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In 1857, the US Supreme Court ruled in Dred Scott v. Sandford that no black person, whether slave or free, could be a US citizen because the Constitution itself excluded them from the national community. This exclusion was justified because blacks were "subordinate and inferior beings, who had been subjugated by the dominant race, and...remained subject to their authority."
In 1896, in Plessy v Ferguson, the US Supreme Court upheld laws segregating the races as constitutional, under the "separate but equal" doctrine (i.e. that neither race was discriminated against but were simply separated from each other). This doctrine remained in effect for the next 50 years.
A landmark 1954 decision marked the end of the "separate but equal" doctrine and set the stage for sweeping legislative and judicial reforms in the field of civil rights. In Brown v. Board of Education, the Supreme Court unanimously ruled that racially-segregated schools were inherently unequal and hence unconstitutional. However, that unanimity masked deep divisions beneath the surface. As one of US Supreme Court Justice Jackson's law clerks wrote in an advisory memorandum on the case in 1954, shortly before it was decided, "I think Plessy v. Ferguson should be reaffirmed...I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues". The memorandum was written by William Rehnquist, the current Chief Justice of the US Supreme Court.
Under Chief Justice Rehnquist, the US Supreme Court has followed a course which undermines or reverses outright many of the hard-fought gains in the area of civil rights and civil liberties from three decades ago. Nowhere is this regressive attitude more apparent --and deadly -- than in the irrational faith which the Court has shown in the fairness of current death penalty procedures.
In 1987, the Court turned its attention to the issue of racial disparities in death sentencing. Attorneys representing Georgia death row inmate Warren McCleskey appealed to the Supreme Court on the basis of a rigorous statistical analysis of Georgia sentencing procedures. As detailed above, the study found that the odds of a death sentence being imposed in a case involving a white victim were higher, and increased further if the defendant was African American. McCleskey, black, had been condemned to death for the murder of a white police officer. The Court accepted the validity of most of the study's findings but, in a remarkable opinion, ruled that "...at most the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system" (emphasis added).
In a 5-4 opinion written by Justice Lewis Powell, the majority maintained that McCleskey had not demonstrated that the decision-makers in his particular case had discriminated against him. Statistical proof of systemic bias in the sentencing process as a whole was not grounds to reverse an individual death sentence. Nor did this statistical evidence invalidate the state's capital sentencing procedures as a whole; the burden was on the defendant to show actual prejudice in his individual case. Short of an admission of racial bias by the prosecutor or jurors, this high burden of proof is, of course, virtually impossible to meet. Warren McCleskey's appeal was denied.
Several years later, following his retirement from the Supreme Court, Justice Powell was asked if there was any case over his long career in which he now wished that he had voted differently. "Yes," he replied, "McCleskey v. Kemp." Powell conceded that he did not know what to make of the findings of the Baldus study. "My understanding of statistical analysis ranges from limited to zero", he noted. Were he still a member of the Court, Powell would vote against the death penalty in all cases: "I have come to think that capital punishment should be abolished". This change of heart came too late for Warren McCleskey, who was executed on 25 September 1991.
In a dissenting opinion to the McCleskey ruling, Justice Brennan wrote:
"It has been scarcely a generation since the Court's first decision striking down racial segregation...We cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries...We remain imprisoned by the past as long as we deny its influence on the present."
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