Killing with Prejudice

Institutionalized Racism in American Capital Punishment

R.J. Maratea

• Publisher: NYU Press
• Year: 2019
• ISBN:
  9781479896394
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

A history of the McCleskey v. Kemp Supreme Court ruling that effectively condoned racism in capital cases

In 1978 Warren McCleskey, a black man, killed a white police officer in Georgia. He was convicted by a jury of 11 whites and 1 African American, and was sentenced to death. Although McCleskey’s lawyers were able to prove that Georgia courts applied the death penalty to blacks who killed whites four times as often as when the victim was black, the Supreme Court upheld the death sentence in McCleskey v.Kemp, thus institutionalizing the idea that racial bias was acceptable in the capital punishment system. After a thirteen-year legal journey, McCleskey was executed in 1991.

In Killing with Prejudice, R.J. Maratea chronicles the entire litigation process which culminated in what has been called “the Dred Scott decision of our time.” Ultimately, the Supreme Court chose to overlook compelling empirical evidence that revealed the discriminatory manner in which the assailants of African Americans are systematically undercharged and the aggressors of white victims are far more likely to receive a death sentence. He draws a clear line from the lynchings of the Jim Crow era to the contemporary acceptance of the death penalty and the problem of mass incarceration today.

The McCleskey decision underscores the racial, socioeconomic, and gender disparities in modern American capital punishment, and the case is fundamental to understanding how the death penalty functions for the defendant, victims, and within the American justice system as a whole.

1

Reconstruction, Jim Crow, and the New Segregation

Gunnar Myrdal, in his famous An American Dilemma (1944), saw democracy triumphing over racist discrimination. He argued that incremental advancements in the lives and status of black Americans would initiate a cycle of improvement in the general welfare of blacks that would eventually disprove stereotypical notions of blacks’ inferiority. In some ways, history has proven Myrdal’s vision accurate with regard to integration and institutional reforms, which have expanded opportunity and functioned to enhance the quality of life for many people of color. Yet his principle of cumulation overlooks the fact that “targeting only one aspect of a system of structural racism would fail to help the black underclass . . . unless there was a concerted effort to address simultaneously all of the interlocking problems of political powerless, jobs, education, and crime” (Jackson 1990:197). Warren McCleskey’s life, which began during an era of legal apartheid and spanned through the civil rights movement and beyond the presidency of Jimmy Carter, a white Georgian who advocates for racial equality and civil rights, exemplified this paradox of social progress for black Americans.

At the time of McCleskey’s birth on March 17, 1946, the last vestiges of Jim Crow were still firmly in place. The Ku Klux Klan was actively promoting the virtues of white supremacy, and segregation epitomized the prevailing culture of black contemptibility that characterized life in Georgia and throughout the nation. By this time, whites had perfected a racial order that protected “their economic, political, and social interests in a world without slavery” or convict-lease (M. Alexander 2010:32), and they were intent on preserving the racial equilibrium attained via segregation without any federal interference through constitutional remakes, judicial decisions, and statutory remedies. Through the passage of Black Codes and other segregation laws, white elites sought to disintegrate the possibility of political alliances among disenfranchised blacks and lower-class whites: “As long as poor whites directed their hatred and frustration against the black competitor, the planters were relieved of class hostility directed against them” (W. Wilson 1978:54; see also M. Alexander 2010).

With political leaders such as Georgia’s Governor Herman Talmadge preaching to marginalized and underprivileged whites that the “tradition of segregation in the South . . . has proven itself to the best interest of both races” (1955:5), blacks were powerless to oppose the system of racial caste thrust on them through Jim Crow.1 Michelle Alexander notes that during the early 20th century, every southern state “had laws on the books that disenfranchised blacks and discriminated against them in virtually every sphere of public life, lending sanction to a racial ostracism that extended to schools, churches, housing, jobs” and an array of other public spaces (2010:35), helping to ensure that blacks were red-lined into crime-ridden slums. Warren McCleskey’s youth was indeed characterized by poverty and surrounded by violence. Raised in an impoverished neighborhood of Marietta, Georgia, McCleskey never knew his birth father but was exposed from a young age to a violent upbringing, both in his community and in his household (Curriden 1991). He lived for a time with his aunt, who often beat him physically; and his stepfather, John Henry Brooks, would often violently abuse McCleskey, his siblings, and their mother, Willie Mae, during drunken rages. His mother and stepfather also exposed him to various forms of vice from a young age; this included selling bootlegged moonshine and operating an illegal gambling den from their home (see Kirchmeier 2015).

The violence was terrifying and never-ending. About every weekend, someone in the neighborhood was shot and killed. Fights all the time. A dog-eat-dog world where only the strong survive. . . . My childhood was very rough. Very, very poor. . . . The hardest was the violence we grew up in as a family. It was a skid-row type neighborhood in Marietta. We sold white lightning out of our house. In 1963, my stepfather threatened to kill my mother. Out of fear, she grabbed a pistol under a mattress in the living room and shot it several times. I walked in the door seconds later, and he was dead. (Atlanta Journal and Constitution 1991:A12; see also Curriden 1991:A1)2

With McCleskey being surrounded by violence and with little hope of escaping the poverty of the Marietta slums, it is perhaps unsurprising that he turned to crime in order to achieve a degree of financial stability. After all, at this time the Ku Klux Klan and other prominent whites openly opposed desegregation and any opportunities for blacks to integrate into middle-class, white southern society.

Despite all of these setbacks and roadblocks, McCleskey graduated from his segregated high school in 1964 and shortly after married his girlfriend, Gwendolyn Carmichael, who gave birth to their daughter, Carla, two years later in 1966. In order for McCleskey to support his young family, he was employed for a time at a Lockheed aircraft plant outside Atlanta, only to be laid off in 1969 (Curriden 1991). Unable to subsequently find steady employment, McCleskey was so destitute by 1970 that his wife threatened to take his daughter and leave him, the fear of which compelled him to commit a string of nine armed robberies (Curriden 1991; Kirchmeier 2015). Within a matter of weeks, McCleskey was arrested, pleaded guilty, and was sentenced to three life terms for his crimes. His sentence was ultimately reduced on appeal, however, and he was eventually paroled after seven years. “‘When I got out in 1977, I had a vision. I wanted to get back on my feet and reunited with my family,’ [McCleskey] said. ‘I thought if I could get ahold of a little money, I could get that to come to pass’” (Curriden 1991:A1).

Upon his release, McCleskey had hoped to reconcile with his family and achieve financial security outside prison. But securing employment with a felony record proved a difficult task for McCleskey. Within a year, he and his wife had divorced, and “his life started spiraling out of control” (Kirchmeier 2015:13). During this time, he began abusing drugs and became friends with David Burney, Bernard Depree, and Ben Wright, who each had their own considerable criminal records (see Kirchmeier 2015). It was alongside these accomplices that McCleskey participated in a string of robberies in and around Atlanta, including the ill-fated May 13, 1978, Dixie Furniture Store robbery during which the responding officer Frank Schlatt was fatally shot. McCleskey’s subsequent arrest on two counts of armed robbery and one count of murder set in motion one of the most consequential legal battles of the late 20th century and has come to embody the shifting nature of racial discrimination from the perspicuous bias of the Jim Crow era to the more subtle forms of prejudice that pervade contemporary U.S. society.

The Politics of Jim Crow Justice

By 1943, Georgia’s Governor Ellis Arnall had already set in motion a series of civil rights reforms, which included the abolishment of the state poll tax and revocation of the Ku Klux Klan’s corporate charter (Wexler 2003). As if this were not enough to rouse the fear of southerners keen on protecting Georgia’s segregationist tradition, by the middle of the decade, many northerners had concluded that Jim Crow laws were unsustainable and would have to be reformed or abolished in their entirety. Unwilling to accept the idea of reformation, segregationists were only convinced by these events to begrudgingly retrench and adopt modifications that would allow traditional racist principles to flourish without overtly visible discrimination from social, cultural, and political institutions (see Keys and Maratea 2016).3 Michelle Alexander notes that “the seeds for the new system of control were planted well before the end of the Civil Rights Movement. A new race-neutral language was developed for appealing to old racist sentiments, a language accompanied by a political movement that succeeded in putting the vast majority of blacks back in their place. Proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse, by demanding ‘law and order’ rather than ‘segregation forever’” (2010:40). In the decades following the civil rights movement, explicit reference to racial divisions was supplanted by official color blindness, race neutrality, and nominal equality. However, a predominant culture of crypto-segregation continues to thrive in convention and custom.

Before 1968, miscegenation laws, restrictive covenants governing residential property, and employment and educational segregation worked in concert with a nearly unshakable ethos of separation and illusory black inferiority, which many white southerners then and now understand as a historical legacy and conventional wage of whiteness. In Georgia, the 159 separate counties spread over 57,906 square miles have traditionally had broad powers, with a relatively free hand in regulating educational, political, legal, and cultural matters. This political arrangement proved particularly effective at allowing Black Codes and other unwritten policies of racial disenfranchisement to be carried out as cooperative agreements among and between county personnel, a system in which responsibility for enforcement was dispersed among an array of local entities, each of whom had limited accountability. County sheriffs, for example, routinely overlooked or participated in the lynching of blacks and then were tasked with facilitating investigations that inevitably concluded that the victims had died at the hands of parties unknown (see Chicago Defender 1937a). Likewise, restrictions on voting rights and exclusion from officeholding could easily be enforced by installing a determined and “ideologically functional” clerk in the county courthouse. As long as each jurisdiction had support from the state house and realized no interference from indifferent or distantly placed federal authorities, discriminatory practices such as segregation could remain in place.

If affected black American or “nigger-loving” whites protested, local supporters of segregation, hastily assembled vigilante mobs, or even the Ku Klux Klan—whose members sometimes operated local law enforcement—would regularly apply force adequate to the task of silencing them. Georgia in particular wi...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Figures and Tables
• Introduction: Bifurcated Justice in the Deep South
• 1. Reconstruction, Jim Crow, and the New Segregation
• 2. Missed Opportunities on the Road to the Supreme Court
• 3. Black Murders Are Different
• 4. All Discrimination Is Not Considered Equal
• 5. Reaffirming “Separate but Equal”
• Conclusion: Past Is Prologue: Why McCleskey Still Matters
• Acknowledgments
• Notes
• References
• Index
• About the Author