25 Years After McCleskey, Looking Forward to Legislative Fixes of Supreme Court Error

April 22 marks the 25th anniversary of the Supreme Court decision in McCleskey v. Kemp, in which the Court ruled that a defendant cannot rely upon statistical evidence of systemic racial bias to prove his death sentence unconstitutional, no matter how strong that evidence may be. McCleskey has been roundly condemned as a low point in the quest for equality that begs to be revisited. To mark the occasion, every day this week the ACLU Blog of Rights will feature a new post about McCleskey and its legacy. You can read all the posts here, and visit mccleskeyvkemp.com to learn more.

25 years ago today, when the United States Supreme Court dealt a blow to fairness in the death penalty with its ruling in McCleskey v. Kemp, a colleague of mine in Georgia where I represented death-sentenced men recalled feeling an overwhelming sense of foreboding about the future of criminal justice. The Court ruled that Warren McCleskey couldn't introduce statistics showing racial bias in the system to overturn his death sentence. Why was it acceptable to the highest court of the land that racial disparities in the death penalty were an “inevitable part of our criminal justice system?” How much race discrimination was acceptable and where would it end? Litigators were stymied and have been foiled at every turn since – no court has granted a defendant relief under McCleskey ever.

But thankfully, as they say, a door closes and a window opens. Legislative advocates have been inspired to fix the harm done by McCleskey by pushing for laws allowing statistical evidence of systemic racial bias and other remedies.

One such law made headlines and great strides for justice on Friday, when a North Carolina judge found statistical evidence of racial discrimination in the capital punishment system and commuted Marcus Robinson's death sentence to life without parole. Robinson's case was the first to challenge a death sentence under the historic North Carolina Racial Justice Act. Rejecting the assertion that a certain amount of racial bias is unavoidable in the administration of justice, North Carolina passed the landmark law in August 2009. The law allows death row defendants to present statistical evidence of systemic racial bias in the death penalty to challenge their sentence. If a defendant successfully proves that race was a significant factor in decisions to seek or impose the death penalty at the time of his trial, the court is required to convert that sentence to life in prison. Despite challenges from North Carolina's district attorneys who fear “too much justice” and state legislators who voted to repeal the law last year and stick their head in the sand about systemic racism, North Carolina leads the country in deliberate efforts to eliminate racial considerations from the capital punishment system.

Kentucky also has a Racial Justice Act, enacted in 1998, which created a pretrial process for a judge to determine whether a decision to seek the death penalty had been influenced by race. Unfortunately, Kentucky's law explicitly exempted those already on death row from relief, thus turning a blind eye to previous decades of race discrimination in capital sentencing. Though the issue is seldom explicitly litigated, the law has successfully encouraged prosecutors to be judicious in choosing to seek the death penalty. Similar bills proposed this year have yet to gain traction in the Missouri and Pennsylvania legislatures, although they have spurred interested discussion about the issues.

Supporting the call for reform in more states is a series of reports by the American Bar Association examining individual states' death penalty systems. Without fail, in each report the ABA specifically recommends the need for data collection to determine if race affects capital case outcomes. We look forward to the day when states will heed this recommendation.

On the federal level, since the McCleskey decision, members of Congress have proposed numerous laws – 15 so far – addressing racial justice in the federal capital punishment system. As part of the omnibus crime bill passed by Congress and signed by President Clinton in 1994, Rep. John Conyers, Jr. (D-Mich.) proposed an amendment called the Racial Justice Act, after which the North Carolina law is modeled, to be included in the legislation as a congressional response to the U.S. Supreme Court's decision in McCleskey. The Justice Integrity Act, introduced in 2009, sought to address racial and ethnic disparities across the criminal justice system by proposing pilot programs in 10 jurisdictions that would include collection of data concerning investigations and prosecutions and recommendations for reform. Those reforms didn't pass, but Friday's ruling in North Carolina reminds us that the nation can no longer ignore the fact of racial bias in the death penalty system, and that lawmakers must do more to fix it.

On the 25th anniversary of the Supreme Court's decision in McCleskey, it's interesting to note that Justice Lewis Powell's tie-breaking vote against Warren McCleskey – the vote that allowed the nation to continue down a path of rampant race-oriented decision making – was the one vote he said would change if he could. It's too late for the McCleskey Court, so now it is up to us.

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