New DPIC Podcast: 35 Years After Controversial Supreme Court Decision, Prof. Alexis Hoag Discusses McCleskey v. Kemp’s Legacy

In the May 2022 episode of Discussions With DPIC, Professor Alexis Hoag (pic­tured) of Brooklyn Law School joined DPIC Deputy Director Ngozi Ndulue for a wide-rang­ing con­ver­sa­tion mark­ing the 35^th anniver­sary of McCleskey v. Kemp, a 1987 U.S. Supreme Court deci­sion that reject­ed a con­sti­tu­tion­al chal­lenge to the death penal­ty that showed strong sta­tis­ti­cal evi­dence of racial dis­par­i­ties in cap­i­tal pros­e­cu­tions and death sen­tences. Professor Hoag, for­mer­ly an attor­ney at the NAACP Legal Defense and Educational Fund, Inc. (“LDF”), describes the deci­sion as ​“crit­i­cal­ly impor­tant to our under­stand­ing of the death penal­ty and the inher­ent anti-Black racism that runs throughout it.”

Hoag explained that McCleskey was one of a series of cas­es brought by LDF to chal­lenge the con­sti­tu­tion­al­i­ty of the death penal­ty. Warren McCleskey, a Black man, was accused of killing a white police offi­cer in Atlanta, Georgia. LDF’s chal­lenge was based on ​“the way that the state of Georgia was admin­is­ter­ing the death penal­ty because it was racial­ly dis­crim­i­na­to­ry against Black defen­dants, but most par­tic­u­lar­ly because it tar­get­ed defen­dants of either race for killing white vic­tims.” This argu­ment was sup­port­ed by a study con­duct­ed by social sci­en­tist David Baldus, who ana­lyzed more than 2,000 Georgia mur­der cas­es and con­trolled for 230 fac­tors as to why the state might seek the death penal­ty. Baldus ​“found over­whelm­ing evi­dence that when you iso­lat­ed all oth­er fac­tors, the state was rely­ing most heav­i­ly on the victim’s white race,” said Hoag. 

Still, the U.S. Supreme Court decid­ed that McCleskey’s death sen­tence did not vio­late the Eighth and Fourteenth Amendments of the Constitution. ​“The major­i­ty of the Court said sta­tis­tics aren’t enough,” Hoag said. ​“The major­i­ty seems to make an argu­ment that if they were to hold the state of Georgia dis­crim­i­nat­ed against Mr. McCleskey based on the sta­tis­tics of … this racial dis­par­i­ty, that the Court would have to admit that there were racial dis­par­i­ties in the entire crim­i­nal adju­di­ca­tion sys­tem, and that if Mr. McCleskey pre­vailed that would call into ques­tion essen­tial­ly, the way that we adju­di­cate all crim­i­nal mat­ters.” The McCleskey dis­sent char­ac­ter­ized this con­cern as the ​“fear of too much justice.”

Hoag described the imme­di­ate reac­tion to the deci­sion, with schol­ars at the time com­par­ing the case to Dred Scott, and how McCleskey con­tin­ues to affect lit­i­ga­tion. ​“The stud­ies that have come out after McCleskey have real­ly just solid­i­fied, cor­rob­o­rat­ed every­thing that Baldus looked at.” But the U.S. Supreme Court remains focused on grant­i­ng relief only in iso­lat­ed cas­es of egre­gious racial dis­crim­i­na­tion in death penal­ty tri­als. According to Hoag, the Court does not ​“want to admit that there are larg­er struc­tur­al sys­tems that play, that we live in a soci­ety that is dic­tat­ed by … anti-Black racism.” 

In dis­cussing McCleskey​’s lega­cy, Hoag not­ed the regrets of Justice Lewis Powell, the author of the deci­sion. ​“Justice Powell was asked to reflect on his time on the Court. I think he’d been on the Court for almost two decades and a biog­ra­ph­er [asked] if there was any case that he would change his vote on. Without hes­i­ta­tion, he said, McCleskey v. Kemp,” Hoag explained. 

Hoag and Ndulue also dis­cussed Hoag’s Valuing Black Lives: A Case for Ending the Death Penalty, a 2020 law review arti­cle that argues that cap­i­tal pun­ish­ment is uncon­sti­tu­tion­al and should be abol­ished because statutes con­tin­ue to sys­tem­i­cal­ly dis­crim­i­nate on the basis of the race of mur­der vic­tims. ​“The Fourteenth Amendment was sup­posed to pro­vide an equal pro­tec­tion of the laws to Black vic­tims of crime, but also an equal pro­tec­tion of the laws to Black peo­ple charged with com­mit­ting crimes,” Hoag said. ​“And you have now this still mas­sive dis­par­i­ty in Black peo­ple who have been charged with mur­der­ing white vic­tims and with Black vic­tims of crime whose cas­es are not being sort of aggressively prosecuted.” 

“And the rem­e­dy is not nec­es­sar­i­ly let’s seek the death penal­ty more to equal out — you know, make sure every­one who was charged with mur­der­ing a Black per­son is also sen­tenced to death. … [T]he solu­tion is real­ly to get rid of the death penal­ty,” she said.