The Atlantic

The ‘Death Penalty’s Dred Scott’ Lives On

In 1987, the Supreme Court came within one vote of eliminating capital punishment in Georgia based on evidence of racial disparities. Instead, it created a precedent that civil-rights advocates have been fighting for decades.
Source: Trent Nelson / AP

Curtis Flowers has faced six separate trials for a 1996 quadruple murder. Two ended in a mistrial; three others resulted in him being convicted and sentenced to death, but all three sentences were later overturned by the Mississippi Supreme Court on the basis of prosecutorial misconduct. In its third such ruling, the court found that the prosecutor had unconstitutionally struck African Americans from the jury pool because of their race. The fourth and latest conviction reached the U.S. Supreme Court on appeal in March, with the defense alleging a pattern of prosecutorial discrimination in jury selection that had continued in the sixth trial. A series of decisions from earlier this year suggest that the Court’s new conservative majority may in general be supportive of capital punishment—but the alleged discrimination in Flowers’s trials elicited concern even from some of the conservative justices.

The record of systemic disparities in U.S. capital cases is . Compounding the and a death sentence in cases involving white victims, especially if the defendant is black. But while studies have consistently shown that these disparities exist in capital-punishment systems around the country, the success of discrimination-based challenges to the death penalty has been piecemeal. The Supreme Court has heard a number of arguments about racial discrimination in capital cases over the past three decades, and has found in favor of , but the scope has almost always been limited to individual cases of discrimination.

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