McCleskey v. Kemp 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed.2d 262 (1987)
McClesky was convicted of
armed robbery and murder of a police officer, he was sentenced to death.
McClesky filed a writ of
habeus corpus, alleging that the Georgia's capital sentencing process was
administered in a racially discriminatory manner, which violated his 14th
Amendment right to equal protection
and his 8th Amendment right against cruel and unusual punishments.
McClesky cited a study
showing that African Americans were much more likely to receive the death
penalty than Caucasians.
The Trial Court upheld the
sentence. McClesky appealed.
The Trial Court found that
the study was incomplete and flawed.
The Appellate Court upheld the
sentence. McCleskey appealed.
The Appellate Court found
that even if the study were taken to be true, it "insufficient to
demonstrate discriminatory intent
or unconstitutional discrimination in the 14th Amendment
context, and insufficient to show irrationality, arbitrariness, and
capriciousness under any kind of 8th Amendment analysis.
The Georgia Supreme Court
upheld the sentence. McCleskey appealed.
The US Supreme Court upheld
The US Supreme Court found
that, despite statistical evidence of a profound racial disparity in
application of the death penalty, such evidence is insufficient to
invalidate defendant's death sentence.
The Court noted that in
order to win, McCleskey would have to show that the State acted with discriminatory
intent in his case, not just that there is a generic bias.
He failed to do this.
The Court noted that each
death penalty decision is made by a different jury. McCleskey did not
claim that there was something wrong with his specific jury.
The Court found that
alternately McCleskey would need to show that the whole State was acting
with a discriminatory intent.
That would require proof that the Georgia Legislature enacted the death
penalty law because of an
anticipated discriminatory effect. He failed to do this.
The Court rejected
McCleskey's 8th Amendment
claims by noting that Georgia's capital punishment guidelines met the
McCleskey was convicted of
murder, so it wasn't like the punishment was disproportionate to the
crime (the normal standard for prevailing on an 8th
The Court noted that
McClesksey's claims were more of a political question and he should
perhaps take it up with the Georgia Legislature, who are responsible for
"responding to the will and the moral values of the people."
The Court's job is only to ensure that the law of Georgia was properly
applied in this specific case, which they found it was.
In a dissent, it was argued
that capital punishment was of dubious constitutionality to begin with,
and if it were shown that there was a significant, demonstrable racial
bias it would certainly be a violation of the 14th Amendment, even if that bias was unintentional.
The take-home message from
this case is that claims based on government denial of equal protection
will probably lose unless something more than a mere discriminatory
effect can be shown.
The US Supreme Court
generally requires, in addition to discriminatory effect, that a discriminatory intent be shown as the government's motivation for
creation the law in the first place.
See United States v.
Armstrong (517 U.S. 456 (1996)).
Basically, you have to show
that there was an intent to have a biased law. If the law is facially
neutral, then it is still ok, even if there is a discriminatory effect.
It is very hard to show
that there was a discriminatory intent in the creation of a Statute.
Perhaps in the legislative
The problem could be with
the entire jury system. If jurors are just inherently racist, then even
a neutral law will have a discriminatory effect. But how to fix that?
Considering all the people
involved in all the death penalty cases in a State, is it even possible
that there could be discriminatory intent? Is it all a giant conspiracy?
The Court might have made this
ruling because of the consequences of ruling the opposite way. If
McClesky had prevailed, it might have wrecked the entire justice system.
If the remedy was that
McClesky's sentence was overturned, then all black death row prisoners
could have their sentences overturned because there would be no way to
tell whose convictions were based on discrimination. Then all the white
prisoners would have their sentences overturned because there would be
clear discrimination since now only whites would be on death row. So, it
would be a de facto ban on all death sentences.
And it wouldn't stop there,
all black convicts who had any sentence could probably show the same
discriminatory effect, since the prison population demographics are very
skewed from the general US population demographics.
Since 95% of all prisoners
are male, would they be able to claim sex discrimination?
In addition, if you believe
the deterrent effect of death sentences, and if most crime is
intra-racial (blacks tend to kill blacks, whites tend to kill whites),
then you could argue that lessening the sentences on black defendants
would mean there would be more black victims. That doesn't seem fair