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.”