McCleskey v. Kemp
481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed.2d 262 (1987)

  • McClesky was convicted of armed robbery and murder of a police officer, he was sentenced to death.
  • McClesky filed a writ of habeus corpus, alleging that the Georgia’s capital sentencing process was administered in a racially discriminatory manner, which violated his 14th Amendment right to equal protection and his 8th Amendment right against cruel and unusual punishments.
    • McClesky cited a study showing that African Americans were much more likely to receive the death penalty than Caucasians.
  • The Trial Court upheld the sentence. McClesky appealed.
    • The Trial Court found that the study was incomplete and flawed.
  • The Appellate Court upheld the sentence. McCleskey appealed.
    • The Appellate Court found that even if the study were taken to be true, it “insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the 14th Amendment context, and insufficient to show irrationality, arbitrariness, and capriciousness under any kind of 8th Amendment analysis.
  • The Georgia Supreme Court upheld the sentence. McCleskey appealed.
  • The US Supreme Court upheld the sentence.
    • The US Supreme Court found that, despite statistical evidence of a profound racial disparity in application of the death penalty, such evidence is insufficient to invalidate defendant’s death sentence.
      • The Court noted that in order to win, McCleskey would have to show that the State acted with discriminatory intent in his case, not just that there is a generic bias. He failed to do this.
        • The Court noted that each death penalty decision is made by a different jury. McCleskey did not claim that there was something wrong with his specific jury.
      • The Court found that alternately McCleskey would need to show that the whole State was acting with a discriminatory intent. That would require proof that the Georgia Legislature enacted the death penalty law because of an anticipated discriminatory effect. He failed to do this.
    • The Court rejected McCleskey’s 8th Amendment claims by noting that Georgia’s capital punishment guidelines met the national standard.
      • McCleskey was convicted of murder, so it wasn’t like the punishment was disproportionate to the crime (the normal standard for prevailing on an 8th Amendment claim).
    • The Court noted that McClesksey’s claims were more of a political question and he should perhaps take it up with the Georgia Legislature, who are responsible for “responding to the will and the moral values of the people.” The Court’s job is only to ensure that the law of Georgia was properly applied in this specific case, which they found it was.
  • In a dissent, it was argued that capital punishment was of dubious constitutionality to begin with, and if it were shown that there was a significant, demonstrable racial bias it would certainly be a violation of the 14th Amendment, even if that bias was unintentional.
  • The take-home message from this case is that claims based on government denial of equal protection will probably lose unless something more than a mere discriminatory effect can be shown.
    • The US Supreme Court generally requires, in addition to discriminatory effect, that a discriminatory intent be shown as the government’s motivation for creation the law in the first place.
      • See United States v. Armstrong (517 U.S. 456 (1996)).
    • Basically, you have to show that there was an intent to have a biased law. If the law is facially neutral, then it is still ok, even if there is a discriminatory effect.
      • It is very hard to show that there was a discriminatory intent in the creation of a Statute.
        • Perhaps in the legislative history?
      • The problem could be with the entire jury system. If jurors are just inherently racist, then even a neutral law will have a discriminatory effect. But how to fix that?
        • Considering all the people involved in all the death penalty cases in a State, is it even possible that there could be discriminatory intent? Is it all a giant conspiracy?
  • The Court might have made this ruling because of the consequences of ruling the opposite way. If McClesky had prevailed, it might have wrecked the entire justice system.
    • If the remedy was that McClesky’s sentence was overturned, then all black death row prisoners could have their sentences overturned because there would be no way to tell whose convictions were based on discrimination. Then all the white prisoners would have their sentences overturned because there would be clear discrimination since now only whites would be on death row. So, it would be a de facto ban on all death sentences.
      • And it wouldn’t stop there, all black convicts who had any sentence could probably show the same discriminatory effect, since the prison population demographics are very skewed from the general US population demographics.
        • Since 95% of all prisoners are male, would they be able to claim sex discrimination?
    • In addition, if you believe the deterrent effect of death sentences, and if most crime is intra-racial (blacks tend to kill blacks, whites tend to kill whites), then you could argue that lessening the sentences on black defendants would mean there would be more black victims. That doesn’t seem fair either.