35 Years After McCleskey v. Kemp: A Legacy of Racial Injustice in the Administration of the Death Penalty

On April 22, 1987, the United States Supreme Court ruled in McCleskey v. Kemp that the same types of statistical data that were routinely accepted as proof of racial discrimination in housing, employment, education, and the denial of other civil rights were not sufficient as proof that a death sentence had been unconstitutionally imposed.

Although Warren McCleskey had presented a sophisticated statistical analysis of data from more than 2,500 murder cases in Georgia that showed that individuals who killed a white victim were far more likely to be sentenced to death than other defendants and that the odds he would be sentenced to death were 4.3 greater because he was Black and the man he was convicted of killing was white, the court dismissed the study as constitutionally immaterial. Instead, to prove that his rights under the Eighth Amendment had been violated or he had been denied equal protection under the law, the Court required him to present direct proof of “particularized discrimination” against him by a state actor in his case.

At the time, philosopher and renowned death-penalty legal historian Hugo Adam Bedau wrote that the McCleskey decision “will be the death penalty’s Dred Scott.” Justice Lewis Powell, who authored the opinion for a 5-4 Court majority, later singled out the case as the one in which he most wished he had voted differently.

In a commentary observing the 35^th anniversary of McCleskey, former Death Penalty Information Center Executive Director Richard Dieter called the decision “one of the Supreme Court’s most egregious missed opportunities.” The ruling not only led to McCleskey’s execution, Dieter wrote, “but essentially shut the door to all future claims based on a pattern of racial bias in sentencing.”

One predictable consequence of McCleskey has been systemic racial bias in carrying out the death penalty. 78% of the 1,473 executions since McCleskey, Dieter notes, have involved murders of white victims, even though the number of Black murder victims in the United States is greater than that of white victims.

McCleskey’s case rested on a landmark study by Professor David Baldus. But in a follow-up study published in 2019 in the Harvard Civil Rights-Civil Liberties Law Review, Professors Scott Phillips and Justin Marceau found that the Baldus study had “actually understated the race problems inherent to the operation of modern death penalty jurisprudence.” Following the cases in the Baldus study through the conclusion of the legal process, they found that defendants convicted of killing white victims in Georgia were 17 times more likely to be executed than those convicted of murdering black victims. Georgia ultimately executed 22 of the 972 defendants in the Baldus cases who had been convicted of killing any white victim (2.26%), while only two of the defendants whose victims were Black were executed (0.13%).

The new data, Phillips and Marceau argue, “show that [the] trust in appellate review as a check on discrimination is badly misplaced. Appellate judges appear unable or unwilling to reign in the racial disparities identified at the sentencing phase.”

In a law review article published in the Spring 2020 issue of the Columbia Human Rights Law Review, Professor Alexis Hoag argued that the same racial bias present in McCleskey is prevalent today. “Capital punishment is supposed to be reserved for those who commit the ‘worst of the worst’ crimes,” she wrote. “Instead, as a result of bias, prejudice and racism, it is disproportionately reserved for those charged with killing white victims.” Marshalling three decades of data documenting the continuing discriminatory application of the death penalty since McCleskey, Professor Hoag advocated mounting a new challenge to the constitutionality of the death penalty “centered on the undervaluation of Black lives.”

In the lead McCleskey dissent, Justice William Brennan described how McCleskey’s lawyers “would have to tell [him] that few of the details of the crime or [his] past criminal conduct were more important than the fact that his victim was white.” He famously called the majority’s concerns that granting relief to McCleskey would open the door to other constitutional challenges a “fear of too much justice.”

“The Court expressed concern that if McCleskey’s sentence was overturned, it could mean that the remaining death sentences in Georgia would also be suspect, and similar studies might even present a challenge to other aspects of the justice system,” Dieter wrote. “Although addressing racial bias on a societal level is indeed challenging,” Dieter concluded, “solving the problem of a biased system of capital punishment has a ready solution: stopping the death penalty altogether.”