Twenty years ago, in McCleskey v. Kemp,1 the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best presented to the legislative bodies" and that "it is not the responsibility-or indeed even the right-of this Court to determine the appropriate punishment for particular crimes."2
Putting aside the question of whether the Court's concerns about institutional competence are sincere, the Court has raised similar concerns in other constitutional cases involving racial disparate impact claims. For instance, in Washington v. Davis3-the Court's first clear holding that violations of the Fourteenth Amendment require proof of intentional discrimination-the Court held that rules affecting disparate impact "should await legislative prescription."4 Similarly, in Administrator of Massachusetts v. Feeney,5 the Court established a standard for proving intentional discrimination approaching malice,6 and again directed disparate impact claims to legislatures, stating that "[t]he calculus of effects, the manner in which a particular law reverberates in a society is a legislative and not a judicial responsibility."7
Thus, the Court has repeatedly argued that the legislature is the appropriate venue for addressing disparate impact claims. The problem, of course, is that advocates turn to courts precisely because legislatures are seen as unresponsive. The legislature may be unwilling to critically examine the death penalty or other criminal justice issues because of a weak constituency militating in favor of reform and political pressures to expand rather than curtail criminal justice penalties. Even when public sentiment may drift away from favoring harsh punishments-as, for instance, in recent polls that show declining support for incarceration for non-violent drug offenders8-legislatures may be slow to act because the constituency favoring reform is diffuse, while the constituency favoring tougher penal laws is well-organized and vocal.9 A central theory justifying judicial review is that legislatures are often unresponsive to issues affecting racial minorities,10 and, by some accounts, the United States' relatively harsh criminal justice policies (as compared to other Western democracies) are in part a result of the confluence of race with criminal justice. David Garland, for instance, casts punitive responses as resulting from the "criminology of the other," the meting of harsh punishments to perceived social outcasts-at this time in history largely poor blacks-who "lack political power and are widely regarded as dangerous and undeserving." 11
Olatunde C. Johnson,
Legislating Racial Fairness in Criminal Justice,
Colum. Hum. Rts. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2141