MCCLESKEY v. KEMP 481 U.S. 279 (1987)

McCleskey, a black Georgian, on being sentenced to death for the murder of a white person, sought a writ of habeas corpus on the claim that Georgia's capital-sentencing procedures violated the equal protection clause of the fourteenth amendment and the cruel and unusual punishment clause of the Eighth Amendment. He based his claim on "the Baldus study," a statistical examination of Georgia's more than 2,000 murder cases during the 1970s. The study showed a significant correlation between race and prosecutors' decisions to seek the death penalty and jurors' recommendations of the death penalty. For example, death was the sentence in twenty-two percent of the cases involving black defendants and white victims, in eight percent of the cases involving white defendants and white victims, and in three percent of the cases involving white defendants and black victims. The Supreme Court, held 5–4, that McCleskey did not show that Georgia had acted unconstitutionally in sentencing him to capital punishment.

The infirmity of McCleskey's argument, according to Justice lewis f. powell, for the Court, consisted in his failure to prove that he personally had been the target of racial discrimination or that the race of his victim had anything to do with his sentence. Anyone invoking the equal-protection clause in a capital-sentencing case has the burden of showing that deliberate discrimination had a discriminatory effect "in his case." McCleskey's reliance on the Baldus study proved nothing with respect to him; moreover, every jury is unique, so that statistics concerning many juries do not establish anything regarding a particular one.

McCleskey also argued that the state violated the equal protection clause by enacting the death penalty statute and retaining it despite its supposedly discriminatory application. Powell dismissed this argument because it had no support from proof that the legislature passed and kept a capital punishment act because of its racially discriminatory effect. The Court had previously held in Gregg v. Georgia (1976) that Georgia's capital-sentencing system could operate fairly.

The Court found McCleskey's Eighth Amendment argument no more persuasive. In Gregg it had ruled that the jury's discretion was controlled by clear and objective standards. The statute even required the trial court to review every sentence to determine whether it was imposed under the influence of prejudice, whether the evidence supported it, and whether the sentence was disproportionate to sentences in similar cases. Moreover, the judge had to consider the question whether race had any role in the trials. Absent proof that the Georgia system operated arbitrarily, McCleskey could not prove a violation of the Eighth Amendment by showing that other defendants had not received the death penalty.

McCleskey also argued that Georgia's system was arbitrarily applied "because racial considerations may influence capital sentencing decisions." Statistics, Powell replied, show only a "likelihood," which was insufficient to establish an "unacceptable risk" of racial prejudice.

Justice william j. brennan, for the dissenters, argued the Eighth Amendment issue. He believed that a death sentence should be voided if there was a risk that it might have been imposed arbitrarily. Brennan believed that McCleskey should not have to prove discrimination in his own case; it was enough that the risk of prejudice, which Brennan believed was established by the statistical study, "might have infected the sentencing decision." McCleskey's claim warranted the Court's support because his was the first case challenging the system, not on how it might operate but "on empirical documentation of how it does operate." Black Georgians who killed whites were sentenced to death at nearly twenty-two times the rate of blacks who killed blacks and at more than seven times the rate of whites who kill blacks. This proved the point about disproportionate sentencing for the dissenters.

Justice harry a. blackmun, who also spoke for them, used similar evidence to maintain that Georgia's capital-sentencing procedures conflicted with the equal-protection clause. Racial factors impermissibly affected the system from indictment to sentencing: "The Baldus study demonstrates that black persons are a distinct group that are singled out for a different treatment in the Georgia capital sentencing system." The burden of proof, Blackmun contended, should be on the state to demonstrate that racially neutral procedures yielded the racially skewed results shown by the study.

The Court's opinion is not easy to explain, unless one accepts the belief of dissenters that the Court did not wish to open a can of worms. McCleskey's claims taken to their logical conclusion undermined principles that buttressed the entire criminal justice system. His equal-protection and "cruel and unusual punishment" arguments, if accepted, could have applied to punishments in noncapital cases and to procedures before sentencing and might have resulted in abolition of the death penalty as well.

Leonard W. Levy
(1992)

(see also: Capital Punishment and Race; Capital Punishment Cases of 1972; Capital Punishment Cases of 1976; Race and Criminal Justice.)