Rethinking McClesky v. Kemp: How U.S. Ratification of the International Convention on the Elimination of All Forms of Racial Discrimination Provides a Remedy for Claims of Racial Disparity in Death Penalty Cases

Authors

Robin H. Gise

Abstract

This Note addresses U.S. obligations under CERD in the context of racial disparity in the imposition of the death penalty and proposes courses of domestic and international action. Part I examines the historical racial disparity in the imposition of the death penalty in the United States. It discusses the U.S. Supreme Court's decision in McClesky to deny relief to a death row inmate who demonstrated that race influenced whether a death sentence was imposed. Part I also explores the development of CERD and discusses CERD's standard for proving discrimination based on a showing of racially discriminatory effect. Finally, Part I addresses the U.S. ratification of CERD and its reservations to the treaty. Part II explores commentators' varying positions on CERD's applicability in the United States in light of the declaration making CERD a non-self-executing treaty. Part II also addresses the divergence of U.S. standards for proving discrimination, which generally require a showing of discriminatory purpose, from those under CERD, which recognize claims based on a showing of discriminatory effect. Part III argues that despite the non-self-executing declaration, death row inmates who demonstrate that the death penalty disproportionately affects their racial group may invoke CERD as a defense. This part also asserts that because U.S. standards for proving discrimination in the criminal justice context diverge from the standards set forth under CERD, U.S. courts should address the merits of claims invoking CERD as a defense. Finally, Part III encourages State Parties besides the United States to use the treaty's enforcement mechanisms to challenge the United States' the non-self- executing declaration as being incompatible with the object and purpose of the treaty and to protest its failure to address racial disparity in the imposition of the death penalty as a violation of CERD. This Note concludes that CERD has the potential to be a powerful tool to address racial disparity in death penalty cases in the United States.

Recommended Citation

Robin H. Gise, Rethinking McClesky v. Kemp: How U.S. Ratification of the International Convention on the Elimination of All Forms of Racial Discrimination Provides a Remedy for Claims of Racial Disparity in Death Penalty Cases, 22 Fordham Int'l L.J. 2270 (1998).
Available at: https://ir.lawnet.fordham.edu/ilj/vol22/iss5/10