Someday McCleskey Will Be Death Penalty’s Dred Scott

<i> Hugo Adam Bedau is the Austin Fletcher professor of philosophy at Tufts University and the author of "Death Is Different: Studies in the Morality, Law, and Politics of Capital Punishment" (Northeastern University Press). </i>

Pilate-like, the Rehnquist Supreme Court has washed its hands of any responsibility to reject the death penalty on racist grounds.

Not that the court, ruling in the case of McCleskey vs. Kemp, held that there was no evidence of bias. Rather, it argued that McCleskey should have proved that he was sentenced by a jury that intended to discriminate against him on grounds of his race (black) and that of his victim (white).

Justice Lewis F. Powell, who wrote the court’s majority opinion, ruled that the statistical evidence of de facto racial discrimination submitted by McCleskey’s attorneys was irrelevant to the constitutional issues. Such data, he suggested, should be put before legislatures, not appellate courts.


For a generation now, the federal courts have struggled with the problems of persisting de facto racial discrimination. One of the achievements of the civil-rights movement of the 1950s and ‘60s was the recognition by the courts that de facto segregation and discrimination in housing, employment and education needed remedial action, and that the courts had a vital role in crafting the remedies. The death penalty, however, when attacked on the same grounds, has managed to turn back one challenge after another.

It began in 1968, when lower federal courts upheld an Arkansas death-penalty statute for the crime of rape. Conclusive evidence was put before the court showing that throughout the South no male--white or black--had been sentenced to death for the rape of a black female, and that the vast majority of death sentences for rape went to blacks guilty of raping whites. But the courts rejected the argument on the ground that the defendant making the appeal, even though he was black and his victim white, had failed to show that he personally had been a victim of racial discrimination. The reasoning in that Arkansas case (Maxwell vs. Bishop) essentially anticipated Powell’s reasoning in McCleskey.

The dissenters in McCleskey, led by Justice William J. Brennan Jr., exposed the jurisprudential failures in the majority’s reasoning, and these dissents should guide a future Supreme Court in a better direction.

But it also looks as if a new and different strategy of constitutional assault on executions will have to be created. In the future, attacks on capital punishment may have to be on a case-by-case basis, relying on evidence establishing discriminatory intent against the defendant.

McCleskey, then, effectively ends the strategy in anti-death-penalty litigation that has dominated the thinking of civil-rights and civil-liberties activists for the past generation.

Beginning in 1972 with Furman vs. Georgia, a series of important holdings--notably Woodson and Roberts (against mandatory death penalties) and Coker and Eberhardt (against death penalties for non-homicidal crimes)--was achieved by attacking the death penalty for the unfairness in its administration. More than 1,000 prisoners under death sentence were spared. Dozens of capital statutes were nullified or drastically revised.


But in 1976 the Supreme Court refused to rule that the death penalty as such was “cruel and unusual punishment” under our Constitution or that it violated the requirement of “equal protection of the laws.” The McCleskey decision reinforces those holdings. More than that, it suggests that no oblique assault on the constitutionality of the death penalty will succeed.

Of course, it may be that in the present climate of opinion no abolitionist strategy can make much headway. Since the Furman ruling, public opinion in favor of the death penalty for murder has steadily grown to where it now stands at an all-time high. In Florida, Texas and Georgia--where more than 600 prisoners uneasily wait on Death Row--the margin of public support for their execution may be as high as 8 to 1.

In this climate it is not surprising that the Supreme Court, strengthened in its conservative outlook by three appointees of President Reagan, will do nothing further to dismantle capital punishment.

Nevertheless, I predict that in the future, historians will look back on McCleskey and judge it to be yet another of the court’s great failures--along with Dred Scott, Plessy, Korematsu and Hirabyashi.

It took the Civil War to establish the simple proposition that a black human being in America is something more than mere chattel. A civil-rights movement was needed to extend constitutional guarantees across state lines and into institutions, private as well as public. Grudging but honest reassessment of the true situation in 1941 now convinces even the Department of Justice under Atty. Gen. Edwin Meese III that the “relocation” of Japanese-Americans was not only shameful and unnecessary but also unconstitutional.

In time, repudiation of the death penalty by responsible government officials--both on and off the courts--will also come.