Racial Disparity and the Death Penalty

Abstract

We should, generally, want fairness in all areas of public policy. We should especially want fairness with regard to the death penalty, since the stakes are so high. Yet the opponents of the death penalty make a most peculiar argument about fairness. They argue that if the death penalty is not administered fairly, and especially not administered with racial fairness, it must be abolished. Nobody would even think of trying to apply this principle in a consistent way. If we find that black neighborhoods get less police protection than white neighborhoods, would we withdraw cops from both black and white neighborhoods? If banks are discriminating against black home buyers in mortgage lending, would we demand they stop all mortgage lending? If we find the IRS discriminating against middle-class and poor taxpayers, would we want to abolish the IRS? The first question, of course, is whether the death penalty is administered unfairly. Among right-thinking, politically correct people, the phrase “racial unfairness” is a mere tautology. It is difficult to imagine that anything in American society is administered with racial fairness. But, in fact, the opponents of capital punishment have both a “mass market” version of the racial disparity argument and a “specialist” version, and the two versions are flatly contradictory. In what follows, I will first examine the rhetoric and data supporting the “mass market” version of the racial disparity thesis. I will then look at the best studies of racial disparity, which lead to a discussion of the (empirically superior) “specialist” version of the thesis. Next, I will present a new statistical analysis (based on previously published data) that attempts to