The Ohio State Journal of Criminal Law will have a symposium issue on the 25th anniversary of McCleskey v. Kemp out soon. The article by yours truly with the above title is available on SSRN. Here is the intro:
The best models which Baldus was able to devise which account to any 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.1This is the least-known holding from the best-known case on race and the death penalty, a case that eventually went to the Supreme Court.2 It is very strange that this holding is so little known, given the prominence of the Baldus study in debates over race and the death penalty. Just this year, a report of the American Bar Association began its factual discussion of race and the death penalty with what the Baldus study supposedly "showed."3 Yet the report made no mention at all of the fact that the study had been thoroughly examined in a full trial, with expert testimony on both sides, and found to show nothing of the sort.
This skewed perception is not limited to the Georgia Baldus study. It extends across the field. Any "finding" by a study of any racial "disparity" is trumpeted as proof that the system of capital sentencing is deeply racist, even though it may be the product of flawed methodology, a biased source, or both. Meanwhile, contrary indications from other studies, or sometimes even within the same study, are buried and never brought to the public's attention.
The subject of what these studies show and do not show is a complex one, and a comprehensive treatment is beyond the scope of this short article. The article will trace the development through the principal cases and best-known studies to show that the truth, to the extent we can know it, is quite different from the common perception.
1. McCleskey v. Zant, 580 F. Supp. 338, 368 (N.D. Ga. 1984) (emphasis omitted).
2. McCleskey v. Kemp, 481 U.S. 279 (1987).
3. American Bar Ass'n, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Missouri Death Penalty Assessment Report 332 (2012).