Christina Swarns

  • April 19, 2012
    Guest Post

    By Christina Swarns, LDF Director of the Criminal Justice Practice, and Eva Paterson, Equal Justice Society President and Co-Founder. Paterson is also a member of the Bay Area Lawyer Chapter Board of Advisors.


    Few cases involving the intersection of race, criminal law, and procedure have had the reach and impact of McCleskey v. Kemp, a United States Supreme Court decision decided 25 years ago, on April 22, 1987. This decision set the stage for more than 20 years of dramatically increasing racial disparities within the criminal justice system.

    In McCleskey, the Supreme Court declared that a criminal justice system that treats Blacks worse than whites is “inevitable” and that the Constitution is only violated by instances of intentional racial discrimination by individual actors in specific cases. 

    Specifically, the Court refused to set aside the death sentence of Warren McCleskey, an African American man who was sentenced to death in Georgia for the killing of a white person, despite the fact that statistical evidence demonstrated that in Georgia capital cases, African Americans were more likely to receive a death sentence than any other defendants, and that African American defendants who killed white victims were the most likely to be sentenced to death.

    The implications of the McCleskey decision are profound. Because of McCleskey, there is no remedy for – and, indeed, no constitutional problem with – the fact that Blacks are disproportionately stopped, searched, arrested, held on bail, charged with serious crimes (including death-eligible offenses), denied plea bargains, convicted, and sentenced to prison or execution. 

    There is no constitutional basis for challenging the fact that one in three African American males will enter state or federal prison at some point in his lifetime; and that although African Americans make up only 12 percent of the U.S. population, they amount to 44 percent of sentenced inmates – the largest group behind bars.