Twenty years ago this week, Warren McCleskey, an African-American man convicted of killing a white police officer in Atlanta, was executed in the state of Georgia. His case became famous for highlighting the gross racial discrimination in Georgia’s death penalty system, and for revealing the remarkable indifference of the United States Supreme Court to the evidence of racism in death penalty cases.
Georgia chose a tragic way to remember the anniversary with last week’s execution of Troy Davis, also an African-American man convicted of killing a white police officer despite serious concerns about his guilt. Davis’s execution should cause us great concern, not only because he was likely innocent, but because the racial disparities observed in Georgia’s death penalty system more than 20 years ago still resonate in Georgia — and the rest of the country — today.
In a case before the United States Supreme Court, McCleskey presented compelling evidence that Georgia’s death penalty system was being administered in a racially discriminatory manner. The late David Baldus, a law professor at the University of Iowa, studied nearly 2,500 murder cases in Georgia, and found that defendants convicted of murdering white victims were over four times more likely to be sentenced to death as defendants charged with murdering black victims. Georgia valued white lives more than black lives.
The Court assumed the findings of the Baldus study to be true, but in a 5-4 opinion written by Justice Lewis Powell the Court dismissed the racial disparities as an “inevitable part of our criminal justice system.” The discriminatory effect was not enough, the Court said. McCleskey had to show how racial bias had played a role in his particular case. In essence, the Court set the bar so high that a capital defendant could not show that race played a role in his sentence short of a declaration from the prosecutor that “I am seeking the death penalty against you because you killed a white person.” Many observers condemned the decision.
The decision, turning on a single vote, has remained a stain on our criminal justice system ever since, as race continues to play an outsized role in death sentences and executions across the country. Asked years later after he had retired if there was one case in which he would change his vote, Justice Powell said McCleskey.
In 2009, with the passage of the landmark Racial Justice Act, the North Carolina legislature rejected the Supreme Court’s assumption that racism was “inevitable.” The Racial Justice Act gives capital defendants the opportunity to show through statistics and other evidence that race played a role in a capital defendant’s death sentence. The ACLU is representing several capital defendants in North Carolina on their RJA claims.
We must never accept racism in the criminal justice system as “inevitable”, particularly not when a human life is at stake. One day, the McCleskey decision will join the ranks of other shameful legal decisions in our country’s history of race discrimination, like Dred Scottt v. Sandford and Plessy v. Ferguson. Until then, we will continue to expose the racial disparities in the administration of the death penalty.
For a different way to remember the anniversary of McCleskey’s execution, watch for this upcoming film about McCleskey’s mentorship in his final years of a young white teenager from the same Georgia town.