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39 Colum. Hum. Rts. L. Rev. 233 (2007-2008)
Legislating Racial Fairness in Criminal Justice

handle is hein.journals/colhr39 and id is 239 raw text is: LEGISLATING RACIAL FAIRNESS IN CRIMINAL JUSTICE Olatunde C.A. Johnson* I. INTRODUCTION Twenty years ago, in McCleskey v. Kemp,' the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that McCleskey's arguments are best presented to the legislative bodies and that it is not the responsibility-or indeed even the right-of this Court to determine the appropriate punishment for particular crimes.2 * Associate Professor, Columbia University School of Law. B.A., Yale University; J.D., Stanford Law School. For helpful research assistance I thank Aimee Pringle and Aslihan Bulut of the Columbia Law School Library. The ideas in this article were originally presented at the symposium entitled Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McCleskey v. Kemp, held by the NAACP Legal Defense and Educational Fund and Columbia Law School on March 2-3, 2007. 1. McCleskey v. Kemp, 481 U.S. 279 (1987). 2. Id. at 319 (stating that legislatures-the elected representatives of the people-are constituted to respond to the will and consequently the moral values of the people and are also better qualified to weigh and evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts) (citations omitted).

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