Warren McCleskey v. Kemp, 481 U.S. 279 (1987):

Issue: Whether a complex statistical study indicating a risk that racial considerations enter into capital sentencing decisions proves that the sentence of Warren McCleskey, a black man convicted of killing a white police officer, is unconstitutional under the 8^th or 14^th Amendment.

Majority Opinion: The court stated that a defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination. A comprehensive statistical analysis, the Baldus study, indicated that black defendants who are convicted of killing white victims have the greatest likelihood of receiving the death penalty. Any statistical proof must present a stark pattern to be accepted as the sole proof of discriminatory intent under the 14^th Amendment. There is generally a difficulty in using an inference drawn from general statistics to prove the decision-makers in an individual defendant's case acted with discriminatory purpose. McCleskey needed to show that the actors who exercised discretion in his case B prosecutors, judge and jury B had actual intent to discriminate.

McCleskey also argued that the state violated his equal protection rights by adopting the capital punishment statute and allowing it to stay in force despite its discriminatory effect. The court stated that to prevail, McCleskey would need to prove the statute was enacted or maintained because of an anticipated racially discriminatory effect. There was a strong presumption against this because the Supreme Court had upheld the Georgia statute just 10 years earlier in Gregg v. Georgia.

Lastly, McCleskey's 8^th Amendment argument was that the Georgia statute was arbitrary in application and therefore constituted cruel and unusual punishment. The Court held that at most, the Baldus study indicated a discrepancy that correlates with race. The implication was that the discrepancies discovered through the Baldus study were different from the major defects found in the system in Furman. To the extent a risk of discrimination existed, sufficient procedures exist to protect against it: a statute that narrows the class of defendants eligible for the death penalty, liberal standards for admitting mitigating evidence at the sentencing phase, the Batson standard for challenging discrimination in jury selection.

Dissent: The dissents argued that the majority had essentially ignored Furman and the risk of imposition of an arbitrary sentence. The majority had disregarded the fact that Georgia had a historical context of an open and formal legal system that had created different standards of justice depending on the race of the victim and defendant. This fact combined with the statistical evidence of present-day practice discovered by the Baldus study created an impermissible risk that death penalty sentencing was administered in a discriminatory manner. Turning to the 14^th Amendment claim, the dissents argued that if the court had focused merely on the actions of the prosecutors, it would have found sufficient evidence of discriminatory intent without condemning the entire system.

Suppose the statistics on executions for the state of Neru conclusively show that:

• defendants charged with killing white victims in Neru are 7.8 times as likely to be sentenced to death as defendants charged with killing black victims;
• 5 out of every 6 defendants would not have been sentenced to death if their victims had been white;
• among defendants with at least 2 aggravating factors, 22 out of 34 would not have been sentenced to death if their victims had been white;

You are a Neru state legislator. Your legislature wants to adopt Georgia's death penalty statute. Unlike Georgia, your state has a demonstrated commitment to racial equality. In Neru, sentencing determinations impermissibly based on racial distinctions offend the state constitutional prohibition on cruel and unusual punishment. You know the Georgia statute has been widely criticized.

1. What arguments can you expect against whole-sale adoption of the Georgia statute?
2. What factors tend to show that the statute would lead to arbitrary results? Do you expect the statute to pass constitutional muster in the state of Neru?
3. Before the statute is put to a vote, all legislators are made clearly aware of the disparate impact the adoption of the statute is likely to have on black defendants. Does the legislature's adoption of the statute constitute an intentional purpose to discriminate? What precautions, if any, would you advise the legislators to keep in mind?
4. What would be your opinion of the statute if it gave broad prosecutorial discretion in determining which defendants were eligible for the death penalty? Does such broad discretion tend to make the statute more arbitrary? Would a provision allowing for direct review of prosecutors' decisions obviate your constitutional challenges?

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Submitted by L. Yvette Mathews

Emory University School of Law