The death penalty is applied unfairly and arbitrarily

In 1999, the American Bar Association, a conservative group of 400,000 lawyers, reiterated its call for a moratorium on executions because of serious concerns with racial disparity in death sentences and the failure to provide adequate counsel to capital defendants. In January 2000, Republican Illinois Governor George Ryan called for a moratorium on executions because 25% of death row inmates in his state had been wrongly convicted and subsequently exonerated. In May 2002, Governor Paris Glendening did the same in Maryland.

In January 2003, Governor Ryan pardoned four men and commuted the sentences of 167 death row inmates to life without parole or less because he found the death penalty process "arbitrary and capricious and therefore immoral." In January 2007, a study commission in New Jersey recommended repeal of the death penalty because "there is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent."

The men currently on New Mexico's death row could not afford to hire their own lawyers. In January 2002, Republican Governor Gary Johnson declared New Mexico's death penalty to be bad public policy because it was not applied fairly and innocent people could be executed.

Modern studies of the death penalty find a correlation between sentencing and race. The studies consistently show that those who kill white victims are much more likely to receive the death penalty than those who kill black victims. Racial disparities in sentencing and executions suggest that race plays a role in the application of the death penalty.

As of December 2008, there have been 1136 executions in the United States since 1976. 79% of these executions involved white victims. Generally, less than 50% of murder victims are white.

If a law is not applied fairly across racial, social and economic lines, then the law fails to protect the citizens it is bound to serve.