Modern Racism and the Law

By Audrey Daniel, Summer 2010

In 1987, Warren McCleskey argued to the Supreme Court that he was unconstitutionally sentenced to death because he was black and the victim was white. He presented an extensive study on racial disparities in Georgia’s capital sentencing structure, demonstrating that if the victim was white and the defendant black, it was 11 times more likely to result in a death sentence than if the races were reversed. The case received national attention, prompting concern that jurors’ racism significantly influenced their decisions to impose death. However, the Court excused the state’s racially disparate implementation, instead requiring evidence of intent to discriminate. Despite the data, there was no proof that the jurors sentenced McCleskey to death intending to discriminate. He was executed by the State of Georgia on September 25, 1991.

The McCleskey decision exemplifies the devastating effects of “The Intent Doctrine,” established in 1976 in Washington v. Davis. It became no longer sufficient to show that a policy favors one race, or that policy-makers knew the effects were racially biased. Now, a law is constitutional unless enacted with the specific intent to discriminate. Because of this barrier, countless otherwise valid claims are lost, dismissed or never even brought. The intent doctrine is one tool based on the fallacy that we no longer require legal protections enacted during the civil rights era. While poverty rates, education, and numerous other measures continue to evidence racial disparities, conservatives insist we live in a “post-racial” era. With discrimination itself reflecting changing norms in our country, our legal response must address the veiled nature of modern American racism.

Cognitive psychologists study implicit bias to understand how discrimination functions within a society that condemns overt racism. Their research updates our understanding of racism, recognizing that daily experiences reinforce and reflect the structural racism of our country’s roots. Social Cognition Theory suggests that racial biases are formed as a method of categorizing our surroundings in order to more efficiently interpret them. This informs the decision-making process, functioning as a cognitive shortcut without one actively engaging in the racial classification. Instead of a drawn-out analysis, a person will make a quick decision based on categorization reinforced by many years of bearing witness to a race-oriented society, but lacking intent to discriminate.

Organizational sociologists suggest these cognitive shortcuts also shape our institutions. Our government reinforces stereotypes by instituting laws that effectively discriminate. They utilize racist shortcuts, simply bypassing the intent to act with racist motives. Because the Supreme Court requires racist intent to invalidate a practice, the government is free to weave racially discriminatory policies into the country’s fabric provided no stated racist purpose.

We cannot know what Warren McCleskey’s fate would have been were he white. We can, however, address the process that likely occurred in the minds of each juror when presented with whether he should die or remain in prison. Without any intent to factor in his race while making this critical decision, each juror recalled news reports, movies, etc. involving black males and crime. The jury subconsciously evaluated Warren McCleskey’s life worth, while contemplating every black criminal to whom they had been exposed. The numbers in the report reflect this. Psychological studies reflect this. The law ignores it.

Audrey Daniel, Esq. works at Equal Justice Society on various social justice issues. Please visit www.equaljusticesociety.org for more information.