Possibly the greatest opposition to the death penalty arises from apparent Baldus and Woodworth (1998) found that in 25 of 28 states with the death penalty, there was strong evidence that the race of the victim influenced juries to impose a sentence of death (Samaha, 2003). This confirms a study done by Baldus, et al. in 1980 which found that defendants convicted of murdering a white person were 4.3 times more likely to receive a death sentence than defendants convicted of murdering an African-American (Bailey, 2003). However, in a study conducted by the New Jersey state Supreme Court, it was found that there was, “no sound basis from the statistical evidence to conclude that the race or ethnicity of the defendant is a factor in determining which cases advance to a penalty trial and which defendants are ultimately sentenced to death" (Gallagher, 2001). It was also found that between 1976-1999 that 86% of white murder victims were killed by whites and 94% of African-American victims were killed by African-Americans (Eisenberg, Garvey, and Wells, 2003)

During this same time-period, the Court also attempted to address the issue of fairness in dealing with the mentally ill. For example, in 1986, the Ford versus Wainwright decision prohibited the execution of any insane offender. Justice Marshall, who argued forcefully for the continuation of the age-old policy banning such executions, championed this decision. His argument had a historical basis from the common law, which for centuries had prohibited the execution of those deemed as insane. It was deemed inherently unfair for an individual to be executed when a mental disease or defect prevented him or her from comprehending the reasons for the penalty or its effects (Bailey, 2003). As of December 31, 2002, 19 states banned sentencing mentally retarded offenders to death (Capital Punishment, 2002).

After many revisions by the federal government as well as the states’ statutes pertaining to capital punishment, the Supreme Court ruled that the death penalty was no longer unconstitutional in Gregg versus Georgia (Grant, 2004). Once capital punishment was reinstated, numerous legal precedents collectively set limitations on the implementation of capital sentencing. For example, in 1977 there was the Coker versus Georgia case that prohibited a capital sentence for the rape of an adult woman. This holding had significant racial implications because traditionally, Georgia classified the rape of a white woman by a black man as a capital offense; while white men convicted of the same offense were given a maximum sentence of 20 years (Bailey, 2003). In an attempt to address issues of race more directly in criminal proceedings, the Court formally recognized the "inestimable privilege" of trial by jury in the 1986 case of Batson versus Kentucky. In that case, the Court stated that the jury represented, "the criminal defendant's fundamental protection of life and liberty against race and color prejudice".

Syndicated columnist Jeff Jacoby once wrote, "It is up to the law to speak to them-to speak for all “grief-stricken survivors confronted with the butchery of someone near and dear. Capital punishment says to them: We, the community, take your loss with the utmost seriousness. We know that you are filled with rage and pain. We know that you may cry for vengeance, may yearn to strangle the murderer with your bare hands. You are right to feel that way. But it is not for you to wreak retribution. As a decent and just society, we will do it. Fairly. Af

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