Cornell Law School Logo - white on transparent background

Vol. 107, Issue 6


Explaining the Invidious: How Race Influences Capital Punishment in America

Sheri Lynn Johnson, James and Mark Flanagan Professor of Law, Cornell Law School

1 Sep 2022

This Article primarily focuses on how racial bias creates nearly ubiquitous racial disparities in the imposition of the death penalty; it does so both to amass further reasons McCleskey was wrongly decided, and to point the way forward. Part I provides the necessary foundation by summarizing the history of race and the death penalty in the United States, with a focus on the Supreme Court’s treatment of racial discrimination claims in capital sentencing. Part II, the heart of this Article, examines the multiple psychological mechanisms that create racially biased decision making in capital cases. Understanding those mechanisms further undercuts the Supreme Court’s reasoning in McCleskey and argues for overturning the holding. However, recognizing the reluctance with which today’s Court would view overturning McCleskey, Part III considers whether and how alternative, case-specific uses of the data described in Part II might ameliorate the influence of racial bias in capital sentencing.

To read this Article, please click here: Explaining the Invidious: How Race Influences Capital Punishment in America.