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The State of Aloha

Four armed men walked into the Dixie Furniture Store in Fulton County, Ga., in broad daylight. Customers were rounded up and forced to lie face down on the floor. Employees were tied up with tape and the manager handed over store receipts, his watch and $6. A lone police officer responded to a silent alarm and sneaked into the store. He was shot in the face and died.

Warren McCleskey later confessed to robbing the store but denied killing the policeman. At his trial, the prosecution presented evidence that the bullet came from a gun matching McCleskey’s firearm in the store. (No gun was ever presented at trial. Witnesses just described it.)

Prosecutors also called a jailhouse snitch, who told the jury he overheard McCleskey admit to shooting the cop. The jury convicted McCleskey of murder and he was sentenced to death. He was 21 years old.

And he was Black.

After years on appeal, McCleskey presented his case to the Supreme Court of the United States in 1987 with a powerful argument that rallied opponents of the death penalty and racial discrimination.

McCleskey presented an exhaustive statistical study led by Professor David C. Baldus. The Baldus study, as it became known, examined more than 2,000 murder cases in Georgia. The results were disturbing. In homicides involving Black defendants and white decedents, defendants received the death penalty 70 percent of the time. It dropped to 32 percent for white-on-white killings. When white defendants killed Black people, the death penalty was given 19 percent of the time. And when Black defendants killed other Black people, it dwindled to 15 percent.

The Baldus study laid bare a disturbing truth. Getting the death penalty increases when the defendant happens to be Black and the decedent happens to be white. McCleskey’s lawyers used the study to argue that the racial bias in the criminal justice system violated the Equal Protection Clause in the 14th Amendment. But the Supreme Court disagreed.

Five justices ruled against McCleskey not because the Baldus study wasn’t true — you can’t really get around the stark fact that people of color were prosecuted and put to death at a higher rate than white people — but because they needed more.

Former corporate lawyer, former president of the staunchly conservative American Bar Association and Virginian Justice Lewis F. Powell Jr. wrote for the majority that an institution that produced racist results — even when it comes to capital punishment — was not enough to show a constitutional violation. There must be a racist intent.

When confronted with unflinching evidence that our criminal justice system produced racial disparities, the highest court in the land turned away and did nothing about it. This case was one of the many allowing public institutions to create racial disparities so long as there is no racist intent. Scholars have called McCleskey’s case the “Dred Scott of our time.”

Hawai’i is not immune to this. Native Hawaiians and Pacific Islanders are more likely to be locked up at some point in their lives than haoles and Asians. Policy advocates at the Office of Hawaiian Affairs estimate that 40 percent of incarcerated people in the islands are Native Hawaiian. OHA is expected to release a report on racial disparities in the islands later this year.

In January, the Judiciary, the state bar association and other groups launched a series of online discussions about racism. In his introductory remarks, Hawai’i Supreme Court Chief Justice Mark Recktenwald said he was horrified and dismayed at the brutal police killing of George Floyd last summer. He acknowledged that “barriers to justice have been built into systems, both knowingly and unknowingly.”

He’s right. Later at another public discussion, Steve Alm, the newly elected prosecutor in Honolulu, admitted that when it came to keeping track of the race and ethnicity of defendants, “there was an intention not to identify race because we didn’t want to be accused of targeting anybody,” so the office never collected the data.

Alm wants to change that. But data will only take us so far. While more and more folks in power acknowledge racial disparities, the road to a fair and equitable justice system will be difficult so long as courts continue to demand evidence of a racist intent.

Two months after the McCleskey case came down, Justice Powell retired from the bench. He would later tell a biographer that he regretted his decision in the McCleskey case. It would have made all the difference for Warren McCleskey. Having lost in the Supreme Court and even after the jailhouse witness admitted that he was planted by the prosecutors, McCleskey was put to death by electrocution in 1991. His case continues to haunt our system of justice.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com. “The State of Aloha” alternates Fridays with Sarah Ruppenthal’s “Neighbors.”

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