This year the U.S. Constitution turns 200. For many Americans the milestone is 1987's excuse for jingoistic hoopla and celebration. But as the patriots churn out speeches and editorials, and as the "Constitutional Minutes" hit the airwaves, some citizens are not joining the celebration. Some cannot forget that our country's founding document granted blacks the status of property and appraised the value of a black life at three-fifths of a human being.
Two centuries after the founding fathers put pen to parchment and made racism a cornerstone of the nation, the powers-that-be have given a new dose of constitutional legitimation to racial discrimination. On April 22 the Supreme Court, empowered by the country's citizens to be ultimate arbiter of justice, turned its back on overwhelming evidence that black lives are still valued at a fraction of white lives. The court ruled 5-4 against Warren McCleskey, a black man from Georgia convicted in 1978 of killing a white police officer during an armed robbery.
Hailed by many as "the most important death penalty decision in a decade," the court's ruling in McCleskey v. Kemp was a serious blow for death row prisoners and death penalty opponents. A change of one vote would have cast into doubt the death sentences of hundreds of the almost 1,900 prisoners awaiting execution.
McCleskey's defense was based on the contention that capital punishment is applied in a racially discriminatory way. His counsel relied heavily on a statistical study of 2,484 Georgia murder cases by University of Iowa law professor David Baldus. The study concluded that those who kill whites in Georgia are almost 11 times more likely to be sentenced to die than those who kill blacks. Further, the study showed that blacks who killed whites were given the death penalty three times more often than whites who killed whites.
IN REACHING ITS DECISION, the high court accepted the validity of the Baldus study but said that the study nevertheless does not prove that Georgia's laws violate the constitutional guarantee of equal protection. Further, the court stated that McCleskey, who was convicted by a jury of 11 whites and one black, failed to prove discrimination in his particular case. Jack Boger of the NAACP Legal Defense and Educational Fund, McCleskey's attorney in the case, said that to provide such evidence would have been impossible "short of a confession by the jurors."
Boger told Sojourners that he was "extremely disappointed and...quite astounded" at the court's decision. "All the evidence was one-sided and absolutely clear," he said. "We thought that once the facts were conceded, the outcome was virtually inevitable under the Constitution: that death sentences would be vacated."
Boger pointed out that this country has not seen such behavior by the Supreme
Court since the late 19th century when it decided Plessy v. Ferguson, the infamous "separate but equal" ruling. "The implications [of the McCleskey decision] are very disturbing," he continued. "The court seems to be saying, 'To accept the fact of racial discrimination would undermine our credibility in the criminal justice system. We can't accept the obvious because it may cause us problems elsewhere.'"
Ironically, it was the same argument of racial discrimination in sentencing that led the Supreme Court 15 years ago to strike down the death penalty. In its landmark Furman v. Georgia decision, the court stated that harsher treatment for blacks constituted "cruel and unusual punishment." According to David Burke, a South Carolina lawyer, the irony in the McCleskey decision is that the defendant had the solid evidence of discrimination that was merely speculative in Furman's case, but "what [he] didn't have was public opinion."
Writing the court's majority opinion, Justice Lewis F. Powell Jr. defended the court's ruling by stating, "Apparent disparities in sentencing are an inevitable part of our criminal justice system." He claimed that the Baldus study shows "at most...a discrepancy that appears to correlate with race." An independent critic pointed out that the correlation between race and death sentences in Georgia is two-and-a-half times as strong as the widely acknowledged correlation between smoking and heart disease.
Powell also stated his concern that, if McCleskey's claim had been upheld, "the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender."
OPPONENTS AND SUPPORTERS of the death penalty agree that the McCleskey decision reflects the court's increased willingness to uphold the death penalty. The day before the decision, the court broadened imposition of capital punishment by ruling that accomplices to a murder may now be sentenced to death.
Writing in 1985, John Conyers Jr. (D-Mich.) chair of the House Judiciary Subcommittee on Criminal Justice, pointed out that of the 35,000 people imprisoned for murder, only 1,500--less than 3 percent--had been consigned to death row. The chances of survival depend on countless factors: the inclinations and ambitions of local prosecutors, the skill or incompetence of court-appointed defense attorneys, the whims of juries to impose or not impose the death sentence, the unpredictability of appeals processes, and the defendant's ability to pay for defense counsel. Conyers wrote that the death penalty was "tantamount to a lottery in which life-and-death decisions depend largely on race, income or just bad luck."
Warren McCleskey's lawyer provided documented proof of such discrimination in the most exhaustive study of the subject to date. And the court said that it did not care.
Although many death row prisoners have not exhausted appeals on grounds other than racial discrimination, the McCleskey decision will probably affect the number of executions. The system of state execution has been "on hold" for seven or eight months, explained Boger, and now it will "resume the regular pace of executions."
Because it leveled such a broad challenge to the constitutionality of the death penalty, many death penalty opponents considered the McCleskey case the "last best chance" of overturning it. But Boger and others have seen opportunity in an otherwise bleak situation. "Oddly enough," said Boger, "the very judicial cynicism that infuses the system, its tolerance for racial discrimination, will help us with the courts and legislative bodies. McCleskey is the first decision where the ordinary person is saying, 'I'm shocked.'" Boger thinks the decision may help lead the public to have a "permanent bad conscience" about capital punishment.
Boger compared the decision to the U.S. invasion of Cambodia during the Vietnam War: "On the one hand, it widened the war; but on the other hand, it worked against the administration. Public outrage over it helped bring an end to the war." Similarly, with the McCleskey decision, Boger stated, "the moral corruption it tolerates may help turn around the public mind."
Boger pointed to another sign of hope: "We've seen nothing in the capital punishment fight that has so galvanized the black community. For the first time, our allies working on housing and job issues are calling us up." He sees the possibility of new political alliances and renewed energy to work against the death penalty.
Writing the court's dissenting opinion, Justice William J. Brennan Jr. stated that "the risk that race influenced McCleskey's sentence is intolerable by any standard" and that "nothing could convey more powerfully the intractable reality of the death penalty" than its racial bias. He stated further that in his view the death penalty is "in all circumstances cruel and unusual punishment." There are many others who agree with Brennan; and they will not abandon their fight to preserve lives.
Joyce Hollyday was associate editor of Sojourners when this article appeared.
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