Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in Mccleskey V. Kemp—And Some Pathways for Change

23 Pages Posted: 21 May 2018 Last revised: 7 Jun 2018

Reva Siegel

Yale University - Law School ; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: May 19, 2018

Abstract

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that seem responsive to conservative claims of the era about race, rights, and courts. Scrutinizing the Court’s reasons for restricting inferences from statistical evidence opens conversations about the principles on which McCleskey rests and the decision’s prospective reach.

A close reading of the decision has led some courts to interpret McCleskey’s restrictions on statistical evidence as a response to particular concerns raised by the record in that case, opening the door to statistical evidence of bias in other equal protection challenges in criminal cases. At the same time, revisiting McCleskey and its progeny raises questions about the capacity of courts to redress bias in the criminal justice system. Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.

Keywords: race discrimination, equal protection, discriminatory purpose, statistical evidence, death penalty, implicit bias

Suggested Citation

Siegel, Reva, Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in Mccleskey V. Kemp—And Some Pathways for Change (May 19, 2018). Northwestern University Law Review, Vol. 112, Forthcoming; Yale Law School, Public Law Research Paper No. 642. Available at SSRN: https://ssrn.com/abstract=3181190

Reva B. Siegel (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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