A blog produced by the Oregon Justice Resource Center discussing the death penalty (capital punishment) in Oregon and in the Ninth Circuit.
From the American Constitution Society 25 Years Later, McCleskey Decision Still Fosters Racism by Ignoring It
Few cases involving the intersection of race, criminal law, and procedure have had the reach and impact of McCleskey v. Kemp, a United States Supreme Court decision decided 25 years ago, on April 22, 1987. This decision set the stage for more than 20 years of dramatically increasing racial disparities within the criminal justice system.
In McCleskey, the Supreme Court declared that a criminal justice system that treats Blacks worse than whites is “inevitable” and that the Constitution is only violated by instances of intentional racial discrimination by individual actors in specific cases.
Specifically, the Court refused to set aside the death sentence of Warren McCleskey, an African American man who was sentenced to death in Georgia for the killing of a white person, despite the fact that statistical evidence demonstrated that in Georgia capital cases, African Americans were more likely to receive a death sentence than any other defendants, and that African American defendants who killed white victims were the most likely to be sentenced to death.
The implications of the McCleskey decision are profound. Because of McCleskey, there is no remedy for – and, indeed, no constitutional problem with – the fact that Blacks are disproportionately stopped, searched, arrested, held on bail, charged with serious crimes (including death-eligible offenses), denied plea bargains, convicted, and sentenced to prison or execution.
There is no constitutional basis for challenging the fact that one in three African American males will enter state or federal prison at some point in his lifetime; and that although African Americans make up only 12 percent of the U.S. population, they amount to 44 percent of sentenced inmates – the largest group behind bars.
Furthermore, because of McCleskey, there is no way to stop the criminal justice system from producing significant racial disparities in access to meaningful employment, to public housing, to higher education, and to voting. Because McCleskey’s devastating reach extends far beyond the four corners of the courthouse or the jail cell, it has relegated people of color to second-class citizen status simply because of their race or ethnicity.
It is nothing short of “the Dred Scott decision of our time.”
To observe this tragic anniversary, the NAACP Legal Defense and Educational Fund, Inc. (LDF) and the Equal Justice Society (EJS) have joined with organizations across the country, including the ACLU Capital Punishment Project, the Capital Litigation Communications Project, the Center for Death Penalty Litigation Inc., the Death Penalty Information Center, Equal Justice USA, the Innocence Project, the National Coalition to Abolish the Death Penalty and the Proteus Fund, to raise awareness of how this landmark decision fundamentally threatens equality and opportunity in this country.
Together, we launched mccleskyvkemp.com, a website that provides information about the ongoing crisis of race in criminal justice and offers information about specific activities that individuals and organizations can take to repeal the death penalty and ameliorate the racial disparities in the criminal justice system.
The site includes publications and reports, media articles, links to take action, as well as information about the LDF/Columbia Law School Symposium, “Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp,” which was held in March of 2007 to mark the 20th anniversary of the McCleskey decision. The site is also cross-posting the ACLU’s daily blog special series on McCleskey and also engaging the#McCleskey conversation on Twitter.
Warren McCleskey was an African American man who was sentenced to death in 1978 for killing a white police officer during the robbery of a Georgia furniture store. Mr. McCleskey appealed his conviction and sentence, relying on the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of Equal Protection to argue that the death penalty in Georgia was administered in a racially discriminatory – and therefore unconstitutional – manner.
Jack Boger, then director of NAACP Legal Defense & Educational Fund Inc.’s Capital Punishment Project, litigated the case from the federal district court through the United States Supreme Court. Relying on the most comprehensive statistical analysis of the role of race in the administration of capital punishment that had ever been conducted, LDF presented the courts with strong evidence demonstrating that race played a pivotal role in the Georgia capital punishment system.
Although the evidence presented by LDF gave the Court the opportunity to acknowledge and renounce the arbitrary influence of race on the administration of the death penalty, the Court found no constitutional error in a system where African Americans faced worse criminal justice outcomes – indeed execution – because of their race.
In a 5-4 decision authored by Justice Lewis F. Powell, Jr., the Court ruled against Mr. McCleskey and found that unless he could submit evidence showing that a specific person in his case acted with a racially discriminatory purpose, Mr. McCleskey’s death sentence – and the stark racial disparities in Georgia’s capital punishment system – would stand.
Justice Powell later admitted to his biographer that he was wrong in the McCleskey case and that he would change his vote if given the chance.
Visit mccleskyvkemp.com and learn how you can join us in the effort to raise awareness of this landmark decision that every day threatens the ideals of equality and opportunity in this country.
Justice Lewis Powell was right when he wrote for the majority in McCleskey v. Kemp that accepting the argument that race played a significant role in the administration of the death penalty would call into “serious question the principles that underlie our entire criminal justice system.” Unfortunately, it was a question the Court was afraid to have answered, and so they chose instead to reject the argument. Their decision seemed driven, in the famous words of Justice William Brennan’s dissent, by a “fear of too much justice.”
The impact of the ruling in McCleskey — that a prisoner on death row could not introduce statistical evidence of racial bias in the system to challenge his death sentence — has reached far beyond the realm of the death penalty. The decision, joined later by others like United States v. Armstrong, has made it nearly impossible to bring direct court challenges to racial disparities in the criminal justice system — of which there are many.
In the last 40 years, this country’s “tough on crime” policymaking and failed War on Drugs have sacrificed the lives and rights of people — predominantly people of color — at the altar of politics. Politicians have opted for senseless overcriminalization and overincarceration that have landed more people in the grips of the criminal justice system in the U.S. than in any other nation. As a result, huge segments of Black and brown communities have been locked into permanent second class status, yielding statistics that both shock and numb. A Black man born today has a one in three chance of being imprisoned during his lifetime. Although government studies consistently find that Blacks make up fewer than 15 percent of all drug users, they account for 37 percent of all drug arrests, and 50 percent of state drug felony prisoners. Even though public health surveys find that whites use marijuana at higher rates than Blacks or Latinos, the arrest rates for marijuana possession are disproportionately high for men and women of color. Black people accounted for 93 percent of marijuana possession arrests in Atlanta in 2011. More than 80 percent of marijuana arrests in New York City from 1997 to 2010 were of Blacks and Latinos. The list of horrifying and confounding statistics goes on and on and on.
Unfortunately, McCleskey has left racial justice advocates with few litigation avenues to challenge such gross racial disparities, even in the face of highly sophisticated statistical studies that establish that race bias infects the system. But McCleskey does not spell the end for fairness in the justice system. While the ruling closed the door on direct court challenges to racial disparities in the system, advocates are using other strategies to achieve racial justice. We have not thrown up our hands and declared defeat in the face of the persistent and needless mass incarceration of black and brown communities.
There is a movement afoot of advocates, family members of the incarcerated, the formerly incarcerated, lawyers, organizers, faith leaders, journalists and policymakers working tirelessly all over the country, most fueled by a sense of moral outrage, to expose the racial injustice that is our criminal justice system and to reverse the tide of mass incarceration. Our criminal justice system is so thoroughly contaminated with racial injustice and race disparities at every stage of the system that any rational reform effort will have an impact on communities of color. We are advocating for an end to the War on Drugs as we know it and for a reinvestment of corrections costs into schools, jobs, and access to healthcare and treatment. We are working in state legislatures and with state Departments of Corrections for alternatives to incarceration and more rational and proportional sentencing. We are pushing for laws that create opportunities to challenge racial discrimination in the administration of justice, such as the Racial Justice Act in North Carolina. We are fighting for the human dignity of those arrested and jailed in overcrowded, squalid conditions. We are demanding an end to policies that target and harass communities of color.
This movement is fighting vigorously, often against all odds, to dismantle the machine of mass incarceration in every community and every state. We are working hard to bring others into this movement. And we are reversing the tide, one reform at a time, one story at a time, one case at a time. The McCleskey Court may have been afraid of “too much justice,” but we are not.