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Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe
Beyond More Accurate Algorithms: Takeaways From Mccleskey Revisited, Ngozi Okidegbe
Faculty Scholarship
McCleskey v. Kemp1 operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration.2 By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions.3 But what if McCleskey had been decided differently? Given that Washington v. Davis4 held that the challenged law or governmental action had to be “traced to a discriminatory racial purpose,”5 could McCleskey have articulated an approach to equal protection doctrine …