McCleskey v. Kemp (1987) was an example of “good-enough-for-black-people kind of justice.” At least, that was how Professor Paul Butler (Georgetown) characterized the seminal death penalty case under discussion at the recent Northwestern University Law Review Symposium, A Fear of Too Much Justice?: Equal Protection and the Social Sciences 30 Years after McCleskey v. Kemp.
Professors Aya Gruber (Colorado) and Angela Onwuachi-Willig (Berkeley) joined Butler on a symposium panel, moderated by Professor Deborah Tuerkheimer (Northwestern), discussing the impact of McCleskey specifically in the context of the criminal justice system.
Other symposium panels noted the import of McCleskey more broadly for equal protection doctrine and anti-discrimination efforts. However, the original case dealt with the death penalty and the constitutionality of Georgia’s death penalty statute. The social science evidence at issue in the case was the Baldus study, which demonstrated the racially disproportionate application of Georgia’s statute penalty in capital cases. The Court refused to acknowledge this social science evidence of racial disparity and instead upheld the Georgia statute.
This criminal justice panel discussion highlighted the tension between efforts to reform as opposed to transform the criminal justice system, noting the role of McCleskey in shaping how social science can play in role in both kinds of efforts.
Each panelist discussed a different aspect of the intersection of McCleskey, social science evidence and the criminal justice system.
Onwuachi-Willig presented social science research about the racially disparate disadvantages facing the formerly incarcerated in finding employment, asserting that this system is permanently designating the formerly incarcerated as an economic underclass.
Gruber focused on the idea that allowing racial disparity evidence would “shatter the illusions” of the justifications the state uses for punishment. She asserted that the McCleskey court did not fear racial disparity evidence in the abstract, but instead feared racial disparity evidence that would dilute the state’s authority and legitimacy to punish wrongdoers. Gruber instead called for a radical reorientation of the bases for the legitimacy of criminal punishment.
Butler argued that courts will not use social science evidence of racially discriminatory impact, because courts are part of a broader white supremacist institutional structure. He argued that starting with Terry v. Ohio (1968), the Court’s criminal procedure jurisprudence has expanded police power against black men in an intentional racialist project by the Court. The true problem, according to Butler, is proving the racial motives of actors in the criminal justice system, including the Court.
Butler characterized the Court’s response to the evidence of racially disparate impact in McCleskey as the Court being upfront about its white supremacy. If the Court recognized this evidence of the racial motive of criminal justice actors in capital cases, it would have to recognize it in other cases. This would undermine the whole criminal justice system, which the Court was unwilling to contemplate.
Butler concluded that using social science to win equal protection claims, including in the criminal justice context, is a “doomed” project: rights don’t make a difference on the ground in how black men experience a white supremacist criminal justice system.
So is that it? Is there anything left of the criminal justice system to salvage? Is there any role for social science evidence to play?
The panel discussion highlighted several avenues for moving forward.
Tuerkheimer noted two examples where social science evidence has proven an important factor in the criminal justice reform context: the Department of Justice’s Ferguson Report and the Floyd v. New York (S.D.N.Y. 2013) litigation.
Onwuachi-Willig demonstrated that social science can help to document the dimensions of systemic racism. However, she noted that McCleskey’s continuing impact demonstrates how unwilling courts are to examine the kind of evidence that shows structural racism, as opposed to evidence showing the racist intent of a particular individual. As Onwuachi-Willig noted, any finding of structural racism on the part of criminal justice actors would demand a much broader remedy than the court would be willing to consider.
Onwuachi-Willig turned instead to a different institutional actor, the legislature, as an opportunity for concrete proposals for reform within the system. She suggested advocating for initiatives that would require the legislature to conduct racial impact statements. These could be applied only to pending legislation, or more broadly to existing legislation as well. Given the pivotal role of education in improving the job prospects of the formerly incarcerated, Pell Grants could be reinstated for the formerly incarcerated, requiring prisons to provide vocational job training or prison entrepreneurship programs. Onwuachi-Willig also proposed a rule that would require companies relying on prison labor to refrain from discriminating against applicants or employees on the basis of their criminal records.
Another symposium participant and panelist, Professor Mario Barnes (UC-Irvine), suggested using social science on the enforcement side of the criminal justice system, to educate police departments about the social science implications of their conduct, such as the impact of implicit bias in policing.
Butler rejected this, emphasizing the need for transformation. “We need social science to help us understand how to transform this system and this law. We need social science to help with this transformation.” He encouraged looking beyond reform: If the criminal justice system is supposed to be keeping us safe, can social science show us other ways of accomplishing that goal? Can social science show us alternatives to enable the transformation of the criminal justice system?