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The Legacy of McCleskey v. Kemp

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The McCleskey opinion has had far-reaching effects on all kinds of equal-protection claims. The precedent impairs constitutional challenges based on widespread racial disparities not just in capital sentencing, but in the criminal-justice system more widely; it requires defendants to prove discrimination on a specific basis, providing clear evidence that they were explicitly targeted because of their race. If police officers, prosecutors, judges, or others don’t openly acknowledge their own prejudices, defendants face a prohibitively high bar fighting for their Fourteenth Amendment rights in court.

If one of the justices in the majority had voted the other way, the Court may have not only overturned McCleskey’s sentence, but also ruled Georgia’s capital-sentencing system unconstitutionally discriminatory. Such a decision would have provided a powerful precedent for contesting the death penalty at the national level—and the racial biases of the country’s broader criminal-justice system. Powell himself came to regret his decision before long, but too late to change the outcome of the case. In 1991, four years after Powell retired from the Supreme Court, his biographer asked him if, given the chance, he would change his vote in any case he had presided over. “Yes,” Powell told him. “McCleskey v. Kemp.”

In the decades since the case was decided, legislators and state courts have sought to address the systemic racial disparities that McCleskey acknowledged but did nothing to correct. Beginning in 1988 with the introduction of the Racial Justice Act, which would have prohibited “the imposition or the carrying out of the death penalty in a racially disproportionate pattern,” Congress has proposed more than a dozen laws to counteract the ruling. None of them has passed.

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