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The Case for Race: McCleskey v. Kemp (1987)

The case that some argue was the most profound challenge to the death penalty based on race, and indeed to capital punishment generally, was decided in 1987 (Kirchmeier, 2015; Shatz & Dalton, 2013). The attorney serving as director for the NAACP’s LDF argued the case for the petitioner in McCleskey v. Kemp (1987). This case marked the fi rst time that the U.S. Supreme Court considered a direct constitutional claim that capital punishment was administered in a racially discriminatory manner.

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McCleskey, a black male who was sentenced to death for killing a white police offi cer during a robbery, petitioned the U.S. Supreme Court, claiming that Georgia’s capital sentencing system



31 Race and the Death Penalty


violated the Eighth Amendment’s provision against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection of the law because it was administered in a racially dis- criminatory manner. McCleskey claimed that those who were convicted of killing whites were more likely to receive a death sentence than all other defendants. He also maintained that black defendants were more likely to be sentenced to die than white defendants. McCleskey insisted that he was dis- criminated against because of his race and that of his victim and that the large amount of discretion involved in the process could have allowed racial prejudices to infl uence juror decisions (Flexon, 2012; Patterson, 1995).

In his appeal, McCleskey’s lawyer presented statistical evidence of racial disparities that was offered by Baldus et al. (1990). The Baldus study was based on data from more than 2,000 Georgia homi- cides from the 1970s. The analyses of the homicide data revealed that 11% of defendants with white victims received a capital sentence, while only 1% of those convicted of killing blacks were sentenced to death. They also concluded that black defendants convicted of killing white victims, like McCles- key, were the most likely to receive a sentence of death. Additionally, after controlling for a myriad of variables related to case characteristics, defendants convicted of killing white victims were about 4.3 times more likely to receive a death sentence than those who killed black victims (Baldus et al., 1990; Baldus & Woodworth, 2003a); black defendants who killed white victims were most likely to be sentenced to death versus any other interracial victim and defendant combination (Baldus et al., 1990; Flexon, 2012).

The court recognized the Baldus Study as valid and agreed that it suggested racial disparities were evident within the Georgia capital system. Baldus, Woodworth, and Pulaski (1994) cited part of a memo written while the case was pending. In this memo, Justice Scalia wrote about his opinion that racial discrimination in capital punishment is “real, acknowledged in the decisions of this Court, and ineradicable” (p. 371). In the end, however, the court rejected both constitutional claims by a fi ve to four vote and stated that the study was “insuffi cient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insuffi cient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis” ( McCleskey v. Kemp , 1987, p. 891). The court referred to the precedent set in previous cases that any defendant claiming a violation of the Fourteenth Amendment must prove that the jurors in his or her specifi c case purposefully discriminated against him or her, or that the statute in question was written with the purpose to create and maintain discrimination, which McCleskey was unable to do in his case (Flexon, 2012). Further, the court asserted that the discrepancies suggested by the Baldus study were not com- parable to those revealed in Furman v. Georgia (1972) and that “apparent disparities in sentencing are an inevitable part of our criminal justice system” (p. 893). Some scholars believe that the McCleskey ruling created a burden of proof for claims of discrimination in death penalty cases that is far heavier than the standard used in more typical cases such as voting policies or employment discrimination (Cook & Kende, 1996).

While the court essentially blocked the discussion of discrimination based on race in death penalty cases within the courts, it ultimately shifted responsibility to Congress by advising McCleskey that his claims would better be handled by the legislative bodies. The court reasoned that it does not make the laws and punishments; rather, it determines if they are applied constitutionally in each case. In this case, the question was whether the law of Georgia was applied properly. Accordingly, the court suggested that legislative bodies are better equipped to address problems with the statutes themselves (Alexander, 2014; Baldus & Woodworth, 2003a; Ross, 1997). In the end, then, McCleskey did not result in any changes or other mandates for capital punishment systems. Instead, the ruling effectively signaled the court’s refusal to outlaw capital punishment even though the institution is racially biased (Kirchmeier, 2015). Rather than diverting focus from race by emphasizing arbitrariness or type of crime, the McCleskey Court framed race in terms of individualistic procedures rather than aggregate outcomes (Steiker & Steiker, 2016).



Kristie R. Blevins and Kevin I. Minor


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