This Note will analyze how the Court’s refusal to acknowledge the realities of human emotion has problematized their own death penalty jurisprudence. This refusal led the Court, in McCleskey v. Kemp, to act dramatically inconsistent with their own legal logic when faced with the worst of human impulses, racial discrimination. This Note will focus on the slippery slope argument employed in McCleskey that articulated how a decision on the death penalty’s discretion would endanger discretion throughout the criminal legal system. This conflation of capital and non-capital discretion reversed course on the Court’s grounding logic that the death penalty is unique. It is that flaw in McCleskey’s logic that this Note will explore and will outline how rectifying this inconsistency forces the Court to go down a new path rather than continuing to stay frozen in McCleskey’s amber where the death penalty is constitutional and discriminatory.
