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McCleskey's Omission: The Racial Geography of Retribution

G. Ben Cohen

November 19, 2012

Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012

In McCleskey v. Kemp, the United States Supreme Court refrained from addressing the overwhelming evidence that race, and particularly the race of the victim, played a role in the administration of the death penalty. Twenty-five years later, with no corrective measures taken to ensure that the worst of the worst offenders receive the death penalty, the death penalty in America is as arbitrary as it ever was.

This article suggests that while both the majority and the dissent in McCleskey noted the history of racism in the South, neither confronted the manner in which racism was imbedded in the goal of retribution. A careful examination of death sentences in the modern era reflects that racism acrued at a county rather than a state level. The author suggests that the history of lynching, especially in the deep south, is inexorably connected to retribution.

Renewed focus on the value of retribution as a basis for imposing a death sentence is appropriate. The United States Supreme Court decision in Kennedy v. Louisiana, calls for further inquiry concerning the role of retribution in supporting the validity of the capital punishment. In Kennedy, the Court warned that “retribution” “most often can contradict the law’s own ends . . . When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

Future challenges to the constitutionality of capital punishment should address the connection between race and retribution, the impact that desire for retribution has on county-level administration of the death penalty, and the validity of retribution as a basis for imposing the death penalty.

Number of Pages in PDF File: 37

Keywords: McCleskey, Retribution, Racism, Capital Punishment

JEL Classification: K14, J71

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Date posted: November 20, 2012 ; Last revised: January 19, 2013

Suggested Citation

Cohen, G. Ben, McCleskey's Omission: The Racial Geography of Retribution (November 19, 2012). Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012. Available at SSRN: https://ssrn.com/abstract=2177912

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