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37 N. Ky. L. Rev. 273 (2010)
The Racial Justice Act in Kentucky

handle is hein.journals/nkenlr37 and id is 277 raw text is: THE RACIAL JUSTICE ACT IN KENTUCKY

Gennaro F. Vito, Ph.D.*
Despite the super due process procedures outlined in Gregg v. Georgia,1
the reinstitution of the death penalty in 1976 did not prevent racial
discrimination in capital sentencing. Post-Gregg studies of capital sentencing
have consistently demonstrated that the racial makeup of the victim-offender
relationship in murder cases has affected the probability of a death sentence.
Despite this research evidence, alterations to the capital sentencing system have
been less than forthcoming.
In McCleskey v. Kemp, the U.S. Supreme Court stated that the Baldus study2
on the Georgia capital sentencing procedures reviewed in Gregg revealed only
a discrepancy that appears to correlate with race.3 The Baldus study presented
evidence that blacks charged with killing whites had the greatest likelihood of
receiving the death penalty.4 This research was an attempt to inform           the
comparative proportionality review process introduced under the Georgia capital
sentencing statute passed after the Furman decision.5 The Baldus study
*   Professor and Distinguished University Scholar, Department of Justice Administration,
University of Louisville. Paper presented at the Northern Kentucky University Chase College of
Law Fall Symposium: Race and the Death Penalty, Saturday, October 17, 2009, Northern
Kentucky University, Highland Heights, Kentucky.
1. See Gregg v. Georgia, 428 U.S. 153 (1976) (holding that punishment of death for the crime
of murder did not, under all circumstances, violate the Eighth and Fourteenth Amendments; and
that the Georgia statutory system under which the punishment and guilt portions of the trial are
bifurcated, with the jury hearing additional evidence and argument before determining whether to
impose the death penalty; under which the jury is instructed on statutory factors of aggravation and
mitigation; and under which Georgia Supreme Court reviews each sentence of death to determine
whether it is disproportionate to the punishment usually imposed in similar cases was constitutional
despite the contention that it permitted arbitrary and freakish imposition of the death penalty).
THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 2-3 (1990). The Baldus study is actually
two studies. Both focused on Georgia and examined whether trial-level reforms . . . can
distinguish rationally between those who should live and those who should die, along with the
ability of state supreme courts to provide the oversight of their death-sentencing systems required
to ensure that they operate in a consistent, nondiscriminatory fashion. Id.
3. 481 U.S. 279, 312 (1987).
4. Id. at 287.
5. See Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (holding that imposition and carrying
out of the death penalty in cases before the Court would constitute cruel and unusual punishment in
violation of Eighth and Fourteenth Amendments).

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