Transcript Capital Punishment - Columbia Law School

Capital
Punishment
McCleskey v. Kemp
481 U.S. 279
Facts
 During a store robbery, McCleskey, a black man,
shot and killed a white police officer.
 McCleskey was convicted in the Superior Court
of Fulton County, Georgia of two counts of armed
robbery and one count of murder.
 At the penalty hearing, McCleskey didn’t present
any mitigating circumstances and the jury
considered the two aggravated circumstances
(victim killed during robbery, victim killed was an
on duty police officer) and recommended the
death penalty for the murder charge and two
consecutive life in prison sentences for robbery.
Procedural History
 The trial court followed the jury’s
recommendation and sentenced McCleskey
to death, the Supreme Court of Georgia
affirmed.
 McCleskey unsuccessfully sought post
conviction relief in the state courts.
 Then filed for habeas corpus relief in the
Federal Court.
McCleskey’s Claim
 He claimed that the death penalty process in
Georgia is administered in a racially
discriminatory manner in violation of both the
14th and the 8th Amendments.
 His evidence was a study conducted by David
Baldus

This study purports to show a disparity in the
imposition of the death sentence in the state of
Georgia based on the murder victim’s race
and to a lesser extent the defendant’s race.
Federal Court Procedural History
 The District Court thought the study was not
trustworthy by a ponderous of the evidence
and denied his claim.
 The Court of Appeals assumed the validity of
the study but found it insufficient to
demonstrate unconstitutional discrimination
on the 14th Amendment claim or irrational,
arbitrary or capricious under the 8th
Amendment claims.
 The Supreme Court affirmed the decision of
the Court of Appeals in a 5 to 4 decision.
The Baldus Study
 The study looked at the 2484 murders and
non-negligent manslaughters that took place
in Georgia from 1973-1979.
 Of those murders 1665 of the defendants
were black and 819 of the defendants were
white.
 61% of the victims were black and 39% of the
victims were white.
 Of the 128 cases which the death penalty
was imposed, 108 of the victims were white.
Baldus Study- Raw Numbers
 When the defendant is charged with killing a
white victim the death penalty is given in 11%
of the cases.
 When the defendant is charged with killing a
black victim, the death penalty is given in 1%
of the cases.
 There is reverse racial disparity in the race of
the defendant (only in raw numbers).


If black defendant, have a 4% chance of getting the
death penalty.
If white defendant, have a 7% chance of getting the
death penalty.
Baldus Study- Raw Numbers Cont.
 The
probability
of the
defendant
getting the
death
penalty.
White
Victim
Black
Victim
Black
Defendant
22%
1%
White
Defendant
8%
3%
Baldus Study- Raw Numbers
 The probability that prosecutor sought the
death penalty after murder conviction.
White Victim Black Victim
Black
Defendant
70%
15%
White
Defendant
32%
19%
The Baldus Study- Method
 The study used a multiple regression analysis
to look at the independent impact of racial
factors while controlling for 230 variables.
Baldus Study- effects after accounting
for non-racial variables
 After accounting for 39 non-racial variables
(the most legitimate reasons for sentencing
distinctions) it is still 4.3 times more likely that
if the victim is white, the defendant will get the
death penalty.
 This is extraordinary considering that being
the prime mover in a homicide only increases
the likelihood 2.3 times and having a prior
murder conviction increases the likelihood 4.9
times.
Baldus study- aggravation levels
 At comparable aggravation levels, the death
penalty will be imposed in 11% of white victim
cases and 5% of black victim cases. This
means that over half (55%) of the defendants
in white victim crimes would not have been
sentenced to death if their victims had been
black.
 The study found that the racial impact was
greatest in the midrange of aggravation level.

As there was less room for discretion in very
aggravated cases or only mildly aggravated
cases.
Baldus Study- McCleskey’s case
 McCleskey’s level of aggravation was in this
midrange.


34/100 white victim cases get death penalty
14/100 black victim cases get death penalty
Weaknesses of Study
 The District Court said:



Incomplete data
Unknown variables
Methodology
(1)
(2)
(3)
(4)
Assumed all information was available at the
time of the trial to jury and prosecutors
Instability of various models
High correlation between race and non-racial
factors
Inability to predict outcome in actual cases.
Supreme Court Decision
 The Supreme Court decision assumed the
validity of the Baldus study.
 But still found it statistically insufficient to
demonstrate the 14th or 8th amendment
claims.
Majority Opinion- 14th Amendment
Claim
 To prevail in an Equal Protection claim he has
to prove (1) the existence of purposeful
discrimination and (2) that it had a
discriminatory effect on him.




Can’t ask jury their reasoning.
Discriminatory application is OK as long as it
was not enacted or maintained because of an
anticipated racially discriminatory effect.
The study doesn’t prove anything about his
specific case and he doesn’t offer case
specific evidence.
Not like jury venire or Title 7 of Civil Rights that
can use risk.
Majority Opinion- 8th Amendment
Claim
 This case is in the constitutionally permissible range of
death penalty cases.


His case doesn’t differ from other cases where defendant got
the death penalty and it is not disproportionate to the crime.
The court already looked at statute in Gregg and upheld it.
 There are safeguards.
 He can’t show the system is arbitrary or capricious.
 Discretion is not arbitrary and is necessary.
 Statistics don’t prove that it is arbitrary in application or that
race was a factor in this case.
 At most the study shows that discrepancy in sentencing
correlates with race but this does not constitute a major
systematic defect.


All systems have weaknesses and flaws, but safeguards make
them as fair as possible.
This study doesn’t show an unacceptable risk of racial
prejudice.
4 main reasons majority ignores study
1) The desire to encourage sentencing
discretion
2) The existence of statutory safeguards
1)
Could eliminate death penalty if these are
not enough.
3) The fear of widespread challenges to other
sentencing decisions
1)
Attractiveness, hair color
4) Limits of the judicial role
1) This is a legislative question
Dissent on 4 main reasons
1) Need guided discretion, not no discretion
1) Prosecutor guidelines, lists to help juries
2) This is an empirical challenge not a
theoretical one
1)
Hard evidence that the safeguards aren’t
working
3) Fear of opening the floodgates is unfounded
4) The court is the right place to address this
1) Majority can’t dictate conditions of social life
and no one else will hear them. Court
protects minority.
Four Years Later
 McCleskey was executed on September 25th,
1991.
 In the summer of 1991 Justice Powell, who
wrote the majority opinion, made a statement
that he thought the death penalty should be
abolished.