McCleskey v. Kemp: the courts close the door

Warren McCleskey, a Black man sentenced to death in Georgia, challenged his sentence with the Baldus study — a rigorous statistical analysis showing that defendants charged with killing white victims were far more likely to receive the death penalty than those who killed Black victims. In McCleskey v. Kemp (1987), the Supreme Court accepted the study's findings as valid but ruled 5–4 that statistical evidence of systemic disparity could not prove discrimination in McCleskey's individual case. Justice Powell's majority warned that accepting the claim would "throw into serious question the principles that underlie our entire criminal justice system."

That was precisely the point, critics answered. In The New Jim Crow, Michelle Alexander calls McCleskey "the Dred Scott decision of our time": together with rulings like United States v. Armstrong (1996), which made racial-profiling claims nearly impossible to prove, it effectively closed the courthouse doors to challenges of racial bias in policing, prosecution, and sentencing — immunizing the system from the very lawsuits that might reform it. Justice Powell later said McCleskey was the one vote he would change. The case is the legal keystone of the argument that the criminal-justice system operates as a new racial caste.