Abstract

Death penalty abolitionists have called for the end of capital punishment since European settlers established the practice in America. Drawing from English legal texts, the framers of the Constitution implemented the prohibition against cruel and unusual punishment that continues to be an argument for the unconstitutionality of the death penalty. In the middle of the 20th century, opponents of the punishment began to bring attention to its discriminatory nature, leading to the first landmark decision on the subject in 1972. Furman v. Georgia halted capital punishment for four years as states revised their statutes to eliminate discriminatory procedures. The second landmark death penalty case, Gregg v. Georgia, ruled that the death penalty was not unconstitutional, paving the way for inherent racial bias in the criminal justice system to go unaddressed. Despite reforming sentencing practices, discrimination against people of color continued to run rampant in sentencing, as highlighted in McCleskey v. Kemp. Bringing a statistical study proving racial discrimination in death penalty sentencing in Georgia, the NAACP LDF attempted to overturn a death penalty sentence, but instead the Court ruled in favor of the sentence because the organization did not provide specific evidence of discrimination. Further studies on the race of defendants and victims highlight racial disparities in sentencing practices that Furman and Gregg clearly failed to protect against. Administrative change and its subsequent policy change with regard to capital punishment leave a legal landscape fraught with instability and inequality. Reforms are not enough. Only with the abolition of the death penalty can the criminal justice system move in a just and equal direction.

I. Introduction

The justification and use of violence have been topics of contentious debate since the beginning of modern society, although their origins trace back to the classical world. The implementation of death as a punishment for crime has deep historical roots in this period, as the earliest records of capital punishment are found in the 18th century B.C.E.’s Code of King Hammurabi of Babylon, a legal text that instated the death penalty for certain crimes due to the underlying principle of “an eye for an eye.”¹Claude Hermann Walter Johns, BABYLONIAN LAW–The Code of Hammurabi, in the Encyclopedia Britannica (1910-1911). The Draconian Code of Athens in the seventh century B.C.E. and the Roman Law of the Twelve Tablets in the fifth century B.C.E. also contained death penalty laws. The methods of execution in these empires were incredibly cruel, including death by crucifixion, drowning, and live burial, while by the 10th century C.E., hanging had become the most common execution method in Britain.²History of the Death Penalty, Death Penalty Information Center, https://deathpenaltyinfo.org/resources/high-school/about-the-death-penalty/history-of-the-death-penalty (last visited Feb 4, 2025). Throughout the medieval and subsequent periods, the death penalty in Britain rose dramatically. Because European settlers brought similarly harsh traditions of capital punishment to the colonies, Britain was a source of major influence on America’s use of the death penalty.³Supra note 2.

Growing public opposition sparked demands for change. The first call for the abolition of the death penalty came from Cesare Beccaria’s 1767 essay, On Crimes and Punishment. In this treatise, he denounces the death penalty by arguing that the right to kill citizens does not belong to the state and that the method of punishment is unnecessary, unjust, and useless.⁴Bernard E Harcourt, Beccaria’s On Crimes and Punishments: A Mirror on the History of the Foundations of Modern Criminal Law, in Foundational Texts in Modern Criminal Law (2014). Beccaria’s philosophy influenced international discourse and the first attempted capital punishment reforms by American abolitionists in 1779 when Thomas Jefferson introduced a bill proposing that only murder and treason be treated as capital crimes under Virginia’s death penalty statutes. The bill was defeated by one vote.⁵Supra note 2. Seeing the already prevalent discourse surrounding the power of the state, the founding fathers turned to establishing a federal legal framework to cover such matters of punishment.

Along with the death penalty, U.S. jurisprudence adopted many principles of common law from English legal documents, including the concept of cruel and unusual punishment that originated in the 1689 English Bill of Rights. The United States codified the prohibition against the infliction of cruel and unusual punishments in the Eighth Amendment of the United States Constitution in 1791 with the ratification of the U.S. Bill of Rights.⁶Cruel & Unusual Punishment – Conversation Starter, American Bar Association, https://www.americanbar.org/groups/public_education/programs/constitution_day/conversation-starters/cruel-and-unusual-punishment/ (last visited Feb 19, 2025). After the adoption of the Eighth Amendment, judges accepted the “conclusions of the American framers that the clause was originally designed to prohibit barbarous methods of punishment,” methods that were obsolete in America and thus not used to invoke the clause in the court system. Efforts to extend the clause to include disproportionate punishment were dismissed, and the clause had minimal applicability throughout the 19th century.⁷Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Calif. L. Rev. 839 (1969). It was not until the mid-20th century that the public began advocating for re-examining if death penalty statutes were discriminatory. The Supreme Court attempted to do so with Furman v. Georgia in 1972, efforts that were undone with the 1976 ruling Gregg v. Georgia. These cases will be examined in detail below.

Other attempts to rectify the discrimination in capital punishment sentences were unsuccessful, including the McCleskey v. Kemp case in 1987, which provided evidence of racial bias to the courts. Many states have conducted similar studies all with the same results. These studies overwhelmingly highlight disparities in capital sentencing between white individuals and those of color, with regard to both the defendant’s and victim’s race. Recent policy changes have further strengthened the injustices of the criminal justice system, a practice that must be challenged and reformed to ensure true equality. Persistent racial discrimination in sentencing has rendered capital punishment an extremely flawed practice. The death penalty is unconstitutional due to the Eighth Amendment prohibiting cruel and unusual punishment because it perpetuates discrimination, as seen through the evolution of jurisprudence and evidence on the topic. The death penalty cannot be used as a tool of justice if the system in and of itself is unjust. Given these fundamental flaws, the abolition of the death penalty is the only solution to dismantle the discrimination inherent in capital punishment procedures.

II. Furman v. Georgia: Questioning Constitutionality

Public opinion began to shift away from capital punishment in the middle of the 20th century. A Gallup poll conducted in 1966 showed only 42% of Americans supported the death penalty, the lowest the number has ever been.⁸Supra note 2. During this decade, the NAACP Legal Defense and Education Fund (LDF) became a pioneer in fighting for the elimination of racial discrimination in sentencing and the abolition of the death penalty. To challenge the constitutionality of capital punishment, the organization created a nationwide movement that led to the longest pause in executions in history, from 1966 to 1976.⁹Lorin Granger, Cases in Brief: Furman v. Georgia with Carol Steiker, Harvard Law Today (August 15, 2022), https://hls.harvard.edu/today/cases-in-brief-furman-v-georgia-with-carol-steiker/ (last visited Feb 6, 2025) There was an obvious need for a resolution on the constitutionality of the death penalty. Furman v. Georgia, and later Gregg v. Georgia, sought to address this legal controversy, albeit in contrasting ways.

While many states have a longstanding history of capital punishment, Georgia’s is deeply rooted in racism. The state began conducting executions as early as 1735. In 1816, Georgia statute defined six crimes that only constituted capital crimes when committed by a slave or free person of color.¹⁰Georgia – History of the Death Penalty, Death Penalty Information Center, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/georgia (last visited Feb 6, 2025) This and other race-based death penalty laws were struck down five decades later, but racial disparities in capital sentencing persisted. From the colonial times until 1976, Georgia executed 950 people, the fourth-highest state in the country.¹¹Ibid. It was under this setting that the Supreme Court first established safeguards against discriminatory sentencing procedures.

This historical backdrop set the stage for Furman v. Georgia, a landmark case that challenged the constitutionality of Georgia’s death penalty system, and thus the practice of capital punishment as a whole. It began when petitioner William Henry Furman was convicted of murder after a gun he was carrying during an attempted burglary went off and killed a resident.¹²Furman v. Georgia, Oyez, https://www.oyez.org/cases/1971/69-5030 (last visited Jan 23, 2025). Petitioner Lucious Jackson was convicted of rape, as was petitioner Hamilton Branch during an attempted robbery.¹³Cruel and Unusual Punishment: The Death Penalty Cases: Furman v. Georgia, Jackson v. Georgia, Branch v. Texas, 408 U.S. 238 (1972), 63 J. Crim. L. Criminology & Police Sci. 484 (1972) The three men were sentenced to death per the Official Code of Georgia¹⁴Furman v. Georgia (1972), Legal Information Institute, https://www.law.cornell.edu/wex/furman_v_georgia_(1972) (last visited Feb 6, 2025). Furman’s lawyers appealed to the Supreme Court of Georgia, who upheld the conviction, and then to the U.S. Supreme Court, who granted certiorari on June 28, 1971.¹⁵Supra note 10. The Court began to hear oral arguments on January 17, 1972, and decided the case on June 29, 1972.¹⁶Supra note 12.

The question in contention in Furman is if the imposition and carrying out of the death penalty in these cases constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Such a contentious issue brought with it many differing perspectives. In a 5-4 decision in favor of abolishing the death penalty, all nine justices wrote a separate opinion. Because there are no overarching precedents on the use of the death penalty, this case places heavy emphasis on history and prior legal sources to make its claim. Justice Douglas’s concurring opinion cites the Magna Carta, the English Bill of Rights, and the debates of the First Congress on the Bill of Rights to explain how the Eighth Amendment came to be worded, specifically the idea of cruel and unusual punishment. Justice Douglas finds evidence that the English Bill of Rights of 1689, “from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature.”¹⁷Furman v. Georgia, 408 U.S. 238 (1972). It was therefore suggested that the death penalty constitutes cruel and unusual punishment if selectively applied to minority groups “whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.”¹⁸Ibid. Through these legal texts on which the Constitution of the United States was built, Justice Douglas created a baseline to analyze the case.

Continuing the conversation about the Eighth Amendment, Justice Douglas turned to its contents. The meaning of “cruel and unusual” is dissected in terms of discrimination as it pertains to the case: “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race… or if it is imposed under a procedure that gives room for the play of such prejudices.”¹⁹Supra note 17. This idea of prejudicial procedure becomes the main focus. If capital punishment sentencing procedures are discriminatory, Justice Douglas argues, they are unconstitutional with regard to the Eighth Amendment, specifically by satisfying the unusual aspect of cruel and unusual. He finds that death penalty sentences are inherently discriminatory because they target minority groups: “We know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused… if he is a member of a suspect or unpopular minority.”²⁰Ibid. Thus, because the Court “deals with a system of law and justice that leaves to the uncontrolled discretion of judges or juries,” death penalty statutes inevitably result in discrimination.²¹Supra note 17. These sentencing procedures that allow for implicit prejudices to sway those responsible for dealing verdicts conflict with the constitutional right against cruel and unusual punishment. Because of this argument, the Court argues that the Georgia Code that sentenced the men to receive the death penalty was unconstitutional due to the sentencing procedures violating the Eighth Amendment.

Justice Marshall concurs with Justice Douglas in that “capital punishment is imposed discriminatorily against certain identifiable classes of people.”²²Ibid. After including statistics on executions by race, he argues that “it is immediately apparent that Negroes were executed far more often than whites in proportion to their percentage of the population. Studies indicate that while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination.”²³Ibid. Giving power and discretion to a jury to impose life or death in capital crime cases is “an open invitation to discrimination.”²⁴Ibid. These two opinions addressing rampant discrimination in capital punishment sentencing highlight the need for adjustments to the process, as attempted by the ruling.

Given that this case is the first major examination of the discourse around capital punishment, its outcome sets a crucial precedent for sentencing. It was the first time the Court addressed the question of the death penalty in violation of the Eighth Amendment, a question that continues to be asked to this day. Furman v. Georgia invalidated all previous death penalty laws in the United States after arguing that the death penalty could not be imposed under discriminatory procedures, procedures that were inherently flawed because society is inherently prejudiced. Although the ruling influenced many states to adjust their death penalty statutes and pass them quickly, special attention was now placed on the manner of the sentencing, and strides were taken to prohibit discriminatory sentencing policies.²⁵Supra note 10. Following this decision, states temporarily halted capital punishment sentences to revise their statutes in terms of the discriminatory practices Furman explicitly prohibited.²⁶Supra note 14. Then, just four years later, the Court reinterpreted the history of cruel and unusual punishment and its application to the death penalty in a reverse ruling.

III. Gregg v. Georgia: Affirming Constitutionality

In the four-year period between Furman v. Georgia and the second landmark Supreme Court case regarding capital punishment, Gregg v. Georgia, 31 states reinstated the death penalty after updating their laws to comply with the sentencing requirements Furman mandated.²⁷State by State, Death Penalty Information Center, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/ (last visited Feb 19, 2025). Georgia Code was amended shortly thereafter Furman, in 1973, to permit the death penalty in six crimes: murder, kidnapping for ransom with an injured victim, armed robbery, rape, treason, and airplane hijacking. The first five capital punishment cases to reach the Supreme Court following the 1972 landmark case are consolidated in Gregg v. Georgia. Troy Leon Gregg was the first man to be convicted under Georgia’s new death penalty statute.²⁸Supra note 10. Gregg was hitchhiking when he robbed and killed two men who gave him a ride. He was charged with two counts of armed robbery and two counts of murder and was sentenced to death by jury. The Georgia Supreme Court upheld the death sentence for the murder charges on appeal, stating that the sentences had not resulted from prejudice and were not excessive.²⁹Gregg v. Georgia, 428 U.S. 153 (1976) Gregg challenged his remaining death sentence for murder, seeking review from the U.S. Supreme Court, which granted certiorari. The Court began to hear oral arguments on March 31, 1976, and decided the case on July 2, 1976.³⁰Gregg v. Georgia, Oyez, https://www.oyez.org/cases/1975/74-6257 (last visited Jan 23, 2025).

The question in contention in the Gregg case is if the imposition of the death sentence is prohibited under the Eighth and Fourteenth Amendments as “cruel and unusual” punishment.³¹Ibid. The Judgment of the Court began by explaining the Georgia statutory scheme for the imposition of the death penalty and the trial process to set up the rest of the opinion’s argument: “Before a convicted defendant may be sentenced to death… the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in the statute.”³²Supra note 29. In the Gregg trial, the judge had instructed the jury on this procedure, which then found two aggravating circumstances to be satisfied. Moving to the next condition, the court had to consider if the death sentence was “imposed under the influence of passion, prejudice, or any other arbitrary factor.”³³Ibid. The court found that they were not, and therefore determined that the sentencing procedure guidelines established in Furman had been met.³⁴Ibid. As this was the single determinant of unconstitutionality in Furman, the Judgment of the Court from the beginning marked an apparent contradiction from the precedent.

To argue in favor of the death penalty, the Court describes its two primary purposes: retribution and deterrence. Both reasons are weakened when the Court discusses the outdated nature of retribution and the ambiguity of deterrence. Retribution is explained as a “function [that] may be unappealing to many” and that is “no longer the dominant objective of the criminal law.”³⁵Ibid. As for deterrence: “Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The results simply have been inconclusive.” However, the Court concludes that the death penalty “undoubtedly is a significant deterrent.” The Court seems to be unconvinced that retribution and deterrence are proper examples of advantages in favor of the death penalty. Retribution is simply an obsolete concept, and deterrence has no empirical backing, despite the Court still firmly believing in its impact. Thus, they refute their argument as to why the death penalty should be a possible sentence for crime, and offer up no other alternative justifications for its use.

Using the Georgia sentencing procedure mentioned previously, the opinion turns to arguing why Georgia may impose the death penalty in this case, arguing that the trial and sentencing procedures in Gregg were not discriminatory. Furman ruled that the death penalty could not be “imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.”³⁶Supra note 29. Concerns of this arbitrary imposition occurring can be solved “by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.”³⁷Ibid. When this process is followed, “no longer can a Georgia jury do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die.”³⁸Ibid. Finally, because the sentencing guidelines were neither discriminatory nor arbitrary, they ruled that the statutory system that sentenced Gregg to death was constitutional, leading to a decision that would continue to serve as precedent to this day.

Gregg refined the trial and jury procedures for sentencing cases involving the possibility of the death penalty, but failed to eliminate racial discrimination in sentencing, even though the Court claimed to implement protections against such processes. These safeguards are intended to minimize the risk of discriminatory sentencing, but they do not fully eliminate bias, as disparities in sentencing persist along racial lines due to jury biases and systemic inequalities. Unable to prove the benefits of capital punishment, the Court falls short of supporting its conclusions with any logical arguments. Creating precedent that allows for the imposition of the death penalty, the Gregg court allowed for racial discrimination to persist in the sentencing procedures of Georgia’s criminal justice system and beyond. Despite sentencing safeguards, including giving juries adequate information and guidance, statutes allowing capital punishment sentences can never be fully free of discrimination, as studies below will exemplify, and it is only with the entire upheaval of the system that this can be rectified.

IV. Perpetuating Discrimination

Despite Gregg’s attempt to improve sentencing procedures, discrimination in capital punishment sentencing persists. Although there have been many court cases related to the death penalty since 1976, Gregg still sets the standard for sentencing. An abundance of studies have also attempted to prove the unconstitutionality of the death penalty in terms of discrimination in sentencing, but no transformative reforms have been made since Gregg. Therefore, discrimination remains a constant barrier to justice in the criminal justice system. The evolving legal landscape continues to reflect a persistent trend of racial bias in sentencing outcomes. Recent shifts in policy further highlight the core issues of discrimination, the pressing need for meaningful reform, and a reevaluation of capital punishment’s growing role.

Furthering the qualitative evidence of discrimination in death penalty sentencing is the 1987 Supreme Court case McCleskey v. Kemp. McCleskey, a Black man, was given a death penalty sentence after a Georgia court convicted him of murdering a police officer during a robbery. To the Supreme Court, McCleskey showed an NAACP LDF statistical study that proved racial discrimination in death penalty sentencing in Georgia.³⁹McCleskey v. Kemp, Oyez, https://www.oyez.org/cases/1986/84-6811 (last visited Feb 27, 2025). In this study, a University of Iowa law professor analyzed over 2,000 Georgia murder cases and found that prosecutors were more likely to seek capital punishment in cases with Black defendants and white victims, with juries being 4.3 times more likely to impose it.⁴⁰U.S. Supreme Court Rules Racial Bias “Inevitable” in Criminal Justice System, Equal Justice Initiative, https://calendar.eji.org/racial-injustice/apr/22. (last visited Feb 27, 2025). Despite this empirical evidence, the Court upheld McCleskey’s sentence, arguing that the study was not enough to prove that his specific sentence was unconstitutional in regard to the Eighth and Fourteenth Amendments. They concluded that racial bias in sentencing is an inevitable aspect of the criminal justice system and that “without clear evidence that the discrimination was impactful and purposeful, the Court would not act.”⁴¹Ibid.

However, they were unclear as to what was needed to prove the impact and intent of the discrimination and left no explicit next steps for gathering the necessary evidence. This ambiguity underscores the challenges in addressing discrimination within the legal framework. The results of a statistical study were not enough; McCleskey’s sentence was upheld, and he was executed in 1991.⁴²Peter Applebome, Georgia Inmate Is Executed After ‘Chaotic’ Legal Move, The New York Times, https://www.nytimes.com/1991/09/26/us/georgia-inmate-is-executed-after-chaotic-legal-move.html (last visited Mar 19, 2025).

Furman, Gregg, and now McClesky paint a narrative of the legal landscape riddled with systemic discrimination. Quantitative analysis is crucial to complete the full picture. Recent studies help to confirm the rampant discrimination apparent in sentencing that exists to this day, especially with regard to the race of the victim. In a 2005 study conducted in California, the likelihood of a death penalty sentence for homicides with white victims was 3.7 times more likely than homicides with Black victims and 4.73 times more likely than homicides with Hispanic victims.⁴³Glenn L. Pierce and Michael L. Radelet, Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, The Empirical Analysis, 46 Santa Clara L. Rev. 1 (2005) A 2011 study in Louisiana found that the likelihood of a death penalty sentence was 97% greater for defendants with a white victim than for defendants with a Black victim.⁴⁴Glenn L. Pierce and Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990–2008, 71 La. L. Rev. (2011) In 2016, a study in Washington State concluded that Black defendants, compared to similarly situated white defendants, are sentenced to death at a rate more than four times higher.⁴⁵Katherine Beckett and Heather Evans, Race, Death, and Justice: Capital Sentencing in Washington State, 1981-2014, Columbia Journal of Race and Law, 6(2), 77–114 (2016). The University of Denver, building on the McCleskey study, revealed in 2019 that defendants convicted of murder in Georgia are 17 times more likely to be executed when the victim is white than when the victim is Black.⁴⁶Study Finds Staggering Race-of-Victim Disparities in Georgia Executions and that the Death-Penalty Appeals Process Makes Them Worse, Death Penalty Information Center, https://deathpenaltyinfo.org/study-finds-staggering-race-of-victim-disparities-in-georgia-executions-and-that-the-death-penalty-appeals-process-makes-them-worse (last visited Feb 20, 2025). Phillips, Marceau, Kamin, and King published an updated and expanded version of the McCleskey study as well, in which they found that for the defendants sent to death row, 30% of those with a white female victim were executed, 19% for a white male victim, 10% for a Black female victim, and 0% for a Black male victim.⁴⁷Scott Phillips, Justin F. Marceau, Sam Kamin, and Nicole King, Sacred Victims: Fifty Years of Data on Victim Race and Sex as Predictors of Execution, 114 J. Crim. L. & Criminology 249 (2024). These statistics emphasize the persistent racial disparities in capital sentencing, highlighting how the race of the victim and the defendant continue to shape punishment, a reality that stresses the crucial implications of race in the criminal justice system.

The evidence is overwhelming. The persistent inequity highlighted in the McCleskey case and subsequent studies demonstrates that racial bias remains deeply embedded in the administration of the death penalty. Therefore, any attempt at reform falls short of completely correcting the system. Moreover, the legal system has only evolved in ways that perpetuate, rather than correct, these biases, despite Furman and Gregg’s efforts to enforce equitable sentencing practices. In 1994, the Violent Crime Control and Law Enforcement Act, also known as the Crime Bill, expanded the federal death penalty with the addition of 60 new offenses eligible for the sentence. In the five years after its passage, 74% of defendants recommended to receive the death penalty were people of color.⁴⁸Race and the Death Penalty, National Association of Criminal Defense Lawyers (December 7, 2022), https://www.nacdl.org/Content/Race-and-the-Death-Penalty (last visited Mar 19, 2025). This expansion damaged the discriminatory sentencing practices by trapping more people of color in the criminal justice system, necessitating the federal government to step in.

The Justice Department, beginning under the George W. Bush administration, had an almost two-decade informal suspension on enforcing the federal death penalty. The pause was influenced by concerns about the fairness of the sentencing and execution process. However, President Donald Trump announced plans to resume the carrying out of capital punishment six months before the end of his first term and sped through 13 federal executions before leaving office in January 2021.⁴⁹Hailey Fuchs, A Pause in Federal Executions, but Uncertainty About What’s Next, The New York Times (July 22, 2021), https://www.nytimes.com/2021/07/16/us/politics/biden-death-penalty.html (last visited Mar 19, 2025). President Joe Biden took office after campaigning on a platform promoting the end of the federal death penalty, and six months after, imposed a formal suspension on the federal death penalty to allow for a review of death penalty protocols.⁵⁰Will Weissert, Biden backed off a pledge to abolish the federal death penalty. That’s left an opening for Trump, Associated Press, https://apnews.com/article/death-penalty-politics-biden-trump-federal-moratorium (last visited Mar 19, 2025). In January of 2025, President Trump signed the executive order “Restoring the Death Penalty and Protecting Public Safety,” effectively ending former President Biden’s suspension and highlighting the new administration’s commitment to capital punishment.⁵¹Restoring the Death Penalty and Protecting Public Safety, The White House (January 20, 2025) https://www.whitehouse.gov/presidential-actions/2025/01/restoring-the-death-penalty-and-protecting-public-safety/ (last visited Mar 19, 2025). The Executive Order is most likely a response to former President Biden’s decision to commute 37 incarcerated individuals on federal death row in December 2024.⁵²Among Flurry of First-Day Executive Orders, President Trump Issues Order on the Death Penalty, Death Penalty Information Center (March 14, 2025), https://deathpenaltyinfo.org/news/among-flurry-of-first-day-executive-orders-president-trump-issues-order-on-the-death-penalty (last visited Mar 20, 2025). The fluctuation of federal death penalty sentencing, parallel to administration change and the lack of a consistent practice, is detrimental to incarcerated individuals whose future is dependent on the Justice Department and the president’s decisions regarding capital punishment. The future of the criminal justice system is grim without a mechanism to remove this instability and its inherent discrimination.

Similarly, policies should be reflective of public opinion, and with support for the death penalty at historic lows after declining for the past 30 years, this is not the case. A Pew Research Center study from 2021 found that 79% of Americans believe there is a risk of executing innocent individuals, and a Gallup Poll conducted in 2023 found that 50% of Americans believe the sentence is given unfairly.⁵³Most Americans Favor the Death Penalty Despite Concerns About Its Administration, Pew Research Center (June 2, 2021), https://www.pewresearch.org/politics/2021/06/02/most-americans-favor-the-death-penalty-despite-concerns-about-its-administration/ (last visited Mar 20, 2025).⁵⁴Public Opinion, Death Penalty Information Center, https://deathpenaltyinfo.org/policy-issues/policy/public-opinion-polls (last visited Mar 20, 2025). Despite these public concerns, death penalty laws are not adapting to the times, instead getting stricter and more inconsistent per administration. This disparity has fueled calls for greater equality and consistency in sentencing, particularly in addressing racial discrimination. However, studies confirm that the criminal justice system is inherently unjust, and the Court has reinforced discrimination countless times. With such perpetuation of discrimination, the only solution to address these dangerous flaws is to deconstruct the entire system, fully eliminating the sources of injustice that run rampant in our society. Only then will all people, regardless of race, be treated fairly.

V. Conclusion

The death penalty will always constitute cruel and unusual punishment when racial bias persists in sentencing. Racial discrimination, proven through an abundance of studies and cases, has stayed constant despite the evolution of the death penalty. Beginning in 1972, the first landmark case regarding capital punishment, Furman v. Georgia, attempted to prove the death penalty unconstitutional but fell slightly short, instead providing sentencing guidelines to address discrimination. Four years later, Gregg v. Georgia reinstated the death penalty with further sentencing guidelines that, while a step in the right direction, still permitted racial biases to influence sentencing. This racial disparity was demonstrated by subsequent cases such as McCleskey v. Kemp, where the Court acknowledged inherent racial biases in the criminal justice system but failed to put forward a way to address them. This decision set a detrimental precedent by allowing for systemic discrimination to influence sentencing, highlighting the failure of legal safeguards from Furman and Gregg to adequately eliminate bias. Furthermore, studies have consistently shown that the race of a defendant and victim plays a significant role in death penalty sentencing, reinforcing concerns that capital punishment cannot be separated from racial prejudice. Since discrimination is so entwined with the criminal justice system, efforts must be made to implement reforms, including oversight bodies to assist with jury and evidence review. Additionally, policymakers must focus on abolishing the death penalty altogether, as its continued use perpetuates an inherently flawed system. By addressing these issues, society can move toward a more just and equitable criminal justice system.

Edited by Preeta Swaminathan and Saadhi Jakka

About the Author

Notes from the Author