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 35th 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.


Discussions With DPIC, On the 35th Anniversary of McCleskey v. Kemp, Prof. Alexis Hoag Discusses the Decision’s Legacy, May 11, 2022; Alexis Hoag, Valuing Black Lives: A Case for Ending the Death Penalty, Columbia Human Rights Law Review, Spring 2020.