Transcript Document

McCleskey v. Kemp
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Facts
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McCleskey was a black defendant
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Charged with two counts of armed robbery and one count of
murder
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Robbed a furniture store
During the robbery, killed a police officer, Frank Schlatt, who
was white
During commission of the robbery
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McCleskey had three accomplices, all four were armed
 McCleskey carried a .38 caliber Rossi nickel-plated
revolver - the others carried a sawed-off shotgun & pistols
Three accomplices rounded up and tied up the employees
 Manager was forced at gunpoint to turn over store receipts,
his watch and $6
The police officer entered the store while responding to a
tripped silent alarm
Officer Schlatt was shot twice, once in the face, and was killed
McCleskey v. Kemp continued
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Facts Continued
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McCleskey was subsequently arrested on unrelated charges
 Admitted participating in the robbery but denied shooting the officer
At trial, state entered ballistics evidence which showed that Schlatt had
been shot with a .38 caliber Rossi revolver
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State also entered two witness statements that McCleskey admitted the
shooting
 One such witness was one of his accomplices, the other was a
jailhouse informant who overheard McCleskey admit to the
shooting*
Jury found two aggravating factors during
mitigation/penalty phase
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However, McCleskey’s revolver was never located
Murder was committed during the course of an armed robbery
Murder was committed against a “peace officer” during the course of his
duties
McCleskey offered no mitigating evidence
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And, obviously, was sentenced to death
 Under Georgia law, judge must follow jury recommendation
 Trial Jury – consisted of eleven white and one black juror
McCleskey v. Kemp continued
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Before the Supreme Court, McCleskey made
two separate claims
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First, claimed that Georgia’s capital punishment
statute violates the Equal Protection Clause of the
Fourteenth Amendment
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Argued that racial discrimination had infected the whole
institutional adjudication of the death penalty process and
every actor therein*
Second, claimed that Georgia’s capital punishment
system is arbitrary and capricious in application and
therefore is excessive because racial considerations
may influence capital sentencing decisions and is
contrary to the Eighth Amendment
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Argued that the risk of prejudice under Georgia’s capital
punishment system rose to the level of being constitutionally
unacceptable*
McCleskey v. Kemp continued
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Justice Powell Majority
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Equal Protection Claim – to prevail under this clause,
McCleskey must prove that the actors in his case
acted with discriminatory purpose
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He offered no such evidence
Instead, he relied on an inference from the Baldus Study that he
suffered purposeful discrimination as evidenced by statistical racial
disparities
Court had accepted statistical proof in other Equal Protection cases
(during voir dire challenges and under Title VII of the Civil Rights
Act) but declines to accept it here because of the particularities of
the process for capital sentencing*
McCleskey’s Capital Sentence Actors/Factors
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Each properly composed jury is unique
 Weighs innumerable factors that vary according to the
characteristics of the individual defendant and the facts of the
particular offense
State has no opportunity to rebut the Study - impractical
Ultimately, finds that there are too many decisionmakers involved for
statistical proof to be be relevant under an equal protection clause
challenge
McCleskey v. Kemp continued
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Justice Powell Majority
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McCleskey’s Equal Protection Claim
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Implementation of the criminal justice laws necessarily
requires discretionary judgments
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Proof must be exceptionally clear before the Court will infer that
the discretion was abused
Holds – the Baldus Study is clearly insufficient to support an
inference that any of the decisionmakers in McCleskey’s
case acted with discriminatory purpose
Implies that statistical proof may support such an inference
but does not state how much statistical proof or what
additional/alternative kind of evidence may be necessarily
sufficient
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This is an unanswered question and has resulted in some of
the problems with Lower Courts implementing the McCleskey
decision – applied erratically and inconsistently
McCleskey v. Kemp continued
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Justice Powell Majority
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McCleskey’s Eighth Amendment Claim
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At what point does the risk of prejudice become constitutionally
unacceptable, i.e., “excessive” amounting to “cruel and unusual”
punishment?
 Capital sentencing decision requires jurors to focus their
collective judgment on the unique characteristics of a particular
criminal defendant
 Jury’s very function is to make the difficult and uniquely human
judgments that defy codification and that build discretion,
equity, and flexibility into a legal system
 Discretion has a fundamental role in the criminal justice system
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When a jury exercises its discretion to acquit or to convict of a
lesser charge, these decisions are not reviewable*
Likewise, prosecutorial discretion is firmly entrenched in the
American legal system
“The power to be lenient is also the power to discriminate,
but a capital punishment system that did not allow for
discretionary acts of leniency would be totally alien to our
notions of criminal justice”*
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Reinforces the Court’s position against a mandatory death penalty
McCleskey v. Kemp continued
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Justice Powell Majority
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McCleskey’s Eighth Amendment Claim continued
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At most, the Baldus study indicates a discrepancy that appears to
correlate with race
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Apparent disparities are an inevitable part of our criminal justice system
There can be no perfect procedure for deciding in which cases
governmental authority should be used to impose death
 Jury system, with necessary discretion, is the best we’ve got
Constitutional guarantees are met when the mode for determining guilt
or punishment itself has been surrounded with safeguards to make it as
fair as possible*
Holds – in light of the safeguards designed to minimize racial bias in
the process, the fundamental value of jury trial in our criminal justice
system, and the benefits that discretion provides to criminal
defendants, the Baldus Study does not demonstrate a
constitutionally significant risk of racial bias affecting the Georgia
capital sentencing process
McCleskey v. Kemp continued
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Justice Powell Majority
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States two additional concerns
McCleskey’s claim, if successful, would
extend to all other areas of the criminal justice
system including other types of penalties
 Second, it is not the responsibility, or even the
right, of the Court to determine the appropriate
punishment for particular crimes
 First,
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That is the role of the legislature
It is only the Court’s role, in situations such as this, to
determine what laws are applied consistent with the
Constitution
McCleskey v. Kemp continued
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Majority joined by Justices Rehnquist, White, O'Connor & Scalia
Justice Brennan’s dissent
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(Justices Blackmun and Stevens also wrote dissents – Justice Marshall
also dissent but did not author an opinion)*
Hypothetical advice of counsel to McCleskey
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Few of the details of the crime were more important than the fact that his
victim was white*
Defendants charged with killing white victims in Georgia are 4.3 times more
likely to be sentenced to death as defendants charged with killing blacks
It was more likely than not that the race of McCleskey’s victim would
determine whether he received a death sentence
6 out of 11 defendants convicted of killing a white person would not have
received the death penalty if their victims had been black*
While among defendants with aggravating and mitigating factors comparable
to McCleskey’s, 20 of every 34 would not have been sentenced to die if their
victims had been black*
Reviews history of Georgia’s “dual-system” of justice that has
historically discriminated against black offenders*
Criticizes majority’s concern that a claim such as McCleskey’s could
extend to other areas by asking what the majority is afraid of – too much
justice?
Warren McCleskey was executed on September 25, 1991
The
Baldus study examined over 2,000 murders that
occurred in Georgia during the 1970s.
 He took into consideration 230
variables that could have explained
the data on nonracial grounds
 Examples are number of prior
felonies, number or prior violent
crimes, motive (i.e. Insurance), role
in the crime (i.e. how many
assistants), victim relationship to
defendant, contemporaneous
offences, method of killing,
aggravating and mitigating factors.
 He sorted out cases where the
sentence of death was highly likely or
highly unlikely, leaving a midrange of
cases where the outcome was less
predictable.
 Baldus
also found that prosecutors
sought the death penalty in:
70% of the cases involving black
defendants and white victims
 32% of the cases involving white
defendants and white victims
 19% of the cases involving white
defendants and black victims; and
 15% of the cases involving black
defendants and black victims
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Capital Punishment was
Imposed in:
22% of the cases with black defendants
and white victims
 8% of the cases with white defendants and
white victims
 3% of the cases with white defendants and
black victims
 1% of the cases with black defendants and
black victims
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Baldus concluded that defendants charged with
killing white victims were 4.3 times more likely to
receive the death penalty than defendants
charged with killing African Americans, and that
Black defendants were 1.1 times more likely to
receive the death penalty than other defendants.
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= Black defendant who had killed a white victim
had the greatest likelihood of receiving a death
sentence.
Homicides in 2004 (excluding “others”)
Offender-H
Victim-V
White
White
~68% of
US Pop.
4,758
Black
~13% of
US Pop.
880
Total
5,638
Black
358
4,198
4,556
Total
5,116
5,078
Executions since 1976 – Race of Victim
Victim
Number Percentage
Black
225
14%
Hispanic
78
4.7%
White
1,268
79.3%
Other
32
2%
Executions since 1976 – Race of Defendant
Defendant
Number Percentage
Black
Hispanic
363
72
34.1%
6.6%
White
607
57%
Other
24
2.3%
Current Death Row Population
by Race
Race
Black
~13% of Total Pop.
Hispanic
White
~68% of Total Pop.
Other
Number Percent
1,396
41.8%
358
1,512
10.7%
45.2%
78
2.3%
2004 Executions by Race/Victim
Race
Def #
%
Victim #
%
Black
19
32.2%
10
13.3%
White
36
61%
61
81.3%
Hispanic
3
5%
3
4%
Other
1
1.6%
1
1.3%
2005 Executions by Race/Victim
Race
Def #
% Victim #
%
Black
18
30%
19
19.4%
White
38
63.3%
66
67%
Hispanic
3
5%
9
9.2%
Other
1
1.7%
4
4.1%
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A parallel study using newer data and
covering other states (Gross S, Mauro R.
1989. Death and Discrimination. Boston:
Northeast. Univ. Press) came to very
similar conclusions. No later research has
seriously questioned these results
From the Death Penalty Information Center
From the Death Penalty Information Center
From the Death Penalty Information Center
An analysis of death sentences in Philadelphia between 1983 and
1993: determination by prosecutor of whether the death penalty
should be sought
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Philadelphia makes up 14% of the population of Pennsylvania
but produces more than half of the death sentences in the
state.
83% of the Philly death row population are African American.
(US census says Blacks make up 43.22% of the population
in Philadelphia)
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Baldus and Woodworth found that even after controlling for
case differences, Black defendants faced were 3.9 times
more likely to receive a death sentence than other similarly
situated defendants in the years 1983 to 1993.
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DPIC
------------------------------------------------ Philadelphia's District Attorney, Lynne Abraham, was called "The
Deadliest D.A." in a 1995 New York Times article.
“Prosecutors in other cities seek death more often when the
victim is white. But Abraham seeks it regardless of the
victim's color or status. But because the killers of blacks tend
to be black, that also means that Philadelphia's death row
has the highest percentage of African-Americans in the
country.”
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Former Assistant D.A. and Homicide Chief Barbara Christie
frequently had her convictions reversed by higher courts for
withholding evidence that demonstrated the defendant's
innocence and for keeping blacks off juries.
Other Interpretations
of the Statistics
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In his article, Racial Disparity and the Death
Sentence, John McAdams accepts that the
death penalty is sought more often in cases
where the victim is white.
But he says “Given the studies we have
reviewed showing that the system is lenient on
those who kill blacks, and knowing that the vast
majority of murders are intraracial, we might
conclude that white suspects get tougher
treatment because they have overwhelmingly
killed whites.”
More conflicting data:
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In 2000, Alabama’s death row had 97 whites and 86
blacks.
African Americans are 26% of Alabama's population, but
47% of death row
Using a statistic that “a black is between 7 and 8 times
more likely than a white to be a murderer”
A figure that matches with
http://www.ojp.usdoj.gov/bjs/homicide/race.htm
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Based on this, 72.9% of Alabama's death row should be
black
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The authors come to the conclusion that “With only 86
blacks under sentence of death, Alabama's death row is
too white -- much too white!”
http://www.lagriffedulion.f2s.com/DP.htm
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Applying this Formula to Each State:
Eberhardt, Davies, Purdie-Vaughs, and
Johnson Study: “Looking Deathworthy:
Perceived Steriotypicality of Black
Defendants Predicts Capital Sentencing
Outcomes”
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Researchers found 44 cases from Philadelphia from 1979 to 1999 that
involved Black male defendants who were convicted of murdering White
victims.
They obtained the photographs of these defendants and presented them
to raters who did not know that the photographs depicted convicted
murderers.
Raters were asked to rate the stereotypicality of each Black defendant’s
appearance and were told they could use any number of features (e.g.,
lips, nose, hair texture, skin tone) .
Thirty-two raters (26 White, 4 Asian, and 2 of other ethnicities)
participated in the first session, and 19 raters (6 White, 11 Asian, and 2 of
other ethnicities) participated in the second session. The raters were
shown a black-and-white photograph of each defendant’s face.
Participants recorded stereotypicality ratings using a scale from 1 (not at
all stereotypical) to 11 (extremely stereotypical).
24.4% of those Black defendants who fell in the lower half of the
stereotypicality distribution received a death sentence, whereas 57.5% of
those Black defendants who fell in the upper half received a death
sentence.
John H. Blume, Theodore Eisenberg, & Sheri Lynn Johnson argue that
lower court’s have applied McCleskey too broadly
83 Cornell L. Rev. 1771
1st example:
 Earl Matthews, a Black South Carolina death row inmate
 In Charleston County, the prosecutor was far more likely to seek a death
sentence for a Black defendant accused of killing a white victim than for any
other racial combination, and also that these Black defendants were more
likely to actually receive a death sentence.
 Testimony from former Charleston County police officers, prosecutors,
defense lawyers, and community leaders indicated that racial
considerations affected the prosecution of capital cases in Charleston
County.
 He also presented additional circumstantial evidence of racial
discrimination, including information suggesting that certain hiring and firing
practices and other prosecutorial actions in his case were racially motivated.
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The Federal district Court judge dismissed these claims, saying that
McCleskey precluded this type of racial objection to the death penalty
 “In this case, the petitioner has pointed to no evidence or facts that the
solicitor sought the death penalty in his case for a discriminatory
purpose. In addition, the [McCleskey] Court indicated a reluctance to
question the discretionary decisions of prosecutors and stated that a
legitimate explanation exists for seeking the death penalty, that is, that
the petitioner committed a crime for which the laws permit the imposition
of the death penalty.”
83 Cornell L. Rev. 1771, continued:
2nd Example:
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Raymond Patterson, an African American death row inmate
 Patterson had robbed and murdered a white man from West Virginia.
 There had been 174 homicide victims in Lexington County since 1977
 Of those, the state had never sought the death penalty where the victim was
black, in contrast to seeking the death penalty in 10.2% of cases where the
homicide victim had been white.
 Blacks made up a disproportionably high percent of homicide victims in the
county.
 Patterson also introduced evidence of evidence a “racist innuendo from the
solicitor prior to trial, the racist attitudes of the victim, and the solicitor's disparate
treatment of Black and white jurors.”
Q: What did [the police] ask you about? A: … And they asked me the color, you
know, whether he was black, and I said yes, he was black. That's what made
me so afraid. Q: Why would that make you afraid? A:I am just totally afraid of
them. I mean as long as they keep a distance from me, I'm all right, but I don't
want their hands on me; I don't want anything, you know. Q:This is black people
generally, you mean? A:Yes.
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The Court wrote that “Appellant must provide "exceptionally clear evidence" that
the decision to prosecute was for an improper reason. In McCleskey, the Court
held similar statistics did not establish discrimination. Further, as we noted
above, these statistics do not take the defendant's race or the aggravating or
mitigating circumstances into consideration. Appellant has not proven
discriminatory purpose by exceptionally clear evidence. Therefore, we hold the
trial judge did not err in denying appellant's motion. “
Kentucky Racial Justice Act
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(1) No person shall be subject to or given a sentence of death that was sought on the
basis of race.
(2) A finding that race was the basis of the decision to seek a death sentence may be
established if the court finds that race was a significant factor in decisions to seek the
sentence of death in the Commonwealth at the time the death sentence was sought.
(3) Evidence relevant to establish a finding that race was the basis of the decision to
seek a death sentence may include statistical evidence or other evidence, or both,
that death sentences were sought significantly more frequently:
 (a) Upon persons of one race than upon persons of another race; or
 (b) As punishment for capital offenses against persons of one race than as
punishment for capital offenses against persons of another race.
(4) The defendant shall state with particularity how the evidence supports a claim that
racial considerations played a significant part in the decision to seek a death
sentence in his or her case. The claim shall be raised by the defendant at the pre-trial
conference. The court shall schedule a hearing on the claim and shall prescribe a
time for the submission of evidence by both parties. If the court finds that race was
the basis of the decision to seek the death sentence, the court shall order that a
death sentence shall not be sought.
(5) The defendant has the burden of proving by clear and convincing evidence that
race was the basis of the decision to seek the death penalty. The Commonwealth
may offer evidence in rebuttal of the claims or evidence of the defendant.
Ernest van den Haag Quote
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“Guilt is individual. If guilty whites or wealthy people
escape the gallows and guilty poor people do not, the
poor or black do not become less guilty because the
others escaped their deserved punishment. Whether due
to willful discrimination, capriciousness, or unavoidable
accidental circumstances, some people will always get
away with murder. Is that a reason to deny the justice of
the punishment of those guilty persons who did not get
away? Their guilt is not diminished by the escape of the
others, nor do they deserve less punishment because
others did not get the punishment they deserve. Justice
involves punishment according to what is deserved by
the crime and the guilt of the criminal -- regardless of
whether others guilty of the same crime escape.”