"Death penalty ban: 'A Wild Justice' author Evan Mandery explains how the US adopted, and then discarded, it," by Randy Dotinga for the Christian Science Monitor.
Q: You focus on another case that – like Justice Goldberg – has been largely forgotten by history. This is the ruling in the case of McCleskey vs. Kemp, in which the court majority refused to heed statistics that suggested a pattern of racism against blacks in the use of the death penalty.
Why is this case vital to the story of the legality of the death penalty?
A: It was potentially the most important decision in history of Supreme Court other than Plessy vs. Ferguson and Brown vs. Board of Education.
Justice Lewis Powell wrote the majority opinion in the 5-4 ruling, although at the end of his life he said he opposes the death penalty and regrets his decision. It's a challenge based solely on the issue of racism: The court said you needed an individualized showing of racism to invalidate the death penalty, which is basically impossible.
If one vote in that decision had gone the other way, it would have fundamentally transformed the entire justice system in America. The Supreme Court would have been saying that you couldn't use a punishment if there were racially disparate patterns.How would the court have restricted that just to the death penalty? I believe that's why the court didn't do that, that they thought the wheels would fall off the justice system.