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Fact Check: Is The Death Penalty Racist?
393846 05: A view of the death chamber from the witness room at the Southern Ohio Correctional Facility shows an electric chair and gurney August 29, 2001 in Lucasville, Ohio. The state of Ohio is one of the few states that still uses the electric chair, and it gives death row inmates a choice between death by the electric chair or by lethal injection. John W. Byrd, who will be executed on September 12, 2001, has stated that he will choose the electric chair. (Photo by Mike Simons/Getty Images)
Mike Simons/Getty Images

Long before cancel culture insisted that everything is systemically racist, left-wing activists asserted that the death penalty is a racist institution. Capital punishment, they said, continued the legacy of Jim Crow by legalizing lynching. But is the allegation true?

Why do people claim the death penalty is racist?

Al Sharpton encapsulated the standard argument underpinning the claim that the death penalty is racist in his most recent episode of MSNBC’s “PoliticsNation.” In a segment titled “The Death Penalty Belongs In The ‘Dustbin Of History,’” he said:

Like many other facets of the criminal justice system, the application of the death penalty is racially biased, anti-black, and rooted in white supremacy. Black defendants are more likely than any other race to be sentenced to death, but the race of the victim sometimes matters even more. According to reporting from the AP, since 1972 , “295 [b]lack defendants were executed for killing a white victim, but only 21 white defendants were executed for the killing of a [b]lack victim even though [b]lack people are disproportionately the victims of crime.” The modern practice of capital punishment grew out of America’s shameful history of lawless lynchings under Jim Crow. … That racist history lives through capital punishment to this day.

The AP story that Sharpton incorrectly quoted — the timeline referenced by The Associated Press started in 1977, not 1972 — also included allegations that capital punishment is racist, because “people of color have been overrepresented on death row — in 2019, 52% of the death row inmates were [b]lack, but that number has dropped to 42% this year, when approximately 60% of the population is white.”

In other words, the primary claim is that the death penalty has a disparate impact on minorities: The percentage of minorities on death row exceeds their share of the general U.S. population.

What are the facts?

Disparate impact holds that the number of inmates on death row should reflect the overall U.S. population. But that assumes that police officers randomly scoop up American citizens and place them on death row. In reality, the death penalty doesn’t work that way.

Sharpton and The Associated Press made the fundamental mistake of comparing the demographics of murderers on death row with U.S. demographics, not with the demographics of murderers.

For the most part, capital offenses involve murder (as well as treason and espionage), with certain mitigating or aggravating factors.

The FBI reported that, in 2019, there were 16,245 murders — a nearly 12% rise since 2010. Of the 11,153 murderers whose race was known to be either white or black, 6,425 were black — or 57.6%. This Monday, the Justice Department released new data regarding capital punishment. “Among prisoners under sentence of death at year-end 2019, about 56% were white and 41% were black,” according to a Justice Department report released on Monday.

Furthermore, those on death row who are black seem to be less likely to actually get executed than white convicts. The DOJ report noted that black convicts made up 41.4% of death row inmates but only 31.8% of those executed in 2019. That fell to 29.4% of executions in its preliminary count for 2020. From the time executions resumed in 1977 until 2019, a total of 1,512 prisoners have been executed: 850 white, 515 black, 133 Hispanic, 14 listed as “other.” That is, black death row inmates accounted for 34% of all those executed.

It’s true that black people are disproportionately likely to be victims of crime, but those crimes are primarily committed by other black people — it is also the case that white people are more likely to be victimized by white perpetrators. Of the 2,906 black murder victims in 2019, 246 were killed by white offenders (or 8.5%), according to the FBI. Meanwhile, 17.2% of murders involving white victims were committed by black perpetrators.

Is the death penalty a legacy of Jim Crow?

The death penalty far predates Jim Crow, going back at least to the Code of Hammurabi in the eighteenth century B.C. The laws of the ancient Hittites, Chinese, Athenians, and Romans all contained capital punishment, which continued into English common law and made its way to the 13 colonies before the United States formally existed.

At the time the U.S. Constitution was adopted, every state imposed the death penalty — including Maine and Massachusetts, which had zero slaves according to the 1790 census.

And, as noted, black criminals under sentence of death are less likely to be executed than white offenders guilty of capital crimes.

So, is the death penalty racist?

The death penalty is a punishment imposed on individuals who commit the most heinous of crimes, usually involving aggravated, premeditated murder against a vulnerable victim. It discriminates against behavior, not racial identity.

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