In an op-ed writ­ten for the 25th anniver­sary of the U.S. Supreme Court​’s deci­sion in McCleskey v. Kemp, nation­al­ly acclaimed death penal­ty expert James Acker (pic­tured) called for a reassess­ment of how race is affect­ing death penal­ty deci­sions. Prof. Acker ques­tioned the Court’s refusal to find bias in the wake of the strong sta­tis­ti­cal evi­dence pre­sent­ed in that case. He wrote, ​“The time has sure­ly come for a sober reassess­ment of this rul­ing” and ​“we must ques­tion if jus­tice tru­ly has been served when racial prej­u­dices influ­ence cap­i­tal case deci­sions.” Acker not­ed that the recent case involv­ing the shoot­ing of Trayvon Martin by George Zimmerman in Florida rais­es the ques­tion of ​“how con­fi­dent [we can be] that the per­ni­cious influ­ence of race has been expunged from pun­ish­ment by death?” Read full commentary below.

Life, death and race — -How col­or-blind is jus­tice, espe­cial­ly in capital cases?

25 years ago today, on April 22, 1987, the Supreme Court decid­ed McCleskey vs. Kemp, a case wide­ly regard­ed as pre­sent­ing the last broad-based con­sti­tu­tion­al chal­lenge to the death penal­ty in America. Warren McCleskey, a black man, was sen­tenced to death in Georgia for mur­der­ing Frank Schlatt, a white police offi­cer. A study by pro­fes­sor David Baldus revealed that death sen­tences in the state were sig­nif­i­cant­ly more like­ly in white-vic­tim mur­der cas­es than in com­pa­ra­ble black-vic­tim mur­ders. The race of the mur­der vic­tim proved to be more piv­otal in life and death deci­sions than such legal­ly rel­e­vant fac­tors as whether the offend­er had a pri­or con­vic­tion for a cap­i­tal crime. Race effects were espe­cial­ly pro­nounced in cas­es like McCleskey’s, where the defen­dant was black and the victim white.

In a 5 – 4 rul­ing, the jus­tices dis­missed the con­sti­tu­tion­al sig­nif­i­cance of the doc­u­ment­ed racial dis­par­i­ties. Justice Lewis Powell’s major­i­ty opin­ion rea­soned that McCleskey had not proven that the pros­e­cu­tor or jury in his own case had been influ­enced by race. The sta­tis­ti­cal evi­dence reflect­ing statewide cap­i­tal charg­ing and sen­tenc­ing deci­sions was deemed irrel­e­vant to that critical point.

Yet how could McCleskey have shown that racial bias­es infect­ed his own trial?

Would a pros­e­cu­tor or a juror who allowed racial con­sid­er­a­tions to affect a charg­ing or sen­tenc­ing deci­sion be will­ing to admit it? If racial prej­u­dices oper­ate sub­con­scious­ly, might even well-inten­tioned deci­sion-mak­ers be unaware of their influence?

And why did a major­i­ty of the Supreme Court turn a blind eye to the unde­ni­able lega­cy of race dis­crim­i­na­tion that the sta­tis­ti­cal study had cap­tured in stark, numerical form?

Between the con­clu­sion of the Civil War and rat­i­fi­ca­tion of the 14th Amendment with its promise of the equal pro­tec­tion of the laws, slav­ery had giv­en way in Georgia and oth­er Southern states to the so-called Black Codes, which assigned dif­fer­ent pun­ish­ments, includ­ing death, to blacks and whites who com­mit­ted the same crime.

Sophisticated stud­ies were not need­ed to appre­ci­ate that race and cap­i­tal pun­ish­ment went hand in hand deep into the 20th cen­tu­ry when, for exam­ple, 9 out of every 10 men exe­cut­ed for rape were black and almost invari­ably had been con­vict­ed for vio­lat­ing white women.

We can only spec­u­late about whether racial stereo­typ­ing and prej­u­dices played a role just weeks ago, when George Zimmerman shot and killed Trayvon Martin in a gat­ed com­mu­ni­ty in Sanford, Fla. Whatever ensued between those pri­vate cit­i­zens unfold­ed and esca­lat­ed rapid­ly, demand­ing split-sec­ond judg­ments imbued with lay­ers of ambi­gu­i­ty. It is alto­geth­er dif­fer­ent to won­der how the Supreme Court, speak­ing with calm delib­er­a­tion and as the font of America’s most fun­da­men­tal con­sti­tu­tion­al val­ues, could have allowed Warren McCleskey to be exe­cut­ed with the imprint of race stamped so clear­ly on Georgia’s death penalty law.

Some main­tain that ​“unequal jus­tice is still jus­tice” — that the con­vict­ed mur­der­er of a police offi­cer, such as McCleskey, should not be heard to com­plain even if race was a fac­tor in his exe­cu­tion. It has been argued, by anal­o­gy, that black motorists who exceed the speed lim­it are not treat­ed unjust­ly when issued traf­fic cita­tions even if white motorists dri­ving just as fast are not cit­ed. Speeding is speed­ing. Just deserts are just deserts, even if not equally distributed.

Still, it is odd to be asked to sac­ri­fice equal­i­ty for jus­tice when the facade of the Supreme Court build­ing — bear­ing the words, ​“Equal Justice Under Law” — sug­gests that both must be served. And we must ques­tion if jus­tice tru­ly has been served when racial prej­u­dices influ­ence cap­i­tal case decisions.

Whether any­one deserves to die as pun­ish­ment for a crime demands moral judg­ments that are infi­nite­ly more com­plex, sub­tle and elu­sive than whether a dri­ver has exceed­ed the speed limit.

The debate over whether cap­i­tal pun­ish­ment pro­motes or under­mines jus­tice must cer­tain­ly pre­sume its col­or-blind admin­is­tra­tion. Today, 25 years after the McCleskey vs. Kemp rul­ing, and with the coun­try’s harsh reawak­en­ing to issues impli­cat­ing race, laws, and jus­tice with the trag­ic shoot­ing death of Trayvon Martin, how con­fi­dent can we be that the per­ni­cious influ­ence of race has been expunged from pun­ish­ment by death?

Were he alive today, Lewis Powell would be among those express­ing doubts. Powell retired from the Supreme Court in 1987, just months after he wrote the lead opin­ion in McCleskey vs. Kemp.

He lat­er con­fid­ed to his biog­ra­ph­er that giv­en the chance he would have changed his vote in McCleskey and, indeed, ​“in any cap­i­tal case.” Those sec­ond thoughts came too late for Warren McCleskey, who died in Georgia’s elec­tric chair in 1991.

The time has sure­ly come for a sober reassess­ment of this ruling.

James R. Acker is a pro­fes­sor in the University at Albany School of Criminal Justice, and co-author, most recent­ly, of ​“Wrongful Conviction: Law, Science, and Policy.” He is a founder of the uni­ver­si­ty’s National Death Penalty Archive, the most com­pre­hen­sive repos­i­to­ry of schol­ar­ship and mate­r­i­al devot­ed to cap­i­tal pun­ish­ment in America

(J. Acker, ​“Life, death and race — How col­or-blind is jus­tice, espe­cial­ly in cap­i­tal cas­es?,” Albany Times-Union, April 22, 2012). See Race and U.S. Supreme Court. Listen to DPIC’s Podcast on Race.

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