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Abstract

The systemic disregard for Black lives in America was on full display when footage of a police officer kneeling on the neck of George Floyd went viral. Mr. Floyd’s resultant death set off protests declaring that Black Lives Matter throughout the nation and across the world. While national attention rightfully turned to demanding police accountability for undue violence, the prevailing conversation also incorporated at least a declared concern for addressing institutionalized racism within the criminal justice system and other American institutions. The term of the day became “antiracism.” With regard to police killings, the lesson is that police officers disproportionately kill Black people in this country with impunity because our system of policing encourages such violence, and our legal jurisprudence protects that use of violence. Combining the Black Lives Matter declaration with antiracism ideals requires systemic changes that will directly address the disproportionate and racist outcomes of policing. When combined with the larger antiracist movement—the call for antiracist policies across American institutions—the Black Lives Matter movement provided a powerful model for revealing the historic lack of protection for Black people as they live and work in this country. Declaring that Black Lives Matter is a reminder that Black lives have value, too, and ought to be legally protected. However, even when there is a system that is arguably in place to vindicate the unjust loss of life, Black people still remain unprotected. The application of the death penalty in America reveals the troubling truth that Black deaths do not matter.

Scholars and advocates have long acknowledged that the death penalty is disproportionately applied to Black offenders. It is also well known that the race of a victim is a leading factor in a capital defendant’s risk of receiving the death penalty, with those convicted of murdering whites significantly more likely to receive the death penalty than those convicted of murdering Blacks. This Article takes an in-depth look at statistics covering the sentencing outcomes in capital murder cases in Texas from 1973 to 2018, revealing the clear evidence that race matters in the imposition of the death penalty. However, this Article does not simply join the chorus of voices that have recognized the racial disparity in the death penalty. Rather, the authors argue that the lesson from the Black victim effect on the death penalty decision fits into the broader, historic, and present-day context of devaluing Black lives. As the Texas example provides, the devaluing effect of Blackness is apparent. This is not simply a failure to recognize the value of Black lives—as the Black Lives Matter movement exposes—but a reflection of the societal view that Blackness actually reduces the value and importance of all things—from property to community spaces to ultimate humanity. In life, Black people are vastly under-protected by the law, and the same is true for Black people even in a system designed to exact retribution for death. When we accept the fact that the death penalty reveals that Black deaths do not matter, then it becomes apparent that there is not an antiracist fix for the death penalty other than its abolition.

In this Article, the authors present the most comprehensive data ever assembled on capital murder cases in Texas to affirm that the scope of the race of victim difference is jarring. This data shows how pervasive race is in death penalty outcomes. In every single comparison the racial disparity was statistically significant, and harsher punishment was associated with white victims than with African American victims, who clearly mattered less. The truth, of course, is that Black victims matter as much as any, even if the legal system and society haven’t recognized their value. Within a database of thousands of cases there are thousands of tragic stories of lives upended by acts of an almost unspeakable nature. The details differ from case to case, but across all those thousands of cases the race of victim disparity persists. The math is straightforward. Indeed, the odds against the patterns seen here—emerging by chance—are truly astronomical. The race of the victim matters in the Texas criminal justice system.

As a matter of jurisprudence and policy making, however, the meaning of this data is uncertain. When legislators debate the death penalty, racial disparities are among the most frequently cited concerns of opponents of the death penalty. Supporters of the death penalty, however, dispute both the math and the meaning of findings of racial disparities, taking particular offense at the suggestion that race influences sentencing or influences their own views. These authors argue that abolition is the only corrective approach. We must make the radical choice to uproot systems, like the death penalty, that allow the anti-Black biases in our national consciousness to not only thrive, but to be just. To do otherwise is to perpetuate a system where Black lives matter less.

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