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This article chronicles the Burger Court's inability to fashion a suitable remedy for racism in the discretionary system of capital sentencing. The article discusses the Court's initial response, “remedial paralysis,” which is evident, not only in McGautha v. California, where the Court refused to find that the Due Process Clause was violated by standardless death sentencing, but also in Furman v. Georgia, where the Court decided to abolish the death penalty. The article further explores the Court's reinstatement of the death penalty, and two of the Court's forays into “bad faith” denial that sustained the death penalty, particularly the Court's belief that guided discretion statutes and remedies to ensure the proper composition of juries in capital cases could cure capital sentencing of racial influences. Part II further demonstrates how the Court missed key opportunities to tailor its constitutional requirements to racial fairness, and how this failure to recognize or acknowledge the true dimensions of racism in capital sentencing impeded the Court's ability to create more effective remedies. Furthermore, this article analyzes McCleskey v. Kemp and its themes of remedial paralysis and bad faith. The article then turns to the existential ethic of revolt, and demonstrates how such an ethic could have operated to prevent the Court from falling into the trap of existential bad faith and remedial paralysis.

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9 Seton Hall Const. L.J. 67 (1998).