Insofar as their implicit racial biases affect prosecutors’ assessment of the heinousness of various crimes, the exercise of this discretion can affect who lives and who dies.

For example, Batson did nothing to remove prosecutors’ vast discretion over whether to seek the death penalty in the first place. In any event, Batson failed to address other ways that racial prejudice can surface in death penalty cases. However, the fact that prosecutorial teams can almost effortlessly concoct and claim benign, non-racial reasons for striking potential jurors of color means that many race-based peremptory challenges probably go unpunished. To be sure, Batson has and had made it easier to thwart prosecutorial attempts to strike jurors because of their race. The availability of Batson-based relief, the Court suggested, minimized the odds of unfair capital trials, thereby casting doubt on death penalty abolitionists’ contention that the death penalty was irredeemably racist in its application.Īs Carol and Jordan Steiker have pointed out, the Court in McCleskey overstated its case. Crucial to the majority opinion was the Court’s “Batson Doctrine,” named for a then-recent case in which the Court made it more difficult for prosecutors to strike potential jurors on racial grounds. Even so, capital punishment (for other crimes) stayed in place, as did the plague of racism that infected it.Ī decade after Coker, the Court addressed the racial issue head-on in McCleskey, where the majority suggested that it was possible to administer the death penalty in a sufficiently race-neutral way. Given the sordid history of the death penalty for rape as a mechanism of racial terrorism in the United States, this was a remarkable achievement. Georgia that executing people for rape was so disproportionate as to violate the 8th Amendment. Those seeking to circumscribe the racialized system of capital punishment by ending executions for rape (of grown women) got their victory in 1977, when the Court ruled in Coker v. It was only at the insistence of Chief Justice Earl Warren-who apparently felt it necessary for the Court to sidestep the charged issue of black crime-that Goldberg did not mention race in his dissent to the denial of review of Rudolph’s case. We now know that Justice Arthur Goldberg, who authored this dissenting opinion, was largely concerned about the death penalty’s disproportionate impact on black men convicted of raping white women. Although the Court ultimately declined to hear the case, three (outnumbered) justices argued that executions for rape raise important constitutional questions and that the Court, therefore, had good reason to weigh in. Alabama, Frank Lee Rudolph, a black man in Alabama, petitioned the Supreme Court for review of his death sentence for raping a white woman. Instead, it must mean taking many of those powers away from the government outright.Įfforts on the high court to excise racism from the administration of the death penalty date back to 1963 (at the latest). If our history with the death penalty is any indication, successfully taming the governmental beast cannot mean simply regulating (that is, making regular) the government’s exercise of all of its awesome powers. If government officials are in a position to discriminate in life-or-death siutations, Americans will continue to die because of discrimination. As long as it retains tremendous power, the government will be tremendously dangerous. As we maneuver our way through a political moment pregnant with possibility-in which the foundations of our criminal justice system are under heightened scrutiny, and in which “ abolitionists” debate “reformists” about the best path forward-we should be mindful of what the results of our national experiment with the death penalty suggest. Nearly 35 years later, that conviction has proved unfounded. Kemp expressed its hope and conviction that, even without a wholesale abolition of capital punishment, any troubling racism in executions was destined to end through Court-facilitated adjustments to the ultimate punishment. In the context of capital punishment, the Supreme Court has opted affirmatively for the former course of action. When confronted with overwhelming evidence of a discriminatory state practice, a decent society responds in one of two ways: by trying to remove discrimination from the practice, or by scrapping the practice altogether.

Tommy raskin harvard death