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May 30, 2018

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

The title of this post is the title of this new paper by Reva Siegel recently posted to SSRN.  Here is its 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.

May 30, 2018 at 12:04 PM | Permalink

Comments

Statistics was covered in 11th grade. Lawyer math stops at the 4th grade, the math needed to count money.

Posted by: David Behar | May 31, 2018 2:30:49 AM

Doug:

Why is it that legal scholars, appear, clueless that the statistical study by Baldus was, completely, destroyed in the fed district court?

How could they be?

Posted by: Dudley Sharp | Jun 3, 2018 4:05:23 PM

The US Supreme Court misunderstood the math involved. They ignorantly wrote: "defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks."

Totally inaccurate. It was by odds of 4.3 times, or an odds multiplier of 4.3, which can mean  a difference as low as 2-4%, as opposed to the 330% difference represented by 4.3 times. SCOTUS blew it big time on this.

Furthermore, the database, which, allegedly supported McCleskey's charge of racism, did no such thing and was, completely, unreliable.

"The best models which (David) Baldus was able to devise (within McCleskey v Georgia (Kemp)) which account toany significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either [the prosecutor’s or the jury’s] decisions in the State of Georgia." (1)

"After a thorough review, Judge Forrester concluded that “the (Baldus) data base has substantial flaws and . . . petitioner has failed to establish by a preponderance of the evidence that it is essentially trustworthy." (1)

" ... Baldus et al. failed to prove (and the State’s experts succeeded in rebutting) the basic claims made in the Baldus study.45 They did not just fail; they failed dismally. The Baldus study lay in shreds when Judge Forrester got through with it." (1)

 "The Court of Appeals for the Eleventh Circuit, sitting en banc, commended the district court “for its outstanding endeavor” in analyzing the validity of the Baldus study, and there is little doubt that a review of the factual finding that the study was invalid would have been affirmed under the applicable “clearly erroneous” standard." (1)

Read Federal District Court Judge Forrester's full rejection of Baldus' database for McCleskey.

A even more thorough review is provided by Joseph Katz, who did the methodological review of the Baldus database, which was rife with errors and problems. I have it, if you care to research.

Based upon experience, most, if not all law schools, wrongly confirm the Baldus database.

 These two articles, below, give a good explanation of some core problem with David Baldus, in the McCleskey case and another of his reviews.

I am unaware of Baldus making any efforts to correct these many misconceptions, over the many years that he should have. Despicable. I debated Baldus on these issues.

A) "The Math Behind Race, Crime and Sentencing Statistics" 
By John Allen Paulos, Los Angeles Times, July 12, 1998 
http://articles.latimes.com/1998/jul/12/opinion/op-2965

B) See “The Odds of Execution” within “How numbers are tricking you”, by Arnold Barnett, MIT Technology Review October, 1994
http://reocities.com/CapitolHill/4834/barnett.htm

(1)  Rebutting the Myths About Race and the Death Penalty, Kent Scheidegger, 10 Ohio St. J. Crim. L. 147 (2012).
http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/12/6.-Scheidegger.pdf

Posted by: Dudley Sharp | Jun 3, 2018 4:20:48 PM

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