Is Racism Irrelevant? Or Should the Fairness in Death Sentencing Act Be Enacted to Substantially Diminish Racial Discrimination in Capital Sentencing?


Numerous studies indicate a widespread pattern of racial discrimination in the imposition of capital punishment. The February 6, 1990, report of the United States General Accounting Office confirms the statistical validity of studies showing that in state after state, a defendant is far more likely to receive the death penalty for a particular capital murder if his victim is white than if his victim is black.

Legislative action to eliminate this discrimination is necessary, in light of the Supreme Court’s decision in McCleskey v. Kemp. In McCleskey, the Court concluded that legislative action, not a constitutional ruling, is the appropriate way to address the manner in which race improperly affects capital sentencing. There is ample precedent for enacting legislation which deals with racial discrimination even though the Constitution does not itself mandate relief.

The proposed Fairness In Death Sentencing Act could help combat racial discrimination in the imposition of capital punishment. The Act provides that a death sentence can be overturned when there is a valid showing of a substantial disparity in capital sentencing which is statistically explicable only by reference to race. This legislation would not eliminate the death penalty, nor would it affect sentencing in other cases. It would, however, substantially reduce the likelihood that a person will be executed on the basis of racial discrimination.

Suggested Reading

Capital punishment has been applied in North America virtually since the first European settlers arrived. It has been estimated that about 16,000 people have been legally executed in the United States and its colonial predecessors; an unknown additional number of

Brooks Emanuel∞ Abstract This article argues that because of the North Carolina Supreme Court’s failure to perform its statutorily mandated comparative proportionality review of all death sentences, North Carolina’s imposition of the death penalty violates the Eighth and Fourteenth Amendments