Racial Profiling

Dissenting from the McCleskey majority, Justice Brennan wrote: "[W]e cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past... [W]e ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present." Justice Powell, who authored the 5-4 decision, said after he retired from the Court that he wished he had voted differently in the 1987 ruling, and that he had come to think that the death penalty should be abolished.(8) The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, in his 1998 report on the USA, suggested that the McCleskey decision may be incompatible with the country's obligations under the Convention on the Elimination of All Forms of Racial Discrimination, "which requires States parties to take appropriate steps to eliminate both direct and indirect discrimination".(9)

The McCleskey ruling placed a huge obstacle in the way of defendants seeking to challenge their death sentences on the basis of evidence of racial discrimination in sentencing. In 1994, Girvies Davis, a black man convicted by an all-white jury of the murder of a white victim, appealed on the basis of a study indicating that the murder of a white in Illinois was about six times more likely to lead to a death sentence than the murder of a black, and that a black defendant accused of killing a white was 3.75 times more likely to be sentenced to death than a white charged with killing another white person. The federal court wrote that "our analysis begins and ends with McCleskey v Kemp", and rejected the appeal.(10) Davis was executed in 1995. The following year, the Missouri Supreme Court rejected statistical and anecdotal evidence of county-level prosecutorial discrimination, stating that the defendant had failed to show "purposeful discrimination or any effect on his case, specifically".(11) In 1997, the South Carolina Supreme Court ruled that death row inmate Raymond Patterson had "not proven discriminatory purpose by exceptionally clear evidence". Patterson, an African American convicted of the murder of a white man, raised evidence of bias, including that the county prosecutor had sought the death penalty in 13 of the 128 cases involving white victims and none of the 44 cases involving black victims. He also raised other evidence, including of the exclusion of blacks from juries.(12) In 1999, the Oklahoma Court of Criminal Appeals similarly rejected a claim brought by Billy Alverson, a black man convicted by all-white jury, holding that he could not show that he had been the victim of any discrimination specific to his case.(13)

Today, the McCleskey ruling remains an obstacle to progress. For example, in October 2001, the US Court of Appeals for the Sixth Circuit acknowledged that the disparities on Ohio's death row were "extremely troubling", but wrote that "McCleskey remains controlling law on the ability of statistically-based arguments concerning racial disparity to establish an unconstitutional application of the death penalty. Although the racial imbalance in the State of Ohio's capital sentencing system is glaringly extreme, it is no more so than the statistical disparities considered and rejected by the Supreme Court in McCleskey". (14)

The McCleskey decision had said that the issue of death penalty bias was a matter "best presented to the legislative bodies". In 1994, however, an attempt to introduce a national Racial Justice Act, which would have allowed defendants to challenge their death sentences by producing statistical evidence of racial discrimination in the judicial process, failed. To date, Kentucky is the only state to have enacted a Racial Justice Act, which it did in 1998.

Many legislators are still failing to grasp the nettle. On 18 March 2003, Senators in Maryland rejected legislation to impose a moratorium on executions there in light of research indicating that the race of the murder victim played a significant role in capital sentencing. Opponents of the bill included one Senator who had argued, in words that echoed the McCleskey majority, that "the system is as fair as it possibly can be. Unfortunately, there are disparities".(15) All of the African American members of the Senate voted to approve the moratorium. All 14 of the Republican Senators voted against the bill.(16)

The evidence of bias continues to mount

"They point to the potentially arbitrary application of the death penalty, adding that the race of the victim and socio-economic factors seem to matter".