35 Years After McCleskey v. Kemp, Prof. Alexis Hoag Discusses the Decision’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 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.”


Ngozi Ndulue 0:01

Hello, and welcome to discussions with DPIC. I’m Ngozi Ndulue, Deputy Director of the Death Penalty Information Center. In this episode, we’re marking the 35th anniversary of the landmark Supreme Court decision McCleskey vs Kemp. I’ll be speaking with Alexis Hoag, Assistant Professor of Law at Brooklyn Law School, and a member of DPIC’s Board of Directors. Professor Hoag spent more than a decade as a civil rights and criminal justice lawyer before joining the faculty of Brooklyn Law School, where she teaches and writes about criminal law. She has published numerous law review articles on race in the criminal legal system, including a 2020 article titled “Valuing Black Lives: a Case for Ending the Death Penalty. Thank you for joining us, Professor Hoag.

Alexis Hoag 0:46

Ngozi, thank you so much. It’s a pleasure to be with you.

Ngozi Ndulue 0:49

Let’s just start out with some general background. Many of our listeners may be familiar with McCleskey vs Kemp, and how this case has affected capital sentencing, but for those who are unfamiliar, could you just give us a broad strokes about what happened in the case and why it’s been so consequential?

Alexis Hoag 1:08

I’m happy to do that. And I teach, you mentioned, at Brooklyn Law, one of the courses is criminal procedure adjudication and McCleskey vs. Kemp is one of the seminal cases that we cover in that class and it involved a death eligible murder in Georgia. Warren McCleskey, who’s a black man, was charged with committing murder in Fulton County, it’s where Atlanta is, in 1978. According to the state’s theory, he and two other accomplices engaged in a store robbery and then during the course of that robbery, there was a white police officer who was shot and killed. And the evidence was actually inconclusive about who may have fired the fatal shot; however, there was evidence tying the gun that Mr. McCleskey had, with a bullet that had killed the officer. And so you fast forward, there was a trial in which the Fulton County District Attorney’s office sought the death penalty against Mr. McCleskey. They relied on two aggravating circumstances: one was that the victim was a police officer. The second was that the murder occurred during the course of a felony, and then during the defense’s case, when they had an opportunity to raise any mitigating circumstances, the defense here didn’t actually raise a single mitigating circumstance. There is much to be said about that fact, however, this was not an ineffective assistance of counsel case. Ultimately, it was a case that the NAACP Legal Defense and Educational Fund decided to take up to mount a challenge to the constitutionality of the death penalty. I know you asked me, Ngozi, about McCleskey but it requires a tiny bit of background. LDF had litigated a number of death penalty cases in the 70s. And one, Furman vs Georgia, decided in ‘72, resulted in a four year temporary pause on the death penalty. The Supreme Court had decided that as it was being administered, it violated the Constitution. It was arbitrary, it was like getting struck by lightning, states’ decision-makers needed guidance. And the Supreme Court decided four years later, in a group of consolidated cases, that if states gave guidance to prosecutors, gave guidance to jurors, then death penalty statutes and individual cases, individual states would be okay.

Ngozi Ndulue 3:29

So McCleskey comes after there was a big overhaul of death sentencing in the states and we’re still challenging the fundamental way that states are pursuing the death penalty?

Alexis Hoag 3:41

Exactly. And what was so critical about LDF’s campaign in Mr. McCleskey’s case, on his behalf, was that it was really the culmination of having litigated a capital cases over the previous 15 years. LDF had successfully taken off the table cases in which the defendant had been charged of rape of an adult woman, that was no longer a death eligible offense. They’ve been working on racial discrimination, you know, in terms of the jury’s consideration, they wanted to make sure that jurors had the ability to be questioned on racial bias. So there, there were concerted efforts that LDF had to narrow, really the use of the death penalty and then McCleskey’s case, when they brought before the court and it was decided in 1987, when they brought it before the court this was going to be the big case, it was going to challenge the death penalty. And the challenge that they brought was based on the Eighth Amendment, which prohibits cruel and unusual punishment, and then also on the 14th Amendment, which prohibits the unequal application of the law. And so LDF’s theory here was that the way that the state of Georgia was administering the death penalty, it was racially discriminatory against black defendants, but most particularly, because it targeted defendants of either race for killing white victims. So essentially, it was prioritizing the life-worthiness of white victims and undervaluing, under-prioritizing the death of black victims. And so Georgia wasn’t seeking the death penalty as frequently in cases in which the victim was black and they were seeking it more frequently in cases in which the victim was white. And the most frequently when you had a black defendant, such as Warren McCleskey, who was charged with killing a white victim, which is what we had in this case.

Ngozi Ndulue 5:37

How did the United States Supreme Court approach that evidence? How did they actually, you know, say that in a system that was supposed to be completely revamped, when you have this evidence of racial differences in the way that the death penalty is being sought and actually being obtained? And what constitutional effect does that have?

Alexis Hoag 6:01

It’s frustrating to think about, and my students had a hard time grappling with the court’s rationale here, because the evidence was so clear, and LDF had reached out to an academic, David Baldus, who was based in Pennsylvania, to conduct a study. And so he looked at 2,000 murder cases in the state of Georgia, all brought in the 1970s, which is when Mr. McClesky’s case was prosecuted in the late 70s. And they looked at 230 different factors that can be part of a state’s decision to seek death and they found overwhelming evidence that when you isolated all other factors, the state was relying most heavily on the victim’s white race. And then, the combination really of black defendants and white victims, that was the most likely a situation in which Georgia would seek the death penalty. And our 14th Amendment says exactly that you cannot do that, it was ratified in 1866 and it was really meant to protect against racial disparities in prosecutions, and then to protect black victims of crime, so it’s good to do both of those things. And so here you have this case in the 20th century, which seems to be based on statistics directly in violation of the 14th Amendment and the majority of the court said the statistics aren’t enough. You haven’t shown, based on just statistics, that the state of Georgia was purposefully discriminating against Warren McCleskey when they sought death against him in this case. And so the Supreme Court was really asking for what we call smoking gun evidence. And I want to say that they said we need to see exceptionally clear proof under the 14th Amendment and your statistics, Mr. McCleskey and LDF, simply don’t cut it.

Ngozi Ndulue 7:56

And you talked a little bit about your students reaction to the case, what how was McCleskey received at the time that the decision came down? Do you think our kind of opinions about the importance or the issues with the case have changed since then?

Alexis Hoag 8:12

In some ways? Yes. In other ways? No. I mean, my understanding is that when the case was decided there was a lot of backlash. And in fact, in the dissents, this was a five four decision. And in the dissent, you had Justice Brennan really accused the majority of being afraid of too much justice. The majority seems to make an argument that, you know, if they were to hold that the state of Georgia discriminated against Mr. McCleskey based on the statistics of sort of this racial disparity, that the court would have to admit that there were racial disparities all in the 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. And I think, you know, the two of us, we can we can likely, we can easily say, well, yeah, of course and Michelle Alexander, you know, would say the same thing in, you know, The New Jim Crow, she has said the same thing. So there was an immediate sort of backlash when the decision came out. Scholars and others have called it a sort of the modern day Dred Scott decision and Dred Scott, which was decided in the late 1850s, essentially held that the framers, the constitutional framers, never intended black people to be citizens. And so many have put McCleskey vs Kemp in the same camp, really as cases like like Dred Scott.

Ngozi Ndulue 9:44

As we’re kind of marking this 35 years since McCleskey, how can our modern perspective changes either its significance, its impact, because if we think about the facts that we have in front of us, so we had in McCleskey, this study done by David Baldus. It says, you know, the odds are 4.3 times higher for cases where there was a white victim to end up with the death penalty. But we have new studies that have been published that show that the impact of race is even more pronounced than it was recognized to be at that time. So, for example, there’s a recent article that followed the group of defendants from the original Baldus study, and found that defendants were 17 times more likely to be executed in cases with white victims. So what more do we know? What are additional facts that we know that shed light on the role that race is playing in capital punishment systems?

Alexis Hoag 10:57

Yeah, thank you for that invitation. You know, the studies that have come out after McCleskey have really just solidified, corroborated everything that Baldus looked at in that 1987 decision. And many of these subsequent studies came from David Baldus, others, my former colleague, Jeff Fagan, at Columbia Law School did a study on sort of police investigations closing, identifying a suspect in a murder case, and basically bringing that case to the prosecutors to decide what charges to seek. And it’s called sort of a murder clearance rate and Jeff Fagan found that that even at that initial threshold level, that police officers clear cases far more frequently when the victim is white, and how can we explain that? I think it’s a number of factors and Jeff’s study didn’t necessarily point to any one in particular, but this idea of white victim cases garnering more attention, more police resources, others are more invested in sort of bringing about this concept of justice, than if a black victim case. We also see in terms of jury sentencing, so the jurors are also the ones that make a decision. So this comes after police clears the case, it comes after the prosecutor decides to seek the death penalty. And then you know, the case is actually brought to trial and so then, now jurors are charged with determining guilt or innocence, they determine guilt, and then they move into this sentencing phase. And so there’s a fantastic study conducted by Jennifer Eberhardt and Sherlyn Johnson, where they looked at basically the phenotypical features of defendants and they found that defendants who are more phenotypically black: darker skin tone, broader nose, thicker lips coarser hair. They are more likely to be sentenced to death than a similarly situated, so similarly aggravated crime committed by someone who was less phenotypically black. And so we’re seeing sort of across the board, there was another study conducted with just within the last few years looking at who’s ultimately executed. So here, we’re moving further along the decision making process, police make the decisions, prosecutors, jurors, reviewing courts, and then ultimately, the individual departments of corrections carrying out an execution. And again, it’s black defendants charged, convicted with murdering white victims, that are those that throughout that entire process are the least likely to have obtained post conviction relief, the least likely to obtain, obtained clemency, you know, maybe from a governor at that sort of 11th hour stage of decision making and are ultimately actually executed. So if anything, the evidence that David Baldus brought on behalf of Mr. McCleskey has just become even stronger in the subsequent 35 years.

Ngozi Ndulue 13:51

So then that kind of raises the question, okay, so what next? So we have strong statistical evidence and Baldus already showed the Supreme Court strong statistical evidence, and the Court was not willing to grant relief based on that, so the Court focused on this particularized discrimination, that each individual defendant has to prove that he faced particularized discrimination in his trial. Has this avenue for demonstrating racial discrimination been at all successful? And what are some obstacles that you’ve seen in trying to actually make that that showing?

Alexis Hoag 14:34

Ngozi, it puts such a high burden on all of us as advocates, right. And so yes, there have been cases in which litigants were able to show sort of individualized, particularized racial discrimination. And those are the cases where this Supreme Court, under Chief Justice Roberts, have ruled in favor of a defendant and I’m thinking specifically of, you know, Duane Buck’s case, Duane Buck vs. Davis, which was also a LDF case. And there the court was dealing with ineffective assistance of counsel. So we’ve taken it outside of the context of the Eighth Amendment, outside of the context of the 14th Amendment. And there, the Court was able to lay blame on defense counsel, which is often a safer bet for the Court, as opposed to pointing the finger at the entire state of Georgia. And so in Mr. Buck’s case, you know, he was prosecuted and convicted in the state of Texas, and there, a part of the state’s death sentencing scheme is an aggravating circumstance having to do with whether or not a defendant is likely to be dangerous in the future. That’s a determination that the jury in Texas has to find. And there, Mr. Buck’s defense counsel actually put on a defense expert that testified that he had relied on the fact that Mr. Buck was black, to make the determination that Mr. Buck would be more dangerous in the future, essentially, because he was black. And defense counsel put on this evidence, the state cross examined the expert on this evidence, it came up again briefly during closing argument. And there, Chief Justice Roberts, writing for the majority, did grant relief and essentially said defendant should be sentenced for what they have done, not who they are. Mr. Buck can’t change the fact that he’s black, we should not as a society, as a criminal justice system, sentence someone to death because of race. And so there, they really wanted to tie it to, you know, a single defendant, a single issue, a single instance, because the Court as it is comprised of today and even you know, with when Mr. McCleskey’s case came before the Court there, they don’t want to admit that there are larger structural systems at play, that we live in a society that is dictated by the decisions that society makes is dictated by anti-black racism, which we know is true. And we see a real resistance to the Court wanting to admit that.

Ngozi Ndulue 17:05

I would highlight for our listeners that there are some cases to watch that talk about this question of future dangerousness. Cruz vs Arizona case is in front of the United States Supreme Court and will be argued this fall talking about this specific issue. And that’s just one example of this question about how juror perceptions about race, and here in Mr. Buck’s case, expert perceptions, continue to affect the way people are getting sentenced to death. So if the bar is so high on this particularized discrimination question, and one of the reasons that the Court seemed really hesitant to engage meaningfully with this study was the concern that the same disparities might be seen throughout the criminal legal system. So do we see the McCleskey decision having an impact on the way that racial bias claims are seeing in other areas of the criminal legal system, outside of the capital punishment context?

Alexis Hoag 17:09

Some commentators say that McCleskey didn’t have as big of a reach, really as as folks were fearful that it would, but I don’t see where we have the successful large scale challenges, particularly at the federal level, having to deal with racial discrimination in the criminal adjudication process. If anything, those doors continue to be closed. There is a challenge on a discovery issue in a federal prosecution case having to do with federal prosecutors seeking federal charges against really only black people engaged in alleged drug trafficking of crack cocaine. This is a case that was litigated in Los Angeles, it was the Central District of California. And it was on a pretrial discovery issue, because essentially, the defendant wanted to bring a selective prosecution claim. And this is U.S. vs Armstrong, and ultimately, the Supreme Court said no, you’re not even entitled to discovery on this issue because even though you’re showing statistics like the ones Mr. McCleskey brought, that show that prosecutors and in this instance, it was like they were only prosecuting black defendants in federal court, white defendants engaged in drug trafficking with cocaine and crack are all in state court. And they said it’s not enough to show and you can’t, they basically just closed the door on discovery. It wasn’t even like the crux of the of the case yet, and we see this in the Fourth Amendment context with traffic stops of black motorists. So the Supreme Court isn’t necessarily citing McCleskey, but they are adopting basically the same energy, the same pessimism, the same narrow mindedness when when considering these large scale challenges, and what do we do as as advocates not just in the capital context, but in you know, the non-capital context? And I think that’s what’s so attractive about conversations around abolition, and looking at abolition as not just, you know, a theoretical framework, but how do you implement that in practice. And it’s happening outside of law schools, it’s very much present in, you know, community organizing, and other sort of sort of contexts. But looking at just how ineffective incarceration is, how ineffective the death penalty is, it’s there’s arguments that it’s not necessarily a deterrent, but it doesn’t provide a sense of sort of justice or necessarily even closure, and it ends up perpetuating violence and harm more than it does addressing and stopping violence and harm. I’m hopeful, you know, as I have these conversations with my students, that their view of how to challenge the sort of structural discrimination that we see, that Mr. McCleskey experienced, they are much more innovative and much more creative, certainly than I was, you know, in law school, even as an advocate. I mean, I see them thinking much, much, much bigger picture in much more imaginative ways.

Ngozi Ndulue 21:07

This is a great transition to talk a little bit more about your scholarship and how you’re thinking about these issues, and particularly looking at the way that the capital punishment system treats black victims here. So you have a Columbia Human Rights Law Review article titled “Valuing Black Lives: a Case for Ending the Death Penalty,” where you kind of draw on a historical understanding of the 14th Amendment. Could you talk a little bit about what your research shows about the 14th Amendment’s purpose as far as black victims of crime, and any kind of obstacles to our understanding, full understanding of it?

Alexis Hoag 21:52

It’s interesting as an advocate, you know, I started at the Federal Public Defender’s Office in Tennessee, and working on individual cases, my focus was very narrowly tailored to the client before me. I would tend to see sort of patterns in the way that the state of Tennessee sought death in my clients’ cases, but I wasn’t necessarily in a position to mount sort of a large scale challenge. That changed when I moved on to the Legal Defense Fund, but even after leaving LDF, now sort of in as a law professor, I’m able to think about these issues and in a bigger picture way. And it became really clear to me that the tools that Congress gave us, the 39th Congress, in the wake of the Civil War, during Reconstruction, were still really powerful. And they set up these tools and set up this aspirational framework that that we have yet to deliver on in 2022. And so looking at the legislative record, there was a joint committee that convened to discuss basically the state of society in these former Confederate states: what was happening now that the 13th Amendment had passed, that formerly enslaved people, black people were no longer supposed to be enslaved, what mechanisms were set up for the law to protect them? And Congress, the 39th Congress realized that black people were not being afforded the equal protection of laws. And the 14th Amendment is quite expansive. It goes outside of the criminal context, but looking at conversations having to do with criminal laws, we see legislators say, and there is a senator from Michigan, Howard, who said, you know, the 14th Amendment is, is to make sure that a black man is not hanged for a crime, that a white man would not be, essentially because of race. And then, you know, the joint committee listened to basically witnesses that were testifying about the fact that black people were being raped and assaulted and murdered with impunity in the former Confederate states. And when the senators asked, well, you know, why don’t they just go to the court, the sheriff, the local law enforcement officer, and the witnesses, were basically telling Congress like, there’s no forum to help black people who have been harmed who have been victimized or been the victim of crimes. And so the 14th 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. So here we are, fast forward, that article came out in 2020 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 so what do we do? And so I looked back at the 14th Amendment and these early conversations and Congress’s intent, and the remedy is not necessarily let’s seek the death penalty more, to equal out, you know, make sure everyone who who is charged with murdering a black person is also sentenced to death, but rather because we have such clear proof that the death penalty is not being administered in any sort of kind of fair way, because of all the discretion that each decision maker is afforded. We’ve talked already about those studies, that the solution is really to get rid of the death penalty, and to maybe even do a third party sort of standing for a black person facing the death penalty for killing a white victim that can point to a similarly situated case involving a black victim and say, aha, see, this defendant didn’t get the death penalty and it’s because of race. And so I lay out a really specific sort of framework to mount that challenge.

Ngozi Ndulue 25:45

I actually want to pick up on something that you said. Why isn’t the solution well, you know, just more death penalties for folks who are accused of killing black victims, right, like, doesn’t that even things out?

Alexis Hoag 26:00

It’s funny enough, that’s what a lot of states did after Furman. You know, in 1972, the Supreme Court said, well, the way that the death penalty is being administered, it’s it’s arbitrary. And so a number of states, I think it was Texas, Louisiana, North Carolina, Florida, said, okay, well, let’s, let’s just make the death penalty automatic for every murder, that will even things out and so that 1976 consolidated case, Greg vs Georgia, said you can’t do that either. And so asking decision makers to seek death or decide death and black victim cases would bring us all the way back to sort of this automatic death penalty statutes that said, aha, when there’s a murder, there must be a death penalty and we know that’s not lawful. And so it forces us really to grapple with, you know, these large scale issues with the death penalty framework. So we’re forced to have to confront the dehumanization of violence, the racial degradation that’s inherent in death sentencing and we admit that all of these states that still hang on to death penalty sentencing are essentially continuing to undervalue black people and to prioritize the lives of white victims, and we’re not good at it. We’re not as a country, as a society.

Ngozi Ndulue 27:24

Would you have any kind of final words thinking about this, the lasting legacy of Warren McCleskey’s case in the Supreme Court and what it can teach us today, if you had to sum it up?

Alexis Hoag 27:39

Well, if I had to sum it up, you know, I think Justice Powell was asked to reflect on you know, his his time on the Court. I think he’d been on the Court for almost two decades and a biographer was speaking to him about, you know, if there’s any case that he would change his vote on, and without hesitation, he said, McCleskey vs Kemp. I think those of us who are able to take a step back and to reflect on the fact that the death penalty really perpetuates violence, it perpetuates harm, and it inserts the state in perpetuating violence and harm. I think about, you know, the conversations happening in South Carolina about whether to execute someone through shooting them. It’s really disheartening, it’s brutalizing, and it’s dehumanizing. And if we can take a step back from that, and you know, take stock of how it is that we want to operate as a as society, I don’t think that we want to be engaged in committing murder and that’s what we allow our states to do. That’s what we allow our federal government to do as we keep these death sentencing laws on the books.

Ngozi Ndulue 28:48

Professor Hoag, thank you so much for speaking with me today, and for sharing kind of this big picture broad view and challenges about looking at the criminal legal system as a whole and the capital punishment system, specifically.

Alexis Hoag 29:04

Ngozi, it was such a pleasure to be in conversation with you about McCleskey vs Kemp. It’s a decision I certainly didn’t come across in law school. I didn’t engage with it as much in practice, but it’s one that’s so critically important to our understanding of the death penalty and the inherent anti-black racism that runs throughout it. So thank you so much for highlighting this case and of course, thank DPIC for all that you continue to do to shed light on the death penalty.

Ngozi Ndulue 29:33

That is our podcast for today. To learn more about the death penalty, please visit the Death Penalty Information Center’s website at deathpenaltyinfo.org. To read more about the McCleskey decision and find a link to Professor Hoag’s work, please go to our DPIC podcast pages. We’ve included relevant links in our description of this episode. And to make sure you never miss an episode of Discussions with DPIC, please subscribe in your podcast app of choice.