{"id":8936,"date":"2015-10-08T22:55:14","date_gmt":"2015-10-09T02:55:14","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=8936"},"modified":"2016-11-16T19:14:09","modified_gmt":"2016-11-17T00:14:09","slug":"supreme-blindness","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/supreme-blindness\/","title":{"rendered":"Supreme Blindness"},"content":{"rendered":"

[pullquote]\u201cThose whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of \u2018sober second thought.\u2019\u201d<\/p>\n

McCleskey v. Kemp, <\/em>481 U.S. 279, 343 (1987) (Brennan, J., dissenting)<\/p>\n

[\/pullquote]<\/p>\n

In 1987, petitioner Warren McCleskey, a black man sentenced to death in Georgia, presented to the Supreme Court powerful evidence of systematic racial discrimination in the application of capital punishment.[1]<\/a> McCleskey\u2019s key ammunition? The \u201cBaldus study,\u201d[2]<\/a>\u00a0an empirically impeccable examination of the death penalty as applied in Georgia. The study determined that defendants in Georgia who killed white victims were over four times as likely to receive the death penalty than defendants who killed black victims; moreover, black defendants eligible for the death penalty were significantly more likely to be sentenced to death when compared with white defendants. McCleskey, a black man who killed a white police officer, stood no chance.<\/p>\n

In the face of this empirical evidence, however, the majority in McCleskey<\/em> turned a blind eye to the clearly systematic racism affecting the criminal justice system. According to the majority, these glaring statistics were not a problem under either the Equal Protection Clause of the Fourteenth Amendment (based on a lack of purposeful discrimination in his specific case) or the Eighth Amendment\u00a0(because Georgia\u2019s sentencing standards fell within the precedent-determined \u201cpermissible range of discretion\u201d). Powerful dissents[3]<\/a> in McCleskey <\/em>by Justice Brennan and Justice Blackmun truly deserve their own post.<\/p>\n

Close to three decades have passed since McCleskey<\/em>. How\u00a0have\u00a0claims of racial discrimination in the\u00a0criminal justice system\u00a0fared?<\/p>\n

During the October 2015 term, the Court will hear the case of Foster v. Chatman<\/em>.[4]<\/a> Foster <\/em>is not a direct comparison to McCleskey<\/em>, but rather broadcasts\u00a0that in 2015, racial biases not only still exist in our criminal justice system but rather permeate every crevice of discretion. Where McCleskey<\/em> dealt with jury sentencing, Foster<\/em> deals with racial prejudice by prosecutors at the jury selection stage.<\/p>\n

Foster<\/em> presents an extraordinary set of facts.[5]<\/a> The prosecutor in eighteen year-old Timothy Tyrone Foster\u2019s capital trial used peremptory strikes to keep all four prospective black jurors out of the jury box. Foster was black, and his victim was an elderly white woman. The defense, anticipating this move by the prosecution, filed a Batson <\/em>objection, available to a party when it believes the opposing party used a peremptory strike to exclude a juror on the basis of race, ethnicity, or sex.[6]<\/a> But for each of the four black jurors, the prosecutor presented between eight and twelve non-racial reasons (most\u00a0of which were\u00a0patently\u00a0inaccurate or pretextual)\u00a0for striking each of these jurors.<\/p>\n

Normally, this would be the end of the Batson<\/em> objection for a defendant like Foster.<\/p>\n

But in 2006, Foster\u2019s habeas counsel procured[7]<\/a> the \u201csmoking gun\u201d: the prosecution\u2019s jury selection notes from the capital trial. The notes are rife with references to the black prospective jurors\u2019 race. For example:<\/p>\n