Racial Profiling
...we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the pastÂ… [W]e ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present." Justice Powell, who authored the 5-4 decision, said after he retired from the Court that he wished he had voted differently in the 1987 ruling, and that he had come to think that the death penalty should be abolished.(8) The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, in his 1998 report on the USA, suggested that the McCleskey decision may be incompatible with the country's obligations under the Convention on the Elimination of All Forms of Racial Discrimination, "which requires States parties to take appropriate steps to eliminate both direct and indirect discrimination".(9)
The McCleskey ruling placed a huge obstacle in the way of defendants seeking to challenge their death sentences on the basis of evidence of racial discrimination in sentencing. In 1994, Girvies Davis, a black man convicted by an all-white jury of the murder of a white victim, appealed on the basis of a study indicating that the murder of a white in Illinois was about six times more likely to lead to a death sentence than the murder of a black, and that a black defendant accused of killing a white was 3.75 times more likely to be sentenced to death than a white charged with killing another white person. The federal court wrote that "our analysis begins and ends with McCleskey v Kemp", and rejected the appeal.(10) Davis was executed in 1995. The following year, the Missouri Supreme Court rejected statistical and anecdotal evidence of county-level prosecutorial discrimination, stating that the defendant had failed to show "purposeful discrimination or any effect on his case,...
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