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10 Ohio St. J. Crim. L. 1 (2012-2013)
McCleskey at 25: Reexamining the Fear of Too Much Justice

handle is hein.journals/osjcl10 and id is 7 raw text is: McCleskey at 25: Reexamining the Fear of Too Much Justice Douglas A. Berman* The Supreme Court's 1987 ruling in McCleskey v. Kemp was widely condemned when first handed down, and the passage of time has hardly softened the critical appraisal. As Scott Sundby notes in this symposium, McCleskey has become firmly entrenched as a resident in the exclusive but not so desirable neighborhood of Notorious Cases and a legal scholar can invoke McCleskey . . . as shorthand for 'cases in which the Supreme Court failed the Constitution's most basic values.'2 Still, with the hope that often much can be learned from the infamous as well as the famous, this symposium explores the McCleskey ruling and its aftermath a quarter century later. This brief introduction cannot summarize the many important themes and ideas developed in the pages that follow; I will simply let our contributors own words speak for themselves. But I do want to explain briefly why I thought it important to bring together leading voices to discuss their perspectives on McCleskey 25 year later. I have long found revealing and haunting the slippery slope concerns set out at the end of the McCleskey opinion. According to the Court, McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system because his arguments concerning racial bias impermissibly tainting capital sentencing decisions could be extended to other types of penalty and to other minority groups, . . . to gender and even to any arbitrary variable, such as the defendant's facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential to sentencing decision-making.3 Justice William Brennan, writing the lead dissent in McCleskey, provided a spot-on response to the stated concern that McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing: on its face, such a statement seems to suggest a fear of too much justice. Given that, circa 2012, few would assert that our modern sentencing systems-capital or non-capital-struggle with . Robert J. Watkins/Procter & Gamble Professor of Law, Moritz College of Law at The Ohio State University. 1 481 U.S. 279 (1987). 2 Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side ofProcedure, 10 OHIO ST. J. CRIM. L. 5, 5 (2012). McCleskey v. Kemp, 481 U.S. 279, 315-18 (1987) (internal citations omitted). 4 Id. at 339 (Brennan, J., dissenting). 1

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