The Abyss of Racism

It is important to recall what motivated Members of this Court at the genesis of our modern capital punishment case law. Furman v. Georgia was decided in an atmosphere suffused with concern about race bias in the administration of the death penalty--particularly in Southern States. (1) I. THE BARRIER TO EXAMINING SYSTEMIC RACISM IN THE IMPOSITION OF CAPITAL PUNISHMENT Fifteen years after Furman v. Georgia, (2) Justice Powell, writing for the majority in McCleskey v. Kemp, (3) expressly rejected the equal protection argument that had persuaded Justice Douglas to vote against the death penalty in Furman. (4) Despite empirical evidence demonstrating that death sentences were more frequently imposed on African-Americans than on white defendants, particularly when they were convicted of murdering white victims, Justice Powell concluded for the majority that the empirical data demonstrated only a "risk" that black defendants were subject to racial discrimination in the imposition of the death penalty. (5) Under McCleskey, showing a statistical disparity in imposition of the death penalty by race is not sufficient to establish a claim of racial discrimination. Instead, the McCleskey Court held that "to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose." (6) The significance of Justice Powell's opinion in McCleskey cannot be overstated. (7) The McCleskey majority concluded that the apparent disparities shown in McCleskey's statistical evidence reflected neither an arbitrary nor a racially discriminatory application of the penalty, the death sentences imposed being based upon evidence developed in support of aggravating circumstances in each case. (8) Consequently, attacks on capital sentences as improperly influenced by racial bias have consistently failed when based on statistical evidence demonstrating greater use of the death penalty either against black defendants or in cross-racial cases involving white victims. (9) Thus, McCleskey has effectively discouraged or undermined attempts to use statistical evidence to demonstrate systemic, constitutional flaws in the system of capital prosecution and sentencing. (10) After leaving the Court, Justice Powell reportedly reversed his thinking on the death penalty and stated that he regretted his vote in McCleskey. (11) Yet the decision remains an almost insurmountable hurdle for litigants challenging capital sentencing on disparate-imposition grounds even though the statistical evidence can be taken to suggest that death sentences are discriminatorily imposed whether the focus is the race of the defendant (most often black) or the race of the victim (most often white). Whether the statistical evidence actually supports a conclusion that the death penalty is applied discriminatorily remains subject to debate. (12) What is evident, however, is that the demographic breakdown in the use of the death penalty is sufficient to warrant inquiry. What is also evident is that the Court's decision in McCleskey precludes capital defendants' raising the death penalty's relative use as a basis for federal constitutional challenges. And this has been the case for a long time: Justice Blackmun, discussing McCleskey after seven years of seeing the case invoked to prevent capital defendants from presenting evidence of systemic bias, (13) observed that [d]espite ... staggering evidence of racial prejudice infecting Georgia's capital sentencing scheme, the majority turned its back on McCleskey's claims, apparently troubled by the fact that Georgia had instituted more procedural and substantive safeguards than most other States since Furman, but was still unable to stamp out the virus of racism. (14) In fact, evidence of "the virus of racism" in the system existed long before McCleskey was decided. In Swain v. Alabama, (15) for example, the Court rejected a challenge based on evidence that no black had been seated as a juror in the county in which Swain was convicted during the preceding twenty-five years. …