The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As that effort built, other deficiencies in state capital states became apparent, and LDF eventually asserted a broader constitutional critique of state capital structures and processes. By 1967, LDF and its allies had developed a nationwide “moratorium” campaign that challenged death sentencing statutes in virtually every state. Though the campaign appeared poised for partial success in 1969, changes in Court personnel and shifts in the nation’s mood dashed LDF’s initial hopes. Yet unexpectedly, in 1972, five Justices ruled in Furman v. Georgia that all death sentences and all capital statutes nationwide would fall under the Eighth Amendment’s prohibition against cruel and unusual punishments. Each of the nine Furman Justices wrote separately, without a single governing rationale beyond their expressed uneasiness that the death penalty was being imposed infrequently, capriciously, and in an arbitrary manner. Thirty-five states promptly enacted new and revised capital statutes. Four years later, a majority of the Court held that three of those new state statutes met Eighth and Fourteenth Amendment standards. The 1976 Court majority expressed confidence that the states’ newly revised procedures should work to curb the arbitrariness and capriciousness that had earlier troubled the Furman majority. The McCleskey case emerged from subsequent review of post-Furman sentencing patterns in the State of Georgia. A brilliant and exhaustive study by Professor David Baldus and his colleagues demonstrated that the Court’s assumptions in 1976 were wrong; strong racial disparities in capital sentencing continued to persist statewide in Georgia—especially in cases in which the victims of homicide were white. The Supreme Court eventually heard and decided this case, ruling five to four against Warren McCleskey’s claims in 1987. Justice Lewis Powell’s opinion purported to accept in theory, but appears grievously to have misunderstood or disregarded in fact, McCleskey’s powerful and unrebutted evidence of racial discrimination. Justice Powell’s decision likewise appears to have contorted the Court’s prior Eighth and Fourteenth Amendment jurisprudence, erecting all-but-insuperable future barriers against statistical proof of racial discrimination anywhere within the criminal justice system. This Symposium reflects on the handiwork of the Court in McCleskey and its subsequent impact. As one member of the legal team who brought the case, my contribution is to speculate on how and why the Court might have acquiesced in the face of such troubling patterns in capital sentencing, despite the Justices’ clear condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice. This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.
