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51 Wash. & Lee L. Rev. 509 (1994)
Deliberate Indifference: Judicial Tolerance of Racial Bias in Criminal Justice

handle is hein.journals/waslee51 and id is 519 raw text is: Deliberate Indifference: Judicial Tolerance
of Racial Bias in Criminal Justice
Bryan A. Stevenson*
Ruth E. Fnedman
On April 22, 1987, a majority of the United States Supreme Court
announced a startling and deeply disturbing opinion about race and the
administration of criminal justice in the United States. Presented with
overwhelming statistical evidence of racial bias in Georgia's use of the death
penalty,I the Court ruled in McCleskey v Kemp2 that race-based sentencing
disparities for similarly situated defendants are an inevitable part of our
criminal justice system.3 After expressing fear that responding to racial
bias in death penalty cases might necessarily require confronting racial bias
in other criminal cases,4 the Court concluded that the Constitution does not
* Director, Alabama Capital Representation Resource Center; J.D., Harvard Law
School; M.P.P., John F Kennedy School of Government, Harvard University; B.A., Eastern
College.
** Staff Attorney, Alabama Capital Representation Resource Center and Southern
Center for Human Rights; J.D., Yale Law School; A.B., Harvard University
1. The raw data from a study of murder cases in Georgia by Professor David Baldus
of the University of Iowa constituted the statistical evidence in the case. See DAVID C.
BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY 306-93 (1990). The Baldus
study revealed that an accused is 8.3 times more likely to receive the death penalty for crimes
committed against whites than crimes committed against blacks. Id. at 314. If the accused
is black, he or she is 21 times more likely to be sentenced to death if the victim is white, as
opposed to black. See id. at 315 (Table 50). Even after controlling for the effects of other
variables influencing sentencing decisions in Georgia, a person accused of murdering
someone white is 4.3 times more likely to be sentenced to death than someone accused of
murdering a black person. Id. at 316.
2. 481 U.S. 279 (1987).
3. McCleskey v Kemp, 481 U.S. 279, 312 (1987).
4. The majority reasoned that if we accepted McCleskey's claim that racial bias has
impermissibly tainted the capital sentencing decision, we could soon be faced with similar
claims as to other types of penalty  Id. at 315-16. In his dissent, Justice Brennan observed

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