LAW REVIEWS: The Enduring Significance of Studies Showing Racial Bias in the Death Penalty

Professor Samuel R. Gross (pictured) of the University of Michigan Law School has published an article in the Iowa Law Review examining the historical importance of a series of studies showing racial bias in the death penalty. The issue of race was brought to a head by the Supreme Court's consideration of McCleskey v. Kemp in 1987. McCleskey focused on a statistical examination of Georgia death sentences conducted by David Baldus. Though the study found compelling and statistically significant evidence of racial bias in sentencing, the Court held (5-4) this evidence insufficient to overturn Warren McCleskey's death sentence. Prof. Gross argues that, despite the Court's negative holding, the Justices were convinced that racial bias existed in the death penalty. "Even on the Supreme Court that sent Warren McCleskey to his death, even among the Justices who most strongly support the death penalty, nobody has tried to deny that racial 'sympathies and antipathies' decide who lives and who dies. No Justice said otherwise in McCleskey and none have denied it since." Gross concludes that Baldus' legacy was in "forc[ing] reluctant judges to face up to facts they would have preferred to ignore." Prof. Baldus of the University of Iowa died in 2011.

(S. Gross, "Baldus and the Legacy of McCleskey v. Kemp," 97 Iowa Law Review 1906 (2012); DPIC posted Jan. 24, 2013). See Studies, Race, and Law Reviews.