The Supreme Court did not directly address a constitutional claim that the death penalty is administered in a racially discriminatory pattern until it decided McCleskey v. Kemp (1987). The justices have, however, been aware of the issue for decades. In fact, many of the procedural protections that the Court has established in criminal cases since the 1930s were announced in capital cases involving African‐American defendants from the South. Moreover, several early empirical studies were suggestive of racially discriminatory patterns, especially in southern states. But the Court has demonstrated a persistent reluctance to confront the race question directly. In a number of capital cases between 1962 and 1986, the Court either declined requests to hear issues of racial discrimination by denying certiorari or by resolving the case on other grounds.
A noteworthy example of the Court's diffidence on this issue is Maxwell v. Bishop (1970). Maxwell, a black male, received a death sentence from an Arkansas jury for the nonfatal rape of a white woman. The case received particular attention because Maxwell's attorneys supported with statistical evidence their claim that Maxwell's death sentence was part of a racially discriminatory pattern. They first offered data showing that, nationwide, 89 percent of the defendants who were executed for the crime of rape between 1930 and 1962 were black.
Maxwell's attorneys also offered the results of a detailed empirical study of sentencing patterns commissioned by the NAACP Legal Defense Fund (LDF). The results of this study showed that between 1945 and 1965 the probability that a black male convicted of raping a white woman would receive the death sentence in Arkansas was about 50 percent, while the death‐sentencing rate for cases involving a conviction for intraracial rape was only 14 percent. Maxwell's experts further established that this disparity could not be explained by nonracial factors, such as the level of violence involved or the defendant's prior criminal record. Despite this evidence, the Court of Appeals for the Eighth Circuit ruled that Maxwell's statistics were insufficient to invalidate his death sentence on equal protection grounds. The Supreme Court agreed to review, and ultimately vacated, the Eighth Circuit's decision on another constitutional ground; but the Court pointedly declined to review Maxwell's statistically based, equal protection claim.
Two years after it decided Maxwell v. Bishop, the Supreme Court again confronted claims of racial discrimination in a major capital case, Furman v. Georgia (1972). The Court ruled, 5 to 4, that the essentially standardless procedures under which juries in Georgia and in many other states were permitted to impose capital sentences violated the Cruel and Unusual Punishments Clause of the Eighth Amendment. The brief, per curiam opinion of the Court did not directly address the claims of racial discrimination asserted both by Furman and another petitioner in a companion case, both of whom were African‐American. However, three concurring justices and one dissenting justice expressed in separate opinions their concern that the jury sentencing practices under scrutiny created a dangerous opportunity for racial discrimination. Justice Thurgood Marshall's concurring opinion gave the question of racially discriminatory death sentences the greatest attention. He recited the same national statistics for rape cases previously presented in Maxwell v. Bishop and also reviewed comparable national statistics for murder cases, which indicated that, although African‐Americans constitute just over 10 percent of the nation's population, 49 percent of the 3,334 persons executed between 1930 and 1968 for the crime of murder were African‐American.
Although Furman invalidated all death‐sentencing systems that were in place in 1972, it implied that capital punishment was not absolutely unconstitutional, so long as death sentences were imposed in a nonarbitrary manner. In response to this ruling, the legislatures of more than thirty states amended their laws to comply with Furman by creating new sentencing standards—including lists of aggravating and mitigating factors for the jury's consideration—with the aim of limiting the exercise of discretion by sentencing juries. In 1976, the Supreme Court affirmed the constitutionality of all of the new death‐sentencing systems except those that made death a mandatory sentence for certain prescribed crimes.
The question remained, however, whether the new systems, which still allowed prosecutors and juries much room for the exercise of discretion, were being applied in a racially discriminatory manner. During the next decade, more than two dozen empirical studies, primarily in southern jurisdictions, tested the discrimination hypothesis in murder cases (the death penalty for rape having been banned by the Supreme Court in 1977). These studies showed mixed and generally inconclusive results with respect to race‐of‐defendant discrimination. However, the great majority of the studies showed that defendants who murdered whites were more likely to receive a death sentence than those who murdered blacks.
One of the largest of these studies was commissioned by the NAACP Legal Defense Fund in the early 1980s. This study, conducted by David Baldus, George Woodworth, and Charles Pulaski, Jr., analyzed the relationship between sentencing outcomes and racial characteristics in 2,484 homicide cases charged and sentenced in Georgia from 1973 to 1979. The following tabulation, from what the courts have described as “the Baldus study,” indicates how death‐sentencing outcomes correlated with the defendant/victim racial combination:
| Black Defendant/White Victim: | 21% | (50/233) |
| White Defendant/White Victim: | 8% | (58/748) |
| Black Defendant/Black Victim: | 1% | (18/1443) |
| White Defendant/Black Victim: | 3% | (2/60) |
These data suggested strong race‐of‐victim discrimination as well as more punitive treatment of black offenders in white‐victim cases. The study further subjected these data to extensive multivariate statistical analysis, designed to estimate racial disparities after adjustment for a large variety of legitimate case characteristics, such as the number of victims, contemporaneous offenses such as rape or robbery, and the defendant's prior record.
Those results provided no evidence of systematic, statewide discrimination against black defendants. They did indicate, however, that the average defendant's odds of receiving a death sentence were 4.3 times higher if the homicide victim in the case was white. The study also showed that the race‐of‐victim disparities were largest in cases involving a moderate degree of aggravation, that is, among the cases in which the circumstances were neither so heinous as virtually to assure a death sentence nor so extenuated as to assure a life sentence. These “mid‐range” cases, which gave prosecutors and sentencing juries the largest degree of discretion, were the principal source of the overall race‐of‐victim effects that emerged in the study. Finally, the study showed that the observed disparities in sentencing were primarily the product of prosecutorial rather than jury decision making.
LDF's Georgia study provided the basis for McCleskey v. Kemp (1987), a federal habeas corpus proceeding commenced in 1982. McCleskey was a black male whom a jury had sentenced to death for killing a white police officer in Atlanta. In the case, LDF attorneys alleged that the Georgia study of death sentencing demonstrated a pattern of purposeful and intentional discrimination, and that McCleskey's sentence consequently violated the Equal Protection Clause of the Fourteenth Amendment. McCleskey's lawyers also claimed that the Georgia study demonstrated a sufficient showing of arbitrariness and caprice in Georgia's administration of its capital statute to violate the cruel and unusual punishment prohibition of the Eighth Amendment, as interpreted by Furman.
The Supreme Court rejected both of these constitutional claims by a vote of 5 to 4. The majority opinion, written by Justice Lewis Powell, declared that, because the Baldus study did not prove “that the decisionmakers in his case acted with discriminatory purpose,” no equal protection violation had been established (p. 292). One surprising effect of this Fourteenth Amendment holding is that equal protection claims of purposeful race discrimination in death‐sentence cases will now be subjected to a far heavier burden of proof than is applied in ordinary jury discrimination and employment discrimination cases.
In response to McCleskey's Eighth Amendment arbitrariness claim, the Supreme Court majority acknowledged that proof of racially discriminatory sentencing patterns in capital cases would establish a constitutional violation. However, Justice Powell's opinion rejected McCleskey's claim on the ground that the statistical evidence he offered failed to establish “a constitutionally significant risk” that racial factors had, indeed, infected Georgia's death‐sentencing process (p. 313).
The Supreme Court's decision in McCleskey seems to have put a practical end to statistical challenges to the administration of the death penalty for the foreseeable future. Instead, researchers and litigants working in the early 1990s on issues of arbitrariness and discrimination in the administration of the death penalty shifted their focus to nonquantitative approaches for documenting the underlying sources of race‐of‐victim and race‐of‐defendant discrimination.
Another consequence of McCleskey has been an effort by civil rights advocates to invoke the legislative process. As Justice Powell himself suggested in his opinion, efforts are being made in Congress to pass federal legislation to regularize state capital‐sentencing procedures. Two such proposals, the Racial Justice Act and the Fairness in Death Sentencing Act, seek to give condemned prisoners a federal right, analogous to Title VII rights in the employment context, to challenge any death sentence that “furthers a racially discriminatory pattern,” based on the race of either the defendant or the victim. Moreover, the proposed acts would give condemned prisoners the right to support such challenges with ordinary methods of statistical proof and without the necessity of showing “discriminatory motive, intent or purpose on the part of any individual or institution.” If enacted, such legislation might provide a suitable vehicle for addressing concerns about the administration of capital punishment. A federal legislative solution has the additional advantage of permitting a comprehensive evaluation of the methods and procedures to be employed, as opposed to the case‐by‐case, issue‐by‐issue approach that courts must necessarily employ.
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See also Race and Racism
Bibliography
- David C. Baldus, George Woodworth, and Charles A. Pulaski, Jr., Equal Justice and the Death Penalty: Legal and Empirical Analysis (1990).
- General Accounting Office, Death Penalty Sentencing: Research Indicates Patterns of Racial Disparities, GGD‐90‐57 (1990).
- Samuel R. Gross and Robert Mauro, Death and Discrimination: Racial Disparities in Capital Sentencing (1989).
- Barry Nakell and Kenneth A. Hardy, The Arbitrariness of the Death Penalty (1987)
— David C. Baldus, Charles A. Pulaski, Jr., and George Woodworth
