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The Death Penalty




Vernellia R. Randall
Professor of Law and
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from Racial and Ethnic Discrimination in the United States, The Status of Compliance by the U.S. Government with the International Convention on the Elimination of Racial Discrimination Compiled By THE WORLD ORGANIZATION AGAINST TORTURE USA


based on information provided by
Death Penalty Information Center

The arbitrariness inherent in the sentencerís discretion to afford mercy is exacerbated by the problem of race.  Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.   --U.  S.   Supreme Court Justice Blackmun1

A disproportionate number of those subjected to the death penalty in the United States are people of color.  While this statistical imbalance by itself does not prove discrimination, there are strong indicators that race and ethnicity play a major role in deciding who will be prosecuted for capital crimes and executed.  Given this statistical imbalance, the expanded use of the death penalty by states and the federal government, together with new restrictions that have been placed on the ability of those sentenced to death to appeal their convictions, increases the chance that people of color will be subjected to the death penalty. 

International human rights standards, and CERD in particular, do not prohibit the application of the death penalty outright.  [1]But if the death penalty is applied in a discriminatory manner based on race and ethnicity it would violate CERDís requirements, as well as the equal protection standards of the U.  S.   Constitution.  It is noteworthy in this regard that CERDísprohibition would be applicable whenever the conduct in question has either discriminatory effect or intent.  The existence of a disparate impact would be enough to trigger CERD even if a purposeful intent to discriminate can not be established.  For this reason, the failure of the federal government to prevent discriminatory results in the application of the death penalty would constitute a violation of CERD, even in the absence of proven intentional bias, which is necessary under U.  S.   Constitutional equal protection standards as applied by U.  S.   courts.   

There is increasing concern, and a growing body of evidence, that race and ethnicity are major factors in determining who is prosecuted for a capital crime, and who ends up being subjected to the death penalty.  Six hundred and fifty-seven people have been executed in the United States since 1976.  [2]Of those executed, 45% have been people of color: 36% African American, 7% Hispanic and 2% Native American and Asian American.  [3]Additionally, there are 3,682 inmates currently on death row.  [4]Of these individuals, 54% are people of color: 43% African American, 9% Hispanic and 2% either Native American or Asian American.  [5]

A review of research on the application of the death penalty shows that among the thirty-eight states where capital punishment is carried out, statistical studies on race have been conducted in twenty-seven (three-quarters) of these states.  Excluding the states where no data is reported, the percentage of states where race has been found to be a significant factor in the application of the death penalty based on the race of the victim is 93%, and the percentage where race is significant based on the race of the offender is nearly 50%.  [6]  


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