NCJ Number
116603
Journal
Cornell Law Review Volume: 73 Issue: 5 Dated: (July 1988) Pages: 1016-1037
Date Published
1988
Length
22 pages
Annotation
This article begins by discussing three recent U.S. Supreme Court decisions involving both race and criminal procedure, speculates about the sources of the unconscious racism the author believes is responsible for these flawed decisions, and links unconscious racism to the ongoing debate concerning discriminatory purpose and disparate effect in the equal protection literature.
Abstract
In McCleskey v. Kemp (1987), the Court majority rejected a claim, based on an empirical study, that Georgia's administration of capital punishment discriminates according to the victim's race. In Turner v. Murray, Turner, a black defendant convicted and sentenced to death for murdering a white victim, had his request to voir dire potential jurors concerning racial bias denied. The Court held that this denial invalidated his capital sentence but not his conviction. In Batson v. Kentucky (1986), the Court held that a prosecutor's racially motivated exercise of the peremptory challenge violates the equal protection clause of the 14th amendment. Although the latter decision is laudable on its face, it is flawed in its assumption that merely allowing defendants to challenge the racially discriminatory use of peremptory challenges in individual cases will end the illegitimate use of the peremptory challenge. 'McCleskey' and 'Turner' err in reasoning that racism must be 'stark' and invidious to undermine constitutional rights. The Court has failed to address 'unconscious' racism, which operates as a collective mentality absent clear signs of a conscious intent to discriminate by race. This blindspot in the Court's reasoning is due to ignorance, fear, and denial. The courts are not prepared to do justice until they accept that injustice may be perpetrated through unconscious, collective biases. 128 footnotes.