Reflections on McCleskey v. Kemp - Racist Roots: Origins of North Carolina’s Death Penalty

In this Chapter

The following are excerpts from the 2018 law review article, McCleskey v. Kemp: Field Notes from 1977 – 1991. UNC Law School Dean John Charles Boger argued on behalf of Warren McCleskey in the U.S. Supreme Court.

“The litigation campaign that led to McCleskey v. Kemp grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals.”

“I confess to being naïve, despite the pattern of history in this area, about the extent to which the Court might be willing to divert its eyes from, minimize, trivialize, or even acquiesce in proven patterns of racial discrimination that manifest themselves at a systemic or societal level. McCleskey effectively closed the book, not only on further racial challenges in capital sentencing but, far more broadly, on empirical racial challenges in other kinds of criminal cases.”

“McCleskey seems to me best understood as an act of Grand Racial Avoidance: a turning away from the reality of widespread racial discrimination. What we need to do now is regather strength, shine light into darkness, and set our shoulders against the burden of America’s 400-year legacy of racial injustice and subordination.”

Read more on the legacy of McCleskey in the Atlantic.

John Charles Boger is an emeritus professor and former dean of the University of North Carolina Law School; he previously worked at the NAACP Legal Defense and Educational Fund, Inc. (LDF) and during that time represented Warren McCleskey in the U.S. Supreme Court.

Next – Racism and the Death Penalty: The Intertwined Ropes of the Lynchman’s Noose

The following are excerpts from an op-ed published in USA Today.

The link between slavery, Jim Crow, lynching and the death penalty is as connected as the intertwined ropes of the lynchman’s noose. In 1976, the U.S. Supreme Court ushered in the modern death penalty in the case of Gregg v. Georgia, ruling that capital punishment was “essential.” Without it, the court said, citizens would turn to “self-help, vigilante justice and lynch law.” Essentially, the court charged the criminal justice system with a job once left to mobs with a noose.

Just as African Americans were once disproportionately lynched, they are now disproportionately represented on death row. Defendants convicted of killing whites are more likely to be sentenced to death than those who kill blacks, and prosecutors routinely exclude black citizens from capital jury service. Forty years after establishing the modern death penalty, we have professionalized and proceduralized the path to execution, but we cannot wash away the stain of racism.

North Carolina must decide: Will its people leave the legacy of lynching firmly in place? Or will they have the moral courage to finally end a death penalty deeply and irretrievably rooted in racism.

A flag outside NAACP headquarters in ...