Racial disparities in capital punishment in Texas after Penry

Abstract

In September of 1991, the Texas capital punishment statute underwent revision as a result of the U.S. Supreme Court's decision in Penry v. Lynaugh (1989). Under the new Penry standard, jurors are specifically instructed to consider mitigating circumstances related to the offense as well as the offender's character, background, and personal moral culpability when deciding the sentence. The addition of this mitigating question changes the quasi‐mandatory nature of the post‐Furman Texas statute. While instituted to insure fairness to individual defendants, our study of sentencing practices in the two succeeding years found evidence of disparities based on the race of the offender and victim resulting from decisions made by both prosecutors and juries. Blacks who killed whites fared worst in these decisions. These unintended side effects in the application of the death penalty reveal an inherent difficulty in assuring individual fairness while maintaining consistency in the application of the death penalty.