McCleskey v. Kemp, 481 U.S. 279 (1987)
Warren McCleskey was an African-American man sentenced to death in Georgia for the murder of a White police officer during a robbery gone awry. He challenged the constitutionality of the state’s death penalty statute, arguing that the law was administered in a racially discriminatory manner and violated the Equal Protection Clause of the Fourteenth Amendment. McCleskey relied heavily on the Baldus study, which exposed stark racial disparities in Georgia’s application of capital punishment and demonstrated that the death sentences imposed by juries were more predictably based on the race of the defendant and the race of the victim than any other factor. For example, state prosecutors sought the death penalty in 70% of murder cases with Black defendants and White victims, but only in 15% of cases with Black defendants and Black victims. The Baldus study also found that “if there is room for the exercise of discretion” in the midrange cases where decisionmakers have more of a choice, then racial factors played a role.
Nevertheless, the Supreme Court rejected this argument and upheld McCleskey’s death sentence. Writing for the Court, Justice Powell held that McCleskey failed to establish that state officials acted with a discriminatory purpose in imposing the death penalty in his case. To prevail under the Equal Protection Clause, a Black defendant sentenced to death for killing a white victim must prove that decisionmakers in his case acted with a discriminatory purpose. Although the Supreme Court had previously accepted statistical disparities as proof of an equal protection violation in other contexts, they would not do so in McCleskey. Because it is difficult to prove a racially discriminatory intent, the effect of this holding is to establish an almost insurmountable burden of proof and limit plaintiffs’ ability to bring discrimination claims based on disparate effect or impact.