Academic journal article Northwestern University Law Review

Mccleskey V. Kemp: Field Notes from 1977–1991

Academic journal article Northwestern University Law Review

Mccleskey V. Kemp: Field Notes from 1977–1991

Article excerpt

In the 1980s, I was part of a legal team that represented Warren McCleskey, a death-sentenced inmate forever linked with the Supreme Court decision that is the object of this thirtieth anniversary Symposium. Warren was an African-American, born into poverty and family dysfunction in Marietta, Georgia.1 He was convicted and sentenced to death in Fulton County, Georgia, in 1978 for the murder of an Atlanta police officer, Frank Schlatt, during an armed robbery of the Dixie Furniture Store.2 Warren was ultimately executed in Georgia's electric chair on September 25, 1991.3

Although the McCleskey case occupied much of my professional life for over a decade, my reflections-on the Court's treatment of David Baldus's sophisticated empirical evidence, Justice Lewis Powell's muchcriticized constitutional rationales, the decision's subsequent reach- inevitably begin with historical forces at work long before April 22, 1987 when McCleskey v. Kemp was announced. Professor Reva Siegel sounds an historical theme in her opening Essay.4 I am drawn to conclude in a related vein.

For McCleskey certainly did not begin with me, nor with Warren McCleskey, nor with the Baldus study, nor with the Rehnquist Court's 1985 Term. It began, in my view, no later than the dawn of the twentieth century, when the NAACP, formed in 1909 under the leadership of W.E.B. Du Bois and his colleagues, committed its energies to organize, to lobby, and, eventually, to move into state and federal courts to combat the relentless regime of racial subordination and oppression that was Jim Crow.5

While the principal legal objectives of the NAACP and its legal arm, which eventually incorporated separately as the NAACP Legal Defense & Educational Fund, Inc. (LDF), were to enlarge and expand affirmative rights for law-abiding African-American people-voting, equal educational opportunities, workplace fairness, and residential opportunities6-the organization repeatedly found itself compelled to deploy its scarce resources defensively as well, to protect men and women of color suspected of crimes against blatant acts by white prosecutors and judges, and often by white mobs,7 who bypassed or shortcut or distorted ordinary criminal processes to deny "simple justice" to African-American communities.8

NAACP lawyers were especially drawn into Southern courtrooms to defend capitally charged black men in egregious cases that did reach state courts for trial-Moore v. Dempsey9 and Powell v. Alabama,10 among a score of others-contesting such travesties as police interrogation conducted from the barrel of a shotgun or a noose around the suspect's neck, or jury selection processes in which all the black names mysteriously disappeared from jury lists.11 The LDF's celebrated team of mid-twentiethcentury legal counsel-Thurgood Marshall, Constance Baker Motley, Robert Carter, and Jack Greenberg-each did service in hostile Southern courthouses where their clients' lives, and their own safety as counsel, hung precariously in balance.12

There came a time when a more comprehensive opportunity to redress these criminal justice grievances presented itself. The moment was June of 1963. Nine years earlier, in 1954, Chief Justice Earl Warren had announced Brown v. Board of Education, marking a profound break with eighty years of judicial betrayal of protections promised under the Thirteenth, Fourteenth, and Fifteenth Amendments.13 By the early 1960s, the Warren Court had also undertaken a "criminal law revolution," extending one by one, to state criminal defendants, most of the Bill of Rights protections originally applicable only against federal actors.14

It was during this springtime for civil rights and civil liberties claims that a newly appointed Justice, Arthur Goldberg, and his young law clerk, Alan Dershowitz, came forward in 1963 with an internal memorandum, circulated to other Justices, proposing that the Court should take up the question "[w]hether, and under what circumstances, the imposition of the death penalty is proscribed by the Eighth and Fourteenth Amendments to the United States Constitution. …

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