Episode 108: Unequal Protection: Part 1 – Transcript

May 3, 2017


America is a country plagued by racism. Culturally, socially, economically. But what about in the courts? 30 years ago, Warren McCleskey, a black man on Georgia’s death row, took proof to the US Supreme Court that his trial and sentence had been affected by racial prejudice . It’s a landmark case that nearly every law student in American is familiar with — but few of us know the whole story.

Life of the Law reporter Sarah Marshall traveled to Atlanta Georgia, to learn more about the man whose name has come to symbolize the end of equal protection under the law in America.

We’ll present our story in two parts. This week, we present Part 1 – Unequal Protection.


The house is modest. Split level. The kind you could drive by without even wondering about. I park my car across the street. Betty Myers steps out of a sliding glass door. She waves and tells me to park in her driveway. Inside the basement rec room, it’s hard to see. There’s one small window letting in the light.  A bowl of shiny christmas ornaments sits on a  table like a centerpiece.

A long bookshelf fills one of the walls. Dozens of framed photos line the shelves. One of the photos catches my eye. The man in the photo is wearing a white uniform, the name McCleskey stenciled on the front. His full name is Warren McCleskey, a name synonymous with one of the most influential Supreme Court decisions of all time.

Warren McCleskey.was born on March 17, 1946. He grew up with his six brothers and sisters in Marietta, Georgia. Today it’s a suburb of Atlanta, but back then, it was a small town. Betty was Warren’s younger sister, but she was the family’s oldest daughter.

MYERS: We kinda had a bad childhood life. At least I did, because with me being the oldest girl, I had a stepfather that was rather mean to my mom, and, um, there were some things I just didn’t like, you know. And back then–I don’t know if you knew–but back then, people sold moonshine, as they call it. White liquor. And we grew up doing that. That was our means of surviving. People came to your house, and they bought liquor or whatever, and, yeah, that was our way of living, and we survived.

Betty says she and her brother Warren weren’t close-knit when they grew up. They lived with different family members at different times, and Betty has been on her own since she was fifteen.

MYERS: I can only tell you what I knew of him. As far as what he did, you know, behind–I don’t know anything about it. Because my thing was, I was more of a homebody person, cause I married in ‘67, been married ever since. So, you know, I can’t say–I can only tell you what I know. That’s all. That’s all. I know he was a good person, very smart young man. Whatever he got involved with, I don’t know anything about it. Nothing.

But it was right here, in Betty’s house, that a legal epic began–one that exposed the limits of the supreme court’s willingness to protect the rights of all Americans, equally. The case was called McCleskey v Kemp. It set the terms for how courts in America would consider race. And It exposed what one Supreme Court Judge would call a fear of too much justice. It’s impossible to know where this story will end. But maybe there are some clues in the way it began.

Betty Myers says she remembers the day the trouble all began. It was May 30, 1978.

MYERS: But I tell you what made me think something was going on, ‘cause it was during like a holiday, and I was working out here in my yard. And I kept seeing a lot of old cars going around in the neighborhood, and that was unusual. And it was white people. And someone was dressed raggedy. And I’m saying to myself, hm, that’s unusual. What’s going on? That’s what I’m saying to myself.

But it didn’t happen that day. It all happened in the middle of the night.

MYERS: When it went down, he was right here. The only thing I can say–I don’t know when it had happened, but we were asleep in the bed, me and my husband–cause he was working swing shift. Night shift, rather.

So, I guess maybe round about 3 o’clock that morning, I could hear car doors slamming. Bam bam bam bam bam bam bam. So I gets up and look out my bedroom window, and there was the cops over here, the whoever, with guns. They was in the creek over here, pointed up to the house. So my husband gets up and goes to the door.

They didn’t try to, you know, break in or anything. They rung the doorbell. My husband went to the door and answered the door. And they asked him was he Raymond Myers, and he told them yes. And he said, well, we’re looking for Warren McCleskey, does he live here? And Raymond told him yes, which he was here, he was in the bed.

From there–and I’m dumbfounded, because when they went in the bedroom, and got him, they had him handcuffed. And I’m standing like this, “Well, what’s going on?” And I heard the sheriff tell my husband, something terrible has happened.

Still didn’t know.

They start searching the house, going all over, pulling drawers and things out. Everything.

So, when I looked at–we call him Fat. Instead of Warren, we calls him Fat. That’s what we called him. And I looked at him, I say–and he did just did like this, just shook his head. So I knew, didn’t say anything else.

But after that–I mean, I was sure enough dumbfounded, especially later on, after we found out what went down, that a cop was killed, and that he was supposed to be the triggerman.

And when Betty Myers looks back on that May  night and tries to remember anything that might have told her what was to come, she says she can think of nothing–nothing, or maybe changes so small that she didn’t even notice them until later.

MYERS: There was some little things that I saw later after this had happened. Because I remember one day I came home, he was out there cutting grass. That was out of the ordinary, you know. And I’m saying, mm. And I think, see, all this stuff had happened. And I’m still dumbfounded, still didn’t know. You know? Because I’m saying after all this was over, he ain’t never cut no grass. You know what I’m saying?

In the picture of Warren McCleskey that Betty Myers keeps on her bookshelf, her brother is leaning slightly toward the camera but looking slightly away from it. His hands are raised as if he’s gesturing. As if he’s trying to explain something.

MYERS: He always–again, like I say, he always was quiet. He didn’t bother nobody. He didn’t get in trouble. You know, growing up, so.

We survived, you know. It’s just like Betty’s doing her thing as far as trying to survive, I’m doing my thing, cause he was working. But all that other stuff that was going on behind the scenes–I don’t know nothing about it. Nothing. Nothing. I can’t put my hands on it.

Betty says her mother raised them to be self-sufficient. To survive.

MYERS: You know how some brothers or sisters might come and say, you know, me and my husband or either me and my wife, we having problems? Never. Never.

And that come from being raised in a–what I want to say? My mother, she was the type of woman, she didn’t hide anything from us. She was straight up with us. She gave us the facts of life. And I believe that’s why I try to go the straight and narrow way, because I was afraid of getting in trouble, and I didn’t like trouble. You know what I’m saying? I didn’t like police. I didn’t want to go to jail. And I never have, never did, you know? So. That was just something that I learned from her.

Now, I mean, we was raised right, but sometime people go on a different path.

BOGER: There I was in New York, there he was in Georgia. I’d go down, fly down, and I would often have ten or twelve clients, at that point, who were in the same facility, the Georgia Diagnostic Center in Jackson.

And I’d go down for two days and spend two or three hours with a series of people.

And they were of all sorts. I mean, there were some people–Warren McCleskey was one of them–with whom I had a relationship that felt very much like the relationship with other people that I knew and liked.

By the time Attorney John Boger, met his new client in 1981, Warren McCleskey had already been on Georgia’s death row for over two years. Boger joined Warren’s new lawyer, Robert Stroup, to handle Warren’s appeal. Boger joined the team because the experience he already had litigating capital appeals for the NAACP’s Legal Defense Fund.

BOGER: He had had a very sad upbringing. His parents, I think, had been separated at some point. One of them had run a shot house, a place where people in the neighborhood would come and get drinks and play dice and stuff like that, and–so just a chaotic upbringing. And had fallen into juvenile crime and more adult crime, you know, just as kind of what you did next.

But over the course of the time he spend in prison he had really become a much more mature person. There was another guy there, Billy Moore—William Neal Moore—who’s now out, who I represented, who actually got clemency. He and Warren were closest of friends, and both of them, kind of being around them, was like being around anyone else that I knew and liked.

There was an anxiety about their circumstances. But I had really taken on the capital punishment role. I remember self-consciously saying to somebody else, this is like being at a cancer facility at Mt. Sinai hospital, where everybody you get already has a mortal illness. If you can keep some people from dying, that’s great. But you’re not going to keep everyone from dying.

The night Warren was arrested at his sister Betty Myers’ house he was wanted in connection with an armed robbery that had ended in the death of a white police officer.

It all started two weeks before on May 13. Four black men held up the Dixie Furniture store in Atlanta. In the course of the robbery, an employee set off a silent alarm. Officer Frank Schlatt arrived at the scene, where one of the robbers shot him twice. He died at the hospital three hours later.

For two weeks, Atlanta detectives tried to figure out who had shot Officer Schlatt. They found their answer in Warren McCleskey.

But there was a problem. The eyewitness who identified Warren McCleskey as the killer was Ben Wright–the man who had organized the robbery, and who was, for that reason, as likely a suspect in Officer Schlatt’s murder as Warren himself.

Today, Betty Myers remembers a call she received from Ben Wright after her brother was arrested.

MYERS: Because I never shall forget it. Ben Wright, he called me. And his thing was, Miss Betty, he said, I’m not going down by myself. Those were his words to me.

Ben Wright would serve as one of two primary witnesses the prosecution used in their case against Warren McCleskey. To corroborate Wright’s claim that he wasn’t involved in the shooting, the state called Wright’s girlfriend to testify at Warren’s trial.

BOGER: The co-defendant’s girlfriend was asked at the time they were all arrested, who had which guns?

And she said, my boyfriend had the .38 Rossi, a particular kind of gun, and McCleskey was carrying a .45.

There was no question McCleskey was involved in the robbery. The real question was who shot the police officer. Forensic evidence showed that the Rossi was the murder weapon.

So that meant Ben Wright had the .38 Rossi, the murder weapon, and McCleskey was holding the .45–which, according, to forensic evidence was not used in the murder.

BOGER: At trial she changed her testimony and said, McCleskey had the .38, my boyfriend had the .45. So at a time when she didn’t know the significance of what she said, she put the murder weapon in the hands of her boyfriend.

The prosecution’s case against Warren McCleskey was built around the testimony of one eye witnesses — Ben Wright. But because Ben Wright was an accomplice in the robbery, the state would need another witness to corroborate Wright’s claim that Warren McCleskey was the triggerman.The prosecution called a police informant named Offie Evans to the stand.

BOGER: The person who testified against McCleskey at trial, and said McCleskey confessed to me and said he would have done it, turned out to be a police informant who was nowhere near McCleskey in the jail, and who was moved by the investigating police officer from another floor in the jail to be right next to McCleskey, and shortly after he was moved, came out and said, miraculously, McCleskey has given me his confession.

At trial, Warren McCleskey claimed that he was innocent of all charges. Later, he would admit to his role in the robbery–but he would maintain, until the day he died, that he had not killed Officer Schlatt.

The jury deliberated for about three hours before convicting Warren McCleskey of murder and armed robbery. After rendering their guilty verdict, the jury then recommended the death penalty.

Warren McCleskey’s case was like countless others in Georgia: there was a discernible pattern, one in which a black man charged with killing a white victim could all but count on being convicted and sentenced to death.

During jury selection at Warren’s trial, the prosecutor used seven of his fifteen peremptory strikes to exclude black jurors from the pool. In the end, the jury at Warren McCleskey’s trial comprised one black juror, and eleven whites.  

Meanwhile, Warren McCleskey’s own defense attorney, John Taylor, did little research on his client, or the case. Instead, Taylor spent much of the time leading up to the trial trying to convince Warren McCleskey to plead guilty and avoid the death penalty. Warren refused. He believed he had a strong case.

During Warren’s trial, the prosecution called thirty-nine witnesses. Warren’s lawyer called just four witnesses to testify for the defense.

It might have been impossible even for Warren McCleskey’s own lawyer to imagine that his client’s trial could plausibly end in anything other than the death penalty.

In fact, the guilty verdict and death sentence in warren McCleskey’s trial were so predictable, that when Boger represented Warren McCleskey on appeal, he argued that McCleskey’s trial revealed a pattern of systemic racism that pervaded the entire state of Georgia.

It was an argument that would take Warren McCleskey’s case all the way to the U.S. Supreme Court. And the driving force behind the appeal would be data from a pioneering study that had the potential to revolutionize the American legal system.

While Warren McCleskey awaited execution, Attorney John Boger was litigating capital appeals for the NAACP’s Legal Defense Fund. They were also searching for the right case to bring to the Supreme Court — a case that would have the potential to move the country toward the abolition of the death penalty. They focused their search on the state of Georgia.

BOGER: One of the overarching claims we wanted to make was that the death penalty was still racially discriminatory in its application. Georgia, it turns out, had all the records of all homicide cases in the state brought to Atlanta to a Department of Pardons and Paroles board, and you could go to that one place and get the trial transcripts and the police reports of every one of the three or four thousand cases of homicide in the state of Georgia over the last ten years. So it was simply a good place to bring data collectors to–instead of going to 156 counties to collect all of that information.

Their search led them to Warren McCleskey. Boger agreed to take on Warren’s appeal in a case would become known as McCleskey v. Kemp. The Kemp was Ralph Kemp, the Warden at the prison in Jackson, which housed Georgia’s death row, and Warren McCleskey.

Boger planned to appeal Warren McCleskey’s conviction based on a newly completed study by a University of Iowa law professor named David Baldus. He had conducted his research using the state of Georgia’s legal records.

BOGER: Now, we didn’t know, when we started, what we were gonna find. Indeed, we made a devil’s bargain with Professor Baldus. Baldus actually told us, I’m not sure there’s any racial discrimination left in the system. And he had done some other studies.

And we said, Here’s our deal. We’ll give you the quarter-million dollars the foundation has given to us to conduct this research. If you don’t find any discrimination, write it up. Publish it. If you do find discrimination, be a witness for us, and testify.

And so in a way, it was great that he came in with skepticism, because as the evidence spoke to him, he became deeply convicted and surprised: My goodness, the evidence is strong, and it’s still here, and yes, I will testify for you.

And then we knew that we wanted to take that back, if we were able, to the Supreme Court, to have them see it as well.

Analyzing data from 594 death penalty trials tried in the state of Georgia between 1973 and 1978, Baldus uncovered a remarkable and remarkably straightforward trend: defendants who were convicted of murdering white victims were more than four times as likely to receive the death penalty as they would be if they were convicted of killing a non-white victim.

The Baldus Study presented data which, according to Boger, revealed a great deal about the criminal justice system in Georgia–and the society that created and enforced it.

BOGER: There has been other people who had seen the race of victim phenomenon. Indeed, there were two North Carolina studies in the 30s and 40s of capital cases in North Carolina that had shown that.

And while it’s not immediately intuitive what’s happening there, the more you reflect on it, the more intuitive it becomes. Because what it does is to say, in effect, that the criminal justice system has to expand resources in order to prosecute and convict somebody capitally. Which are the lives that have mattered enough that we’re willing to expend these resources?

And it turns out to be disproportionately white lives. If an African-American kills another African-American, let’s just plead it out to life. And if you’re the criminal defense lawyer, you say, Sure, life, the option is death, my client will take life. But that’s a two-hour solution to a case that might otherwise have gone on for a two-week trial.

If it’s a white doctor or an older white schoolteacher or whatever, then you go, we’re not going to let this plead out to life, we’re going to go for death. Particularly in the interracial crimes, where an African-American has crossed the racial boundary to kill a white person, we are determined to impose the most severe penalty.

There’s at least one more factor that plays into this: a lot more, a lot higher percentage of the African-American community didn’t believe in capital punishment.

Boger says that his work as the director of the LDF’s Capital Punishment Project also gave him personal insight into the trends the Baldus Study exposed.

BOGER: Another feature–and we didn’t actually study this; the studies we did were about the incidence of pleas and convictions and, you know, death sentences–but anecdotally, we realized that there were a lot of circumstances upon the death of a person where the prosecutor would go out to the family and say, What do you want?

And most of those prosecutors, virtually all of whom were white, would go to white homes, but sometimes wouldn’t go to the black homes. They wouldn’t say–they weren’t treating that family quite as seriously as they would treat a white family, in terms of saying what’s your preference for the outcome of this case?

And maybe some of that was their sense that African-Americans were not as strong for the death penalty, but I think some of it was just pure old-fashioned racial segregation, which had still been very very much a part of the fabric of the life of Georgia and the South in the 1950s and 60s and 70s. So, how could I go into an African-American home in an African-American community and sit down and talk with some folk? We’ll just plead this case out.

The beauty of the Baldus study was that it wasn’t anecdotal. It argued that the criminal justice system throughout the state of Georgia was hobbled by systemic racism and it did so by offering the most objective evidence anyone could ask for: Datas. Numbers. Trends.

BOGER: One of the things that was so powerful there about Baldus: Baldus really was a person who said to the state, who said to the district judge, I will take the data that I’ve got, and I’ll analyze it any way you want to.

There are actually are some cases in which the lawyers for the plaintiff or the defendant know, only if we use a particular analytical method does it come out my way.

Baldus said, I’ll do it using one method, I’ll use a second method, I’ll use a third method, I’ll use a lot of factors and look at a hundred different factors that might bear on whether one is receiving a fair sentence or not, I’ll use ten, I’ll use twenty.

For Warren McCleskey, the road to the U.S. Supreme court was to be a long one. After Warren’s conviction, his lawyer, John Turner, appealed his case to the Georgia Supreme Court. The state court affirmed his conviction. That’s when Stroup and Boger took Warren’s appeal to the federal courts. They filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia.

BOGER: At one point during our hearing before the district judge, Baldus said–and at the time this was a big deal–we are connected with the computer back in Iowa. Judge, you’re an old prosecutor. You tell us what factors do make a difference in juries. What makes it more likely that they would give a death sentence, what makes it less likely. We’ll take your model that you build for us, and we’ll run it back to Iowa City and tell you what the results are.

And the judge did take us up on that. And his model showed more racial discrimination than we were arguing for.

So it was really pretty powerful. And indeed we turned to the state, and said please, tell us what you would do.

Their basic response was to say, the data is unreliable.

You say, that’s funny, because the data is actually the police records and reports and the prosecutors’ records and the trial testimony that you, Georgia, put on in order to get these death sentences. Or not.

And they would just–oh, this data is so dirty. Or else, There are so many factors that no one can ever know what might make a difference.

In February 1984, after a lengthy evidentiary hearing in US district court, Judge J. Owen Forrester ruled against Warren McCleskey. He argued that the data utilized by professor Baldus was, “substantially flawed.”

Warren McCleskey’s attorneys, Stroup and Boger, then appealed Judge Forrester’s decision to the the U.S. Court of Appeals for the Eleventh Circuit–which, in turn, affirmed Judge Forrester’s decision.

McCleskey’s attorneys then petitioned the U.S. Supreme Court to review the case. Despite the fact the 5 of the Supreme Court’s nine justices voted against reviewing McCleskey, the Supreme Court’s “rule of four” meant the case was still eligible for Supreme Court review. And so, in October 1986–eight years after his conviction and seven years after his first appeal was filed in state court–Warren McCleskey’s case was argued before the U.S. Supreme Court.

BOGER: At the Supreme Court level, I do think–I mean, it was in odd thing that the Court did. They said, we’re going to assume, for purposes of this case, that the evidence that you have presented to us is true. We’re not necessarily going to assume the conclusions that you draw from it, but we’re going to assume that it’s true.

And yet the Court drew back from the obvious implications of that, at one point saying, We’re not sure that the fact that white victim cases are four times more likely to receive death than black victim cases is evidence of racial discrimination. It could be something else. We’ve got no evidence what that is, the state was given full opportunity, never came forward with us–we don’t want to go there.

One of the judges in the court of appeals said, I remember, during oral arguments, well gosh, if that’s true about murder, it’s probably true about armed robbery. It’s probably true about other things. That would indict our whole criminal justice system!

And I sort of said, well, gird up your loins. If that’s, in fact, a problem in our criminal justice system, we have to confront it. We can’t simply avert our eyes.

On October 15, 1986, Boger argued the case of McCleskey v. Kemp before the U.S. Supreme Court.

At the heart of Warren McCleskey’s appeal was an implicit question the Supreme Court’s nine justices now had to answer, whether they wanted to or not: How did they define racism? And if they acknowledged it existed in America’s criminal justice system, what were they required to do?

REHNQUIST: We’ll hear arguments first this morning in #846811, Warren McCleskey vs. Ralph Kemp. Mr. Boger, you may proceed when you’re ready.

BOGER: Mr. Chief Justice, and may it please the Court:

If the State of Georgia had criminal statutes that expressly imposed different penalties, harsher penalties, on black defendants simply because they were black, or on those who killed white victims, simply because those victims were white, the statutes would plainly violate the Constitution.

There was a time, of course, when the State of Georgia did have such statutes, before our nation’s Civil War, when free blacks and slaves alike could be given a death sentence merely for the crime of assault on a Georgia white citizen.

With the ratification of the Fourteenth Amendment, such criminal statutes came explicitly no longer to be written.

Yet the old habits of mind, the racial attitudes of that time have survived, as this Court well knows, into the current century.

Today, we are before the Court with a substantial body of evidence indicating that during the last decade Georgia prosecutors and juries, in their administration of Georgia’s post-Furman capital statutes, have continued to act as if some of those old statutes were still on the books.

A black defendant convicted in the State of Georgia of the murder of a white person goes to his sentencing hearing with as serious a handicap against him on racial grounds alone as if the prosecutor had hard evidence that he had been tried and convicted previously of another murder.

The color of a defendant’s skin, in other words, or that of his victim, is often as grave an aggravating circumstance, in fact, in Georgia, as those expressly designated by Georgia’s legislature.

The argument that Boger presented to the U.S. Supreme Court in the case of McCleskey v. Kemp was one  that had the power to fundamentally change the American legal system. If Justices determined that the Baldus study provided sufficient grounds for them to nullify McCleskey’s conviction, based on the argument that his trial had been compromised by the racial prejudice endemic to the criminal justice system in Georgia–then that might provide grounds for appealing countless other convictions and death sentences, based on the same criteria.

It was an argument that hinged on the idea that a trial’s fairness could be compromised not just by the overtly racist motives of an individual prosecutor or juror, but by the workings of widespread racial bias that a trial’s participants were likely unaware of.

Its white participants, anyway.

Like the jury that had convicted Warren McCleskey of murder, the Supreme Court that heard the case of McCleskey v. Kemp on October 15, 1986 had one black member. The rest of the people who would decide Warren McCleskey’s fate–and answer the question of whether it seemed conceivable to them that the criminal justice system could function differently for black and white citizens–were white.

BOGER: I mean, one of the things, frankly, tactically, you do, if you’re well-trained, and I was very well-trained, because the Legal Defense Fund did a lot of those arguments, is know in advance:

There are two or three people I cannot get. They will not vote for me because of their prior written statements. I want to be gracious to them, but I don’t want to let them spend ten minutes apiece asking me questions. If I can answer their question and get onto something else, if I can find a judge whose mind is still open, that’s where I want to spend my time.

So, part of the practicing is not just knowing what the right answer to the question is, but knowing how to elide out from a series of questions by a justice who’s not gonna give you any help to a justice who might still be open and concerned.

And a brand-new Justice had just joined the Supreme Court: a stripling who had only been on the bench for about three weeks.

BOGER: Now, ironically, one of the people who’d just joined the bench when McCleskey was argued in 1986 was Antonin Scalia. And what I knew about Scalia was he was really smart. And I thought, He might understand the statistics, and had some exchanges with him about that. We later realized that he was totally dismissive.

The question I remember his asking me–actually, I was proud of my answer to this–he said counselor, counselor, all these questions about statistics. What if your statistics showed that red-haired people got death more than blond-haired people? Et cetera. And he had another example like that.

I said, spur of the moment, Justice Scalia, we didn’t fight a civil war over whether people were red-haired or blond-haired. We did fight a civil war over race. This is not a sort of capricious set of data. It’s data about something we know deep in our hearts is part of what America has wrestled with for four hundred years.

That didn’t impress him. But I think it was a pretty good answer to the red-haired problem.

He later actually wrote a memo that has been found in Library of Congress files when somebody else died, one of the other justices, they gave their files to the Library of Congress–in which he said, I don’t doubt that these data show what they appear to show. But I think arbitrariness is built into a system that allows juries to make these choices. And we basically have to accept it.

You go, wow. So you’re willing to accept racial injustice.

You do wonder, at least I had wondered, you know, gosh, if there were injustice against people from Italy, would you have felt quite as blase about it as people from an African past.

As with all other cases, the Supreme Court gave McCleskey’s attorney one hour to present his oral arguments in the case of McCleskey v. Kemp before the U.S. Supreme Court. Six months later, on April 22nd, 1987, Justice Lewis Powell announced the Court’s Majority 5-4 opinion.

POWELL: This capital case is here from the Court of Appeals for the Eleventh Circuit.

The case involves a relevance of a complex statistical study in Georgia that indicates generally that racial considerations may enter into the capital sentencing process in some cases.

In his habeas corpus petition in Federal District Court, McCleskey argued that the entire Georgia capital punishment system is administered in a racially discriminatory manner, based on the race of the victim and to a lesser extent on the race of the defendant.

McCleskey has supported his claim with a complex multiple regression analysis called the Baldus study.

The District Court held an extensive evidentiary hearing on McCleskey’s petition.

It concluded that McCleskey had failed to show unconstitutional discrimination against him.

For the reasons stated on the opinion filed today, we affirm.

We hold first that under the Equal Protection Clause of the Fourteenth Amendment, McCleskey must prove that the decision makers in his case acted with a discriminatory purpose.

The generalized statistics of the Baldus study failed to raise an inference that McCleskey was discriminated against on the basis of his race or the race of the victim.

McCleskey’s arguments are best presented to legislative bodies.

The death penalty is the law of the land in two thirds of our states.

The U.S. Supreme Court’s 5-4 decision to affirm Warren McCleskey’s conviction would ultimately result in Warren McCleskey’s execution.

In the 30 years since the Supreme Court announced its decision in McCleskey v. Kemp the ruling has impacted countless Americans. It has done so by releasing the courts from the minimum responsibility of acknowledging structural racism in American law.

Osagie Obasogie is a professor at UC Berkeley in the joint Medical Program/School of Public Health and is the author of Blinded by Sight: Seeing Race Through the Eyes of the Blind.

Referring to the work of Berkeley Law Professor Ian Haney Lopez, Obasogie says the Court went from a more holistic consideration of Equal Protection claims as they had in in previous cases to focusing on the behavior of individual actors in McCleskey and beyond.

OBASOGIE: The Court goes from being open to a conversation about the structural nature of discrimination–that is, the Court was at least aware of and willing to engage how discrimination is not simply one bad actor who does something terrible to a particular individual–and the Court then moves from being open to these structural conversations to foreclosing them with McCleskey.

Obasogie’s writing on McCleskey v. Kemp focuses on the effect the decision had on the Equal Protection Clause of the Fourteenth Amendment, which was adopted after the Civil War.

The Equal Protection Clause seems like it should be simple enough. It tells us:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

OBASOGIE: And McCleskey is an example of how the Court essentially closed the door on the Equal Protection Clause being able to acknowledge or recognize the structural nature of discrimination, and creates precedent that essentially says that in order for there to be an equal protection violation, that McCleskey or any individual would have to show that the racial discrimination was purposeful, intentional, and driven by individual malice. And that’s a very high bar to meet when an individual brings an equal protection claim.

The history of any legal battle is also the history of the political climate in which it took place. The Supreme Court rendered their opinion on McCleskey v. Kemp thirty years ago, on April 22nd, 1987. And, according to Boger, the timing of the case may well have played a decisive role in its outcome. He left the LDF in 1990 to join the University of North Carolina School of Law faculty in 1990, but continued to work on Warren’s case.

BOGER: This is one of the things I teach my constitutional law students, is that different courts develop projects. They develop areas or concerns that matter to them. And they respond accordingly when they have cases come before them.

The Earl Warren Court, from 1953 to the mid 1960s, was a court that was terribly concerned about criminal justice, and being evenhanded and fair to criminal defendant–not giving them any special breaks, but just making sure the Fourth Amendment and the Fifth Amendment and the Eighth Amendment, you know, are adequately enforced.

Frankly, the Courts of Justice Rehnquist on down to Chief Justice Roberts are very concerned about federalism: about not having too much federal interference with the prerogatives of states, and I do think you saw a withdrawal from the capital punishment area, in enforcement of the very amendments and rights that earlier Courts had trumpeted in death penalty decisions as well as others.

To Boger, the Supreme Court’s decision in McCleskey also reflected a broader fear: that reversing McCleskey’s conviction, and in the process validating his grounds for reversal, would open the door to countless other death row inmates successfully appealing their convictions–and doing so in a way that might lead to the end of the death penalty altogether.

BOGER: The other thing we were facing by the mid-1980s: the Supreme Court had held that death was different in 1976, and that there had to be special care taken before a death sentence was carried out. Based on that, there were a whole series of things that were flaws in various state statutes–the Alabama statute, the Florida statute, et cetera–that the Court was given and said, you’re right. That doesn’t seem fair.

Every time they said that, there were seventy cases behind it that were backed up because they were all using that same Alabama procedure or Florida procedure. So seventy people would go, and eighty people would go.

And there began to be a drumbeat, literally, by an organization in California, saying: don’t you realize? You, the Supreme Court, are the major impediment to the states being able to carry out the capital punishment they’ve decided is appropriate. You’ve gotta stay your hand. You’ve gotta get out of the business. And particularly in the racial area, if you go in there, they’ll come back with Florida, they’ll come back with Mississippi, they’ll come back with North Carolina. All those states may have patterns like this, and you will ultimately end the death penalty. And that’s what the Legal Defense Fund is trying to do. I think people are afraid of crime, many people, and can be made more afraid of crime. And I think it’s a very easy fix for a prosecutor to say, we will put to death the people that are causing this fear in you.

And a certain percentage of people, probably a majority of people in some states, say, great, that will happen.

Our rejoinder is: first, if you look at the facts of what they do, they will not put to death most of those people. Indeed, some of the very most frightening people are gonna continue to stay alive.

The way in which they carry it out bears, forgive me, some similarity to what the Aztecs apparently do, which is to say, every year, let’s take somebody, and call them our scapegoat, and cut their heart out on a stone altar. And that will be our sacrifice to the gods. This shows we’re tough.

Well, the death penalty had that let’s show ‘em we’re tough kind of quality. And so prosecutors would go for it, and when do you go for it, if you’re not sure that you believe in it entirely? In the cases that would be most like to have a responsive citizenry say, great, that was a horrible case.

Those cases tended to be cases in which whites were the victims.

So it’s responsive to inchoate fear and concern: Something needs to be done. This is something.

Supreme Court opinions often tell us just as much about the people writing them as the cases they describe. And, according to Osagie Obasogie, the Supreme Court’s decision in McCleskey reveals not just the prevailing political attitudes of the time, but about the role of the Supreme Court in American society–and how different the role the court actually plays is from the one we imagine it plays.

Specifically, McCleskey can show us that the rulings of America’s ultimate legal authority can be astonishingly subjective.

OBASOGIE: At some point this moves from being a scientific or evidentiary question to a political question. And if that’s the case, the courts then are no longer acting as an arbiter of law. It’s then a political or ideological actor, in that it’s saying that scientific evidence doesn’t matter. We’re gonna hold true to certain ideas or concepts regardless of what evidence is presented in front of us.

And that’s a problem, and that’s something that should be talked about and discussed and fleshed out, because the court’s adherence to the kind of individualist notion of discrimination, as being the core concept of equal protection, is, in some regards, a political decision they’ve made.

And–perhaps even more crucially–the decision in McCleskey exposes something about America. And perhaps, something about ourselves.

OBASOGIE: I think one of the reasons why the decision in McCleskey is attractive to people is because it aligns with a basic concept in our American legal system, that is, that people should only be held accountable for their individual actions. However, that approach is sociologically naive. And it’s important for the court to be aware of the structural nature of discrimination, that is, how certain ideas and practices and ideologies get institutionalized to produce these bad outcomes. And it’s important for equal protection to be attentive to that.

And taking a closer look at McCleskey v. Kemp might also tell us not just about where we’ve been, but where we’re going–and not just what the Supreme Court’s role is in America today, but what that role could be.

OBASOGIE: We’re at a political moment where we’re seeing a doubling down on individualism. Where folks feel particularly empowered to only hold people accountable for their individual actions, and not paying attention to how certain structures or institutions in our society are embedded with racial biases that can produce adverse outcomes for minorities without any particular bad individual being identified. And given that context, it’s difficult to have this conversation about rethinking McCleskey thirty years afterwards.

The Supreme Court’s decision in McCleskey v. Kemp also included a blistering dissent by Justice William Brennan. Brennan began his dissent by making one thing clear: He was willing to accept the implications of the Baldus Study. And he was horrified by the data revealed.

BRENNAN: Nothing could convey more powerfully the intractable reality of the death penalty: that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether… petitioner McCleskey has clearly demonstrated that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments.

In his dissent, Justice Brennan also imagined the conversation that Warren McCleskey–and countless other defendants like him–had shared with his attorney at the beginning of his legal ordeal.

BRENNAN: At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing…frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence… The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process.

Justice Brennan’s dissent also addressed the Supreme Court’s fear not just of what it would mean for them to reverse Warren McCleskey’s conviction–but what kind of precedent such a reversal might set. And the other cases that would inevitably follow

BRENNAN: The Court next states that its unwillingness to regard petitioner’s evidence as sufficient is based in part on the fear that recognition of McCleskey’s claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice. Yet surely the majority would acknowledge that, if striking evidence indicated that other minority groups, or women, or even persons with blond hair, were disproportionately sentenced to death, such a state of affairs would be repugnant to deeply rooted conceptions of fairness. The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role. The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.

Our commitment to these values requires fidelity to them even when there is temptation to ignore them.

It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined.

The Court’s decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey’s evidence will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today’s decision may be rendered, these painful conversations will serve as the most eloquent dissents of all.

Professor Obasogie:

OBASOGIE: The significance of Justice Brennan’s dissent is that he’s calling out the Court, the majority, by saying that the reason why you are not sensitive to McCleskey’s claim is that you’re afraid that if the Court becomes aware of these structural inequalities, that will place a burden on the court to have to engage in the long process of rethinking the way our entire society is organized to produce these disparate outcomes for minorities. And Brennan is saying, you guys are afraid of taking that role.

When I read this case, that always stands out to me as a profound moral challenge to the Court, in terms of it in a sense shirking its responsibility to be that agent that can produce social change in the name of racial justice.

If the court took a different approach to a case like McCleskey, it would force them to take seriously the structural nature of discrimination across a whole host of areas including housing, education, criminal justice, etc. And once the structural nature of discrimination is taken seriously, then these types of disparities would be forced back into the public discussion, about how can we think of alternative ways to organize various state procedures in a way that would lead to more equitable outcomes.

And I think that’s precisely the kind of public conversation that is needed. And the court could be a tremendous leader in doing that by thinking differently about the way that it approaches equal protection conversations.

When Warren McCleskey’s appeal reached the Supreme Court, Boger was optimistic about his client’s chances, and with good reason: if the Supreme Court required objective proof of systemic racism at work in the criminal justice system, they couldn’t expect to find anything more persuasive than the Baldus study. But it hadn’t been enough–and now, the issues it had raised would die, along with Warren McCleskey himself.

Perhaps no one understood this quite as keenly as Reverend Billy Moore. He shared a deep friendship with Warren McCleskey during the decade both men spent on death row–but their paths were to diverge dramatically. In 1974, Moore pled guilty to killing a homeowner during the commission of a burglary, but after he was sentenced to death, he formed a close relationship with the family of the victim. Moore spent sixteen years on death row. Then, in 1990, on the eve of his execution, the family of the victim petitioned the State Board of Pardons and Paroles to save Billy Moore’s life.

The victim’s niece, Sarah Farmer, told the board: “This is our brother Billy and you can’t kill him. We’ve lost one family member and we’re not going to lose another. We don’t want you to execute him.”

The Georgia Board of Pardons and Paroles Parole voted unanimously, to spare Billy Moore’s life, and commuted his sentence to life in prison. The following year, Moore was paroled. He has been crusading against the death penalty ever since. And telling the story of his friend, Warren McCleskey.

REV. MOORE: Since they did the statistical study in his case, and his case became nationally known, dealing with the death penalty and showing the biased-ness of the death penalty, I was telling him, I said, listen, your case has gone past you as a person. Now the state wants to kill you because you represent everything that shows that the state has been sentencing people from a prejudiced perspective. And so they’re gonna fight and do everything they can do to deny your issues to be heard, and to try to execute you.

And as it went through the courts, the lower courts agreed, the Eleventh Circuit ruled against him, and the Supreme Court basically said, yeah, we see that there’s bias, but it’s not our job to fix it. Let Congress fix it. When in actuality, it is the court’s job to do it.

So he was very disappointed. Everyone was disappointed. Because we had believed that the Supreme Court would do what was right, and now we see that they turned a blind eye.

Beyond the political issues raised by McCleskey v. Kemp–beyond the uncomfortable questions the case posed about how impartial the criminal justice system was in Georgia, and, by extension, in the United States–beyond the fact that McCleskey v. Kemp essentially handed the Supreme Court Justices a thread, and told them to pull, and keep pulling, and see how much of the whole judicial system might unravel as a result–beyond all this, Warren McCleskey’s friends and family had another reason to suspect that he was doomed to the electric chair, no matter how strong his case was.

MYERS: The law. The law. The law.

Because I always said, you got two different laws. Two different ones, you know? And I think–I’m saying this, that–I believe–I can’t say, I don’t want to say I believe, but I think they was just wanting to get this over with, that they felt, OK, from the other guys that they had talked to, oh, OK, McCleskey was the trigger man. Everything was McCleskey, McCleskey, McCleskey, so.

I just felt that they felt, this is it. Because in my heart I know he fought for his life, as far as wanting to stay here, you know what I’m saying? But I think somewhere down the line he just felt, you know, I done did all I can do. And the lawyers done did all they can do.

And I just feel that the courts, and the other, want I want to say? What are they?

MARSHALL: The prosecutors?

MYERS: Yeah. Mind’s already made up.

MARSHALL: Because they had the story and they decided why change it?

MYERS: Right. Right. Right.

Because my thing was–to be honest with you, I just felt, they got a person, so they think, you know? They gonna do what they want to do. They minds already made up. That’s just the way I thought, because of the fact with him being a police officer, you know?

I feel that, and I’m being honest with you, when it comes to our race, they always gonna pick us out, Just say, OK. He did it. Or she did it. You know? When it comes to certain issues with the policemen or the race, that’s just the way it is. Nothing has changed. A little, but it’s a whole lot still the same. And, you know, they try to cover it up. But I don’t see no difference.


Part 1 of Unequal Protection was reported by Sarah Marshall edited by myself and Tony Gannon, and produced by Tony Gannon. Our Post Production Editors are Kirsten Jusewicz-Haidle and Rachael Cain. Music in this episode was composed by Ian Coss. Life of the Law will present Part 2 of Unequal Protection on May 16th.

Our engineers were Sara Melason of Marfa Public Radio and Howard Gelman at KQED Radio in San Francisco.

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I’m Nancy Mullane. Thanks for listening.