Originally posted by Cassandra Stubbs of the ACLU Capital Punishment Project. April 22 marks the 25th anniversary of the Supreme Court decision in McCleskey v. Kemp, in which the Court ruled that a defendant cannot rely upon statistical evidence of systemic racial bias to prove his death sentence unconstitutional, no matter how strong that evidence may be. McCleskey has been roundly condemned as a low point in the quest for equality that begs to be revisited. To mark the occasion, every day this week the ACLU Blog of Rights will feature a new post about McCleskey and its legacy. You can read all the posts here, and visit mccleskeyvkemp.com to learn more.

Justice Lewis Powell was right when he wrote for the majority in McCleskey v. Kempthat accepting the argument that race played a significant role in the administration of the death penalty would call into “serious question the principles that underlie our entire criminal justice system.” Unfortunately, it was a question the Court was afraid to have answered, and so they chose instead to reject the argument. Their decision seemed driven, in the famous words of Justice William Brennan’s dissent, by a “fear of too much justice.”

The impact of the ruling in McCleskey — that a prisoner on death row could not introduce statistical evidence of racial bias in the system to challenge his death sentence — has reached far beyond the realm of the death penalty. The decision, joined later by others like United States v. Armstrong, has made it nearly impossible to bring direct court challenges to racial disparities in the criminal justice system — of which there are many.

In the last 40 years, this country’s “tough on crime” policymaking and failed War on Drugs have sacrificed the lives and rights of people — predominantly people of color — at the altar of politics. Politicians have opted for senseless overcriminalization and overincarceration that have landed more people in the grips of the criminal justice system in the U.S. than in any other nation. As a result, huge segments of Black and brown communities have been locked into permanent second class status, yielding statistics that both shock and numb. A Black man born today has a one in threechance of being imprisoned during his lifetime. Although government studiesconsistently find that Blacks make up fewer than 15 percent of all drug users, they account for 37 percent of all drug arrests, and 50 percent of state drug felony prisoners. Even though public health surveys find that whites use marijuana at higher rates than Blacks or Latinos, the arrest rates for marijuana possession are disproportionately high for men and women of color. Black people accounted for 93 percent of marijuana possession arrests in Atlanta in 2011. More than 80 percent of marijuana arrests in New York City from 1997 to 2010 were of Blacks and Latinos. The list of horrifying and confounding statistics goes on and on and on.

Unfortunately, McCleskey has left racial justice advocates with few litigation avenues to challenge such gross racial disparities, even in the face of highly sophisticated statistical studies that establish that race bias infects the system. But McCleskey does not spell the end for fairness in the justice system. While the ruling closed the door on direct court challenges to racial disparities in the system, advocates are using other strategies to achieve racial justice. We have not thrown up our hands and declared defeat in the face of the persistent and needless mass incarceration of black and brown communities.

There is a movement afoot of advocates, family members of the incarcerated, the formerly incarcerated, lawyers, organizers, faith leaders, journalists and policymakers working tirelessly all over the country, most fueled by a sense of moral outrage, to expose the racial injustice that is our criminal justice system and to reverse the tide of mass incarceration. Our criminal justice system is so thoroughly contaminated with racial injustice and race disparities at every stage of the system that any rational reform effort will have an impact on communities of color. We are advocating for an end to the War on Drugs as we know it and for a reinvestment of corrections costs into schools, jobs, and access to healthcare and treatment. We are working in state legislatures and with state Departments of Corrections for alternatives to incarceration and more rational and proportional sentencing. We are pushing for laws that create opportunities to challenge racial discrimination in the administration of justice, such as the Racial Justice Act in North Carolina. We are fighting for the human dignity of those arrested and jailed in overcrowded, squalid conditions. We are demanding an end to policies that target and harass communities of color.

This movement is fighting vigorously, often against all odds, to dismantle the machine of mass incarceration in every community and every state. We are working hard to bring others into this movement. And we are reversing the tide, one reform at a time, one story at a time, one case at a time. The McCleskey Court may have been afraid of “too much justice,” but we are not.

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In the second edition of McKinney & Associates’ eBook series, The Death Penalty Failed Experiment: From Gary Graham to Troy Davis in Context, activist Diann Rust-Tierney passionately argues that race, wealth and geography play a greater role in determining who faces capital punishment than the crime itself. (Download the eBook for free.)

“How do you administer the most severe punishment imaginable in a manner that is accurate, free from bias and demonstrably fair?” writes Rust-Tierney. “Until we are all seen and treated as equal, we cannot afford to keep capital punishment.”

Rust-Tierney became the Executive Director of the National Coalition to Abolish the Death Penalty (one of this site’s organizational partners) in 2004. She manages and directs programs for the organization and its 100 affiliates around the country, seeking to change public policy on the death penalty.

“Through social media, our eBook series allows us to continue stories that may have been limited by the print edition,” offers the firm’s founder and President Gwen McKinney. McKinney & Associates was established in 1990 with a commitment to social justice that has been sustained for more than 20 years. From the beginning, McKinney has skillfully practiced public relations with a conscience for local, national and international organizations.

For more on Voice Matters: An Anthology of Public Relations with a Conscience click here.

Levon “Bo” Jones spent 14 years on North Carolina’s death row for a murder he did not commit, before being exonerated in 2008. Police sought to charge Jones, who is Black, with the murder of a white bootlegger named Leamon Grady, despite obvious flaws in the case and a far more compelling white suspect.

Jones’ case is illustrative of a large problem. We know there is a strong link between race and who ends up on death row: studies across the country have repeatedly documented that Black people convicted of killing white people are far more likely to be sentenced to death than white people convicted of killing black people. So perhaps it should come as no surprise that there is also a strong link between race and wrongful convictions.

Nationwide, Black defendants are more likely than their white counterparts to be wrongfully convicted, and defendants charged with crimes against white victims are far more likely to be erroneously convicted than defendants charged with crimes involving nonwhite victims. Despite the fact that there are far more Black homicides with Black victims, an overwhelming 76 percent of all death row exonerees were wrongfully convicted of the murders of white victims.

This pattern is apparent here in North Carolina’s death row. Of the seven death row inmates exonerated since North Carolina reinstated the death penalty in 1977, five are Black, and six are nonwhite. All seven exonerees — or 100 percent of North Carolina’s death row exonerees — were in cases with white victims.

The explanations for this bias span every stage of the charging and conviction process — from racially biased police investigation and arrest policies, to the harsher treatment and greater suspicion defendants of color face — particularly when charged with crimes against white victims, to unconscious biases at trial and sentencing.

These facts are ones that ACLU client Jones understands all too well. In Jones’ case, the key witness against him went to the police three years after the crime, and gave five wildly inconsistent stories about Jones’ supposed involvement. The witness had a long history of petty crime and a host of credibility problems. It is hard to imagine police taking seriously this kind of evidence if the defendant were a wealthy white community member. Indeed, the police did not charge the white suspect, even though under the suspect’s own self-serving story, he broke into Grady’s home and stepped over Grady’s body to steal beer from Grady’s refrigerator.

The racially biased treatment of Jones did not end with the police. His own trial lawyers never took seriously the possibility that he was innocent, and thus never investigated the case. They failed, for example, to walk over to the district attorney’s office to get the contradictory statements made by the witness or to investigate her credibility problems. Instead, they simply focused on trying to convince Jones to plead guilty of a crime he did not commit. At trial, a white judge presided over Jones’s case and an all-white jury convicted him and sentenced him to death.

Jones also knows too well the steep cost of wrongful convictions. North Carolina has never compensated him for all of his years behind bars, leaving him and his family to bear the costs alone. He has struggled to find permanent work, as many employers see his murder arrest on a criminal background search and decline to even give him an interview. Instead of a job with retirement benefits or vacation pay, Jones must spend long, hard hours doing day labor work when he can find it. He also missed his daughter’s childhood. His daughter was a baby when he was arrested, and was a young adult when he was released from prison. His dear older sister, who believed in his innocence and championed his case all along, passed away last year. He had only few years with her after his release from prison.

The most important payment we can make on the debt we owe Jones and other wrongfully convicted defendants is to break the link between race and the death penalty. Twenty-five years ago this week the United States Supreme Court turned its back on justice for the death penalty when it held in McCleskey v. Kemp that systemic evidence of racial bias in capital sentencing was insufficient to show a constitutional violation.

Thankfully, the North Carolina legislature took an enormous step to reverse the damage of McCleskey when it passed the Racial Justice Act, which allows capital defendants to use statistical evidence of systemic bias in the death penalty to challenge their death sentences. Other states should follow suit.

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It took Florida authorities nearly six weeks to arrest George Zimmerman and charge him with second-degree murder of Trayvon Martin, a delay that led many to question the response by the police in Sanford, Fla. to Martin’s killing. It is alleged that Zimmerman had followed an unarmed Martin, a 17-year old Black youth through a gated community, confronted him, and then shot him in the chest, despite 911 operator requests to Zimmerman to leave the youth alone.

Community outrage turned national during the lengthy period when Zimmerman was neither charged nor arrested: few doubted that the same acts committed against a suspicionless white victim would have resulted in an immediate arrest and murder charges. And we hurt all the more because it appears that what happened to Martin was part of a larger picture of the daily indignities and tragedies endured by victims of racial profiling.

Of course, we don’t advocate a rush to judgment for Zimmerman or anyone suspected of a crime. We firmly believe the process should play out fairly and equally, without regard to the race of the accused or the race of the victim.

When a justice system appears to value some victims less than others, it ceases to be just. That is a problem that did not start with the Trayvon Martin case, or even with the Supreme Court’s notorious decision in McCleskey v. Kemp. It is a problem in the DNA of our country. It traces as far back as post-Civil War Reconstruction, when lynchings were used as vigilante punishment for Blacks accused of crimes against whites. The practice was officially folded into the justice system as capital punishment, used regularly in the South against Black men accused of raping white women but rarely against white men accused of raping Black women.

This discrimination was a basic truth the Supreme Court faced in 1977 when it ruled the death penalty unconstitutional for rape, and a key concern of some of the justices when the Court briefly ruled the death penalty unconstitutional for all crimes in 1972.

By the time the Court decided McCleskey in 1987, racial considerations had become so ingrained in the criminal justice system that the Court concluded that they were an “inevitable part” of it and ruled that statistical evidence of systemic racial bias could not be used to overturn a death sentence.

With the Court’s approval, the troubling statistics that Warren McCleskey sought to use to overturn his death sentence — which showed, among other things, 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 — continue to occur across states with the death penalty, and people continue to be sentenced to death under a system tainted by racial bias. In fact, studies consistently show that the best predictor of who lives or dies at the State’s hands is not the content or context of the crime, but the color of the victim’s skin.

In other words, kill a white person and pay the ultimate price. Kill a Black person, and pay less.

The right solution would not be more death sentences for people who kill Black victims in a race-based effort to balance the books. A far better option would be the reversal of McCleskey and the passage of racial justice laws like North Carolina’s across the states retaining the death penalty. But even those admirable solutions would be second-rate attempts to patch a sinking ship.

The safest and surest way to ensure that the racial bias so ingrained in our criminal justice system does not enter into a decision of who lives or who dies is simply to eliminate capital punishment.

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Imagine it’s 1976. A high crime rate afflicts German cities, and the government reinstates the death penalty. “We’ll have the strongest possible protections for people accused of capital crimes, providing them with free lawyers, right to experts, investigators, appeals to higher courts, and trial by a jury of their peers. This is not the Germany of the Nazi Party. We will never repeat those terrible errors.”

Now imagine that 30 years later, statistical evidence shows that Jewish citizens disproportionately get the death penalty; crimes by Jews against Christians are more likely to be selected for a capital prosecution; Jews are routinely excluded from jury service. Further imagine that prosecutors defend all this by saying that Jews shouldn’t sit on capital juries because they are mistrustful of German authorities, and that the German high court has ruled that statistical evidence of discrimination against Jews is inadmissible in a death penalty case.

You see where we’re headed. My guess is that most people can’t get past the second sentence of this thought experiment, let alone past the discrimination against Jews.

Bryan Stevenson, whose idea this is, asks this of America: “Do we deserve to have a death penalty?” If Germany does not — and they emphatically believe they do not — then why do we? Think the parallels are forced? Not accurate? Really?

Consider this: before the Civil War, crimes against Black people in the South were considered only as property crimes against their owners. The Supreme Court issued its Dred Scott decision in 1857, finding that Blacks have “no rights which the white man is bound to respect.” Within a few years after the Civil War, the criminal justice system became an engine to produce bodies — Black bodies — to work in the same agricultural fields they had tended as slaves, and in the burgeoning industries of the post-Reconstruction South.

Doug Blackmon’s Pulitzer-winning book, Slavery by Another Name, carefully documents the re-enslavement of Black Americans after the Civil War — by a re-tooled criminal justice system that charged, convicted and sentenced freed slaves and their children, grandchildren and great-grandchildren based on the need for free convict labor — not on guilt, innocence, culpability or fair procedures.

Meanwhile, as Black people were being targeted by the criminal justice system for undeserved punishment, the very same system was protecting the vigilante members of white supremacist domestic terrorist groups like the KKK and the Knights of the White Camellia, who were allowed to commit murder, arson and property theft in the open, without fear of arrest or prosecution.

So if a criminal justice system functions to protect white criminals (the Klan) and convict Black workers (for convict labor) with little or no regard for innocence or guilt, what is the one thing that system cannot accommodate? The equal participation in the system of Black people. That means no Black people on juries — by law for many years and by unlawful and unconstitutional discriminationafter that. It also means shutting out statistical evidence of discrimination, no matter how explosive, careful and well-documented, that would prove the system — up to and including the sentencing of a person to death — is tainted by race discrimination. That’s according to McCleskey, decided by the U.S. Supreme Court 25 years ago.

As a part of a coalition of capital defense attorneys, earlier this year ACLU Capital Punishment Project attorney Cassandra Stubbs participated in the first-ever hearing under North Carolina’s Racial Justice Act, which aims to reverse the harm of McCleskey by allowing capital defendants to introduce statistical evidence showing race is a factor in the administration of the death penalty.

The lawyers are challenging the death sentence of Marcus Robinson, a Black defendant convicted for the death of a white person, who was sentenced to death by a jury tainted by a racially biased jury selection process.

Faced with overwhelming proof that Black people are continually excluded from death penalty juries in North Carolina, the prosecutors in Robinson’s case argued, essentially, that Black people tend not to trust the criminal justice system, and don’t believe in the death penalty as much.

Now back to the thought experiment. Prosecutors in North Carolina argue that Black people, who have been deliberately excluded from and discriminated against by America’s criminal justice system since the Civil War, are less likely to trust that system, and therefore it’s okay to continue to exclude them from participating in it. Now let’s answer Bryan Stevenson’s question: Does the United States deserve to have the death penalty?

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