Although the legal institution of slavery was dismantled by the Emancipation Proclamation and the Thirteenth Amendment, discrimination on the basis of race and racially motivated violence continued unabated. That black Americans received a different brand of justice than white Americans was made plain in the passage of Black Codes. These laws explicitly provided for criminal punishments that varied, depending on the race of the victim and the race of the criminal. Crimes involving either white victims or black perpetrators were punished more severely than crimes involving either black victims or white perpetrators.
The Fourteenth Amendment was framed and adopted . . .’’ to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the General Government, in that enjoyment whenever it should be denied by the states’’ Strauder v. West Virginia, 100 U.S. 303, 306 (1986). Among its many other provisions, the Fourteenth Amendment contains the Equal Protection Clause that provides that ‘‘[no state shall] deny to any person within its jurisdiction the equal protection of the laws.’’ The principle of equality enshrined in the Equal Protection Clause has famously been described by one Supreme Court Justice as requiring racial neutrality in the application of the laws: ‘‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’’ Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (Harlan, J., dissenting).
Prosecutors enjoy broad discretion in making critical decisions, such as the determination whether a particular suspect should be formally accused of crime and, if so, what charge or charges should be filed. However, prosecutorial discretion is not completely unfettered. In certain circumstances, the Constitution itself may impose constraints on a prosecutor’s power. For example, discriminatory prosecutions are prohibited by the Equal Protection Clause. According to the Supreme Court in Yick Wo v. Hopkins, 118 U.S. 356 (1886):
Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.
Each step in the prosecution of a capital case— arrest, charging, plea bargaining, jury selection, conviction, sentencing, appeal, clemency and execution—is equally subject to the application of inexact standards of decision making. The inevitable result, according to death penalty opponents, is a high risk of arbitrariness in the determination of who is ultimately put to death.
Of course, race is not the only basis on which discriminatory decisions may rest. The American Bar Association has cautioned that prosecutors, in discharging both their investigative and charging functions, ‘‘should not invidiously discriminate against or in favor of any person on the basis of race, religion, sex, sexual preference, or ethnicity,’’ whether the person appears as the defendant or as the victim. Standards for Criminal Justice Standard 3-3.1(b) (comment). Thus far, however, the most significant equal protection challenges have been predicated on race discrimination.
Before his execution in Florida’s electric chair in 1979, John Spenkelink, a white man condemned to die for themurder of a whiteman, presented in state and federal court a study purporting to showthat the revised Florida death penalty statutes were being applied far more often against killers of whites than against killers of blacks. The following year, two Northeastern University criminologists, William Bowers and Glenn Pierce, published a study of homicide sentencing in Georgia, Florida, and Texas, the three states whose new death penalty statutes were the first to be approved by the Supreme Court after its landmark decision in Furman v. Georgia, 408 U.S. 238 (1972).
Bowers and Pierce found that in white victim cases, black defendants in all three states were from four to six times more likely to be sentenced to death than white defendants. In Georgia, black on white killings resulted in death sentences thirty-three times more often than black on black killings. In Florida, a black defendant was thirty-seven times more likely to be sentenced to death if his victim was white than if his victim was black. And in Texas, black killers of white victims were eighty-four times more likely to be sentenced to death than black killers of black victims.
In 1981, John Eldon Smith, a Georgia death row inmate, introduced the Bowers and Pierce study in federal court. The court of appeals rejected the study as too crude to be legally significant, because it failed to take into account dozens of circumstances in each case—other than race—that might have accounted for unequal sentencing patterns.
A far more comprehensive analysis of the impact of race in capital cases was offered on behalf of a different condemned prisoner on Georgia’s death row. Warren McCleskey, a black man, was convicted of murder and sentenced to die for his role in the shooting death of white police officer Frank Schlatt during a furniture store robbery.
Iowa law professor David Baldus and a team of researchers examined nearly 2,500 homicide cases that occurred in Georgia between 1973 and 1979. Unlike the less sophisticated study undertaken by professors Bowers and Pierce, Professor Baldus subjected his data to an exhaustive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. The Baldus study, like the studies that preceded it, purported to show a disparity in the imposition of the death penalty in Georgia based on the race of the victim and, to a lesser extent, the race of the defendant.
Specifically, the Baldus study showed that for the universe of cases examined, defendants charged with killing white persons received the death penalty in eleven percent of the cases; defendants charged with killing blacks received the death penalty in only one percent of the cases. The death penalty was assessed in twenty-two percent of the cases involving black defendants and white victims; eight percent of the cases involving white defendants and white victims; one percent of the cases involving black defendants and black victims; and three percent of the cases involving white defendants and black victims.
Charging decisions were found to be similarly skewed along racial lines. Prosecutors asked for the death penalty in seventy percent of the cases involving black defendants and white victims; thirty-two percent of the cases involving white defendants and white victims; fifteen percent of the cases involving black defendants and black victims; and nineteen percent of the cases involving white defendants and black victims.
After taking into account nonracial variables, defendants charged with killing whites were found to be 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Black defendants were 1.1 times as likely to receive as death sentence as other defendants. The troubling conclusion of the Baldus study is that black defendants—such as Warren McCleskey—who kill white victims have the greatest likelihood of receiving the death penalty.
In the Supreme Court, McCleskey argued that the Baldus study demonstrated that the Georgia death penalty system discriminated on the basis of race in violation of the Equal Protection Clause. The Court disagreed five to four. Writing for the majority, Justice Powell noted that a defendant claiming an equal protection violation has the burden to provide ‘‘the existence of purposeful discrimination.’’ In addition, the defendant must show that the purposeful discrimination ‘‘had a discriminatory effect’’ on him or her.
McCleskey’s sole reliance on the Baldus study and his failure to show how any state actor had acted with discriminatory purpose in his case proved fatal to McCleskey’s argument and, ultimately, to McCleskey himself. Although the Court has accepted statistics as proof of intent to discriminate in the context of a state’s selection of a jury venire and in the context of statutory violations under Title VII of the Civil Rights Act of 1964, the Court refused to find that statistics alone were sufficient to demonstrate that the discretion inherent in the criminal justice system had been abused by racist decision makers.
Nor did the Court find the Baldus study persuasive proof that Georgia violated the Equal Protection Clause by adopting the capital punishment scheme and allowing it to remain in force despite its allegedly discriminatory application. For that claim to prevail, McCleskey would have to show that the Georgia legislature either enacted the statute to further a racially discriminatory purpose or maintained the statute because of the racially disproportionate impact suggested by the Baldus study.
Warren McCleskey died in Georgia’s electric chair on September 25, 1991. That same year, retired Justice Lewis Powell, who had authored the majority opinion denying relief to McCleskey was asked by a biographer if he would change any of his votes as a justice if he could. Powell said that he would change his vote in McCleskey’s case if he could.
Justice Brennan was one of the four McCleskey dissenters. He wrote, ‘‘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.’’ McCleskey v. Kemp, 481 U.S. 279 (1987) (Brennan, J., dissenting).
The Court’s McCleskey ruling has been harshly criticized. There are those who have likened the McCleskey decision to the Court’s discredited opinion in Plessy v. Ferguson. According to an editorial that ran in the Tallahassee Democrat newspaper:
It is the same reasoning that enabled the Court in the late 1800s to approve the ‘separate-but-equal’ doctrine for the nation’s schools . . . In McCleskey the Court essentially says Blacks must accept a separate-and-unequal system of justice in capital cases.
RANDALL T. COYNE
Cases and Statutes Cited