Capital Punishment and Race

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In mccleskey v. kemp (1987), the Supreme Court grappled with the difficult issue of race and capital punishment. Confronted with statistical studies that indicated potential racial discrimination in the assignment of death sentences in the state of Georgia, the Court considered Eighth Amendment and equal protection challenges to the application of the Georgia death penalty statute. Whereas no significant disparities existed with respect to the race of defendants, statistical evidence, using sophisticated regression analysis, indicated that blacks were 4.3 times more likely to receive death sentences when they killed whites than when they killed blacks.

McCleskey, a black, had killed a white police officer during an armed robbery. The fact that the race of the victim made it more likely that he would receive the death penalty was, McCleskey argued, a violation of equal protection guarantees and the Eighth Amendment's ban on cruel and unusual punishment. The Court, although expressing some reservations about both the credibility and the relevance of the statistical evidence, nevertheless assumed their validity in order to reach the constitutional questions.

Speaking through Justice lewis f. powell, the Court's majority of five refused to break new ground in its equal protection jurisprudence. Powell began by noting that it was a settled principle that "a defendant who alleges an equal protection violation has the burden of proving 'the existence of purposeful discrimination"' and that the purposeful discrimination had "a discriminatory effect on him." Therefore, "McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose." Statistical inference, the Court ruled, could at best indicate only that there was a risk that racial discrimination had been a factor in McCleskey's sentencing. The Court has in certain contexts—selection of jury venire and Title VII—accepted statistics as prima facie proof of discrimination. Moreover, the statistics (particularly in the jury cases) do not have to present a "stark" pattern in order to be accepted as sole evidence of discriminatory intent.

Yet the Court in McCleskey distinguished capital sentencing cases as less amenable to statistical proof because of the "uniqueness" of each capital case and the consequent difficulty of aggregating data. Each jury is unique and "the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense." In contrast, the jury-selection and Title VII cases are concerned only with limited ranges of circumstances and are thus more amenable to statistical analysis.

The Court therefore held that for McCleskey's claim of purposeful discrimination to prevail, he "would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect." But, as the Court laconically notes, this was a claim that was rejected in Gregg v. Georgia (1976). Thus, the Court concluded that "absent far stronger proof, … a legitimate and unchallenged explanation" for McCleskey's sentence "is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty."

McCleskey also sought to use statistics to support his Eighth Amendment claim that the discretion given to sentencers in the Georgia criminal justice system makes it inevitable that any assignment of the death penalty will be "arbitrary and capricious." The Court has interpreted Eighth Amendment requirements to mean that sentencers must be governed by state laws that contain carefully defined standards that narrow the discretion to impose the death penalty. That is, sentencers must exercise only "guided discretion." But there can be no limits with respect to the sentencer's discretion not to impose the death penalty.

As the Court stated in Lockett v. Ohio (1978), "the sentencer" cannot be "precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Discretion that ensures the treatment of all persons as "uniquely individual human beings" is thus an essential ingredient of Eighth Amendment jurisprudence. The Court has ruled that mandatory death sentences are unconstitutional because the "respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."

The presence of such discretion, however, makes it impossible for actual decisions to result in racial proportionality. And to stipulate racial proportionality as a requirement either of equal protection or the Eighth Amendment would mean that the sentencer's discretion would have to be limited or extinguished. Proportionality requirements also present the daunting prospect that blacks who are convicted of killing blacks will have to receive the death penalty at an accelerated rate. Of course, proponents of the use of statistics as a measure of equal protection and Eighth Amendment rights do not expect any such result. Rather, their ultimate purpose is to abolish capital punishment under the guise that it is impossible to mete out death sentences in any rational or otherwise nonarbitrary manner. The Court, however, remains unwilling to accept statistical evidence as a sufficient proof of capriciousness and irrationality.

Because the existence of discretion will always produce statistical disparities, the "constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions" cannot be defined in statistical terms. Rather, the constitutional risk must be addressed in terms of the procedural safeguards designed to minimize the influence of racial prejudice in the criminal justice system as a whole. After a thorough review of the Georgia system in Gregg, the Court concluded that procedural safeguards against racial discrimination were constitutionally adequate. As the Court rightly said, "where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious."

The Eighth Amendment is not limited to capital sentencing but extends to all criminal penalties. Thus, a racial proportionality requirement for capital sentencing would open the possibility that all sentences could be challenged not only on the grounds of race but on the grounds of any irrelevant factor that showed enough of a statistical disparity to indicate that the sentencing was "irrational" or "capricious." Some cynics have described this as a kind of affirmative action for sentencing decisions. Such a situation not only would prove unworkable but, by limiting the discretion that remains at the heart of the criminal justice system, would also prove to be unjust. The vast majority of convicted murderers, for example, do not receive death sentences, because the discretionary element of the system spares them. The small percentage who do receive death sentences have thorough and exhaustive procedural protections. Under these circumstances, it would be impossible to argue that statistical disparities based on race indicate systemic racism in the criminal justice system or that the statistical disparities indicate a fundamentally unjust system.

Moreover, some scholars have questioned the validity of the statistics used in the McCleskey case. Interracial murders are more likely to involve aggravating circumstances (e.g., armed robbery, kidnapping, rape, torture, or murder to silence a witness to a crime) than same-race murders, which involve more mitigating factors (e.g., quarrels between friends and relatives). Given the relative rarity of blacks being murdered by whites, the statistics are bound to be skewed, but they do not necessarily prove or even indicate racial discrimination.

Taking into account the different levels of aggravating and mitigating circumstances, one recent study of Georgia sentencing practices concluded that evidence "supports the thesis that blacks who kill whites merit more serious punishment and are not themselves the victims of racial discrimination. By the same token, the same evidence suggests that blacks who kill blacks deserve less punishment and are not being patronized by a criminal justice system because it places less value on a black life."

Given the controversial nature of the statistical evidence proffered in the McCleskey case and the doctrine that equal protection and Eighth Amendment rights belong to "uniquely individual human beings" rather than racial groups, the Supreme Court was wise to reject abstract statistical disparities as proof of individual injury.

Edward J. Erler


Heilbrun, Alfred B., Jr. ; Foster, Allison; and Golden, Jill 1989 The Death Sentence in Georgia, 1974–1987. Criminal Justice and Behavior 16:139–154.

Kennedy, Randall L. 1988 McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court. Harvard Law Review 101:1388–1443.

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Capital Punishment and Race

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Capital Punishment and Race