McCleskey v. Kemp

In declaring that the remedy for racial discrimination in capital punishment lay with the legislatures and not with the courts, the Supreme Court was, in essence, permitting variable application of the law's ultimate penalty.

In 1978, Warren McCleskey was convicted and sentenced to death for killing a white police officer during a robbery attempt. After his conviction was upheld by the Georgia Supreme Court, McCleskey filed a habeas corpus petition with the federal district court. This petition claimed that his sentence was invalid because, in Georgia, the death penalty was being applied in an unconstitutionally discriminatory manner. In support of his petition, McCleskey submitted the report of an extensive statistical study by Professor David Baldus. This study examined 2,000 murder cases that were tried in Georgia during the 1970s. Baldus found that an individual charged with killing a white person was 4.3 times more likely to be sentenced to death than one accused of killing a black person.

On the basis of the Baldus study, McCleskey claimed that the death penalty as administered in Georgia was unconstitutional on one or both of the following grounds: 1) it violated the Equal Protection Clause of the Fourteenth Amendment, granting citizens of the states equal protection of the law; 2) it violated the Eighth Amendment's ban on cruel and unusual punishment. Baldus's petition was rejected, and he pursued it all the way up to the U.S. Supreme Court.

Writing for the five-member majority, Justice Powell also rejected McCleskey's petition. As to McCleskey's equal protection argument, Powell indicated that the Baldus statistics really should be presented to the Georgia legislature, not the Supreme Court:

It is not the responsibility--or indeed even the right--of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people." [Quoting Furman v. Georgia(1972)] . . . Despite McCleskey's wide-ranging arguments that basically challenge the validity of capital punishment in society, the only question before us is whether in his case . . . the law of Georgia was properly applied.

Because McCleskey had failed to demonstrate that in his particular case the Georgia legislature had deliberately acted in a discriminatory fashion, the Court could not agree that his right to equal protection of the laws had been violated

McCleskey's Eighth Amendment argument was equally unconvincing to the majority. The conclusions of the Baldus study were not so extreme as to violate "evolving standards of decency." Fifteen years earlier, in Gregg v. Georgia (1976), the Court had ruled that the death penalty did not constitute cruel and unusual punishment if it were imposed after a careful review that avoided arbitrariness and prejudice. In Gregg, the state of Georgia demonstrated to the Court that it had instituted procedures designed to prevent precisely the type of discrimination that McCleskey alleged resulted in his death sentence. The Court was not willing, however, to reverse itself on the basis of one statistical survey that did not produce alarming results. As Powell was careful to point out, capital punishment was by 1990 "the law in more than two-thirds of our States." It was neither cruel nor unusual.

For two of the dissenters, Justices Brennan and Marshall, the death penalty was in all circumstances cruel and unusual punishment. In McCleskey they were joined by Blackmun and Stevens, who likewise found that there was no need for the Baldus study to prove definitively that Georgia applied the death penalty discriminatorily. All that was necessary to render the state statute unconstitutional was a showing that the procedures for adjudicating capital cases posed a significant risk of discrimination. For these four members of the Court, the Baldus study proved precisely that point.

One year later, the Supreme Court rejected another death penalty appeal from McCleskey in McCleskey v. Zant (1991), in which the appellant claimed that he had been forced to make incriminating statements without the assistance of counsel. McCleskey was finally executed on 25 September 1991.