In 1987 the Court denied relief to Warren McCleskey, an African American man who had been sentenced to death for the murder of white Atlanta Police Officer Frank Schlatt during a furniture store robbery. McCleskey’s claim was that his death sentence was the product of racial bias in the administration of the death penalty. He argued that but for the race of his victim, he would have received a long prison sentence instead of death.
McCleskey backed his claim with state-of-the-art statistical evidence, which in any other context the Court would have, and in fact had, taken as proof of discrimination. The Court, literally fearing the consequences of “too much justice,” declined to recognize McCleskey’s proof of discrimination. It opined that to grant relief to McCleskey might topple the death penalty entirely, if not the whole criminal justice system which itself is rife with disparities.
We mark the anniversary of McCleskey v. Kemp to remind ourselves that addressing racial bias in the administration of capital punishment is still unfinished business.
There is no federal remedy for racially skewed death sentencing and only two states, Kentucky and North Carolina, have passed legislation to address the problem.