Columbia Public Law & Legal Theory Working Papers

Document Type



Last year marked the twentieth anniversary of the U.S. Supreme Court’s decision in McCleskey v. Kemp, a case whose ramifications for the pursuit of racial equality within criminal justice are still felt today. McCleskey set an impossibly high bar for constitutionally-based challenges seeking fundamental racial fairness in capital punishment. The McCleskey decision strengthened a jurisprudential climate that shifted and increased the burden onto defendants seeking constitutional relief from discriminatory and biased decisions at every step of the criminal justice process, from arrest to conviction and punishment. The McCleskey court articulated a crime-control rationale for tolerance of error and refused to confront the racial disparities inherent in those errors, offering an affirmative argument for the institutionalization of racialized discretion in criminal justice. The Court chose to tolerate widespread errors and racial disparities in criminal justice, finding no offense to the Constitution in these patterns. In so doing, the McCleskey court reified the institutional norms and structural biases that sustain racial imbalances in all stages of the criminal law.

We convened the Symposium on Pursuing Racial Fairness in Criminal Justice at Columbia Law School in March 2007 to draw lessons from current work on racial inequality in criminal law, and to design new strategies to pursue the goals of the McCleskey litigation and the movement that surrounded the case. The participants included legal scholars, practitioners, researchers and activists engaged in the difficult analysis, mobilization, and theorizing to develop the foundation of new models of legal scholarship and civil rights advocacy to challenge McCleskey. The contributions in this Symposium are not naïve with respect to the formidable litigation-based challenges or the racial inequality that persists in the criminal law. Rather, they take on the task of building a diverse and empirically-informed strategy that looks critically into the institutional norms and designs of criminal justice institutions. The articles locate racial disparities in the institutional dynamics of criminal justice and in the racial skew of everyday decision-making. The authors identify the frontlines of a renewed struggle for the pursuit of racial fairness that was the heart of the McCleskey litigation.

Date of Authorship for this Version

February 2008