In McCleskey v. Kemp, the Court was confronted with the invidious nature of racism in the legal system, the limits of equal protection, and the algebra of death in the United States.
Warren McCleskey was convicted by the state of Georgia of the crimes of robbery and murder. More specifically, McCleskey, a black man, was convicted of killing a white police officer during the course of a robbery and was sentenced to death. The procedural posture of McCleskey’s case was complex, with multiple petitions to the U.S. Supreme Court. Ultimately, two years after his conviction, the Supreme Court accepted his writ of habeas corpus petition. McCleskey presented two arguments. First, he argued that his death sentence was unconstitutional because Georgia had violated his right to equal protection under the Fourteenth Amendment of the Constitution because the sentencing process was ‘‘administered in a racially discriminatory manner.’’ Second, McCleskey argued that his death sentence constituted ‘‘cruel and unusual punishment’’ in violation of the Eighth Amendment.
In support of his claims, McCleskey presented a now famous statistical study (the Baldus study) performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth. The study found that in the state of Georgia, race was a determinant factor in whether (i) a prosecutor would seek the death penalty, and (ii) a death sentence would be imposed after conviction. In part, the study found that prosecutors sought the death penalty in 70 percent of cases where the defendant was black and the victim white compared to seeking the death penalty in 19 percent of the cases where the defendant was white and the victim black. Furthermore, the study demonstrated that in the former situation, black defendants were sentenced to death 22 percent of the time; in the latter situation, white defendants were sentenced to death 1 percent of the time.
Writing for the majority, Justice Powell upheld McCleskey’s death sentence and rendered his argument ineffective despite accepting the statistical validity of the Baldus study. The majority arrived at its holding by requiring that McCleskey prove that the state of Georgia ‘‘acted with discriminatory purpose’’ in his case.
A year earlier, in Batson v. Kemp, the, 476 U.S. 79 (1986), Court articulated the requirements for a showing of purposeful discrimination on the part of the state and consequently a violation of a defendant’s equal protection under the law in the jury selection process. The Batson Court required that the defendant show that ‘‘the totality of the relevant facts gives rise to an inference of discriminatory purpose.’’ Such showing could include evidence reflecting that ‘‘[the defendant] is a member of a racial group being singled out for different treatment.’’ Once the defendant met his burden, that burden would then shift to the state. The Batson v. Kemp majority reiterated the tenor of Washington v. Davis, 426 U.S. 229 (1976), that ‘‘[c]ircumstantial evidence of invidious intent may include proof of disproportionate impact.’’ From that, a trial court can reasonably shift the defendant’s burden of proof to the state, which would then have to ‘‘come forward with a neutral explanation’’ that goes beyond a simple denial of discriminatory motive or intent.
The majority disregarded the calculus of Batson v. Kemp and proceeded with a conceptual analysis that would make it impossible for McCleskey to satisfy his burden. Because jury deliberations are secret and ‘‘discretion is essential to the criminal justice process,’’ the majority placed the white supremacist valuation of life in Georgia death penalty cases beyond the possibility of scrutiny. If the operation of white supremacy in Georgia death penalty cases cannot be proved by statistical study (even statistical studies accepted as valid by the Court) or by piercing the veil of the secret jury deliberation (even of a jury system charged with meting out the ultimate sanction of death), then the operation of white supremacy in Georgia death penalty cases is proved to be a valid form of racial discrimination under the U.S. constitutional system.
Equal protection analysis in cases involving racial discrimination requires ‘‘strict scrutiny.’’ However, as Justice Brennan pointed out, the majority proceeded with a lesser level of scrutiny, focusing on the state of Georgia’s interest in sentencing a murderer to death. The majority felt that discretion in every aspect of McCleskey’s case, from the state’s decisions to the jury’s recommendation in the capital sentencing process was important to protect. Furthermore, the majority felt that the appeal system establishes ‘‘statutory safeguards’’ against the violation of civil liberties. Effectively, the majority foreclosed a Batson v. Kemp analysis, which would have shown that the evidence presented by McCleskey proved that ‘‘he is a member of a group that is a recognizable, distinct class, singled out for different treatment’’; (ii) that there was ‘‘showing of a substantial degree of differential treatment’’; and (iii) that criminal procedure in his case was ‘‘susceptible to’’ abuse. The majority foreclosed the analysis because ‘‘McCleskey’s claim, taken to its logical conclusions, throws into serious question the principles that underlie our entire criminal justice system.’’ Thus, the Court was able to hold that there were no Eighth or Fourteenth Amendment violations in McCleskey’s case.
McCleskey v. Kemp was the last significant challenge to the use of the death penalty in the United States until the Court invalidated execution of the mentally retarded and minors.
GEIZA VARGAS–VARGAS and ANTHONY PAUL FARLEY
References and Further Reading
Cases and Statutes Cited
See also Capital Punishment; Capital Punishment and the Equal Protection Clause Cases; Capital Punishment and Race; Capital Punishment: Due Process Limits; Capital Punishment: Eighth Amendment Limits; Capital Punishment: History and Politics; Race and Criminal Justice