In August, the EJS legal team traveled to Montgomery, Alabama, the birthplace of the civil rights movement, where we met with death penalty litigators from around the country to identify strategies to overturn McCleskey v. Kemp, a 1987 Supreme Court case in which a habeas petitioner presented statistical evidence showing grave disparities in the imposition of the death penalty in Georgia.
In the gathering, “Fighting McCleskey: A Tale of Two Theories,” the legal questions discussed include whether implicit and/or institutional bias theories could be used to support anti-death penalty litigation; if litigators should continue to utilize social science research to advance this work; and how an anti-discrimination approach could be useful in overturning the intent element of McCleskey. In the second decade of our work, EJS is tackling our biggest challenge, dismantling the “intent doctrine” as enunciated in Washington v. Davis.
Equal Justice Initiative (EJI), a renowned non-profit organization that provides legal representation to indigent defendants and prisoners who have been denied fair and just treatment in the legal system, hosted the meeting. In addition to the EJS legal team, attendees at the meeting included Bryan Stevenson, executive director of EJI, and other seasoned death penalty litigators.
In McCleskey, a review of over 2,000 cases illustrated that the death penalty was assessed in 22 percent of cases involving black defendants and white victims, and just one percent of those involving black defendants and black victims. Application of the death penalty was 4.3 times higher when the defendant was charged with killing a white victim.
The U.S. Supreme Court affirmed that, without evidence of conscious, deliberate bias by government actors, evidence of racial sentencing disparities in the death penalty was, “an inevitable part of our criminal justice system.”
Outside of the convening, we visited the King Memorial Baptist Church, where Dr. King and others organized the Montgomery Bus Boycott. We stood where Rosa Parks stood right before boarding the bus. We walked down Commerce Street tracing the path that kidnapped Africans took as they left the boats that had just come up the Alabama River. We visited the place where these terrified and angry men, women, and children were sold into bondage.
We returned to California even more committed to the fight for equality and justice sparked decades ago.