I tutor Syracuse University football and basketball players, and a couple weeks ago some of them were looking at the death penalty in an ethics course. One of their readings looked at how race affects the death penalty, and the results were surprising. It turns out that the race of the victim does tend to affect whether someone receives the death penalty, whereas the race of the defendant (i.e. the killer) has much less, if any, effect. I think racism can easily explain this fact, though another possible explanation seems plausible to me after looking at the information more carefully, and what really turns out to be interesting is that any attempt to make up for this effect could easily be seen as racist itself!
Many people have tried to connect the death penalty with racism by pointing out that proportionally higher numbers of blacks than whites are put to death. That argument doesn't take into account the fact that the rate of arrests for capital crimes among black people as compared to white is roughly the same as the rate of capital sentences for capital crimes as compared to white. This shows that there's no racism in the application of the death penalty, at least nationally speaking (there almost surely is in some locations). Whatever explains the disproportionality, it's not in sentencing. As far as what I've said, it could be in societal factors that lead black people to commit more capital crimes or in societal factors that lead to more black people being arrested. The second kind might have more to do with who is more easily caught and isn't necessarily about racist bias on the part of police, or it might have to do with a specific policy to focus on crime in certain areas where more black people commit crimes, but again it doesn't necessarily mean anti-black bias, since it may be intended to protect black families who live in those areas.
Still, there's a very different kind of bias that might affect capital sentencing, and the numbers are consistent with such a bias. There's a proportionally greater number of killers sentenced to death for killing a white person than for killing a black person. If juries are more willing to identify with a white victim because of residual racism, then bias will take place, and the killers of black people will get off more easily. If that's what's going on, I think it's fair to call it racism, though it's misleading to call it a racist justice system, which makes it sound as if the people in the justice system are out to get black people. That can't be what's going on here, though, because white victims are more likely to have been killed by white people, and black victims are more likely to have been killed by black people. So if the bias means killers of white people get less sympathy, then white killers are less likely to be favored simply because more of them kill white people. Black killers will similarly be more likely to be favored.
It's possible that some of this is even the effect of people showing a little moral deference to black killers (rather than the presumed racism against black killers, which the numbers don't bear out). This kind of moral deference admits of degrees, and it could be as simple as feeling sorry for someone who came from a less privileged or even violence-ridden background, leading to some willingness to cut the person a little slack. It could, on the other hand, be much more dangerous. It could be what John McWhorter calls separatist morality, which justifies or excuses immorality merely because the person doing it is black, on the basis that racism means we should ignore what anyone descended from those harmed in the past might do (e.g. some black leaders' reactions to the O.J. Simpson verdict). So it might not be entirely from anti-black racism, but these alternatives don't rule that out and probably don't make it less likely that that's the primary explanation.
What should we do in light of this? David Baldus, professor of law at the University of Iowa, says the injustice is part of the system, and therefore the system needs to be removed. Thus he thinks this is reason enough to remove the death penalty. One problem with this argument is that it also applies to any other penalty where bias might play a role in sentencing. I wouldn't then think that we should remove the whole justice system. You could try to argue that the death penalty is a much more serious penalty, and if there's bias there it's serious enough to discard it, but life in prison without parole is pretty serious, and maybe we should do it with that too. Then what about something slightly less? When punishments come in degrees, so does the argument from bias to removing the penalty, and it opens up a threat to much more of the justice system. If the arguments for a death penalty are any good, then that might outweigh this anyway. All I'm trying to argue here is that these aren't reasons to remove the death penalty. If there are other reasons, that would be different.
On the other hand, another response to this problem seems suspect as well. Ernest van den Haag argues that the mere existence of bias in which cases a certain penalty is given doesn't mean that the penalty is bad. He's right about that. It's his remedy that I don't know if I can endorse. He suggests simply balancing out the numbers, increasing the number of death sentences among killers of black people. The most obvious problem with this is that, in seeking to undo an injustice based on the victim's race we would be creating an injustice in terms of the killer's race, since more black people kill black people than white people do. Adjusting it in the other direction by simply being more lenient on killers of white people would have the same relative effect, since it would mean being more lenient on white people, which would adjust the relative amount of death sentences for black people upward (even though the actual number wouldn't change, the ratio of black to white death sentences would go up).
A deeper problem with both solutions is that they're band-aids, just as most legal remedies for racial disparities are. They patch up a problem, hiding it so we can't see it. After all, the problem isn't really in the result. It's in the residual racism behind the juries' greater ease in giving a death sentence when the victim is white, which for most jurors means one of their own. The problem, therefore, is the inability or unwillingness (or more likely some combination of the two) to consider a black victim as of the same importance as a white one. The needs, desires, and preferences of black people are just not on the map for many white people. It's not that they specifically exclude them. In many cases they don't know they're doing it. It's just not something that comes up. Part of this is normative whiteness. Part is residual attitudes conditioned by how we were all raised, not necessarily even endorsed by our parents, something worth fighting against but always worth acknowledging.
I can think of two important obstacles toward progress on these matters, one from each side of the political spectrum. From the right, there's a lot of resistance to acknowledging the existence of racism. This needs to stop. It's one thing to resist seeing something as racist when it's not, but some on the right want to act as if there's almost no racism left. Compared with what there once was, what's left is pretty insignificant. Most black teenagers today live in nice neighborhoods, have parents with college degrees or higher, and go to good schools. There most serious discrimination they might face in the average month is having more likelihood of being followed around in a store that follows most people in their age group and (if male) having more likelihood of being stopped by the police who would be stopping males in that age group anyway. There are more serious incidents, but it's not as if these are extremely regular for most people. There are the more common but less serious slights, but compare the overall picture with 40 years ago.
Still, my point in the previous paragraph was supposed to be that some on the right, in saying this, want to say that there's no real racism left. That's just not so. The more persistent kind that's less visible is probably as common and as harmful as it ever was. It's just that the worst and most visible kinds are fairly infrequent now. Refusing to acknowledge the racism that is there on the grounds that no hate is intended and that the obvious hate is rare is one big problem in helping overcome this kind of residual racism, and conservatives tend to be less willing to do this than they should be. (I think many rich, white, liberal politicians are just as unwilling to acknowledge their own residual racism and instead make it seem as if impersonal systems of institutional racism are the problem. See anything Howard Dean or John Kerry have said about race for examples. I don't think this is true about Bill Clinton.)
The obstacle on the left that needs to be overcome for any progress on this issue is the exact reverse. There's a tendency to exaggerate racism, to emphasize victimhood for the sake of doing so and not for making any progress. Pointing out this problem of bias in sentencing just to make the point and say it's a problem but not proposing or even caring about any solutions would be an example. University gatherings to decry racism draw lots of people, but debates on what to do about it don't. It's much worse when the offense isn't racism at all but just rudeness distributed equally to all or treatment based on merit. The danger here is something like the boy who cried wolf. The boy who cried wolf got people ignoring the real problem when it came. He annoyed those who might have helped. This case is a little worse, though, because the cries of wolf are directed at people who are being offended by those very cries. To someone who doesn't understand his or her own residual racism, being called a racist gives the sense of hate, and this person may not hate anyone. Being called part of a racist system just seems so far from this person's own understanding that it sounds like the boy who cried wolf. The exaggeration of racist outrage at smaller slights, particularly when those slights are things that add up to a larger effect, defeats the purpose of mentioning it (if indeed that purpose is to make progress) because it desensitizes people to the real problem. The problem doesn't seem visible to them, because they're looking in the wrong place. They're looking for hateful people in the system and not finding them, so they dismiss the charges of racism because they don't realize that the only racism there is unintentional.
One last word to Christians reading this. Social justice is close to God's heart. Republicans need to read Amos (but so do Democrats). White conservatives (and white liberals also) need to absorb the impact of his condemnation of the leadership of Israel in his time. (Both, after all, already believe in the principle of social justice. They just disagree on how it should be applied, and I think both fail in different ways in doing it truly justly.) On the other hand, opposition to racism in whatever form it may come shouldn't take certain forms, at least from Christians. We're commanded to respect our governing authorities, whatever their party, views, or oppressive practices (in Paul's time it often involved killing Christians, and he's the one who wrote Romans 13). Unity in the body of Christ should be more identity-forming than any solidarity along racial lines, which spiritually speaking are done away with in Jesus Christ. We're commanded not to complain or grumble about things that offend or upset us, not because the wrong isn't real (though sometimes it is) but largely because most complaining isn't because of the wrong that was done but because our pride and self-centeredness is offended. We're told to imitate Christ Jesus in his servanthood and to live at peace with all people. If the rhetoric about racism reflected the fruit of the Spirit (love, joy, peace, patience, gentleness, self-control) then I think those who are unaware of their residual racism would be far more willing to listen.
Sources: Eric Eckholm, "Studies Find Death Penalty Tied to Race of the Victims", New York Times, February 24, 1995.