a.
The history of race discrimination in capital punishment
b.
Constitutional challenge to race discrimination in capital
punishment: McCleskey v. Kemp
i.
The Baldus study
A.
The prevalence of discrimination against black victims
B.
The prevalence of discrimination by prosecutors
C.
The importance of controlling for aggravation levels
ii.
McCleskey's Equal Protection claim: failure to prove
intentional discrimination
iii.
McCleskey's Cruel and Unusual Punishment claim:
failure to prove "unacceptable risk" of
discrimination
iv.
Justice Powell's recantation: an historical footnote
v.
For the most recent Baldus study (Arkansas), see this
story: http://www.nwanews.com/adg/News/236785/
c.
Possible responses to race discrimination in capital
sentencing
i.
Abolition
A.
Arguments based on the "inevitability" of
discrimination in capital sentencing: are they
double-edged swords?
ii.
Moratoria
A.
When would they end? What is an
"acceptable" level of discrimination in
capital sentencing?
iii.
Permit capital punishment for only the most aggravated
murders (Justice Stevens' argument)
A.
How aggravated is "most aggravated"?
