The myth of the racist death penalty:

Orin Kerr gives the goods on death penalty stats for 2003. Only 65 people were executed (and keep in mind that roughly 20,000 homicides are committed each year). Of those executed,

-- 41 were white
-- 20 were black
-- 3 were Hispanic (all white)
-- 1 American Indian
* Of those executed in 2003, all 65 were men

Now, perpetrators of the "death penatly is racist" myth might note, blacks are 13% of the population but around 30% of those executed; therefore, a black is more likely to be executed than a white. Well, by that logic, the death penalty is extremely sexist (extremely anti-male); men are slightly less that 50% of the population, but 100% of those executed. But of course, men are the ones who are committing the overwhelming majority of capital crimes....

The bottom line is blacks commit roughly half of all capital crimes in this nation but also constitute significantly less than half (less than 30% this particular year) of those executed, in any given year. Therefore, a white person who commits a capital crime is more likely to be executed than a black who commits a capital crime.

In order to twist “racism” out of the death penalty, it was argued in law school that the killer of a black victim is less likely to receive the death penalty than a killer of a white. This is true, but I hardly see how this merits the conclusion of racism (they argue that it sends the message that a white victim has more value than a black). However, it’s precisely because a killer of a white victim is more likely to receive the death penalty than a killer of a black, that a white perpetrator of a capital crime is more likely to be executed than a black (given that crimes, including captial crimes, tend to be intra-racial).

This is a classic damned-if-you-do-damned-if-you-don’t scenario. Could you imagine if murderers of black victims were more likely to receive a death sentence than murders of whites. Since black victims tend to be murdered by black perps and white victims tend to be murdered by white perps, then the inevitable result would be a black perpetrator of a capital crime would more likely receive the death sentence than a white perpetrator of such a crime. So what message would we derive from such a scenario? That black victims are more valuable than white victims? No. That the death penalty is racist because a black who commits a capital crime is more likely to be executed than a white who commits a capital crime.