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January 23, 2013
"David Baldus and the Legacy of McCleskey v. Kemp"The title of this post is the title of this article by Samuel Gross, which I just came across via SSRN. Here is the abstract:
In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court rejected a challenge to racial discrimination in the use of the death penalty. That challenge was based on a landmark study of race and capital sentencing in the state of Georgia by the late Professor David Baldus and colleagues. The legal holding in McCleskey stands, despite the fact that the author of the opinion, Justice Lewis Powell, later renounced it in retirement. It is sometimes described as the Dred Scott decision of the twentieth century. But on the empirical question that was as stake in McCleskey, Baldus has prevailed. Neither the Court in McCleskey, nor any justice at the time or since, has disputed his factual conclusion that many defendants in Georgia were sentenced to death because of their race, and especially because of the race of the victims of the crimes for which they were convicted. This was a remarkable achievement. It fundamentally changed our understanding of the role of race in criminal justice in the United States.
January 23, 2013 at 03:57 PM | Permalink
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This author is an idiot: "It is sometimes described as the Dred Scott decision of the twentieth century." You'd think the nitwit would have the courage of his own convictions.
Posted by: federalist | Jan 23, 2013 10:06:24 PM
"Neither the Court in McCleskey, nor any justice at the time or since, has disputed his factual conclusion that many defendants in Georgia were sentenced to death because of their race, and especially because of the race of the victims of the crimes for which they were convicted."
That is one of those cleverly worded bits of BS that intentionally creates a false impression in the mind of the reader without actually telling an outright lie.
Baldus's factual conclusion was found to be unsupported by the district court, and that finding was not reversed by the Court of Appeals or the Supreme Court. Both of those courts decided to decide on a basis that made the factual finding immaterial, and having done so the issue was never again presented to the Supreme Court. The implication that the Supreme Court has somehow endorsed Baldus's factual finding rather than the district court's contrary finding is false.
For more on this, see my article in the current issue of the Ohio State Journal of Criminal Law, linked on the left sidebar.
Also note the "sometimes described." Every controversial decision is "sometimes described" in pejorative terms by people on one side of the aisle and praised as a landmark by people on the other. It would be just as correct to say that Mapp v. Ohio, Miranda v. Arizona, and Roe v. Wade are "sometimes described" in similarly derogatory terms, which proves exactly nothing.
Posted by: Kent Scheidegger | Jan 24, 2013 12:52:07 PM
I wonder if any of these persons killed by the People of The State of Georgia, in violation of the Sixth Commandment, were from Pin Point, Georgia. Some people argue that the Sears Roebuck version of the King James Bible allows for killing of humans where The People do it collectively. These people jocularly refer to it as the "Y'all Can" exception. I argue, that if Y'all are wrong about this that you will perhaps all go to Hell when your time comes for that interview at the Pearly Gates. I have a defense prepared when my time comes. Do Y'all? Or do you reside in a state that does not kill humans in the name of The People? To hedge my bet, I think I will move. Thank dog I never lived in Texas, I would have a lot of explaining to do.
Posted by: OldFart | Jan 25, 2013 8:46:54 PM