Racial Disparities in Capital Punishment: How Prosecutorial Power and Jury Selection Influence Death Penalty Sentencing
Justice is supposed to be blind – administered to everyone equally without regard to race or ethnicity. Yet, justice often turns a blind eye to the racial disparities within the courtroom and prisons nationwide.
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Justice is supposed to be blind – administered to everyone equally without regard to race or ethnicity. Yet, justice often turns a blind eye to the racial disparities within the courtroom and prisons nationwide. Studies showing that race often influences the severity of punishment. Black defendants, especially those accused of killing white victims, are disproportionately sentenced to death. The racial bias in how the system operates means that the color of one’s skin can often be the difference between life and death, with decisions that leave lifelong irreversible consequences. People of color, specifically Blacks, are disproportionately affected by capital punishment. In the United States, Blacks make up roughly 13% of the population, yet they account for 42% of all death row inmates.
As of 2025, twenty-seven states, the federal government, and the U.S. military still utilize the death penalty. The death penalty–or capital punishment–is only used for certain capital offenses such as murder, treason, or genocide. But not every person who commits murder is given the death penalty. So how is this decided? Before trial, the prosecutor must decide whether to seek the death penalty. This decision is highly discretionary and involves several factors, such as the severity of the crime, the defendant’s criminal history, and circumstances surrounding the crime, like whether it was particularly brutal or involved multiple victims. If the prosecutor chooses to pursue the death penalty and the defendant is convicted, the case then moves to the sentencing phase, where the jury will decide whether to impose the death penalty The jury weighs aggravating and mitigating factors, such as the defendant’s background, mental state, or potential for rehabilitation, before making their final determination.
The significant discretion prosecutors have in determining who faces the death penalty is troubling, as several factors, including race, heavily influence these decisions. The prosecutor has the sole discretion in deciding when to seek the death penalty. The issue with this system is that the ones who have the power to initiate a death sentence are overwhelmingly white. In a study conducted by the Death Penalty Information Center, approximately 94.5% of elected prosecutors in states that have the death penalty are white. This racial imbalance poses significant issues because the ones with the decision-making power are from a racial group that is less likely to face punishment.
Racial biases in prosecutorial decisions and jury selection continue to shape who faces the death penalty.
A prosecutor is not some passive party. Not only do they decide to prosecute and to bring the death penalty, but they also help create the jury. During jury selection, both the prosecution and defense will ask the jurors questions to determine if they’re suitable to serve as jurors, meaning whether they can be fair and impartial. This is intended to prevent discrimination based on race, color, or other inherent qualities, ensuring that a defendant is judged by a group that reflects society as a whole, rather than being subject to the biases of an unrepresentative panel. This is not just a procedural nicety, but a fundamental protection enshrined in the law. As early as 1880, The Supreme Court recognized that a jury of one’s peers is meant to serve as a fundamental “protection of life and liberty against race or color prejudice.” Inevitability, human bias makes its way onto the jury.
During jury selection, each party has a right to exclude a certain number of jurors without showing cause, known as a peremptory strike. In the landmark Supreme Court case, Batson v. Kentucky, the Supreme Court ruled that a state is not permitted to use peremptory challenges based on race, as it violates the 14th Amendment of the Constitution. Despite the Batson decision, race-based peremptory challenges continue to be a persistent issue within the court system. In practice, prosecutors often find ways to justify the exclusion of black jurors for seemingly neutral reasons (e.g., education level, occupation, residence). For example, the 2016 prosecutor’s training manual for Santa Clara County, California, provided a 30-page list of court-approved reasons for striking people of color, including the jurors’ “clothing, hairstyle, or other accoutrements.” Still, these justifications are frequently rooted in racial stereotypes and mask the implicit bias of the attorney.
In a study by Michigan State University College of Law, researchers focused on North Carolina, a state with a history of racial disparities in its justice system. Researchers discovered that over twenty years, North Carolina prosecutors struck 53% of black eligible jurors on capital cases. The same study further found that North Carolina prosecutors struck black jurors “2.5 times the rate they struck all other jurors.” As a result, 20% of inmates on death row were sentenced to death by an all-white jury.
Having a diverse jury is fundamental to the constitutional protections of a fair and impartial trial. The racial differences often influence how jurors perceive the defendant and the trial. One key difference is how different races evaluate witnesses. Black jurors are typically more skeptical of law enforcement and less likely to believe police testimony. Conversely, white jurors tend to trust law enforcement more readily, leading to disparities in the weight placed on police testimony. All-white juries deliberate for a shorter period and make more factual mistakes as compared to a racially diverse jury, which may result in harsher sentencing outcomes.
Those who murder whites are more likely to be subject to the death penalty.
Equally as important as the defendant’s race is the victim’s. Research consistently demonstrates that racial identity is a key factor in whether someone will be sentenced to death. In 82% of studies conducted by the General Accounting Office, the victim’s race was influential in the “likelihood of being charged with capital murder or receiving a death sentence.” This disparity remains persistent across states that permit the death penalty. In Florida, a defendant’s odds of receiving the death penalty were found to be 4.8 times higher if the victim was white. Even when the crimes are similar and have the same aggravating factors, race is still a prevalent factor in deciding whether to impose a death sentence. This racial disparity is influenced by various factors, such as prosecutors’ biases in deciding whether to seek the death penalty and the racial makeup of the jury, which can impact how jurors perceive the defendant’s guilt and culpability. As a result, race often becomes arbitrary and discriminatory in sentencing. The statistical evidence regarding victim race in death penalty cases highlights a disturbing reality– the death penalty is not applied evenly or fairly. Instead, it is influenced by racial bias that often leads to harsher sentences for defendants who are accused of killing white victims.
Racial disparities are an inevitable part of our justice system.
Despite these pervasive patterns of racial discrimination, the law does little to provide a remedy. This disparity was brought to the Supreme Court’s attention in McCleskey v. Kemp after the defendant challenged Georgia’s death penalty statute on the grounds that it was racially biased. In support of his argument, McCleskey presented a study conducted by David Baldus, a professor at the University of Iowa’s Law School. The study showed Georgia prosecutors sought the death penalty in 70% of cases where the defendant was Black and the victim was White. In contrast, Georgia prosecutors sought the death penalty for only 15% of cases with Black victims and Black defendants, compared to 19% of white defendants with Black victims. Further, the study demonstrated that capital sentencing for white victims was 11 times higher compared to black victims.
Even with the compelling evidence, the Court ruled in a 5-4 decision against McCleskey, holding that Georgia’s death penalty statute was not racially biased. Justice Powell acknowledged the validity of the study but wrote for the majority, asserting, “Disparities in sentencing are an inevitable part of our criminal justice system.” Justice Powell made it clear that no matter how overwhelming the evidence of racial disparities is, that is not enough to strike down policies and statutes that disproportionately affect people of color.
North Carolina was the first state to enact an initiative to counteract these disparities. Passed in 2009, the Racial Justice Act (RJA) works to “abolish racial discrimination from capital sentencing” by permitting evidence of patterns of discrimination to show that race played a factor in sentencing. Since its passage, over 130 individuals have filed RJA claims. Marcus Robinson, Christina Walters, Quintel Augustine, and Tilmon Golphin had successful claims under RJA and had their sentences reinstated to life without parole. Evidence that proved discrimination ranged from jury selection transcripts showing a juror being excused because “he knew some gang guys from playing basketball” to testimony from the prosecutor admitting to implicit racial bias.
The overwhelming evidence of racial disparities throughout capital proceedings highlights the need for substantial reform in the court system. As shown by the data, the Constitutional protections of equality and fairness are not equally applied to all individuals. The initial decision to seek the death penalty to the imposing of a death sentence shows a system that is white-washed and poses an unfair imbalance towards people of color.
