Racial Justice Act

The Racial Justice Act was a proposed federal bill that sought to reform the operation of the death penalty. The act would have required prosecutors to explain apparent racial disparities in the imposition of death sentences. The idea is traceable to McCleskey v. Kemp, a 1987 U.S. Supreme Court decision that rejected a constitutional challenge to racial disparities in Georgia's capital punishment system.

In McCleskey, lawyers for an African American sentenced to death relied on two sophisticated statistical studies that examined over 2,000 murder cases in Georgia during the 1970s to allege that Georgia's capital punishment system was unconstitutional. The studies indicated that in a midrange of capital prosecutions, the race of the victim and the race of the defendant were determinative of who received the death sentence. Stated most bluntly, in this midrange, Black murderers of Whites were more likely sentenced to death than any other defendant-victim combination.

Notwithstanding the studies, the Court ruled that McCleskey failed to establish a constitutional violation. According to the Court, the studies only showed a discrepancy in the imposition of death sentences that appeared to correlate with race. McCleskey's claim, the Court wrote, if taken to its logical conclusion could undermine the criminal litigation process, as defendants, supported by a statistical study, could challenge as arbitrary any sentence they received. Finally, the Court suggested that reform efforts were best directed to the legislatures.

In 1988, members of Congress took the Court's advice and submitted legislation to enact a Racial Justice Act, designed to overturn McCleskey. The bill was to create a federal statutory prohibition against carrying out any execution if the death sentence “was imposed based on race.” According to the bill, an inference that race was the basis for the death sentence was established if the defendant presented evidence demonstrating that when sentenced, race was a statistically significant factor in the decision to seek or impose the death sentence within the jurisdiction. The evidence had to establish that in the jurisdiction, death sentences were imposed significantly more frequently on persons of one race than on persons of another race or as punishment for capital offenses against persons of one race in comparison to persons of another race. The evidence had to take into account the statutory aggravating factors of the crime and include comparisons of similar cases involving persons of different races. Once the inference that race was the basis for a death sentence arose, the execution could not occur unless the prosecution rebutted the inference. The inference could only be rebutted by showing that the death penalty was sought in all cases meeting the statutory criteria for imposing the death penalty. Finally, no person was barred from raising the issue because he or she failed to raise the issue before the law was enacted or due to any previous adjudication before the enactment of the law.

The bill was not enacted. Reintroduced during the next Congress, the act passed the House of Representatives but was set aside in conference with the Senate; consequently, the Crime Control Act of 1990 contained no death penalty provisions. In 1991, the House rejected the act. In 1994, an act with a similar goal, the Fairness in Death Sentencing Act, was passed by the House and set aside in conference with the Senate, resulting in the 1994 Crime Control and Law Enforcement Act not including the measure.

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