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73 Cornell L. Rev. 1016 (1987-1988)
Unconscious Racism and the Criminal Law

handle is hein.journals/clqv73 and id is 1037 raw text is: COMMENT
Sheri Lynn Johnsont
At most, [defendant's proof of racial discrimination] indicates a
discrepancy that appears to correlate with race. Apparent dispari-
ties in sentencing are an inevitable part of our criminal justice sys-
tem.... Where the discretion that is fundamental to our criminal
process is involved, we decline to assume that what is unexplained
is invidious.'
The Court today sanctions the execution of a man despite his
presentation of evidence that establishes a constitutionally intoler-
able level of racially based discrimination leading to the imposi-
tion of his death sentence.2
McCleskey v. Kemp3 is shocking, but not surprising. Much has
been written about McCleskey. Most commentators agree that it is
wrong, and they painstakingly map out all the points at whichJustice
Powell's opinion goes wrong.4 I agree that it is very wrong, but
what I want to focus on is how McCleskey fits into the larger picture
of race and criminal procedure. I think McCleskey is the consequence
of a large blindspot, a blindspot that mars the reasoning of all of the
recent cases involving both race and criminal procedure, a blindspot
that also distorts the Court's gestalt in more traditional equal pro-
t Professor of Law, Cornell Law School. B.A. 1975, University of Minnesota; J.D.
1979, Yale Law School. I am grateful to John Andrew Siliciano, and to my research
assistant, Irving Sepulveda.
1 McCleskey v. Kemp, 107 S. Ct. 1756, 1777-78 (1987).
2 Id. at 1794 (Blackman, J., dissenting).
3 107 S. Ct. 1756 (1987).
IN CAPTAL SENTENCING (1988); Kennedy, McCleskey v. Kemp: Race, Capital Punishment
and the Supreme Court, 101 HARV. L. REV. 1388 (1988); The Supreme Court, 1986 Term-
Leading Cases, 101 HARv. L. REV. 119, 155-59 (1987); Note, Social Science Statistics in the
Courtroom: The Debate Resurfaces in McCleskey v. Kemp, 62 NOTRE DAME L. REV. 688
(1987); Bedau, Someday McCleskey Will Be Death Penalty's Dred Scott, L.A. Times, May 1,
1987, § 2, at 5, col. 1. As Kennedy, notes, the bitter criticism of the Supreme Court's
decision was foreshadowed by the overwhelmingly negative response to the lower
courts' decisions in the case. Kennedy, supra, at 1389; see also Carter, When Victims Happen
to be Black, 97 YALE LJ. 420, 440-47 (1988) (criticizing majority opinion for its callous-
ness to black victims, but accepting outcome for McCleskey as inevitable).

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