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McCleskey v. Kemp

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Significance: The Supreme Court ruled that Georgia's use of capital punishment was constitutional, despite statistical studies showing that killers of white victims were four times more likely to be executed than killers of black victims.


Warren McCleskey, an African American, was convicted and sentenced to die for killing a white police officer in an armed robbery in 1978. On appeal, his attorneys argued that the state's death penalty statute was implemented in a racially discriminatory manner, contrary to both the Eighth and Fourteenth Amendments. They emphasized the empirical studies of David Baldus, which demonstrated that the race of the victim was a significant factor in determining whether the defendant would receive the death sentence. Prosecutors had sought the death penalty in 70 percent of the cases involving black defendants and white victims but in only 15 percent of the cases involving black defendants and black victims. Because of the tendency of defendants and victims to belong to the same race, the study found that 4 percent of the black defendants received the death penalty, compared with 7 percent of the white defendants. By a 5-4 margin, the Supreme Court rejected McCleskey's claim. Justice Lewis F. Powell, Jr.'s opinion for the majority began with the principle that a defendant alleging an equal protection violation had the burden of proving that decision makers in his case had acted “with discriminatory purpose.” McCleskey had presented no evidence that the legislature had enacted or maintained the death penalty to further a racially discriminatory purpose, and the Court had earlier determined, in Gregg v. Georgia (1976), that Georgia's capital sentencing system “could operate in a fair and neutral manner.” Powell expressed concern that if the Court were to invalidate the use of the death penalty on the basis of a statistical disparity that correlated with race, a logical inference would be to question all criminal punishments in which a similar statistical pattern might be found. The four dissenters answered that the death penalty should be judged by standards more rigorous than those used in other sentences. They also found it unacceptable to accept the risk of racial considerations influencing whether a defendant would live or die.