As lynching declined in the 1940s, court ordered executions increased, especially in the South, where very clear racial patterns were evident. Almost 87% of the people executed for rape from 1930 to 1972 were Black men convicted of raping white women. Many trials that produced death sentences were unreliable and accompanied by community pressure for an execution.
In 1972’s Furman v. Georgia, the U.S. Supreme Court ruled the death penalty was unconstitutional because it was applied in a discriminatory manner, overturning hundreds of death sentences. The Court did not declare the death penalty “cruel and unusual” punishment in all cases, so Southern states led an effort to pass new death penalty laws, which the Court upheld in 1976.
The death penalty continues to function in a racially discriminatory manner. A Georgia study established that defendants are 11 times more likely to get the death penalty if the victim is white than if the victim is Black, and 22 times more likely to get death if the accused is Black and the victim white. The Court reviewed this evidence in McCleskey v. Kemp in 1987. In a 5-4 decision, it upheld Georgia’s death penalty scheme, declaring that racial bias in the administration of the death penalty is “inevitable.” McCleskey has been criticized as a dramatic departure from the Court’s commitment to equal justice. It remains the law today.