McCleskey v. Kemp was decided on April 22, 1987, and yet the 30 years that have elapsed since Justice Powell circulated his majority opinion have done little to soften McCleskey’s sharp edges. The case concerned a challenge from a death-row inmate to the administration of capital punishment in Georgia, where he had been sentenced for the killing of a white police officer. McCleskey argued that his capital sentence was driven in large part by his race, in combination with the race of his victim, and that these considerations violated his constitutional rights under the Eighth and Fourteenth Amendments. As evidence, McCleskey proffered a study demonstrating that a black man who killed a white man in Georgia received a death sentence 22% of the time, as compared to the 1% of death sentences in cases where the victim was also black.  Writing for the majority of the Court, Justice Powell held that social science studies could not prove that there was an individual intent to discriminate against McCleskey during his prosecution or trial, and that his challenge was therefore deficient. McCleskey, having lost his case, was put to death on September 26, 1991.

Powell’s dismissive views of social science are still alive and well at the Supreme Court, as Chief Justice Roberts recently demonstrated with his snide reference to “sociological gobbledygook” during oral argument on October 3. Professors Mario Barnes (UC-Irvine) and Osagie Obasogie (Berkeley) visited Northwestern’s campus last week to discuss their recent research on the Court’s handling of social science at the Northwestern University Law Review 2017 Symposium, A Fear of Too Much Justice.

 

Prof. Barnes began the discussion by comparing McCleskey’s handling of social science with the Warren Court’s use of research data in Brown v. Board of Education (1954). In Brown’s (in)famous footnote 11, the Court cited the so-called “doll studies,” which purported to prove that children of color had lower self-esteem than white children. Since Brown, the study’s findings have been challenged on a number of fronts, and the Court’s treatment is considered overly credulous by some scholars.

By contrast, McCleskey saw the Court attempting to bury the findings of a methodologically sound study so that the majority could reach their desired result, namely, upholding the death penalty in Georgia without regard to its racially disparate application. For Barnes and his coauthor, Dean Erwin Chemerinsky (U.C. Berkeley), these cases demonstrate that the judiciary needs to adopt better norms about the use of social science in the courts. Data should not be a cudgel used to promote a judge’s own presuppositions, nor should it be an obstacle that a judge need only argue around to reach their desired result. Social science should instead inform a judge’s thinking while they consider legal and factual issues, serving much the same function that economics now does in the courtroom. Barnes advocated for the adoption of standards at the Supreme Court concerning when a judge should allow social science to enter the record, and for how that science could be objectively considered, taking the expert testimony standards from Daubert v. Merrell Dow Pharmaceuticals (1993) as a model.

Professor Obasogie, joined on the panel by his coauthor Zachary Newman (U.C. Berkeley), took a different approach to critiquing the majority opinion in McCleskey. In their view, McCleskey’s result did not come because of (or in spite of) the Court’s handling of social science, it was instead driven by a desire to narrow the judicial consideration of ‘intent’ in the context of discrimination. The authors argued that state-sanctioned killing—either a capital sentence imposed in court, or a police shooting in the street—is always the result of a societal structure. In McCleskey’s case, the public of the state of Georgia had an intent to erect the racially discriminatory structures around capital punishment, and it had an intent to maintain them, despite their demonstrably worse effects for black men. And yet in a series of decisions, the Court atomized the meaning of ‘intent’ within the judicial system such that any consideration of larger social forces—the very forces that are captured and measured in social science—was useless in finding intent. Thus McCleskey, alongside Washington v. Davis (1976) and Graham v. Connor (1989), removed racially discriminatory social structures from the judiciary’s purview, effectively gutting the possibility of any future interventions on the scale of Brown.

To sum up his discussion, Prof. Obasogie asked the audience, “After McCleskey, what’s left to protect people of color in America?”

“Jesus. That’s all we have left.”