Is the death penalty inherently unfair?: An examination of the viability of race-based claims in the McCleskey era

I'm glad you chose this topic, I was considering writing on this exact issue for my paper. This focus on looking only at individual-based claims seems to be a common theme with the courts, and seems to be in the same vein as the desegregation cases we discussed in con law. The Supreme Court allowed evidence of de facto segregation and upheld an affirmative duty to desegregate in cases like Green v. New Kent and Keyes, then subsequently in Milliken and later cases decided that disparate impact and de facto segregation were not necessarily indicative of discrimination and thus not redressable. Although it's true that individuals may choose to self-segregate and there may not always be discriminatory intent in housing developments, it's difficult to ignore the historical origin of many segregated and low-income neighborhoods and the reality of inconspicuous discrimination in neighborhood associations (e.g. the golf club neighborhoods Heller mentioned in Property). It seems to me the court is turning a blind eye by not allowing disparate impact and more contextual considerations come into play when dealing in areas that have a demonstrated discriminatory history, such as housing and the death penalty.

-- NovikaIshar - 18 Apr 2010

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