Getting to Death: Race and the Paths of Capital Cases after Furman

56 Pages Posted: 18 Jan 2023

See all articles by Jeffrey Fagan

Jeffrey Fagan

Columbia Law School

Garth Davies

Simon Fraser University (SFU) - School of Criminology

Raymond Paternoster

University of Maryland

Date Written: January 13, 2023


Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman. Analyzing a dataset of 2,328 first- degree murder convictions in Georgia from 1995–2004 that produced 1,317 death eligible cases, we show that two features of these cases combine to produce a small group of persons facing execution: victim race and gender, and a set of case-specific features that are often correlated with race. We also show that these features explain which cases progress from the initial stages of charging to a death sentence, and which are removed from death eligibility at each stage through plea negotiations. Consistent with decades of death penalty research, we also show the special focus of prosecution on cases where Black defendants murder white victims. The evidence in the Georgia records suggests a regime marred less by overbreadth in its statute than capriciousness and randomness in the decision to seek death and to seek it in a racially disparate manner. These two dimensions of capital case adjudication combine to sustain the twin failures that produce the fatal lottery that is the death penalty.

Keywords: capital punishment, race, sentencing

Suggested Citation

Fagan, Jeffrey and Davies, Garth and Paternoster, Raymond, Getting to Death: Race and the Paths of Capital Cases after Furman (January 13, 2023). Columbia Public Law Research Paper No. 4324073, Cornell Law Review, Vol. 107, No. 1565, 2022, Available at SSRN:

Jeffrey Fagan (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10027
United States
212-854-2624 (Phone)
212-854-7946 (Fax)


Garth Davies

Simon Fraser University (SFU) - School of Criminology ( email )

8888 University Drive
Burnaby, British Columbia V5A 1S6

Raymond Paternoster

University of Maryland ( email )

College Park
College Park, MD 20742
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics