Despite evidence showing that race has a statistical impact on whether or not a jury recommends the death penalty, the U.S. Supreme Court concluded that the existence of statistical disparity did not violate the principles of the Eighth and Fourteenth Amendments to the U.S. Constitution.
In 1978, Warren McCleskey, a thirty-one-year-old African American man, joined with three accomplices to plan and carry out the robbery of a furniture store. Entering the store from different doors, all four of the men were armed. After rounding up the customers and employees, they forced the customers to lie face down on the floor and tied up the employees with tape. Before the robbery was completed, a white police officer, responding to a silent alarm, entered the store. Almost immediately, two shots were fired at the officer, with one hitting him fatally in the head. The four robbers then fled from the store with a small amount of stolen money and property.
A few weeks later, when McCleskey was arrested for an unrelated crime, he confessed to having participated in the robbery, but he denied that he had shot the officer. Investigators, however, discovered that at least one of the bullets striking the officer was fired from a .38 caliber Rossi revolver that matched the description of the gun that McCleskey carried. Investigators also found two witnesses who testified that they had heard him boast about firing at the officer.
Later that year, at the Superior Court of Fulton County, Georgia, McCleskey was tried on charges of two counts of robbery and one count of first-degree murder. The jury was composed of eleven white jurors and one black juror. Based on the evidence, they unanimously agreed that McCleskey was guilty beyond a reasonable doubt. At the penalty phase of the trial, after considering both the mitigating and aggravating circumstances of the crime, the jurors unanimously recommended the death penalty, a recommendation that was accepted by the court.
At the time of the trial, the constitutionality of capital punishment was extremely controversial. Just six years earlier, in Furman v. Georgia (1972),
For his appeal, McCleskey had attorneys from the Legal Defense Fund of the National Association for the Advancement of Colored People (NAACP). In seeking legal reasons for an appeal, the attorneys were unable to discover any major violations of due process, but they did find some encouragement in the case of Coker v. Georgia (1977),
McCleskey’s petition for a writ of habeas corpus in federal court argued that Georgia’s process of capital sentencing was cruel and unusual because it was racially discriminatory in violation of the equal protection clause of the Fourteenth Amendment.
The race of the defendant also had some impact on sentencing. Death sentences were given in 22 percent of cases with black defendants and white victims, in 3 percent of cases with white defendants and black victims, in 8 percent of cases when both parties were white, and in only 1 percent of cases in which both parties were black.
When the Supreme Court finally decided the case in McCleskey v. Kemp (1987), the justices rejected McCleskey’s claim by a five-to-four majority. In the majority opinion, Justice Lewis F. Powell, Jr., referred to precedents requiring that to prevail under the equal protection clause, the defendant would have to prove that the conviction was a result of discriminatory motivation by either the Georgia legislature or by the officials involved in the trial. Emphasizing that there was no specific evidence of racial discrimination in McCleskey’s trial, Powell argued that the Baldus study’s discovery of statistical disparity in capital sentencing could not be used as proof of discrimination in particular cases and that the mere evidence of such statistics was not inconsistent with “evolving standards of decency.” In Powell’s view, the data in the study should be considered by legislatures rather than by the courts.
Four justices disagreed with the majority. In a lengthy dissent, Justice William J. Brennan postulated that the death penalty, in contrast to other punishments, should be assessed with “heightened rationality” because of its irrevocable nature. He further argued that Baldus’s demonstration of racial disparity implied the real possibility of discriminatory treatment against black defendants like McCleskey, which meant that Georgia’s application of the death penalty could not survive the test of heightened rationality. Justice Harry A. Blackmun also wrote a dissent echoing Brennan’s concern for possible racial bias. Justice Thurgood Marshall, the only black member of the Court, joined both dissents. Justice John Paul Stevens was not willing to conclude that the Baldus study had proven the unconstitutionality of the death penalty, but he wanted to remand the case back to the lower courts to consider the validity of the study and its implications.
Reaffirming the constitutionality of capital punishment, the McCleskey ruling established that the existence of statistical racial disparity in capital sentencing violated neither the Eighth Amendment nor the Fourteenth Amendment’s requirement of equal protection. Because the case was decided by a narrow five-to-four vote, however, the decision could be overturned if a future majority of justices were to have more liberal views on the issues involved. The closeness of the decision was highlighted in a 1994 biography about Justice Powell, in which Powell was quoted as having said that if he could change his vote in any case, it would be McCleskey v. Kemp.
Since this ruling, the Supreme Court has not examined any major cases challenging the constitutionality of capital punishment in a comprehensive sense. Attorneys for several defendants, however, have convinced the Court that the Eighth Amendment prohibits the execution of particular categories of persons, including the insane (Ford v. Wainwright, 1986), the mentally retarded (Atkins v. Virginia, 2002), and persons who were younger than eighteen at the time of their crimes (Roper v. Simmons, 2005). In the case of Wiggins v. Smith (2003), moreover, the Court made it clear that it will give special scrutiny to the effectiveness of counsel in capital cases. Although the Court has never officially endorsed Justice Brennan’s standard of heightened rationality, most justices have implicitly accepted the idea that capital sentences should be assessed more rigorously than other kinds of punishments.
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Baldus, David, Charles Pulaski, and George Woodworth. Equal Justice and the Death Penalty: A Legal and Empirical Analysis. Boston: Northeastern University Press, 1990. Classic of social science research, with the thesis that the victim’s race has a major impact on whether defendants are sentenced to death. -
Coyne, Randall, et al. Capital Punishment and the Judicial Process. Durham, N.C.: Carolina Academic Press, 2006. Provides a historical overview and analyzes all the major Supreme Court cases relating to the topic. -
Edelman, Bryan. Racial Prejudice, Juror Empathy, and Sentencing in Death Penalty Cases. New York: LFB Scholarly Press, 2006. Based on interviews, Edelman’s book concludes that white jurors are especially prone to render death sentences in cases with white victims and black offenders. -
Latzer, Barry. Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment. 2d ed. Boston: Butterworth-Heinemann, 2002. Contains introductions to most of the Supreme Court opinions in McCleskey and twenty-four other cases. -
Mandery, Evan. Capital Punishment in America: A Balanced Examination. Sudbury, Mass.: Jones & Bartlett, 2004. Comprehensive assessment that gives multiple sides to the constitutional and moral issues relating to the controversial topic. -
Melusky, Joseph, and Keith Pesto. Cruel and Unusual Punishment Under the Law. Santa Barbara, Calif.: ABC-CLIO, 2003. Useful guide with an excellent historical summary of the topic, with original documents and cogent analysis of McCleskey and other cases. -
Ogletree, Charles, and Austin Sarat, eds. From Lynch Mobs to the Killing State: Race and the Death Penalty in America. New York: New York University Press, 2006. An outstanding collection of interesting essays, including much analysis of the McCleskey ruling. -
Wright, Bruce. Black Robes, White Justice: Why Our Legal System Doesn’t Work for Blacks. New York: Carol Publishing Group, 1993. An experienced lawyer and judge argues that the judiciary system is fundamentally discriminatory against African Americans in all areas, including application of capital punishment.
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