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

Facts—McCleskey, a black man, was convicted in a Georgia court for armed robbery and the murder of a police officer. The jury recommended the death penalty. After unsuccessfully seeking relief in state courts, he sought a writ of habeas corpus in the federal District Court on the grounds, inter alia, that the sentencing process was administered in a radically biased manner. He offered a statistical study (the Baldus Study) of some two thousand murder cases that occurred in Georgia during the 1970s that “indicates that black defendants who killed white victims have the greatest likelihood of receiving the death penalty.” The District Court dismissed the petition, which was affirmed by the Court of Appeals. The Supreme Court granted certiorari.

Question—Does a complex statistical study that indicates that racial discrimination affects capital sentencing determination invalidate McCleskey’s capital sentence under the Eighth and Fourteenth Amendments?


ReasonsJ. Powell (5–4). The lower courts found the Baldus Study flawed: data were incomplete; it did not take into account the full degree of the aggravating or mitigating circumstances; researchers could not discover whether penalty trials were held in many of the cases; there was no preponderance of evidence that the study data were trustworthy; the methodology was infirm; the various models were unstable; and correlations between race and nonracial variables were unpersuasive. The basic principle is not only that the defendant has to prove the existence of purposeful discrimination but that the decision makers in his case acted with discriminatory purpose. “He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence.” The Court has accepted statistics showing a violation of equal protection (as in selection of a jury) and to prove statutory violations. The Baldus Study is insufficient to support an inference of discrimination. We find, in fact, that the “Georgia capital sentencing system could operate in a fair and neutral manner.” On this issue objective indicia which reflects the public attitude toward this sanction is firm.

J. Brennan, J. Blackmun, and J. Stevens authored dissents arguing that the Baldus Study did indeed show that irrelevant racial considerations were in fact influencing death-penalty decisions.

Note—In addition to the majority rationale, a factor very much in the mind of the Court is the uneasiness, except in carefully defined areas such as racial discrimination in the public schools, work place, or racial exclusion on juries, of imperiling the criminal justice system mired in social science statistics. Thus, through a “process of regressive analysis” statistics could be utilized in disparities among races, attorneys, judges, gender, geography, social classes, and the like.

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