Proofiness - Charles Seife [84]
To an ardent supporter of the death penalty like Scalia, the Baldus study was a serious threat. The moment the Court recognizes that the death penalty is administered in a racially discriminatory manner, it becomes unconstitutional. The Fourteenth Amendment guarantees that each citizen is treated equally by the law, and if African Americans are getting different penalties in court, then it’s an obvious violation.
What happened next was a stark example of the proofiness that the Court—particularly Justice Scalia—uses to keep the death penalty alive in the United States. In a five-to-four decision, the Court threw cold water on the Baldus study. Relying on the Georgia district court’s technical (and sometimes misguided) cherry-picking of problems with the regression analysis, the majority cast doubt on whether Baldus had found any real evidence of racism. Even if he had, it might not be solid enough proof. The Court decided that “to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study.” That is, it’s not enough for McCleskey to show that the deck is stacked against him; he has to prove that the dealer cheated specifically in the hand that he’d been dealt. This is questionable jurisprudence, to say the least.
In a moment of candor, the Court admitted that McCleskey’s case had to fail, in part, because “McCleskey challenges decisions at the heart of the State’s criminal justice system.” If the Baldus study was correct, it would have grave implications for Georgia’s courts; it would reveal a pervasive racism that undermined many of the courts’ decisions over the years. Such a conclusion was so damaging that the justices had to close their minds to the possibility; they had to construct an alternate reality in which the Baldus study was fatally flawed and Georgia’s system of justice was completely fair regardless of the race of the victim or the defendant.
Scalia didn’t write the opinion. Justice Lewis Powell did the honors. However, Scalia’s role is worthy of special attention because of a memorandum that came to light a number of years after the McCleskey decision. In the memorandum, dated January 6, 1987, a few months before the decision was handed down, Scalia expressed his opinion that the Baldus study was valid, and that the courts were indeed racist:
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [ones], is real, acknowledged by the [cases] of this court and ineradicable, I cannot honestly say that all I need is more proof.
This was a shocking statement. In Scalia’s mind, the matter was closed. It didn’t matter how much proof you shoveled in his direction; he had already accepted the fact that the Georgia courts’ administration of the death penalty was racially biased. But that fact didn’t change his mind. The machinery of death must continue to chug away unhindered. But rather than admit that, Scalia joined in with Powell’s majority, attacking Baldus’s study and requiring higher levels of proof than Baldus’s numbers were able to provide. Scalia’s memo shows the level of cynicism that the freshman justice was capable of. Even though he believed Baldus’s study, he attacked it, (in my opinion) cherry-picking by highlighting its flaws and ignoring its merits. Even though he knew that Georgia’s capital punishment system was racist, he demanded impossible levels of proof from a defendant who was fighting for his life. Scalia’s memo pulls the mask off of his proofiness.
McCleskey went to the electric chair on September 25, 1991. Powell would step down from the court a few months after penning the McCleskey opinion. A few years later, a biographer asked him whether he’d change his vote on any decision. The immediate