Abstract

Numerous studies indicate that racial minorities are both more likely to be executed for murder and that those who murder them are less likely to be executed than if they murder whites. Death penalty opponents have long attempted to use these studies to argue for a moratorium on capital punishment. Whatever the merits of such arguments, they overlook the fact that such discrimination alters the costs of murder; racial discrimination imposes higher costs on minorities for murdering through tougher sentences, and it imposes lower costs on whites for murdering minorities by dispensing weaker sentences. These cost differentials constitute an injustice not simply to actual minority defendants in capital cases, nor simply to the actual minority victims of murder, but to all members of minority communities. I here offer two arguments for a moratorium on capital punishment: The first draws upon evidence of racial discrimination against minority defendants in capital cases, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy equal status under the law. The second draws upon the evidence regarding racial discrimination in relation to the race of victims, and claims that such discrimination modifies the costs of murder in such a way that minority individuals do not enjoy the equal protection of the law. Thus, by not assigning equal costs to murder, the American criminal justice system fails to provide racial minorities the equality under the law and discounts the value of their lives and liberties. A moratorium is the least unjust response to such a social injustice. I also reply to the criticism that a moratorium prevents us from executing deserving murderers.