April 22 will mark the 25th anniver­sary of the Supreme Court​’s deci­sion in McCleskey v. Kemp in which the Court reject­ed (5 – 4) a claim of racial bias based on a sophis­ti­cat­ed sta­tis­ti­cal study of the death penal­ty in Georgia. Warren McCleskey, an African-American death row inmate con­vict­ed of killing a white police offi­cer, pre­sent­ed the Court with analy­sis show­ing that defen­dants charged with killing white vic­tims had odds of receiv­ing a death sen­tence that were 4.3 times high­er than defen­dants charged with killing black vic­tims. McCleskey argued that his death sen­tence was uncon­sti­tu­tion­al under the equal pro­tec­tion clause of the Fourteenth Amendment. The Court held, how­ev­er, that the defen­dant had to show he was per­son­al­ly dis­crim­i­nat­ed against in the course of the pros­e­cu­tion, and mere­ly show­ing a dis­turb­ing pat­tern of racial dis­par­i­ties in Georgia over a long peri­od of time was not suf­fi­cient to prove racial bias in his case. McCleskey also argued that when race is a fac­tor in select­ing who will die, the death penal­ty is uncon­sti­tu­tion­al under the cru­el and unusu­al pun­ish­ment clause of the Eighth Amendment, but the Court decid­ed the study offered was insuf­fi­cient to prove that the death penal­ty was being applied in an arbitrary manner. 

The Court’s deci­sion has stood in the way of any sim­i­lar claims by cap­i­tal defen­dants for 25 years. Justice Lewis Powell, who wrote the major­i­ty opin­ion, lat­er said he regret­ted his vote in this case. For more infor­ma­tion on McCleskey v. Kemp, vis­it an archived ver­sion of McCleskeyvKemp​.com, a web­site assem­bled by a vari­ety of orga­ni­za­tions wish­ing to under­score the impli­ca­tions of this deci­sion. The web­site includes infor­ma­tion from the NAACP Legal Defense Fund and their pri­or sym­po­sium about this case.

A deci­sion chal­leng­ing racial bias in the death penal­ty in North Carolina, employ­ing the state’s new Racial Justice Act, is expect­ed on April 20 from a tri­al court (State v. Robinson).

(DPIC post­ed, April 17, 2012). See an archived ver­sion of McCleskeyvKemp​.com. See also Race and U.S. Supreme Court.

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