Legacy of Racial Injustice in the Administration of the Death Penalty

Interesting information on how courts both state and federal distinguish and discriminate based upon race and color. Not necessarily new information. McCleskey goes back 35 years. In a SCOTUS hearing McCleskey was told data on patterns of sentencing was not allowable unless it was directly related to him. Warren was put to death September 21, 1991.

35 Years After Warren McCleskey v. Ralph Kemp: A Legacy of Racial Injustice in the Administration of the Death Penalty | Death Penalty Information Center


On April 22, 1987, the United States Supreme Court ruled in Warren McCleskey v. Ralph Kemp that the same types of statistical data that were routinely accepted as proof of racial discrimination in housing, employment, education, and the denial of other civil rights were not sufficient as proof that a death sentence had been unconstitutionally imposed.

In a commentary observing the 35th anniversary of McCleskey, former Death Penalty Information Center Executive Director Richard Dieter called the decision “one of the Supreme Court’s most egregious missed opportunities.” Dieter wrote:

“The ruling not only led to McCleskey’s execution, but essentially shut the door to all future claims based on a pattern of racial bias in sentencing.”

Warren McCleskey presented a sophisticated statistical analysis of data from more than 2,500 murder cases in Georgia. The analysis was showing individuals of color who killed a white victim were far more likely to be sentenced to death than other defendants. And, and the odds he would be sentenced to death were 4.3 times greater because he was Black and the man he was convicted of killing was White.

The Baldus study data showed disparity in the imposition of the death sentence based on the victim’s race and to a lesser extent, the offender’s race. Unadjusted for mitigating or aggravating factors of several types, the data showed that offenders killing white victims were 11 times more likely to receive a death sentence than those killing black victims. In addition, black murderers of whites received death sentences nearly three times as often as white murderers of whites.

The court dismissed the Baldus study as constitutionally immaterial, unrelated to this particular alleged crime.

Instead, McCleskey had to prove his rights under the Eighth Amendment had been violated or he had been denied equal protection under the law. The Court required him to present direct proof of “particularized discrimination” against him by a state actor in his case.

Justices in this 1987 decision were Powell, Rehnquist, White, O’Connor, Scalia in the majority. In dissent were Brennan, Marshall, Blackmun, and Stevens (in part). When asked by his biographer if there was one case in which he wanted to change his vote, Justice Powell said “Yes” referring to “McCleskey v. Kemp.”