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In American Law, Black Lives Matter Less


In 1983, three legal scholars published a study showing that, all things being equal, an African-American person who killed a white person was far more likely to receive the death penalty than a white person who killed an African-American person. This study formed the basis of a constitutional challenge. In 1989, a bare majority of the Supreme Court held ¯\_(ツ)_/¯. In his dissent, Justice Brennan observed:

The Court next states that its unwillingness to regard petitioner’s evidence as sufficient is based in part on the fear that recognition of McCleskey’s claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice. Yet surely the majority would acknowledge that, if striking evidence indicated that other minority groups, or women, or even persons with blond hair, were disproportionately sentenced to death, such a state of affairs would be repugnant to deeply rooted conceptions of fairness. The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role.

You will not be surprised that such disparities are indeed endemic in other areas of law today:

When a white person kills a black man in America, the killer often faces no legal consequences.

In one in six of these killings, there is no criminal sanction, according to a new Marshall Project examination of 400,000 homicides committed by civilians between 1980 and 2014. That rate is far higher than the one for homicides involving other combinations of races.

In almost 17 percent of cases when a black man was killed by a non-Hispanic white civilian over the last three decades, the killing was categorized as justifiable, which is the term used when a police officer or a civilian kills someone committing a crime or in self-defense. Overall, the police classify fewer than 2 percent of homicides committed by civilians as justifiable.

The disparity persists across different cities, different ages, different weapons and different relationships between killer and victim.

Too much justice is definitely not something we have to be afraid of.

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