McCleskey v. Kemp

McCleskey v. Kemp, 481 U.S. 279 (1987), argued 15 Oct. 1986, decided 22 Apr. 1987 by vote of 5 to 4; Powell for the Court, Brennan in dissent joined by Marshall, Blackmun, and Stevens; Blackmun in dissent joined by Marshall, Stevens, and Brennan; Stevens in dissent joined by Blackmun. Warren McCleskey, a black man, was convicted and sentenced to death for the 1978 murder of a white Atlanta police officer. On appeal, attorneys for the Legal Defense Fund argued that the Georgia death penalty statute was being implemented in a racially discriminatory fashion in violation of the Eighth and Fourteenth Amendments.

McCleskey's claim rested on a sophisticated study of Georgia death sentencing patterns conducted by Professor David Baldus. The study examined more than two thousand Georgia murders from the 1970s. Some 230 variables were analyzed for their ability to predict death sentencing. Other factors being equal, Baldus found the odds of a death sentence for those accused of killing whites were 4.3 times higher than the odds of a death sentence for those charged with killing blacks.

Justice Lewis Powell's majority opinion rejected McCleskey's claim. He suggested that the Baldus data should be presented to legislative bodies, rather than to the courts. To prevail under the Equal Protection Clause of the Fourteenth Amendment, McCleskey needed to prove that either the Georgia Legislature or the decision makers in his specific case acted with a discriminatory purpose. Nor could McCleskey prevail under the Cruel and Unusual Punishment Clause of the Eighth Amendment, Powell said, since the disparities in the treatment of homicide cases revealed in the Baldus study did not offend “evolving standards of decency.”

The dissenting justices relied primarily on the Eighth Amendment, arguing that demonstration of a significant risk of discrimination, rather than definitive proof of its existence, is all that is needed to show a constitutional violation.

The Court rejected a second habeas corpus petition filed by McCleskey four years later in McCleskey v. Zant (1991). In a 1994 biography, Justice Powell was quoted as saying that if he could change his vote in any case, it would be McCleskey v. Kemp.

See also Capital Punishment; Race Discrimination and the Death Penalty.

Michael L. Radelet