Disorder in the Court: The Death Penalty and the Constitution

Abstract

The Supreme Court's decision in McCleskey v. Kemp' marks the end of an era in the jurisprudence of the death penalty. In disregarding the petitioner's claim that he adequately had proven systemic race bias in the administration of capital punishment, the Court rejected the last generic challenge that had been on the agenda of the abolitionist attorneys from the outset of their litigative campaign in the early 1960s. After McCleskey, nothing appears left of the abolitionist campaign in the courts - nothing but the possibility of small-scale tinkering with the details of administration and, of course, persistent claims in lower courts of specific errors in the multitude of cases where the sentence is imposed.