By: Princeton Wilson

There is undoubtedly good news for those opposed to capital punishment. Domestic executions are at an all-time low. Only eleven people were executed in the U.S. in 2021, down from seventeen executions in 2020. The use of capital punishment is also declining on an international scale, with 170 member states of the U.N. choosing either to abolish the death penalty or discontinue its practice. While there seems to be a domestic and international trend disfavoring capital punishment, one problem continues: racial disparities remain constant in how the death penalty is imposed. There are many reasons behind the persistent racial disparity in death penalty policy and implementation. However, the Supreme Court’s ruling in McCleskey v. Kemp[1] remains especially problematic.

McCleskey v. Kemp

In 1987, Warren McCleskey (an African American) was convicted of killing a White police officer during a robbery and sentenced to death under a Georgia statute.[2]  McCleskey filed a petition for a writ of habeas corpus in Federal District Court.[3] McCleskey brought many claims in his petition, including the claim that Georgia’s death penalty statute violated the Equal Protection Clause of the Fourteenth Amendment because it was implemented in a racially discriminatory manner.[4] At the time, there was a substantial body of case law in favor of McCleskey’s argument. In Arlington Heights v. Metropolitan Development Corporation, the Supreme Court held that statistical evidence showing a ‘stark’ pattern of racial discrimination could be sufficient to find a violation of Equal Protection.[5] The Supreme Court reiterated this position in Mayor of Philadelphia v. Educational Equality League, stating “[s]tatistical analyses have served and will continue to serve an important role as one indirect indicator of racial discrimination.”[6] Even in Washington v. Davis, the case in which the Supreme Court established the requirement of proving discriminatory intent to prevail on Equal Protection claims, Justice Stevens pushed back against requiring proof of intent in his concurring opinion. He stated that “[f]requently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds.”[7]

Relying on some of the cases mentioned above, McCleskey introduced a comprehensive study encompassing over two-thousand Georgia capital murder cases, proving that Georgia applied its death penalty laws in a racially discriminatory manner. The study was conducted by David Baldus, a law professor who researched Georgia’s application of the death penalty. The Baldus study revealed a widespread systemic racial discrepancy in how Georgia’s death penalty was carried out. For instance, among the study’s many disturbing revelations was how race played a pivotal role in whether prosecutors pursued the penalty. Georgia prosecutors only sought the death penalty in nineteen percent of murder cases involving a White defendant and an African American victim; yet, prosecutors sought the death penalty in seventy percent of murder cases involving an African American defendant and a White victim. The study also revealed that defendants convicted of killing a White victim were four times more likely to receive a death sentence than those convicted of murdering an African American victim.

The Court acknowledged that the study revealed a systemic racial disparity in how the statute was implemented but ruled against McCleskey’s Equal Protection claim.[8] In its rationale, the Court established the judicial precedent by which racial disparity is tolerated (and maintained) in death penalty cases and throughout the criminal justice system.  Writing for the majority, Justice Powell stated that proof of systemic racial discrimination is not enough for McCleskey to prevail on his Equal Protection claim. To prevail, McCleskey must also prove that the discrimination was intentional and affected his case specifically[9]. More succinctly, Justice Powell stated that “to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose.”[10] The Court ruled against McCleskey based on the lack of proof that Georgia lawmakers drafted the statute with a discriminatory purpose. The Court also held that there was no proof that race played a role in the jury’s decision to convict McCleskey.[11] However, in its most revealing line of reasoning, the Court mentioned the risk of being overwhelmed by similar challenges from other African American defendants if it were to accept McCleskey’s argument; thereby sidestepping the merits of McCleskey’s argument by citing potential logistical concerns.[12] As such, the McCleskey court upheld the constitutionality of Georgia’s death penalty statute despite its evident disparate impact on African Americans. The McCleskey ruling established a kind of “systemic racial discrimination plus” standard whereby, in addition to proving systemic discrimination, the defendant must also clear the additional barriers of proving intent to discriminate and that said bias affected their particular case. McCleskey was subsequently found guilty and executed.

In his dissent to the McCleskey ruling, Justice Brennan contrasted the Supreme Court’s holding in McCleskey with the Court’s prior ruling in Furman v. Georgia.[13] Furman, an African American defendant, was sentenced to death under a Georgia statute after killing a homeowner during a burglary.[14] Like McCleskey, Furman challenged the law’s constitutionality on the ground that it was disproportionately imposed on African Americans.[15] The Court upheld Furman’s claims holding that, in this instance, the imposition of the death penalty violated the Eighth and Fourteenth Amendments because it was implemented in a racially discriminatory manner.[16] The primary distinction between the Furman and McCleskey rulings is that the Court held the death penalty unconstitutional in Furman once the defendant proved racial disparity. By contrast, the Court in McCleskey increased the defendant’s burden of proof by requiring proof of an intent to discriminate in addition to evidence of racial disparity.

Justice Brennan’s dissent in McCleskey warned of the ruling’s implications. He warned that the “reverberations of injustice are not … easily confined.” The Los Angeles Times subsequently ran a piece titled Someday McCleskey Will Be Death Penalty’s Dred Scott. While these statements may seem hyperbolic, the post-McCleskey death penalty statistics justify the urgency behind the language.

Post McCleskey Fallout       

Although African Americans comprise approximately fourteen percent of the national population, forty-two percent of those currently on death row are African American. To date, 295 African Americans have been executed for the murder of a White victim. Only twenty-one White defendants have been executed for the murder of an African American victim. Some studies find that African Americans are more likely to be charged with a capital offense regardless of the victim’s race. Although comprising only six percent of the national population, African American males make up thirty-seven percent of homicide victims; this makes African American males the most likely demographic to be homicide victims. However, those convicted of killing an African American male are sentenced to death at a rate that is one-thirteenth of that imposed for those convicted for the murder of a White female victim: the group least likely to be victims of homicide. Qualified African American jurors are struck from juries in capital cases nearly five times as often as White jurors. The disqualification of African American jurors is significant because African American defendants are more likely to receive the death penalty when juries are less diverse.

A judge in a Florida death penalty case used a racial slur in describing the defendant’s parents. Yet, the court upheld the death penalty’s constitutionality in this case due to a lack of proof of impermissible racial bias. A Georgia District Attorney prosecuted thirty-three death penalty cases between 1974 and 1994. Of those thirty-three cases, twenty-four were against African American defendants. Also, of the 103 jury challenges available to Georgia’s District Attorney, he used ninety-six to strike African Americans from the jury pool.

The examples of racial bias and disparity in capital cases are endless. Yet, one thing these instances have in common is that many of them establish a prima facie case of racial disparity. In other areas, such as housing or public benefits, a prima facie showing of discrimination is sufficient to shift the burden of proof to the State to show a non-discriminatory reason for its actions.[17] However, in capital cases, where the stakes are much higher, such proof is insufficient to shift the burden of proof to the State, let alone to prove a constitutional violation. This state of affairs is permitted largely due to the ruling in McCleskey.

So, while the general reduction in the use of capital punishment is great, racial equity and general fairness demand that we address the racial disparities that are still present. McCleskey’s ruling, upholding the constitutionality of a plainly racially discriminatory death penalty policy, continues to make that task difficult. In what is perhaps the most telling evidence against the Court’s ruling in McCleskey, Justice Powell, writer for the McCleskey majority, would later admit that he would reverse the decision if he could. However, McCleskey remains an obstacle to racial equity and is the preeminent symbol of the justice system’s broken death penalty policy.

[1] McCleskey v. Kemp, 481 U.S. 279 (1987).

[2] Id. at 283.

[3] Id.

[4] Id.

[5] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 555, 564 (1977).

[6] Mayor of City of Philadelphia v. Educ. Equal. League, 415 U.S. 605, 620 (1974).

[7] Washington v. Davis, 426 U.S. 229, 253 (1976) (emphasis added).

[8] McCleskey, 481 U.S. at 286.

[9] Id. at 292.

[10] Id.

[11] Id.

[12] Id. at 317.

[13] Furman v. Georgia, 480 U.S. 375 (1972).

[14] Id. at 239.

[15] Id.

[16] Id. at 240.

[17] Erwin Chemerinsky, Eliminating Discrimination in Administering the Death Penalty, 35 Santa Clara L. Rev. 519, 520. (1995).

Princeton is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. He has a strong interest in criminal justice reform and election law. He hopes to be a public defender after passing the bar. His personal interests include sports, music and art.