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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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