McCleskey v. Kemp: The Dred Scott Decision of Our Time?

By: Margaret Sivit

In McCleskey v. Kemp (1987), the United States Supreme Court issued a controversial ruling on the role of race in the criminal justice system. The case was an appeal of a sentencing in the 1978 case of Warren McCleskey. In the original case from Atlanta, Georgia, McCleskey was found guilty of murdering an off-duty police officer and was sentenced to death. McCleskey subsequently appealed the conviction, and the case arrived in the Supreme Court in August of 1986.

The defense team for McClesky intended to show that the verdict was unconstitutional, arguing the jury members were predisposed to racial prejudice. In a 5-to-4 vote, however, the Supreme Court ruled sentencing disparities for similarly situated defendants were “an inevitable part” of the administration of justice. Furthermore, “any mode for determining guilt or punishment has its weaknesses and the potential for misuse.” The Court upheld the original verdict, and McCleskey suffered execution by Georgia’s electric chair in September 1991.

McCleskey v. Kemp highlighted findings from a 1983 study contemplating the connection between race and the death penalty, conducted by David Baldus, George C. Woodworth, and Charles A. Pulaski, Jr. The “Baldus study,” as it came to be known, compiled data from the prosecutions of over 1,000 Georgia homicides and subjected them to an intensive statistical analysis. After controlling for 39 nonracial variables, the authors of the Baldus study concluded that defendants accused of killing white victims were 4.3 times as likely to receive the death penalty – of these defendants, those who were black were mostlikely to be sentenced to death.

The official handbook for trial jurors in the United States asserts that as the protectors of life, liberty, and the pursuit of happiness, members of the jury “must be men and women possessed of sound judgment, absolute honesty, and a complete sense of fairness.” The Baldus study indicates that one’s outward “complete sense of fairness” may be undermined by subconscious biases. As the Supreme Court acknowledged, such a claim:

“Throws into serious question the principles that underlie the entire criminal justice system… [and] easily could be extended to apply to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender.”

However, the Court felt that to upend the criminal justice system on such “potentially irrelevant factors” was unnecessary and unwarranted. The Court statement indicated without “exceptionally clear proof” of an active and purposeful “intent to discriminate,” there was no evidence of racial bias.

John Dovidio, professor of Psychology at Yale University, believes that explicit, conscious racism in the United States is on the decline, while subconscious racism is becoming increasingly ingrained in the American psyche. His views are corroborated by a social neuroscience study completed at Yale last month, in which authors Harrison Korn, Micah Johnson, and Marvin Chun used both traditional tests of racial bias and neuroimaging to predict how much money subjects would award victims of hypothetical employment discrimination cases. The traditional black/white, good/bad Implicit Association Test (IAT) were unable to make accurate predictions; however, fMRI (functional MRI) scans measuring neural activity in the right inferior parietal lobule and the right superior/middle frontal gyrus – both areas associated with visceral prejudices and preferences – could be used to make accurate predictions about a “juror’s” decision to award money to a “victim.” According the study’s authors, the results are significant because they show “that neuroimaging data can measure a racial bias that is reflected in juror decisions more effectively than a common behavioral measure–– the IAT.”

Even so, the IAT is a significantly better indicator of social biases than the method currently used for jury selection, which relies on self-reported measures of prejudice.

Korn et al. point out that, due to potential cost and privacy concerns, they “are not suggesting that potential jurors be put in an MRI machine during jury selection for cases where race is salient.” However, their results show that, as explicit racism is increasingly subverted to visceral prejudices, the active “intent to discriminate” is no longer a sufficient marker of the unjust juror. The Sixth Amendment states that every defendant has the right to be tried by “an impartial jury;” accordingly, the jury selection process should be reformed in order to take into account implicit as well as explicit biases. While a truly impartial jury may be impossible, we do not have to resign ourselves to regarding race-based sentencing as inevitable.

Margaret Sivit is a second year in the College.