Whom the State Kills

U Denver Legal Studies Research Paper No. 19-16

47 Pages Posted: 22 Aug 2019 Last revised: 13 Sep 2019

See all articles by Scott Phillips

Scott Phillips

University of Denver

Justin F. Marceau

University of Denver Sturm College of Law

Date Written: August 21, 2019


Through original quantitative research we show that persons convicted of killing a white victim and sentenced to death are more likely to be executed than persons convicted and sentenced to death for killing a black victim. Previous research documents numerous forms of arbitrariness and racial disparity in the administration of the modern death penalty, but focuses exclusively on the charging and sentencing patterns of prosecutors and juries. Previous research also reveals that implicit bias operates within the institutions tasked with seeking and obtaining sentences of death. Our original research shows that the problem of disparate racial outcomes is actually exacerbated through the work of our most trusted check on the death penalty, appellate courts. Building on David Baldus’s storied dataset from Georgia, we demonstrate that the racial disparities he discovered in the penultimate stage of the case – death sentences – were amplified in the ultimate stage of the case – executions. Combining both phases reveals a stunning pattern: the execution rate is roughly 17 times greater in white victim cases than black victim cases. Although Baldus could not have known how the cases would unfold post-sentencing, our findings indicate that the racial disparities described in McCleskey v Kemp (1987) underestimated the extent of the death penalty’s arbitrariness problem.

Suggested Citation

Phillips, Scott and Marceau, Justin F., Whom the State Kills (August 21, 2019). Harvard Civil Rights - Civil Liberties Law Review (CR-CL), Volume 55.2, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3440828 or http://dx.doi.org/10.2139/ssrn.3440828

Scott Phillips

University of Denver ( email )

2201 S. Gaylord St
Denver, CO 80208-2685
United States

Justin F. Marceau (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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