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by Rachel Gonzalez

In one of the most contested death penalty cases the United States Supreme Court has decided, McCleskey v. Kemp,[1] the Supreme Court severely limited capital defendants’ race-based claims.[2] The standard the Court established, a standard that requires a defendant to prove that a prosecutor, judge, or juror intentionally discriminated against him because of his race, is as close to impossible as it comes in terms of burdens of proof and persuasion.[3] Comparably high burdens are difficult to find, yet the closest ones are Batson[4] challenges, which involve questioning the validity of a peremptory challenge; and Strickland[5] ineffective assistance of counsel claims, both of which are nearly impossible to prove.[6]

McCleskey provided America with a multispectral view of racism and its role in capital punishment. It proved not only the discrepancy in the racial demographics of death row, demonstrating a connection to the defendant, but it honed in on another layer of racial prejudice: the race of the victim.[7] Although McCleskey warned America, the Court silenced its plea; what is left now is to cure this ill through more proactive measures to prevent any further degradation inflicted by the decision. The only cure we have left, the final hope, is to turn to Congress to pass legislation that provides defendants with a right to challenge their death sentences. After all, Justice Powell adamantly stated that McCleskey was a case better pled to legislators.[8]

Several states have developed efficient models to crack open a window where McCleskey welded a door shut. For instance, Kentucky,[9] Missouri,[10] and Pennsylvania[11] have all acted proactively to pass Racial Justice Acts that give defendants the right to raise a racial discrimination claim, pre-trial, for the judge to determine whether the defendant’s capital charges are proper.[12]

Taking these laws as guides, Congress should draft its own Racial Justice Act to mitigate the damage McCleskey has caused nationally. Specifically, Congress should prevent states without these acts from fanning the flames of the racially discriminatory fire McCleskey started. Congress has attempted to pass a Racial Justice Act in the past: first in 1991,[13] and then in 1994.[14] Both of these acts, unfortunately, failed. The poor reception of the Act was most likely due to the acceptance of the death penalty at the time.[15] However, in 2016, support for the death penalty has dropped drastically, demonstrating that the time is ripe for Congress to reintroduce a Racial Justice Act.[16]

[1] See Jeffrey L. Kirchmeier, The Supreme Court’s Legacy on Race and Capital Punishment in McCleskey v. Kemp, 41 Am. Bar Ass’n: Hum. Rts. Mag., no. 1, 2015,–vol–41-/vol–41–no–1—lurking-in-the-shadows–the-supreme-court-s-qui/the-supreme-courts-legacy-on-race-and-capital-punishment-in-mccl.html.

[2] McCleskey v. Kemp, 481 U.S. 279, 298–99 (1987).

[3] Frank R. Baumgartner, Capital Punishment and the Invisible Black Male: Race-of-Victim Effects in US Executions, 1977-2013 16 (Aug. 8, 2014) (unpublished manuscript),

[4] See Batson v. Kentucky, 476 U.S. 79, 96 (1986) (requiring the defendant prove the State purposefully excluded jurors of the defendant’s race).

[5] See Strickland v. Washington, 466 U.S. 668, 672 (1984) (requiring the defendant prove: (1) counsel’s performance fell below an objective standard of reasonableness; and (2) counsel’s performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different).

[6] See Johnson v. California, 545 U.S. 162, 170 (2005) (characterizing the facts necessary to prove purposeful exclusion as “impossible for the defendant to know with certainty”); see also United States v. Cronic, 466 U.S. 648, 661 (1984) (“[I]f counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable”). But see Muniz v. Smith, 647 F. 3d 619, 623 (6th Cir. 2011) (denying a criminal defendant’s ineffective assistance of counsel claim because the defense attorney only fell asleep for a brief period during the trial).

[7] David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638, 1651 (1998).

[8] See McCleskey v. Kemp, 481 U.S. 279, 319 (1987).

[9] See 1998 Ky. Acts 252.

[10] See 2012 Mo. H.B. 1625.

[11] See 2011 Pa. H.B. 2256.

[12] Id; see also 2012 Mo. H.B. 1625; 1998 Ky. Acts 252.

[13] Racial Justice Act, S.B. 1249, 102d Cong. (1991).

[14] Racial Justice Act, H.R. 4017, 103d Cong. (1994).

[15] James J. Stephan & Tracy L. Snell, U.S. Dep’t of Justice, Bureau of Justice Statistics, Bull. No. NCJ-158023, Capital Punishment 1994 3–4 (1996),; see also States and Capital Punishment, National Conference of State Legislatures (Nov. 9, 2016),

[16] States and Capital Punishment, National Conference of State Legislatures (Nov. 9, 2016),