First articles in OSJCL symposium on “McClesky at 25″ now up at SSRN

I am very pleased to report that two articles from the Fall 2012 issue of the Ohio State Journal of Criminal Law are now available via SSRN. There are an especially large number of terrific pieces in this issue, all of which I will be praising and promoting when the full issue comes on-line in the next few days.  But, because the articles already on SSRN come from the lead symposium focused on “McClesky at 25,” I will start shining the spotlight now for sentencing fans:

Scott Sundby, The Loss of Constitutional Faith: McClesky v. Kemp and the Dark Side of Procedure:

Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values.  This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism.  What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty.  McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.

Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself.  Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote — a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation.  The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?

G. Ben Cohen, McCleskey‘s Omission: The Racial Geography of Retribution:

Twenty-five years after the Court in McCleskey refrained from addressing the overwhelming evidence that race, and particularly the race of the victim, plays a role in the administration of the death penalty, with no corrective measures taken to ensure that the worst of the worst offenders receive the death penalty, the death penalty in America is as arbitrary as it ever was.

This article suggests that while both the majority and the dissent in McCleskey noted the history of racism in the South, neither confronted the manner in which racism was imbedded in the goal of retribution, nor reconciled the sordid history of lynching with the modern system of capital punishment.  A careful examination of death sentences in the modern era reflects that racism arises at a county rather than a state level.  The author suggests that the history of lynching, especially in the deep south, is inexorably connected to retribution.

Future challenges to the constitutionality of capital punishment should address the validity of retribution as a basis for imposing the death penalty and the impact that desire for retribution has on county-level administration of the death penalty.

The United States Supreme Court decision in Kennedy v. Louisiana, calls for further inquiry concerning the role of retribution in supporting the validity of the capital punishment.  In Kennedy, the Court warned that “retribution” “most often can contradict the law’s own ends . . . When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”