LAW REVIEWS: Ensuring Black Lives Matter When the Penalty Is Death

In a 2022 arti­cle pub­lished in the Idaho Journal of Critical Legal Studies, author Sidney Balman (pic­tured), exam­ines the rela­tion­ship between racism and geo­graph­i­cal arbi­trari­ness in the appli­ca­tion of the death penal­ty in the U.S. As in oth­er areas of soci­ety, he finds that Black lives are not val­ued equal­ly with oth­ers. He cites the Supreme Court’s deci­sion in McCleskey v. Kemp (1987) as the main legal obsta­cle to revers­ing this bias affect­ing cap­i­tal pun­ish­ment. ​“Today,” he writes, ​“McCleskey has come to stand for the Court’s refusal to address the racial­ly dis­parate impo­si­tion of death across the nation.”

When exam­in­ing the geo­graph­i­cal dis­par­i­ties found in the appli­ca­tion of the death penal­ty, the author argues that the bulk of cas­es is ​“large­ly con­trolled by a hand­ful of coun­ty pros­e­cu­tors,” and that the imbal­ance is get­ting worse. He con­cludes that ​“the over­lap between racism and geog­ra­phy is not just a coincidence.”

The author offers two pos­si­ble respons­es to these inter­re­lat­ed prob­lems: ​“One I refer to as ​‘McCleskey Plus’ because it does what the Supreme Court failed to do in 1987. Here I argue for the imple­men­ta­tion of racial jus­tice acts that rec­og­nize race dis­crim­i­na­tion in the impo­si­tion of death with­out requir­ing a show­ing of pur­pose­ful dis­crim­i­na­tion. The sec­ond pos­si­ble response takes the BLM (Black Lives Matter) move­ment to the next lev­el, mov­ing past demands to ​‘defund the police’ to a com­pelling, clear mes­sage: ​‘defund the death penalty.’”