Relegating McCleskey

Twenty five years ago yesterday, the United States Supreme Court issued one if its most shameful opinions in recent history: McCleskey v. Kemp, in which it willfully turned a blind eye to racial discrimination in death penalty cases and prohibited citizens from raising claims of racial bias leading to the imposition of death sentences. The Court in McCleskey, assuming that the Baldus study [.doc] was accurate, nevertheless:

categorically rejected the idea that statistical evidence was sufficient to show a constitutional violation, requiring instead that a defendant show “exceptionally clear proof” of discrimination under the facts of his or her own case. This near impossibility effectively shut the door to any thing short of “smoking gun” evidence of intentional discrimination — evidence that is unlikely to exist, or unlikely to be discovered by the defense.

From this post the ACLU’s McCleskey project website. That is to say, the Court made it near impossible to prove the standard, particularly in light of the fact that contacting individual jurors and asking them about their personal racial biases is a non-starter. The Court’s rationale in rejecting McCleskey’s claim wasn’t that racial discrimination in the criminal justice system didn’t exist, but rather that it was “inevitable” and, as Justice Brennan put it, the majority was afraid of having to dispense too much justice. Rather than confront the reality that the system is terribly flawed and skewed against people of color, especially in the death penalty context, the Court did what was natural to any petulant 5-year old: run in the other direction, hands over their ears, yelling at the top of their lungs so as to not let reality set in.

[Interestingly, as heretofore unknown to me, was a Scalia memorandum prior to the decision in McCleskey, which said:

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

Shorter Scalia: it's there, it's real and we can't change it, so why even bother?]

McCleskey, of course, is also famous for being the one vote that Justice Powell, in his later years, regretted. Which brings me to the point of this post. While no courts would ever seriously consider a systemic bias claim in light of McCleskey, that doesn’t mean legislatures aren’t free to mandate such a consideration. In 2009, North Carolina did just that, with its Racial Justice Act. And last week, we saw the results. In the first ever decision applying the RJA, Superior Court Judge Greg Weeks held [PDF] that Marcus Robinson’s death sentence must be commuted to life without the possibility of release because of racial bias in the jury selection process:

Race played a “persistent, pervasive and distorting role” in jury selection and couldn’t be explained other than that “prosecutors have intentionally discriminated” against Robinson and other capital defendants statewide, Weeks said. Prosecutors eliminated black jurors more than twice as often as white jurors, according to a study by two Michigan State University law professors Weeks said he found highly reliable.

The Michigan State University study [PDF] produced some stunning findings:

It reported that, of almost 160 people on North Carolina’s death row, 31 had all-white juries, and 38 had only one person of color.

More here. The MSU study of capital charging and sentencing found that those who kill whites are more likely to get the death penalty than those who kill blacks. The MSU study found that a defendant is 2.6 times more likely to get the death penalty if the victim is white.

It isn’t enough for us in the system to “know” that there is racial bias. It isn’t enough for us to throw our hands up and shrug. It isn’t enough that we pay lip service. We must relegate McCleskey to the dustbin of history, alongside cases like Dred Scott and Plessy v. Ferguson. We must do something more. David Baldus, may he rest in peace, did. Gov. Beverly Perdue, who vetoed a repeal of the RJA, did. Judge Greg Weeks did.

Who’s next?