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20 U. Dayton L. Rev. 655 (1994-1995)
The Racial Justice Act of 1994 - Undermining Enforcement of the Death Penalty without Promoting Racial Justice

handle is hein.journals/udlr20 and id is 663 raw text is: THE RACIAL JUSTICE ACT OF 1994-
Daniel E. Lungren*
Mark L. Krotoski**
During the last Congress, the so-called Racial Justice Act (RJA) proved
to be one of the most controversial provisions in the omnibus crime bill. In fact,
until it was dropped, the RJA threatened final congressional consideration of the
crime bill.'
If the RJA were enacted, a capital defendant would be allowed to present
statistics from unrelated cases to suggest that race was a factor in the decision to
seek or to impose the death sentence. Once the defendant makes this bare
statistical showing, prosecutors would have a heavy burden to rebut the showing.
If the rebuttal is not made, the death penalty cannot be imposed. The RJA clearly
is designed to overturn McCleskey v. Kemp,' where the U.S. Supreme Court
denied a similar statistical claim based upon unrelated cases to establish racial
discrimination in the imposition of the death penalty. The RJA would also permit
a new round of litigation, unrelated to the facts of the murder and the individual
background characteristics of the offender, to be used to determine whether the
death penalty should be enforced.
Since 1988, the Congress has considered the RJA on several occasions. It
is likely that it will be debated as an amendment to future crime measures. Little
* Attorney General of the State of California, 1991 to present; University of Notre Dame, B.A., 1968;
Georgetown University Law Center, J.D., 1971 ; member, U.S. House of Representatives Committee on the
Judiciary, 1978-1988.
** Special Assistant Attorney General, California Department of Justice, Feb. 1991 through Dec. 1994;
University of California, Los Angeles, B.A., 1980; Georgetown University Law Center, J.D., 1986.
The authors wish to express their sincere appreciation for the many valuable suggestions on, and review
of, this Article by Deputy Attorney General Susan Lee Frierson. who is recognized for her extensive
background and expertise in dealing with legal issues related to the Racial Justice Act.
Additionally, the authors gratefully acknowledge the comments and review of several members of the
California Department of Justice Federal Habeas Corpus Reform Task Force who considered an earlier version
of this Article which was circulated as a section-by-section analysis of the Racial Justice Act to members of
Congress. This review included Chief Assistant Attorney General George Williamson and Deputy Attorneys
General Ward A. Campbell, Edward T. Fogel, Jr., Susan Lee Frierson, Dane R. Gillette, Ronald Matthias, Karl
Mayer, and Quint Hegner. Manager of the Statistical Analysis Center of the California Department of Justice.
Finally, the authors are appreciative of the efforts and review of this Article by Special Assistant Attorney
General Kevin P. Holsclaw.
1. See infra notes 32-35.
2. 481 U.S. 279 (1987).

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