McCleskey v. Kemp ft. Josie Duffy Rice

The hosts are joined by Josie Duffy Rice of The Appeal to discuss another death penalty case — McCleskey v. Kemp. In this 1987 decision, the Supreme Court held that statistical evidence of systemic racial disparities is not enough to prove discrimination. Instead, defendants have to show that individual prosecutors, judges or juries pursued them with racist intent. As a result, states were basically let off the hook for perpetuating systemic racism in death penalty cases.

A podcast where we dissect and analyze the Supreme Court cases that have bulldozed our civil rights, like the Cargill corporation has bulldozed the Amazon Rainforest

0:00:01.4 S?: We'll hear arguments first this morning on number 8468-11, Warren McCleskey v. Ralph Kemp.


0:00:14.4 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are joined by journalist Josie Duffy Rice from The Appeal to talk about another death penalty case, McCleskey v. Kemp.

0:00:28.1 S?: The last major legal challenge to the death penalty has not been successful. The Court ruled today that capital punishment does not discriminate against blacks.

0:00:38.1 Leon: In this 1987 decision, the Supreme Court held that statistical evidence of systemic racial disparities is not enough to prove discrimination. Instead, defendants have to show that individual prosecutors, judges or juries pursued them with racist intent.

0:00:55.2 S?: Opponents of capital punishment say the racial prejudice still has a lot to do with who gets executed in Georgia.

0:01:01.2 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:08.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have bulldozed our civil rights, like the Cargill Corporation has bulldozed the Amazon rainforest. I'm Peter.

0:01:19.8 Rhiannon: Yikes.

0:01:21.3 Michael: God, Peter.

0:01:22.1 Peter: Sorry, a little dark. I'm Peter. I'm here with Rhiannon.

0:01:28.1 Rhiannon: Hey.

0:01:28.2 Peter: And Michael.

0:01:28.3 Michael: Hey, everybody.

0:01:28.9 Peter: And our special guest, Josie Duffy Rice. Josie, welcome.

0:01:33.9 Josie Duffy Rice: Hi.

0:01:34.4 Rhiannon: Hey, hi.

0:01:35.1 Michael: Hi.

0:01:36.4 Josie Duffy Rice: I'm so excited to be here.

0:01:37.6 Michael: We're thrilled to have you.

0:01:39.6 Peter: It's a big moment for you, for sure.

0:01:40.4 Josie Duffy Rice: It is. It truly is. I feel not cool enough to be here, but I'm gonna try to fake it.

0:01:46.9 Michael: Yeah.

0:01:47.6 Rhiannon: No, we've been so excited about this.

0:01:49.5 Peter: Josie is President of The Appeal, a publication that produces top notch reporting and analysis on incarceration and policing, among other things. Her work has been featured in the New York Times, The Nation, Slate, New York Magazine. She's been on the Daily Show and Late Night with Seth Meyers, and now 5-4.

0:02:08.1 Rhiannon: Wow.

0:02:10.2 Peter: Congrats. What an upswing for you.

0:02:13.8 Josie Duffy Rice: It is.

0:02:13.9 Michael: A capstone to a worthy career.

0:02:14.9 Peter: Yeah, and something that was personally upsetting to me, I found out that you are younger than me.

0:02:23.7 Michael: It's difficult to handle.

0:02:25.3 Peter: Yeah, no offense, but I sort of had just assigned you a slightly higher age than myself, I think just for my personal emotional fortitude. When I see someone successful, I just kind of throw three or four years on top of my own age and I'm like. "Yeah, I could probably do that if I wanted to, if you just gave me the time."

0:02:46.8 Rhiannon: The Law Boy's taking [0:02:47.3] ____.

0:02:47.3 Peter: Yeah.

0:02:47.3 Josie Duffy Rice: I wish you could see how I live, 'cause I live like an incompetent teenager. I always feel like I should be much younger than I actually... Should have learned a lot more lessons by this point, but here we are.

0:03:04.2 Peter: Before we get going, we do have a very special announcement to make. We've been doing the podcast for about a year, during most of which we've supported the show by running ads, and we were trying to continue that, but it turns out that ad partners are a fucking corporate hellscape nightmare, and as a result, we've decided to go fully independent and we are launching a Patreon, which you can subscribe to for access to premium episodes and bonus content. The first subscriber-only episode will be next week, and it's a big one. So if you want to support us, head over, all spelled out, and throw us five bucks a month or so.

0:03:49.6 Peter: Our genuine promise to you is that we use nearly all of our Patreon income to pay the production team members who make this show possible and who use the income to put a roof over their heads, and we ourselves, the three of us, see so little money from this that it would shock you.

0:04:05.4 Rhiannon: Is it wild to say that I get paid better as a public defender than I do for doing the 5-4 podcast?

0:04:14.6 Peter: If I were to simply walk around my block picking up change, my hourly rate would be much higher than it is on this podcast.

0:04:23.4 Michael: I was gonna say, I made more working at The Gap in high school.

0:04:28.7 Peter: So if you like the show, head over to and help us keep it going. Thank you, and we love you. And on to this week's case, McCleskey v. Kemp. This is a case about whether implementing the death penalty in a way that massively discriminates against black people is cool under the Constitution, and the Supreme Court says, "Yeah."

0:04:52.8 Josie Duffy Rice: Spoiler alert.

0:04:53.4 Peter: Yeah, sure. You know, whatever. In the 1970s, a black man named Warren McCleskey was convicted of armed robbery and the murder of an Atlanta police officer. He was sentenced to death because police officers protect society and therefore an attack on one of them is an attack on all of us when you really think about it.

0:05:14.9 Michael: Yeah, that's right.

0:05:15.0 Peter: But he challenges the imposition of the death penalty, and he does it by presenting a comprehensive study showing that the death penalty in Georgia discriminates against black people. But the Court says, "Sorry, buddy, that doesn't really matter because you can't show that you were specifically discriminated against, even if the system more broadly is discriminating." This is the Court rejecting the use of comprehensive data and statistics to show discrimination and as a result, essentially insisting that racism manifests not as a broad structural problem, but as an individualized experience. In other words, there are no racist systems, just racist people.

0:05:54.8 Peter: In a sense, that makes this not just a conservative opinion, but the definitive conservative opinion, a distillation of how the conservative mind processes structural problems like racism and conceptualizes their solutions. So, Rhi, walk us through some of this here. What happened?

0:06:12.4 Rhiannon: So a quick note on some context about death penalty cases at the Supreme Court. The Supreme Court actually upheld the constitutionality of the death penalty in 1976, but it did so with certain assurances. The Supreme Court was saying punishments have to be determined with fairness. The punishment of execution, death, that's different than other punishments, because obviously it's the most harsh punishment that can be given out. It is final, you can't take it back, so executions can't be handed out in an arbitrary way.

0:06:46.0 Rhiannon: So that's what the Supreme Court is saying about the death penalty in the mid-70s. Now, Warren McCleskey was sentenced to death in 1978, like Peter said, for killing a police officer during the robbery of a Georgia furniture store. Mr. McCleskey was black, and the police officer who was killed was white. Mr. McCleskey's team decided to challenge his death sentence on the basis that the death penalty in Georgia was administered in a racist way, and they did that with some pretty hard numbers. In 1983, Professor David Baldus, he was a long-time professor at the University of Iowa, School of Law, a sort of expert in law and social science, particularly on the death penalty and race in the United States.

0:07:29.6 Rhiannon: Baldus published a study which analyzed nearly 2500 murder cases in Georgia, in order to evaluate the presence of racial discrimination in sentencing processes. And what the Baldus study found was that even when controlling for dozens of non-racial variables, black defendants in Georgia were 1.1 times more likely than white defendants to receive the death penalty. And for black defendants accused of killing white victims, those black defendants were more than four times as likely to receive the death penalty than for non-black defendants who were accused of killing white victims. And for all cases in which there was a white victim and black defendant, the defendant was given a death sentence 21% of the time, whereas in cases where both the victim and the defendant were white, the death penalty was given only 8% of the time.

0:08:25.1 Rhiannon: So put differently, this study showed in a really clear objective way that race was a factor in deciding who would be punished by execution in Georgia. They had data that shows that being a black defendant gives you a higher likelihood of being sentenced to death, and even more so if the victim in the case is white. This study showed that the race of the defendant mattered if the defendant is black, that's clearly an aggravating factor, and the race of the victim matters: If the victim is white, that is obviously seen in the system as an aggravating factor.

0:09:00.6 Rhiannon: And the extent of the data in the Baldus study showed that race was permeating the decision-making all the way through the system. Baldus and the team showed that in murder cases where there was a black defendant and a white victim, prosecutors were more likely to seek death, so even these initial charging decisions and discretionary decisions made by state authorities at the very beginning of a case about how to proceed, even those choices are affected by race, and then all the way to how the jury sentenced in these cases differently, depending on the race of the defendant or the victim.

0:09:34.6 Rhiannon: So when Mr. McCleskey's case makes it to the Supreme Court in 1986, they're challenging the death penalty in his case under the Fourteenth Amendment and the Eighth Amendment. They're saying that it's clear based on the Baldus study that being given the death penalty is a violation of Mr. McCleskey's constitutional rights. First, because the death penalty in Georgia is administered in a way that's racially discriminatory, that violates the Equal Protection Clause of the Fourteenth, and also that giving Mr. McCleskey the death penalty in this racist way would be cruel and unusual punishment prohibited by the Eighth Amendment.

0:10:08.3 Josie Duffy Rice: Yeah, absolutely. I think it's interesting because obviously at this moment, not many people could have predicted what the next 15 years, 20 years were going to look like in terms of the American criminal justice system, but the mid-80s, this is Reagan, this is war on drugs, and this is really when, especially in local systems, mass incarceration really starts to take hold. And what you're seeing is just an influx, an enormous influx of people going to prison. You're seeing the prison system responsible for all of these sort of social ills. You're seeing a country kind of recognize that they don't actually have to address social stratification, they could just send a lot of people to prison and address it that way. And the '94 Crime Bill is always what people say started mass incarceration. It's just not true. Local prosecutors really started mass incarceration and they started doing that in the mid-80s. We learned from them.

0:11:04.8 Josie Duffy Rice: And another contextual piece about this moment is just how popular the death penalty was among everybody. I was recently reading an article of Civil Rights leaders calling for more death penalty cases in the '80s. It had a strong support network, the Republicans and Democrats were going back and forth in Congress talking about who was willing to remove basically more protections for people facing the death penalty. And like Peter said, there is just such a context of killing cops, what it means to be a black guy in the system, and also someone who kills cops. I live in Georgia, it's pretty great here, normally, but there are some dark spots, the criminal justice system being one of them. And this has been kind of a pattern throughout Georgia's history, in particular of black men often with little evidence being put to death for killing cops.

0:12:03.2 Josie Duffy Rice: And I just think the relationship between race and cop killing goes beyond just the defendant, obviously, which is kind of the point of this case, it's about the victim more than it's about the defendant, but also to this day, just a few years ago in Florida, when a local prosecutor, the first black woman prosecutor in Florida, Aramis Ayala, said she wasn't going to seek the death penalty against someone who had killed a cop, literally the Governor took her cases. It was like a huge uproar. Kamala Harris, when she was DA of San Francisco, decided not to seek the death penalty against someone who had killed a cop, and she got a ton of criticism for that, which I think really shaped her political leanings moving forward, because the impact of that, I think, was so enormous.

0:12:47.6 Josie Duffy Rice: And so, I just point this out to say that even though the death penalty is less popular now than it really has ever been, it's still much more of a politically charged issue than I think people necessarily recognize. And the cop-killing thing is huge in the South, it's huge. There's no way that in this case they were going to find actually the system is too racist to punish someone for killing a cop.

0:13:09.9 Rhiannon: Yeah.

0:13:11.6 Michael: They talk in death penalty sentencing about aggravating factors versus mitigating factors, and I don't know. My opinion is if the victim is a cop, that should be a mitigating factor.

0:13:23.3 Rhiannon: Oh, my God. [chuckle]

0:13:27.3 Peter: Well, there is... No, this is a serious part of that argument, which is like they are putting themselves in that danger and that's the whole... Don't they hold... They sort of hold themselves out as being particularly brave, but then when something bad happens, they're like, "Wow, that was particularly evil of you," and I don't think that's fair.

0:13:37.9 Josie Duffy Rice: Well, I think even more than that, right, though, the state. The state is the position of power, and obviously cops are individuals, they're people, so we don't want to reduce the importance of that, but just how conveniently they become the underdog and they become the individual victim when they are perpetrating the actions of the state.

0:13:58.3 Michael: And I very much appreciate you guys back-filling my tasteless joke, making it sound rational and reasonable.

0:14:07.1 Josie Duffy Rice: I'll say one more thing, especially, which is... And this is the James Forman book. There is also kind of an institutional trust among at least leaders and elite people of all colors in this system. And so you do have black public officials who feel really strongly and understandably that crimes against black people are ignored, right, and harm against black victims is ignored. And in some ways, that's what this case is saying, you might want to take it a different way, and that is being used as fodder for constructing a harsher system. They're also asking for more schools, better schools and better jobs and better perks, but somehow all the system heard was more cops, but it is a very different context than what we have right now, and nobody can even imagine what's about to come.

0:15:05.7 Peter: I think it's important to note that the '70s through the '90s was in some ways the infancy of many social sciences, and so it's sort of unclear in the mid-80s how the development of those social sciences is going to ultimately intersect with the law. So as Rhiannon explained, there are analytical tools becoming more widely understood at the time that can tell us a lot about how the law works in practice, and so in many ways, this case comes at a crossroads where the law is facing two paths. Down one they can take to heart what the social sciences are teaching us about the gross disparities in the justice system and society more broadly, and down the other, we can just pretend that shit doesn't exist and pretend that every case exists in a vacuum.

0:15:46.0 Peter: And you can kind of guess what path the conservatives take us down here. So to look at the law bit again, McCleskey is claiming that this study, the Baldus study, shows that the death penalty in Georgia is discriminatory against black people, such that it violates the Eighth Amendment's Cruel and Unusual Punishment Clause, as well as the Fourteenth Amendment's Equal Protection Clause. I think for this episode, not in small part because we just did a whole episode on the Eighth Amendment, we will kind of lean towards the equal protection stuff and talk a bit more about that, 'cause it's a little more cut and dry.

0:16:17.4 Peter: So the Court in a 5-4 decision here written by Justice Lewis Powell says, "No, you can't get out of being put to death just because there's a study showing that this entire system is clearly racist." And the gist of this opinion is actually very simple. The Court says to prove discrimination under the Equal Protection Clause, you have to prove discrimination in your specific case, so you have to show that a prosecutor or a cop or a judge or someone else actively responsible for you being put to death was racist, but you cannot simply rely on statistical evidence.

0:16:51.3 Peter: McCleskey also asked that they halt the implementation of the death penalty in Georgia entirely, not just in his case, and the Court responds to that the same way. They said, the only way you can do that is if you prove the legislature intended for the law to be racist. It's not enough to show that it was actually in practice racist. It's all about intent.

0:17:15.4 Michael: Right. And one thing the Court does here that I think is somewhat dishonest, but bolsters its argument and makes it sound better, is it's sort of like, it cast like juries as sort of the protagonist of this whole story. The jury convicted McCleskey of murder, the jury heard arguments as to the appropriate sentences, the jury considered the mitigating factors, the jury recommended the sentence, these are all quotes littered throughout. There's also like the role of the state, right? Absolutely. As Blackmun points out in dissent, the prosecutor decides whether to pursue the death penalty, what stage of trial to do so, how vigorously to pursue it, what evidence is to be put before the jury, and it's not like McCleskey ignored this either. He pressed this argument.

0:17:58.4 Michael: They took depositions, they detailed the whole process by which the DA makes these choices, the training that they go through, and the majority just sort of shrugs its shoulders and says, in two or three sentences, it says, "Well, prosecutors have a lot of discretion. So what do you want us to do about it?" But obviously, it's a huge issue if the state through the district attorney is systematically discriminating against black defendants, or black victims, if you want to frame it that way, by not as vigorously pursuing the perpetrators of crime against black victims. Either way, the majority is just basically removing the state entirely from the equation, despite it being like one of the, if not the main actors and turning it into this abstract discussion about the process in juries.

0:18:53.0 Josie Duffy Rice: This is still a thing, right, that when prosecutors behave in the most egregious, in the harshest possible ways, when they pursue a 99-year sentence for stealing a candy bar. The narrative is still, well, prosecutorial discretion, right? They get to do what they want. This is part of what it means to elect a prosecutor. However, funnily enough, you guys will be shocked to hear that when things go in the opposite direction, when you elect a Jose Garza, you elect a Kim Foxx, you elect a George Gascon, they're still prosecutors, they're still putting people in prison every day, that's their job, but they maybe are choosing not to prosecute certain things or, all of the sudden, the courts and the legislature are actually totally willing to curb prosecutorial discretion. And just the hypocrisy there, because they've been blaming this system functionally on good judgment, these people have good judgment and they made these judgmental decisions, and you should accept them. And then all of the sudden, they use their judgment in a different way and they're like, "Wait a second, this is not how we want it."

0:19:58.4 Josie Duffy Rice: And you see prosecutors doing that, you see prosecutors supporting... Harsh prosecutors supporting laws that restrict their discretion as long as it restricts it only in a certain way.

0:20:09.2 Michael: Yeah. I remember seeing when, I think in Philly, they stopped asking for cash bail.

0:20:14.1 Josie Duffy Rice: Oh, my gosh, yes.

0:20:16.0 Michael: And then the judge would still just... You know, imposed bail anyway.

0:20:18.4 Josie Duffy Rice: I mean, what they've done to Larry Krasner in Philly is wild. They've just done everything they can to make sure he has no power. It just drives home what a fiction all of this shit is.

0:20:28.0 Michael: Yeah, the majority is just using the jury as a shield here to hide behind, which is like, again, if the issue is that it's like a broadly racist society, then I don't see how a jury selected from that society is a shield against that discrimination at all, right?

0:20:44.7 Peter: I think that this case might be the single most devastating blow in all of American jurisprudence to the potential for the law to understand and account for the scope of racism in the criminal justice system.

0:20:57.1 Rhiannon: Yeah, just a quick note that when this case came down, when McCleskey came down, academics, other people, they called it the Dred Scott of the death penalty, the Dred Scott decision of the criminal justice system.

0:21:06.7 Michael: I mentioned Blackmun, he dissented separately 'cause he didn't want to say the death penalty was fully unconstitutional in all instances, but this case stuck with him, and it was the morning McCleskey was eventually put to death in 1991 that he told his clerks to start looking for a case where he could write about why the death penalty is fully unconstitutional. So, it's clearly like to your point, Rhiannon, this was a big deal that had a lot of impact on people, the way this shook out.

0:21:36.2 Peter: Yeah, the idea that you can prove that an entire system is racist and the Court would simply ignore that and claim that it's sort of irrelevant to your case, is profoundly disgusting, but also this sort of deeply intellectually dishonest position. For one, it assumes that there always would be clear-cut evidence that someone who was involved in your case was motivated by racism, which completely misconstrues how racism manifests. Most racist prosecutors or juries or judges do not believe themselves to be acting out of racial bias. You're not going to generally hear them say something racist. You're not going to hear them say that they are giving a certain sentence because of someone's race.

0:22:18.7 Peter: So, what evidence does the Court actually expect someone to be able to provide here? The whole point of the statistical evidence is that it cuts past the aesthetics and shows that no matter what people are saying or how they're acting, the output of the system is discriminating against black people. And the bottom line for me is if you can show that the death penalty in a state is discriminating against black people, and the Court will not reverse your death sentence nor will they stop the implementation of the death penalty in that state, then what's the fucking point of the Equal Protection Clause? What's it even doing?

0:22:50.5 Peter: It says that the states have to treat everyone equally under the law. This guy comes around saying, "Well, here's statistical proof that Georgia is not doing that." And the Court's like, "Yeah, sorry, we just don't give a shit." Powell says, "The Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system." He's saying like, "Man, what can you do about this stuff?" If only there was a part of the Constitution that was specifically meant to address racial disparities, wouldn't that be useful? Wouldn't that be a cool thing, Justice Powell?

0:23:26.6 Peter: That's why every time I hear some conservative Justice described as a strict constitutionalist, I'm always just like, "Give me a fucking break." Not that strict when it comes to the parts of the Constitution they don't like. Actually super flexible about those. I do want to mention one thing, this was the one case that Powell says he regretted. Powell is like... We've never really talked about him, but sort of one of history's greatest monsters. [chuckle] And he wrote a memo in the early '70s that was basically designed to guide the conservative legal movement and basically recommended the deference to corporate America and the dismantling of the more robust understandings of the Equal Protection Clause in the Fourteenth Amendment more broadly, truly a huge piece of shit. So for him to recognize later in his career that this was a mistake, really said something.

0:24:16.8 Michael: Absolutely. And I also think something you mentioned up top, Peter, that bears sort of expanding on is that this case is a great example of something we mentioned in our episode on the Violence Against Women Act, which is the way conservatives sort of reduce large systemic problems to discrete individualized actions or instances. And in that case, they rejected the plain fact that gender-based violence is a large-scale problem that shapes the entire national economy, and here, they're rejecting the fact that the death penalty is plainly a vehicle for systemic racial discrimination, right?

0:24:56.3 Rhiannon: Yeah.

0:24:56.5 Michael: And you can also see this vividly in gun culture, or things like crime and poverty are problems to be tackled by big social legislation, or even with state-backed law enforcement, it's instead it's an individual gun owners empowered by stand your ground laws. It's this insistence that the solution to any problem rooted in violence is more guns in the hands of more people. And so this is like the conservative mindset, is that we're all sort of individual protagonists of reality and we get to shape our decisions free from the yoke of government.

0:25:28.8 Michael: And I think if you pull back a little further, this is all rooted in this conservative conception of liberty, which is like, there's this thing Lincoln said that I always think about, which he said, "The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator while the wolf denounces him for the same act as the destroyer of liberty." And I think the wolf conception of liberty is what roots modern conservativism. And that's like a slave holder's conception of liberty, that you should be free from the government telling you who you can and cannot oppress, it's a sense of liberty that fundamentally denies equality as an important social value, which is precisely how you get cases like this. That's what's animating this and that's what's animating the conservative legal movement.

0:26:17.5 Josie Duffy Rice: There's another thing that I think is so crucial in some of these cases, which is a pragmatism, basically, of the Court, and this sense that courts are actually supposed to decide on the law, they're not actually supposed to take into account how difficult it would be to implement this law necessarily or whatever, they're just supposed to decide according to the Constitution. What actually happens is, if you decide that the system is racist, if you say the system is racist and therefore it's illegitimate to sentence this guy to death, how far does that trickle down? What does that leave us with? What are we going to do when black people commit crimes from now on?

0:26:54.9 Josie Duffy Rice: I mean, functionally, this is how it happens, especially in America, where we create these systems of inequality, and then basically it's just too hard to dismantle them. To dismantle them would take a level of work and resources that nobody really wants to spend or do to get that done. That's at least somewhat at the heart, I think, of a decision like this, where you have to twist and turn yourself into so many different directions to make sure that you're not making a decision that would basically undermine the entire system as it is, even when it deserves to be undermined.

0:27:28.7 Rhiannon: Exactly.

0:27:29.9 Peter: They're deeply concerned about sort of playing Jenga with the social hierarchy, right?

0:27:34.7 Josie Duffy Rice: Yeah.

0:27:35.0 Peter: This shit is so deep in conservative psychology, I think, 'cause it's fundamental to the protection and justification of the status quo. If what you want out of politics, if your political project is the ongoing defense of existing social and political hierarchies, then you can't concede that there are deep structural flaws within the systems that produce those hierarchies. So everything has to be the result of individual failures to adhere to the rules of those hierarchies. The system can never fail you, you can only fail the system. So everything that resembles injustice must be explained away as an individual failure, lest the system be questioned and hierarchies disturbed.

0:28:14.1 Peter: And underlying all of this ideology and this opinion in particular is a sort of implication about the social hierarchies involved here, because like, okay, this study says the death penalty is disproportionately impacting black people in Georgia, and there are countless studies showing the various other ways that components of the criminal justice system weighs disproportionately on people of color, from traffic stops to arrests, to conviction rates, to sentencing. You can take a step out further and maybe note that the black populations in this country are disproportionately concentrated in small, relatively blighted pockets of major urban areas as a community, deeply impoverished relative to white populations.

0:28:50.7 Peter: And when you look at that sort of profound inequity, you have to accept one of two conclusions: Either this country is a deeply unfair place, or for whatever reason, black people are deserving of a lesser position in society. You have to accept one of those two things as true. And the left has long made its position clear that we live in an unfair society. But I think the open secret of American politics is that the right has a clear position on this too, they believe that the lower sociopolitical status of black people is deserved and that it's a product of that community's own failures.

0:29:25.8 Peter: And so when they gaze upon the vast differences in how the law treats people of different races in this country, it's not that they don't see it, they see the differences, they just don't perceive it as unjust because they believe that those communities are reaping the consequences of their own mistakes, just like they credit those at the top of the social hierarchies for having earned that position.

0:29:45.6 Josie Duffy Rice: I think there's this other... This third thing, which is basically a culture of poverty argument.

0:29:50.5 Peter: Yeah, it's not inherent, right.

0:29:52.4 Josie Duffy Rice: Right. It's not inherent, but because of slavery and because of Jim Crow, they're more violent or they're not as smart, or there is a rot in their culture and maybe 50, 100, 150 years ago, that was white people's fault, and now this is just how it is, and it's so sad, right?

0:30:08.1 Peter: Yeah.

0:30:08.8 Josie Duffy Rice: I would say that that probably makes up most of America, and that when you actually really push people, especially the boomers, on their views around around race, you eventually get to the conclusion of, "I feel bad for what we've done to them because we've ruined them," essentially. And to actually understand that there is no inherent difference here in capacity, capability or even basic stuff like self-control, but that this is a structural maze that you could follow, you could see how it ends from the beginning, is really, really hard for people to comprehend.

0:30:48.7 Rhiannon: And I think, bringing it back to the case and the Supreme Court's failure to act in McCleskey to stop what was clearly shown to be sort of racist administration of the death penalty, well, fast forward to today, we have even more data that shows that this has continued to be a problem in the criminal justice system, and you see it especially in the death penalty. So the arbitrariness that the Supreme Court was saying, "We could not accept arbitrariness in handing out the death penalty, particularly on the basis of race," that just... It's been completely perpetuated.

0:31:25.5 Rhiannon: And we know that. Studies have shown that jurors in Washington State, for instance, they are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case. In Louisiana, the odds of a death sentence were 97% higher for those whose victim was white than for those whose victim was black. And again, these studies are controlling on non-racial variables. Another example, a comprehensive study of the death penalty in North Carolina found that the odds of receiving a death sentence rose by three-and-a-half times among those defendants whose victims were white.

0:32:02.8 Rhiannon: And in 96% of states where there have been reviews of race and the death penalty, there's shown to be a pattern of either race of victim or race of defendant discrimination or both, and just a note there that that last statistic came from another study that Professor Baldus did in the late '90s. Just want to highlight that the studies still show the same thing, the data still shows the same thing, and so this was not sort of a, I don't know, a chance or just an implication that these things were happening in McCleskey's case on the basis of race.

0:32:39.9 Josie Duffy Rice: I think in Louisiana, a black man is 30 times as likely to be sentenced to death for killing a white woman as for killing a black man.

0:32:47.4 Michael: Jesus.

0:32:48.1 Josie Duffy Rice: And in general, the system is very arbitrary and not just about race, everything is dependent on 30 variables that can get you two months or 20 years in jail, in prison. It's so intense with the death penalty, especially again, not just when it comes to how racially unjust the system is, but there are thousands of murders every single year, and we sentence less than 20 people every year to the death penalty, right? Now, that's a tenth of what we did 15, 20 years ago, right, which was a fraction of what we did five, 10 years before that. And you're only going to get the death penalty if you not only are in particular states, but if you're in particular counties.

0:33:34.1 Josie Duffy Rice: If you kill someone outside of Los Angeles county versus inside of Los Angeles county until at least a few months ago when they elected a new DA, you literally have a 2000 times more likely chance of getting the death penalty then you would elsewhere. And I think that what is lost on people so often is just how we think of this system as transactional between what you've done and what punishment you get, and it's just not. It is like, where do you happen to be at that moment, what's going on with that DA, what's a bad article that was written about them that week, when is their next election, who elected this judge, right? How many death penalty cases have they done this year? What does the budget look like? All of these things impact the chances of the state saying, "Yeah, we're gonna kill you."

0:34:18.9 Josie Duffy Rice: And right now we're putting people to death that were sentenced 20, 25 years ago when A, technology, forensic science, was a fraction of what it is now, so we don't even necessarily have the skills to accurately convict people or more accurately convict people the way that we have more of them now, maybe, but also we wouldn't put them to death if they were convicted of the same thing today. And it's just another highlight of how arbitrary the system is overall.

0:34:50.6 Rhiannon: Yeah. And the scope of the problem, I think really leads me to thinking about Justice William Brennan's dissent, just a note that I think that people who are listening should read Brennan's dissent in McCleskey, it's an opinion for the ages, really. Brennan points out that the majority is concerned with this sort of like a slippery slope argument that if we recognize that racism is a problem in the administration of the death penalty, then, "Oh, are we gonna have to recognize that discrimination in punishment based on hair color or height is a problem?" Brennan says, "The Court states that its unwillingness to regard a petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice."


0:35:48.7 Rhiannon: So the idea that like, "Okay, well, fixing a big problem warrants big solutions," but this slippery slope argument, it is so stupid that it's laughable.

0:36:00.4 Peter: Slippery slope towards more justice. Like we're...

0:36:02.8 Rhiannon: Right, right.


0:36:02.9 Peter: Now, we can't kill anyone unfairly? I like that it... It was presented as an absurdity, like, "Oh, so if we're executing tall people at a much higher rate, that's gonna be a violation of the Equal Protection Clause too?" And it's like, "Wait, are you?" Like yes, that would be weird.


0:36:18.7 Rhiannon: Right, yeah, yes.

0:36:18.9 Peter: That would be, in my view, a weird arbitrary imposition of the death penalty that should be looked into.

0:36:25.7 Josie Duffy Rice: Short killers have all the luck.

0:36:27.4 Peter: They do.

0:36:27.7 Josie Duffy Rice: Or short murderers, yeah?

0:36:29.4 Peter: They get away, they're very sneaky, they just...

0:36:31.3 Josie Duffy Rice: They're very sneaky.


0:36:32.9 Michael: Our society loves its short killers and...

0:36:36.4 Rhiannon: And there are so many counter-arguments to this, it's literally like overwhelming my brain, this is so stupid. First of all, race discrimination, it is different. Say it, you sick fucks, it's worse because of history and context, and no one is arguing at the Supreme Court that they were killed because they have blond hair, and we didn't have laws 50 years ago saying you couldn't marry blond people, and no one was getting lynched for having blond hair. You can treat race as more serious, because it is, right?

0:37:08.1 Rhiannon: Second of all, their own jurisprudence at the Supreme Court on the death penalty says otherwise. In Furman, which was the case in the early 1970s that actually completely invalidated the death penalty in the US for a brief period of time, the Supreme Court decided that way based on just the risk of arbitrariness and discrimination in administration of the death penalty. When they brought the death penalty back, it was because they said that states had to put procedures in place to eliminate this kind of disgusting bullshit.

0:37:40.6 Rhiannon: They say that you need a showing of discriminatory intent as to Mr. McCleskey's individual case. But in Batson, a case that was decided the year before, and it's the case that prohibits racial discrimination in picking juries, the Supreme Court said that a showing that a disproportionate number of minorities were being excluded from a jury, that that was enough to make an inference of discrimination, and therefore had to be remedied. So what's the difference here, right?

0:38:10.7 Rhiannon: Third, the Baldus study is also highly sophisticated, right? This isn't just going to be easily replicated immediately everywhere. Finally, the Supreme Court itself, they said, "Death is different, this punishment is different than other punishments, we have to look at it in special ways, we have to be skeptical in special ways," and so it's just the Court not taking serious claims seriously. And if you're not doing that, then what else is the fucking point, right?

0:38:40.7 Rhiannon: So maybe as we wrap up, it might be good to just underscore what was really at issue in this case, the issue that the Court failed to address and how that issue is still endemic to our criminal law today, especially. This is intentional, systemic discrimination. Like sure, in the traditional way that we prove racism in the law, it's not individual discrimination to one person, Mr. McCleskey himself could not show specifically that the prosecutor who prosecuted him was racist in charging him in pursuing the case against him.

0:39:17.3 Rhiannon: It's not individual discrimination to one person, but what the Baldus study showed was a system-wide problem where racism was literally built into every step of the process. Studies since then, like I said, have shown systemic and yes, intentional racism in every corner of the criminal punishment system, whether you're talking about death penalty cases or drug cases or criminal trespass cases, there's a reason why in the public imagination, everybody knows in this country of the colloquial walking while black offense.

0:39:50.6 Rhiannon: Research and data have proven this, that black people are pulled over, they're stopped by the police more, they're arrested more, they're injured by the police more, they are shot and killed by the police more, they're found guilty more, and they serve longer sentences, they receive harsher punishments.

0:40:07.9 Josie Duffy Rice: I mean, the idea of this too much justice thing is particularly ironic in the context of the death penalty, because this is supposed to be... The reason the state executes people is this idea of justice. This is what you do, you take a life, your life is taken, without an acknowledgement that there is no justice when your loved one dies, right? There is no... Killing the killer doesn't bring them back. This is not... The conception of justice that the state has is really just retribution.

0:40:37.4 Rhiannon: Yes.

0:40:37.6 Josie Duffy Rice: And so, this idea of too much justice is too much fairness to them. Things might get too fair, and therefore we might not be able to get as much revenge as we want, which just fundamentally, I think, highlights just how fucked up this whole system is from baseline. Its basic priorities are messed up.

0:41:00.9 Michael: Right, and circling back to a couple of different points Josie and Peter have both made. Josie, you mentioned in Louisiana, you think it's something like 30 times more likely to get the death sentence for a white victim, a white female victim versus a black male victim. And so, this sounds like something that would be like a tee up for a joke for me, but I do feel like there's seriously, there's some sort of weird white sexual neurosis about black men and white women that has a documented history in this country that runs through a lot of this stuff.

0:41:41.1 Michael: And I think goes to the arbitrariness and the fact that it's so deeply set in that you're not going to necessarily find someone writing in their jury notes or whatever why they're doing this, but it's like it's there and it's been there for decades, if not centuries. This is a trope that goes all the way back.

0:42:01.8 Peter: Yeah, and the reverse is true, when a victim is black, it's especially notable when a black victim is the victim of state violence, and you see this sort of the "no angel" narrative pop-up, right?

0:42:14.0 Michael: Right.

0:42:14.8 Peter: And it's the infantilization of white people and white women in particular, and on the other hand, the complete demonization of black people, black men, especially, including when they're victims.

0:42:26.0 Rhiannon: Yes, absolutely. And just bringing it back to what practically system-wide is happening in what is a sort of endemically and inherently racist system, I think about this piece that was written. So after George Floyd was murdered last year by a white police officer in Minneapolis, a former public defender there wrote an op-ed titled Consider What Would Have Happened if George Floyd Had Survived. And it highlights not only the tragedy of George Floyd's death, but really the horror of the whole system that enacts this kind of violence as a matter of routine. The author goes through what would have happened if George Floyd had been arrested and assaulted by the officer in exactly the same way, but for some reason, some miracle, did not die as a result of those injuries, and he describes it in detail.

0:43:15.5 Rhiannon: George Floyd would have woken up in a jail cell in pain. He would have been charged with forgery of a $20 bill. He would have been charged with resisting arrest and probably felony assault on an officer. His bail would have been set around $100,000, maybe $200,000. His defense attorney would challenge the stop and the arrest, and the judge would be shown the videos, and the prosecutor would argue that the police were following their training and that their use of force was valid to restrain a known criminal and keep themselves safe.

0:43:48.1 Rhiannon: The judge would have adopted the prosecutor's version of the facts. The case would continue through the system. If he had gone to trial, the jury pool for that case would have had two or three black people in it, maybe, and the prosecutor would likely strike all of them. The defense attorney could object, the judge would allow it anyway, and at trial, each of those four officers would come to testify and they would have been prepped by the prosecution. And to a jury, they would sound credible. Probably, George Floyd would have been found guilty and you think, "Okay, well, maybe he has a chance to appeal."

0:44:21.8 Rhiannon: He can appeal his case to a higher court. Well, the Appellate Court, in all likelihood, would deny all of his claims. The State Supreme Court would decline to review it, and George Floyd today would remain most likely in jail or prison. Police officers would use that case as an example when they train police officers on the use of force, and on, and on, and on, the violence just continues. And so, this is a cycle of violence. This is a racist cycle of violence that is condoned, it is perpetuated by police, by prosecutors and by the judicial branch.

0:44:55.8 Rhiannon: Warren McCleskey went through that system, albeit for a more serious crime for which the law allows much harsher punishment. And the Supreme Court took up the case and was given evidence of all of this awful wrought throughout the system that McCleskey was forced through. And it was decided there wasn't anything to do about it. And Mr. McCleskey's own case is an example of exactly this horrific cycle. So after this Supreme Court decision in which McCleskey proved that executions in Georgia were carried out in racially discriminatory ways, and the majority ruled against him saying that that made no difference, McCleskey's lawyers had to start at square one again and find any other possible grounds for relief.

0:45:40.1 Rhiannon: After more investigation, they discovered that prosecutors in Georgia had obtained the most damaging evidence against McCleskey, actually from a jailhouse informant who was planted by Atlanta police. Mr. McCleskey's lawyers at trial didn't know that information. The jury didn't hear that information because prosecutors were hiding it. So Warren McCleskey went back to the Supreme Court for a second time on this appeal. And in April 1991, the Supreme Court again denied him any relief, this time saying that McCleskey had waited too long to raise the claim. Justice Thurgood Marshall actually dissented from that denial, saying, "In refusing to grant a stay to review fully Mr. McCleskey's claims, the Court values expediency over human life. Repeatedly denying Warren McCleskey his constitutional rights is unacceptable. Executing him is inexcusable."

0:46:36.1 Rhiannon: Warren McCleskey was executed by electrocution in September 1991. And it brings me back to some quotes from Brennan's dissent again, and I want to tell listeners to read this whole thing because there is some good stuff in there. Brennan says, "Those 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." And later he says, "It is tempting to pretend that minorities on death row share a fate in no way connected to our own. That our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined."

0:47:26.6 Rhiannon: Brennan wrote that in the mid-80s. It is absolutely still true today, and it's a travesty that the Supreme Court in this case did nothing about what is clearly racist, awful, systemic injustice.

0:47:41.9 Michael: A-fucking-men.

0:47:43.2 Josie Duffy Rice: Yeah.

0:47:48.6 Peter: Alright, well, thank you. Thank you, Josie, for coming on. We very much appreciate it.

0:47:52.7 Rhiannon: Josie!

0:47:54.3 Josie Duffy Rice: Thank you, guys, for having me. I had a great time.

0:47:57.2 Peter: It's cool to be the official Supreme Court podcast of The Appeal.

0:48:03.3 Josie Duffy Rice: It is. It is.


0:48:04.9 Josie Duffy Rice: I was actually gonna announce that right after you finished, but...


0:48:09.2 Peter: Next week is our first subscriber-only Patreon episode. We figured we'd start off with a bang, so it is our long-awaited episode on Justice Antonin Scalia. We will walk you through his life, his legal philosophy, his many, many hypocrisies, and why we consider him to be maybe the single most cancerous person to ever wear the robes. Subscribe at, that's fivefourpod all spelled out, to get access to that episode and all of our future premium episodes and bonus content. Thank you, we love you, and we appreciate your support.

0:48:45.6 Josie Duffy Rice: Bye, guys.

0:48:46.3 Rhiannon: Hugs and kisses.

0:48:49.6 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova and Madeline Kaplan with editorial oversight by Leon Neyfakh and Andrew Parsons. Artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.