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MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride AMERICAN JOURNAL OF LAW AND EQUALITY | ISSUE 2 | 2022 AMERICAN JOURNAL of LAW and EQUALITY MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride Josh Bowers* In McCleskey v. Kemp, the Supreme Court effectively “closed the courthouse doors” to constitutional claims of systemic racism in the criminal-legal system. The defendant, Warren McCleskey, had offered a sophisticated academic study demonstrating pro- nounced racial skews in the administration of capital punishment in Georgia. Consistent with social science before and since, the study showed that the race of the victim was the most significant variable in determining whether a murder defendant faced or received a sentence of death. Remarkably, the Court credited the study’s robust findings; yet in an opinion authored by Justice Lewis F. Powell, a five-Justice majority held the study largely irrelevant, concluding that its statistics could demonstrate neither “exceptionally clear proof” of purposeful discrimination to establish an equal protection claim nor a “substan- tial risk” of “arbitrary and capricious” punishment to establish a claim of cruel and un- usual punishment. *F.D.G. Ribble Professor of Law, University of Virginia School of Law. Many thanks to Elana Oser and Bria Smith for their exceptional research assistance. Thanks http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Law and Equality MIT Press

MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

Bowers, Josh
American Journal of Law and Equality , Volume 2: 43 – Aug 15, 2022
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Publisher
MIT Press
Copyright
© 2022 Josh Bowers. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International license (CC BY-NC-ND).
eISSN
2694-5711
DOI
10.1162/ajle_a_00034
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Abstract

AMERICAN JOURNAL OF LAW AND EQUALITY | ISSUE 2 | 2022 AMERICAN JOURNAL of LAW and EQUALITY MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride Josh Bowers* In McCleskey v. Kemp, the Supreme Court effectively “closed the courthouse doors” to constitutional claims of systemic racism in the criminal-legal system. The defendant, Warren McCleskey, had offered a sophisticated academic study demonstrating pro- nounced racial skews in the administration of capital punishment in Georgia. Consistent with social science before and since, the study showed that the race of the victim was the most significant variable in determining whether a murder defendant faced or received a sentence of death. Remarkably, the Court credited the study’s robust findings; yet in an opinion authored by Justice Lewis F. Powell, a five-Justice majority held the study largely irrelevant, concluding that its statistics could demonstrate neither “exceptionally clear proof” of purposeful discrimination to establish an equal protection claim nor a “substan- tial risk” of “arbitrary and capricious” punishment to establish a claim of cruel and un- usual punishment. *F.D.G. Ribble Professor of Law, University of Virginia School of Law. Many thanks to Elana Oser and Bria Smith for their exceptional research assistance. Thanks

Journal

American Journal of Law and Equality – MIT Press

Published: Aug 15, 2022

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