The Death Penalty: Is It Arbitrary, Capricous, and Racially Skewed?

“Three Employees Slain at D.C. McDonald’s,” Washington Post, August 5, 1995. As the manager and three workers were closing up for the night, another McDonald’s employee arrived. Once inside, the man forced the manager, at gunpoint, to open the safe, then shot and killed the manager and two workers. A third worker survived when the gun failed to fire.

“Three Employees Killed at D.C. Starbucks,” Washington Post, July 8, 1997. A Starbucks’ employee, arriving for work, found the bodies of the night manager and two co-workers. All three had been shot. Attempted robbery is believed to have been the motive.

These two cases were strikingly similar. One might have expected them to have been prosecuted similarly. They were not. The differences illustrate some of the arbitrary and capricious elements of the criminal justice system and, perhaps, the influence of race.



Similar crimes, different outcomes

The worker apprehended in the McDonald’s case, Kenneth Joel Marshall, was charged in a 25-count indictment that included first-degree murder. The Assistant U.S. Attorney in charge of the case sought a sentence of life without parole.

The suspect apprehended in the Starbucks’ case, Carl Derek Cooper, was charged in a 48-count indictment that included first-degree murder, as well as charges for other crimes committed between 1993 and 1997. These additional charges led the U.S. Attorney to prosecute under federal (rather than D.C.) law, though she did not seek the death penalty. However, in a move that became highly publicized and much-criticized, Attorney General (AG) Reno overruled the U.S. attorney and insisted on seeking the death penalty.

Many DC residents, death penalty opponents, civil rights activists, and others were quick to point out salient differences between the McDonald’s and Starbucks’ cases. Although both Marshall and Cooper are black, the McDonald’s slayings occurred in southeast DC, where most residents are black and all three victims were black. The Starbucks’ killings occurred in Georgetown, a well-to-do, predominantly white district and two of the three victims were white.

AG Reno defended her decision to seek the death penalty against Cooper on the basis of his cumulative record. However, she did not convince many of her critics. DC Delegate Eleanor Holmes Norton asserted that “It’s the focus of the press, it’s the downtown location, it’s the race of some of the victims that gets the death penalty imposed.”1



Racial disparities in death penalty application

The differences in handling the two cases have fueled the debate about fairness in the application of the death penalty. The racial overtones bolster the arguments of those who maintain that the death penalty is applied in a racially-disparate manner.

Death penalty critics have long charged that the discretion given to prosecutors to decide whether or not to seek the death penalty leads to arbitrary and capricious application of the death penalty. Many critics also hold that the racism prevalent in U.S. society pervades all elements of the criminal justice system (police, prosecutors, judges, and juries) and leads to disparate treatment of black persons and white persons.

Documenting racism is difficult. Easy-to-compile statistics (such as the race of death-row inmates or the proportion of racial minorities prosecuted under federal death penalty statutes) fall short because they fail to consider the entire pool of death-eligible prisoners, to analyze the nature of the crime, or to consider mitigating and aggravating circumstances. However, David Baldus and colleagues recently published a well-designed study of death penalty application in the city of Philadelphia between 1983 and 1993.2

Baldus et al. found that both the race of the defendant and the race of victim matter when it comes to death sentences. With respect to the race of the defendant, in jury penalty-trial decisions, black defendants even at low culpability levels (where substantial mitigating factors were present) received death penalty sentences, whereas non-black defendants were sentenced to death only at very high culpability levels (where aggravating factors far outweighed mitigating factors). Moreover, at high culpability levels, black defendants were more likely to be sentenced to death than were non-black defendants. Overall, black defendants were nearly three times as likely to receive a death sentence than were non-black defendants.

With respect to the race of the victim, a sentence of death was more likely to be imposed in cases where the victim was non-black than in cases with black victims, regardless of culpability level. Overall, a jury was one and a half times more likely to sentence a defendant to death when the victim was non-black than when the victim was black.

The results of the Philadelphia study may not apply to all jurisdictions in the U.S. However, it is likely that many cities and states have similar or worse records.

Arbitrary, capricious, and racially-disparate sentencing can be reduced. But there is no way to ensure complete fairness in the application of the death penalty except by ending it.


1. Reported in the Washington Post, Feb. 9, 2000.

2. Baldus, Woodworth, Zuckerman, Weiner, and Broffitt, “Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia.” Published in the Cornell Law Review, vol. 83, 1998.

This article was originally published in the June 2000 FCNL Washington Newsletter.