are similarly overrepresented in many other areas of the criminal justice system. One may make the case that the death penalty is racially biased because it has a disproportionate impact on minority groups, but, as proponents of capital punishment argue, that is not the same as saying that the death penalty discriminates against individual defendants.

Another problem with assessing whether the administration of the death penalty is racially discriminatory is that the choice whether to seek and impose the death penalty is made at the county level, and when the data are looked at on the state or national level, it may distort or mask the evidence of discrimination in individual counties.^2-132 An analysis of California’s death penalty in the 1990s, when a significant portion of the state’s death row prisoners were tried and convicted, found significant geographic disparities in death sentencing practices that had profound race effects. The study found that counties that had lower population density and less racial diversity in their populations had the highest death-sentencing rates. In those counties, defendants who were accused of killing White, non-Latino victims were more likely to be sentenced to death than other homicide defendants, regardless of the how aggravated the murders were.^3-132

The death penalty system in California and across the United States has shown to be racially biased in many ways other than simply the proportion of racial and ethic minorities who are sentenced to death. These include the role played by the race of the victim, jury selection practices and the racial makeup of the jury, and the impact of geography.

Race of the victim

Nearly 80% of people who have been executed were sentenced to death for killing White victims, even though in society as a whole about half of all murder victims are African-American. Studies have consistently shown that the race of the victim is a significant factor in determining who is sentenced to death.

A study of race in California’s death penalty published in the Santa Clara Law Review concluded:

• Those who kill non-Latino whites are more than three times more likely to be sentenced to die as those who kill African-Americans.
• Those who kill non-Latino whites are more than four times more likely to be sentenced to die as those who kill Latinos.

See: Santa Clara Law Review, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999.”

Racial discrimination in juries

One way that racial discrimination can play a role in the death penalty is through the exclusion of minorities from serving on juries. The Constitution requires that prosecutors who exclude minorities from juries provide race-neutral reasons for the exclusion, however there have been many cases in which prosecutors are found to exclude non-white jurors solely because of their race.

In California specifically, one recent report identified potential racial bias in cases in Riverside and Kern Counties. The study reported that in 2011, California Supreme Court Justices Werdegar and Moreno dissented in a Riverside County capital case that involved an African-American defendant because of race bias in jury selection and because the reasons prosecutors gave for excusing several Black prospective jurors were unsupported by the evidence. The study also found that, “Earlier this year a California appellate court reversed a Kern County case on race discrimination grounds after the prosecution struck each of the Black prospective jurors and provided implausibly race-neutral grounds for one of those strikes, mischaracterized the prospective juror’s words, and argued extensively with defense counsel about whether the juror was Black or not.”

See: Fair Punishment Project, Too Broken to Fix Part I: An In-depth Look at America’s Outlier Death Penalty Counties.

In addition, evidence suggests that the exclusion of minority jurors may have race- and class-based consequences. A 2014 mock-jury study of more than 500 men and women who had reported for jury service in Southern California found that White jurors were more likely to impose a death sentence upon a poor Latino defendant than upon a similarly situated White defendant, especially when the mitigating evidence presented in the hypothetical scenario was weak. Latino jurors, on the other hand, imposed the death sentence at about the same rate, regardles of the ethnicity and social status of the defendant or the strength of the mitigating evidence.^4-132

Geography

The location of the crime and the jurisdiction of the prosecution are other factors that significantly impact who is sentenced to die. The Santa Clara Law Review found “clear regional disparities in death sentencing, with counties that have a lower population density and a higher proportion of non-Hispanic whites in their populations to have the highest rates of death sentences.”

The Fair Punishment Project recently identified 10 “outlier counties” that use the death penalty at a higher rate than other counties in the U.S. Five of these counties were located in Southern California: Kern, Los Angeles, Orange, Riverside, and San Bernardino. In Riverside County, the rate of death sentences per 100 homicides was nearly nine times the rate for the rest of the state. Some factors identified that contributed to the higher rates of death sentences in these counties included overzealous prosecutions, inadequate defense, racial bias and jury exclusions, and excessive punishment in sentencing.

See: Fair Punishment Project, Too Broken to Fix Part I: An In-depth Look at America’s Outlier Death Penalty Counties.

Resources for more information on race and the death penalty

Death Penalty Information Center, Race and the Death Penalty

DPIC Podcast, Race and the Death Penalty