Jack Boger: A Life of Fighting Against the Death Penalty

When John “Jack” Boger began working as an attorney with the Legal Defense Fund (LDF) in 1978, the organization had already been fighting against capital punishment for years. “The death penalty was cruel and unusual because it was so capricious and arbitrary and infrequent,” Boger, the former Director of LDF’s Capital Punishment Project, said in a 2023 interview for the Legal Defense Fund Oral History Project.  

The first wave of legal cases arguing racial disparities in capital sentencing had culminated in the U.S. Supreme Court’s 1972 ruling in Furman v. Georgia. After hearing two powerful arguments from LDF’s Director-Counsel Jack Greenberg and longtime LDF death penalty advisor and strategist Anthony G. Amsterdam, the Court declared the death penalty unconstitutional when imposed in a manner that leads to arbitrary, capricious, or discriminatory results. The landmark Furman ruling led to a temporary nationwide halt in executions, but it did not, however, permanently end capital punishment in​ the United States.​​ ​Responding to the Court’s constitutional objections in Furman, states swiftly revised their capital sentencing procedures.  

In 1976, the issue returned to the Supreme Court’s docket in Gregg v. Georgia. The justices ruled that the death penalty could be reinstated if states ensured procedural protections and provided juries sufficient discretion when considering whether to apply capital punishment. LDF responded with a new wave of appeals that used novel social science evidence to prove that intentional discrimination affected how the death penalty was applied in the United States. Boger pursued this legal theory with social science evidence in the most famous of these cases, McCleskey v. Kemp.  

The path that led Boger to stand before the Supreme Court began in Concord, North Carolina, a small mill town just north of Charlotte where he was born in 1946. Boger’s father was a small businessman and his mother was a “Roosevelt Democrat,” whom he described as “really more progressive” than many of her friends. He rarely saw civil rights stories in the local newspapers or heard them discussed at the dinner table, but as he observed segregation in places like bus stations and movie theaters, Boger became “puzzled by the racial divide.” Troubled by this discrimination, in the ninth grade he wrote an essay for school about the poor treatment of Black golf caddies at the local club.

Later, as an undergraduate religious studies major at Duke University, he was inspired to engage in civil rights work after hearing the Rev. Martin Luther King Jr. give a speech on campus in 1964 about justice and civil rights. News of King’s assassination inspired Boger to double down on his commitment to social justice: One of his first activist endeavors was joining a sit-in to protest sub-minimum wages for non-academic workers at the university. After college, he attended Yale Divinity School before deciding to pursue civil rights work at the University of North Carolina School of Law.

Upon finishing law school in 1974, Boger struggled to find a job in civil rights—not because there was a lack of this work, but because too many law school graduates wanted to do it. Like many of his activist peers, Boger wanted to become an advocate for racial justice.

“They were all fighting over these jobs in civil rights,” Boger recalled. “I didn’t have a chance.” 

Instead, Boger joined the litigation department of Paul, Weiss, Rifkind, Wharton, and Garrison in New York City, which “had a reputation as being the progressive Democratic law firm.” Not long after joining the firm, he was selected to serve for one year as a clerk for Judge Samuel J. Silverman of the New York Supreme Court, Appellate Division. Boger reflected that it “was very valuable to see from a judge’s point of view how law is made.” He would later use this insight when considering legal strategies. He returned to Paul, Weiss in 1976. 

Boger first became involved with LDF in July of that year, when Paul, Weiss assigned him to serve as volunteer counsel on a death penalty appeal in Texas. This pro bono work transformed Boger’s career trajectory. Within two years, he left his job focusing on white collar crime cases to become an LDF staff attorney specializing in the death penalty.  

Boger joined LDF at a critical moment, in the wake of the Supreme Court’s 1976 decision in Gregg v. Georgia. On his first day on staff at LDF in 1978, he entered the office at 10 Columbus Circle and saw on his predecessor’s desk stacks of files for 12 different death penalty cases from three states. During his first month alone, Boger would work on 18 capital punishment cases from eight different states. Requests for help filing capital appeals inundated LDF’s phone lines. “People [were] calling saying, ‘What do we do now?’” Boger recalled. 

The LDF team assigned to capital cases numbered merely three or four lawyers at a time. To meet multiplying requests for help, Boger and his LDF colleagues recruited affiliate and volunteer counsel throughout the country to partner with them on local cases. They found it was especially hard to find pro bono lawyers in the South, but partners at northern firms with large litigation departments would often send young associates south as volunteer counsel, as Paul, Weiss had done with Boger in 1976. 

“Capital punishment tended to draw people toward it who were wonderful human beings, who were spiritual,” Boger said of his LDF colleagues and the broader network. “I don’t mean necessarily religious, but who looked and said, ‘There is a person who’s done something really, really terrible. … [But] that can’t be all they’re about.’” 

Given the staggering volume of death penalty cases in the wake of Gregg, LDF attorneys shared their capital appeals strategy with any lawyer willing to listen. In his book Crusaders in the Courts, former LDF Director-Counsel Greenberg wrote, “Into the early 1980s, the courts reversed an overwhelming proportion of capital sentences or convictions. LDF lawyers were counsel, or consulted, in every Supreme Court case and many in other courts. Our Supreme Court success rate was 88%, and in the courts of appeal, 78%.” 

With the ultimate goal of dismantling the death penalty, LDF’s impact litigation strategy centered on studying the landscape of capital cases, choosing which cases held the best possibilities for systemic change, and placing LDF or their trusted affiliate counsel in control of arguments in the appellate courts. LDF attorneys would maximize their reach by going to the states with the most active capital punishment dockets, including Georgia, Texas, and Florida. The network of attorneys shared information about the latest developments in their cases so that their peers could take advantage of systemic claims. For example, if lawyers on a case in Georgia identified that a statute failed to provide the necessary procedural protections for a person charged with a capital crime, they could make a claim, then “run to every single volunteer lawyer in the state” and ask them to include the issue in their filings or amend their filings to include it. Boger summarized this impact litigation strategy: If a lawyer raises a systemic claim “and you win, then every other Georgia person who has that problem also wins.” 

Perhaps the best-known death penalty case during this period was McCleskey v. Kemp. Relying on research that reviewed more than 2,000 murder cases in Georgia, Boger and his colleagues succeeded in forcing the Court to directly engage with racial sentencing disparities. But in a defining moment for constitutional law and racial politics, the Court ruled in 1987 against Boger’s client, Warren McCleskey, a Black man convicted of murdering a white police officer. In a five-to-four decision, the Court concluded that the “racially disproportionate impact” of Georgia’s death penalty statute, even as indicated by a comprehensive study, was not enough to invalidate a capital punishment determination unless a racially discriminatory purpose could be demonstrated. To win an appeal on grounds of racial discrimination, the Court placed a heavy burden on McCleskey—and every other Black person who had been racially discriminated against in the criminal legal system—to prove that the Georgia judicial system intended to discriminate against them personally. According to LDF, “Few cases involving the intersection of race, criminal law, and procedure have had the reach and impact of McCleskey v. Kemp.”

By the time he met McCleskey, Boger was the Director of LDF’s Capital Punishment Project, and McCleskey’s defense lawyers had unsuccessfully appealed his case to the state appellate court and the Georgia Supreme Court. For their case, LDF argued that Georgia violated the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s guarantee of equal protection by administering the death penalty in a racially discriminatory manner, giving Black people capital punishment far more frequently than white people.  

On May 13, 1978, 30-year-old McCleskey, a Black factory worker, and three other armed men robbed the Dixie Furniture store in Atlanta, Georgia. While his three accomplices entered through the rear of the store and tied up employees, McCleskey secured the front of the store by ordering customers to lie face down on the floor. One of the accomplices pointed a gun at the manager and demanded money. The manager gave him the store receipts, his watch, and $6 in cash. However, someone had triggered a silent alarm, and within minutes, 31-year-old Officer Frank Schlatt of the Atlanta Police Department responded. McCleskey later told police that he hid on a sofa when Schlatt entered through the front door and began walking down the store’s center aisle. 1 The Atlanta Journal, June 8, 1978 Someone then fired two shots. McCleskey said that upon hearing a gun, he assumed Schlatt was shooting at him, and he fled the store. But it was Schlatt who was the target: Both bullets struck the officer, and one bullet hit him in the right eye and killed him instantly. Nobody saw who had fired his gun.

The men who robbed the store went their separate ways, but police had each one in custody by mid-August. By then, a bullet analysis had identified the murder weapon as a .38-caliber Rossi revolver. McCleskey said he had carried a .38, but it was not a Rossi. When initially questioned, the group leader’s girlfriend said he, not McCleskey, owned a Rossi. In court, however, she changed her answer, saying the Rossi belonged to McCleskey. The four men had separate trials and were each found guilty of armed robbery, but only McCleskey was charged and found guilty of murder. Following Georgia statutes, McCleskey’s state trial jury weighed the “mitigating and aggravating circumstances” of the crime, as required by the procedural protections that came with capital sentencing after Gregg v. Georgia. On October 12, 1978, McCleskey received the death penalty for murder and two consecutive life sentences for armed robbery. According to Boger, McCleskey repeatedly said, “I was involved in the matter. I didn’t do the shooting.”

In the mid-1970s, LDF asked researchers to conduct an independent study to measure patterns of discrimination in death penalty sentencing. The study, led by University of Iowa Law Professor David Baldus and a team of researchers, compared empirical evidence from more than 2,000 murder cases in various jurisdictions in Georgia. Examining trial records, transcripts, prosecutors’ notes, and witness statements, the researchers pulled and compared 230 variables that could have influenced sentencing in each case—including the characteristics of the people accused and the victims. Baldus found that, even after taking account of nonracial variables, people convicted of killing a white person were four times as likely to receive the death penalty as those who were convicted of killing a Black person. In the McCleskey case, Officer Schlatt was white.

The Baldus study also showed that prosecutors sought the death penalty in 70% of the cases in which a Black person was charged with killing a white person, compared to 19% of the cases in which a white person was charged with killing a Black person and 15% of the cases in which a Black person was charged with killing another Black person.

LDF aimed to use the study’s stark findings to help McCleskey’s case by showing that his capital sentence reflected a system that was much more likely to condemn Black people to death, especially if they were found guilty of killing white people. In June 1984, before the U.S. Court of Appeals for the 11th Circuit, Boger argued that the Baldus study found unmistakable evidence of racial discrimination in the administration of the death penalty in Georgia. Although Boger correctly anticipated that the Court of Appeals would rule against McCleskey, the LDF team felt confident that the U.S. Supreme Court would hear the case and again examine the constitutionality of the death penalty.

On the morning of October 15, 1986, Boger walked from his hotel near Capitol Hill to the Supreme Court Building, where he would meet with a clerk in preparation for the opening arguments in McCleskey v. Kemp. Boger recalled that before any Supreme Court argument, “I was nervous as a cat.” His anxiety level was just as high as when he had made his first argument before the Supreme Court in 1982, but he also knew that he had “never prepared that much for anything in [his] life.”

In advance of Supreme Court cases, LDF had a longstanding tradition of having lawyers ​​develop and defend their arguments in front of a moot (practice) court, with constitutional experts from Columbia University, New York University, the American Civil Liberties Union, and LDF playing the roles of Supreme Court justices. These sessions helped Boger refine the approximately 20-minute argument he would make before the actual Supreme Court and rehearse answers to questions the justices might ask. Furthermore, experts at prestigious universities such as Massachusetts Institute of Technology and Stanford had filed amicus briefs praising Baldus’ research methods, which Boger hoped would help support the McCleskey case.

Boger said he never fully overcame his nervousness before a big argument, but he would often have a moment of clarity prior to the start of a proceeding. “You’d think, ‘I’m really ready to do this now. And by gosh, we’ve got the right answers. Let’s bring it on.’” In that moment, “the nervousness turned into the desire for, you know, action.”

Despite this preparation, on April 22, 1987, the Supreme Court ruled against McCleskey in a five-to-four decision. The Court found that the Georgia judicial system did not violate the Constitution and that the Baldus study did not provide an adequate basis for concluding that the judicial system acted in an intentionally discriminatory manner. In the majority opinion, Justice Lewis Powell Jr. found that regardless of Baldus’ findings, McCleskey’s lawyers had not shown that racial prejudice had guided sentencing in his particular case. “Apparent disparities in sentencing are an inevitable part of our criminal justice system,” Justice Powell wrote. He further wrote, “Statistics, at most, may show only a likelihood that a particular factor entered into some decisions. … McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.” Chief Justice William Rehnquist, along with Justices Byron White, Sandra Day O’Connor, and Antonin Scalia, concurred.  

In his dissent, Justice William J. Brennan Jr. wrote, “[McCleskey’s] message is a disturbing one to a society that has formally repudiated racism. … Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.” He continued, “It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. … [T]he way in which we choose those who will die reveals the depth of moral commitment among the living.” Justice Thurgood Marshall, the founder and first Director-Counsel of LDF, also dissented, as did Justices Harry Blackmun and John Paul Stevens.

In an April 28, 1987, opinion piece for The New York Times, esteemed legal journalist Anthony Lewis criticized the Court’s McCleskey decision, writing, “Confronted with powerful evidence that racial feelings play a large part in determining who will live and who will die, the Court chose to close its eyes. It effectively condoned the expression of racism in a profound aspect of our law.” He summarized Justice Powell’s opinion: “In other words, to confront the reality of racial influence on death sentences would risk disturbing the system too much.”

One day after the decision, Boger flew to Georgia to explain the Court’s ruling to McCleskey.

“Is there anything left?” McCleskey reportedly asked him. Boger said he and the other LDF lawyers would look into it.

The team uncovered evidence that the state had suppressed a 21-page statement made by a person who was incarcerated in the cell next to McCleskey, claiming that he had heard a conversation in which McCleskey confessed to the murder. According to Boger, the police informant who made the statement “had been literally moved from one part of the jail [to the cell next to McCleskey, then was] told to get something [incriminating against McCleskey]. He was semi-illiterate, and yet they had prepared a 21-page statement. ... So, they had obviously written something and then decided not to admit it because it was so preposterous that he would have done it.”  

Boger filed a federal habeas petition in 1987, arguing that the state’s tactics violated McCleskey’s rights under the 1964 case Massiah v. United States, which prohibits the use of secret interrogation of a defendant in the absence of his lawyer or without a prior caution about his rights. A federal District Court granted McCleskey relief under Massiah, but the U.S. Court of Appeals for the 11th Circuit then reversed the ruling, saying McCleskey had abused the writ of habeas corpus because he had not made a Massiah claim in an earlier federal habeas petition. Boger appealed this decision to the Supreme Court in McCleskey v. Zant. 

On October 31, 1990, Boger stood before the Supreme Court in his second appearance on behalf of McCleskey and argued that the state had engaged in misconduct in his client’s criminal trial. Despite the evidence of coerced and suppressed testimony, the Court sided with the 11th Circuit in a six-to-three decision on April 16, 1991. The Court did not contest the proof of coercion or the violation of McCleskey’s rights. Instead, Justice Anthony Kennedy, writing for the majority, said federal courts have the discretion to “decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus.” This essentially meant that McCleskey remained on death row because of a procedural issue.

When Boger visited his clients on death row in Georgia, he would fly from Newark, New Jersey, to Atlanta, rent a car, and drive an hour to the Georgia Diagnostic and Classification Prison near Jackson. The prison, which he described as “modern, surreal,” is the largest in the state. 

On September 25, 1991, Boger arrived at the prison to witness McCleskey’s execution. He no longer represented McCleskey because he had recently left LDF to spend more time with his family, taking an associate professor position at the University of North Carolina School of Law—the very place that had helped shape his interest in racial justice. Even so, he wanted to be there for McCleskey. He had come to know his client as a spiritual person with a good amount of legal knowledge. “I could talk to him about his own life, and he was very reflective and not angry or judgmental,” Boger said. “His upbringing had been pretty terrible, and he’d done a lot of things that he regretted, but he had changed.” Prison guards also recognized McCleskey’s calm temperament. Boger said that when newly incarcerated people came to the prison and “hadn’t settled down,” guards would move McCleskey near them so they could benefit from his influence. 

“I had never wanted to see an execution,” Boger said. “But I wanted to be there [for McCleskey] because there was nobody else who was local for him who was going to be able to be in that group of people who watched.” Boger and McCleskey met to talk on the day of the execution. “He was more philosophic about it all in some respects than I was,” Boger recalled. “We talked and talked about people he wanted me to contact and things of that sort. And so, I did that.”  

Late that night, Boger walked to a “godforsaken little sort of one-story cinderblock place behind the prison, where they had their execution chamber.” Boger sat on one side of a room with a glass panel, and McCleskey entered on the opposite side. Heavy rain pounded on the roof. Officials strapped McCleskey to the electric chair, and he began to speak his final words into a microphone. As he apologized to Schlatt’s family for being involved in the robbery that took his life, an official interrupted his statement. 

Unstrapping McCleskey from the chair at 2:20 a.m., an officer led him out of the room. After a state court and federal courts had denied a series of last-minute appeals, McCleskey’s lawyers had sought a final stay of execution from the U.S. Supreme Court. The justices gave their answers by telephone just before 3 a.m.: The decision was six-to-three against McCleskey. Among the dissenters from the decision to proceed with the execution was Justice Marshall, who had previously announced that he would retire from the Court upon the confirmation of a replacement that year. “In refusing to grant a stay to review fully McCleskey’s claims, the Court values expediency over human life,” he wrote. “Repeatedly denying Warren McCleskey his constitutional rights is unacceptable. Executing him is inexcusable.” 

Around 3 a.m., Boger watched officials bring McCleskey back into the room and strap him in the chair. He began his statement once again. However, Boger could not hear what McCleskey was saying because officials forgot to turn on the microphone. “It’s such a metaphor that he’s trying to speak and the state has kept the microphone off,” Boger recollected. Boger then spent a “couple of horrifying minutes” watching the execution. He struggled with “watching somebody that you care a lot about, love in effect, being deliberately put to death.” Boger did not have much time to process his emotions before he had to leave the prison and catch a plane to Washington, D.C., for a Senate committee meeting. 

Although Boger had left LDF, his commitment to racial justice remained. As a law professor, he helped create the University of North Carolina’s Center for Civil Rights, which he described as a “mini LDF” that trains law students in civil rights work, offers legal assistance, and gathers social scientists and other professionals to study issues at the intersection of poverty and race. His work also reunited him with Baldus, when they collaborated on a study of racial inequities in capital sentencing in North Carolina. Their examination of 3,990 homicide cases from 1993 to 1997 revealed that people convicted of killing white victims were three-and-a-half times more likely to receive the death penalty than people convicted of killing Black victims. “Sadly, this study shows that skin color still plays a major role in deciding who lives and who dies in our criminal justice system,” Boger told The New York Times. 

Boger also remained connected to LDF and collaborated with LDF’s then-Director-Counsel Julius Chambers and others on issues of racial and economic inequality. This work helped spur the creation of the Poverty and Race Research Action Council (PRRAC), a civil rights legal and policy organization in Washington, D.C. Boger served as Dean of the University of North Carolina School of Law from 2006 to 2015, and he retired in 2017. 

In his 2023 interview for the Legal Defense Fund Oral History Project, Boger reflected on the difficult work of a death penalty defense lawyer in pursuing often-elusive justice within a reality that is dictated by subjective opinions. Although judges and those who govern can later change their opinions, those who are executed cannot change their fates. As an example, when writer John C. Jeffries Jr. asked retired Justice Powell if he regretted any of his decisions on the Supreme Court bench in an interview for his 1994 biography, Powell answered, “Yes, McCleskey v. Kemp.” When pressed for more details, he said, “I have come to think that capital punishment should be abolished.” 

Despite the discouraging and heartbreaking outcome of the two McCleskey cases, Boger emphasized the importance of death penalty defense lawyers, saying, “The courts are against you. You know, the evidence is sometimes against you. You do the very best you can, and it’s out of your hands.”