McCleskey v. Kemp (1987) 481 U.S. 279

Fundamental Cases in Criminal Justice by Adam J. McKee

Part III: Courts and Sentencing

The following case has been heavily edited and abridged.  The idea is to make it more readable.  As such, it should not be relied upon as binding authority.

 This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determinations proves that petitioner McCleskey’s capital sentence is unconstitutional under the Eighth or Fourteenth Amendment.


McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia, on October 12, 1978.  McCleskey’s convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. All four were armed. McCleskey entered the front of the store while the other three entered the rear. McCleskey secured the front of the store by rounding up the customers and forcing them to lie face down on the floor. The other three rounded up the employees in the rear and tied them up with tape. The manager was forced at gunpoint to turn over the store receipts, his watch, and $ 6. During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As he was walking down the center aisle of the store, two shots were fired. Both struck the officer. One hit him in the face and killed him.

Several weeks later, McCleskey was arrested in connection with an unrelated offense.  He confessed that he had participated in the furniture store robbery, but denied that he had shot the police officer. At trial, the State introduced evidence that at least one of the bullets that struck the officer was fired from a .38 caliber Rossi revolver. This description matched the description of the gun that McCleskey had carried during the robbery. The State also introduced the testimony of two witnesses who had heard McCleskey admit to the shooting.

The jury convicted McCleskey of murder.  At the penalty hearing, the jury heard arguments as to the appropriate sentence.  Under Georgia law, the jury could not consider imposing the death penalty unless it found beyond a reasonable doubt that the murder was accompanied by one of the statutory aggravating circumstances. The jury in this case found two aggravating circumstances to exist beyond a reasonable doubt: the murder was committed during the course of an armed robbery, and the murder was committed upon a peace officer engaged in the performance of his duties.  In making its decision whether to impose the death sentence, the jury considered the mitigating and aggravating circumstances of McCleskey’s conduct. McCleskey offered no mitigating evidence.  The jury recommended that he be sentenced to death on the murder charge and to consecutive life sentences on the armed robbery charges. The court followed the jury’s recommendation and sentenced McCleskey to death.

On appeal, the Supreme Court of Georgia affirmed the convictions and the sentences. This Court denied a petition for a writ of certiorari.  The Superior Court of Fulton County denied McCleskey’s extraordinary motion for a new trial.  McCleskey then filed a petition for a writ of habeas corpus in the Superior Court of Butts County. After holding an evidentiary hearing, the Superior Court denied relief. The Supreme Court of Georgia denied McCleskey’s application for a certificate of probable cause to appeal the Superior Court’s denial of his petition and this Court again denied certiorari.

McCleskey next filed a petition for a writ of habeas corpus in the Federal District Court for the Northern District of Georgia.  His petition raised 18 claims, one of which was that the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970’s. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases.  The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.

Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims.  Similarly, Baldus 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; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.

Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds.  One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.

The District Court held an extensive evidentiary hearing on McCleskey’s petition. Although it believed that McCleskey’s Eighth Amendment claim was foreclosed by the Fifth Circuit’s decision in Spinkellink v. Wainwright, it nevertheless considered the Baldus study with care.  It concluded that McCleskey’s “statistics do not demonstrate a prima facie case in support of the contention that the death penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern.  As to McCleskey’s Fourteenth Amendment claim, the court found that the methodology of the Baldus study was flawed in several respects.  Because of these defects, the court held that the Baldus study “failed to contribute anything of value” to McCleskey’s claim. Accordingly, the court denied the petition insofar as it was based upon the Baldus study.

The Court of Appeals for the Eleventh Circuit, sitting en banc, carefully reviewed the District Court’s decision on McCleskey’s claim. It assumed the validity of the study itself and addressed the merits of McCleskey’s Eighth and Fourteenth Amendment claims.  That is, the court assumed that the study “showed that systematic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County.”  Even assuming the study’s validity, the Court of Appeals found the statistics “insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis.”  The court noted:

“The very exercise of discretion means that persons exercising discretion may reach different results from exact duplicates.  Assuming each result is within the range of discretion, all are correct in the eyes of the law.  It would not make sense for the system to require the exercise of discretion in order to be facially constitutional, and at the same time hold a system unconstitutional in application where that discretion achieved different results for what appear to be exact duplicates, absent the state showing the reasons for the difference. . . . The Baldus approach . . . would take the cases with different results on what are contended to be duplicate facts, where the differences could not be otherwise explained, and conclude that the different result was based on race alone. . . .  This approach ignores the realities. . . . There are, in fact, no exact duplicates in capital crimes and capital defendants. The type of research submitted here tends to show which of the directed factors were effective, but is of restricted use in showing what undirected factors control the exercise of constitutionally required discretion.”

The court concluded:

“Viewed broadly, it would seem that the statistical evidence presented here, assuming its validity, confirms rather than condemns the system . . . .  The marginal disparity based on the race of the victim tends to support the state’s contention that the system is working far differently from the one which Furman condemned.  In pre-Furman days, there was no rhyme or reason as to who got the death penalty and who did not.  But now, in the vast majority of cases, the reasons for a difference are well documented. That they are not so clear in a small percentage of the cases is no reason to declare the entire system unconstitutional.”

The Court of Appeals affirmed the denial by the District Court of McCleskey’s petition for a writ of habeas corpus insofar as the petition was based upon the Baldus study, with three judges dissenting as to McCleskey’s claims based on the Baldus study. We granted certiorari and now affirm.


McCleskey’s first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.  He argues that race has infected the administration of Georgia’s statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers.  As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim.  In its broadest form, McCleskey’s claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. We agree with the Court of Appeals, and every other court that has considered such a challenge, that this claim must fail.


Our analysis begins with the basic principle that defendant who alleges an equal protection violation has the burden of proving “the existence of purposeful discrimination.”  A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination “had a discriminatory effect” on him.  Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence.  Instead, he relies solely on the Baldus study. McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination.  McCleskey’s claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.

The Court has accepted statistics as proof of intent to discriminate in certain limited contexts.  First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a “stark” pattern to be accepted as the sole proof of discriminatory intent under the Constitution “because of the nature of the jury-selection task, . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes.”  Second, this Court has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964.

But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire-selection or Title VII cases.  Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense.  Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection or Title VII case.  In those cases, the statistics relate to fewer entities, and fewer variables are relevant to the challenged decisions.

Another important difference between the cases in which we have accepted statistics as proof of discriminatory intent and this case is that, in the venire-selection and Title VII contexts, the decisionmaker has an opportunity to explain the statistical disparity.  Here, the State has no practical opportunity to rebut the Baldus study.  “Controlling considerations of . . . public policy” dictate that jurors “cannot be called . . . to testify to the motives and influences that led to their verdict.”  Similarly, the policy considerations behind a prosecutor’s traditionally “wide discretion” suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, “often years after they were made.” Moreover, absent far stronger proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.

Although Imbler was decided in the context of damages actions under 42 U. S. C. § 1983 brought against prosecutors, the considerations that led the Court to hold that a prosecutor should not be required to explain his decisions apply in this case as well: “If the prosecutor could be made to answer in court each time . . . a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.” Our refusal to require that the prosecutor provide an explanation for his decisions in this case is completely consistent with this Court’s longstanding precedents that hold that a prosecutor need not explain his decisions unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect to his case.

Finally, McCleskey’s statistical proffer must be viewed in the context of his challenge.  McCleskey challenges decisions at the heart of the State’s criminal justice system. “One of society’s most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder.”  Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.


McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose.  He appears to argue that the State has violated the Equal Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application.  But “‘discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences.  It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”  For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect.  In Gregg v. Georgia, this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner.  There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose.

Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study.  As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment, we will not infer a discriminatory purpose on the part of the State of Georgia.  Accordingly, we reject McCleskey’s equal protection claims.


McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment.  We begin our analysis of this claim by reviewing the restrictions on death sentences established by our prior decisions under that Amendment.


The Eighth Amendment prohibits infliction of “cruel and unusual punishments.”  This Court’s early Eighth Amendment cases examined only the “particular methods of execution to determine whether they were too cruel to pass constitutional muster.” Subsequently, the Court recognized that the constitutional prohibition against cruel and unusual punishments “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.”  In Weems, the Court identified a second principle inherent in the Eighth Amendment, “that punishment for crime should be graduated and proportioned to offense.”  Chief Justice Warren, writing for the plurality in Trop v. Dulles, acknowledged the constitutionality of capital punishment.  In his view, the “basic concept underlying the Eighth Amendment” in this area is that the penalty must accord with “the dignity of man.”

In applying this mandate, we have been guided by his statement that “the Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Thus, our constitutional decisions have been informed by “contemporary values concerning the infliction of a challenged sanction.”  In assessing contemporary values, we have eschewed subjective judgment, and instead have sought to ascertain “objective indicia that reflect the public attitude toward a given sanction.”  First among these indicia are the decisions of state legislatures, “because the . . . legislative judgment weighs heavily in ascertaining” contemporary standards.  We also have been guided by the sentencing decisions of juries, because they are “a significant and reliable objective index of contemporary values,” Most of our recent decisions as to the constitutionality of the death penalty for a particular crime have rested on such an examination of contemporary values.


Two principal decisions guide our resolution of McCleskey’s Eighth Amendment claim. In Furman v. Georgia, the Court concluded that the death penalty was so irrationally imposed that any particular death sentence could be presumed excessive.  Under the statutes at issue in Furman, there was no basis for determining in any particular case whether the penalty was proportionate to the crime: “The death penalty [was] exacted with great infrequency even for the most atrocious crimes and . . . there [was] no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not.”

In Gregg, the Court specifically addressed the question left open in Furman—whether the punishment of death for murder is “under all circumstances, ‘cruel and unusual’ in violation of the Eighth and Fourteenth Amendments of the Constitution.”  We noted that the imposition of the death penalty for the crime of murder “has a long history of acceptance both in the United States and in England.”  “The most marked indication of society’s endorsement of the death penalty for murder [was] the legislative response to Furman.”  During the 4-year period between Furman and Gregg, at least 35 States had reenacted the death penalty, and Congress had authorized the penalty for aircraft piracy.  The “actions of juries” were “fully compatible with the legislative judgments.”  We noted that any punishment might be unconstitutionally severe if inflicted without penological justification, but concluded:

“Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.”

The second question before the Court in Gregg was the constitutionality of the particular procedures embodied in the Georgia capital punishment statute.  We explained the fundamental principle of Furman, that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”  Numerous features of the then new Georgia statute met the concerns articulated in Furman.

The Georgia system bifurcates guilt and sentencing proceedings so that the jury can receive all relevant information for sentencing without the risk that evidence irrelevant to the defendant’s guilt will influence the jury’s consideration of that issue.  The statute narrows the class of murders subject to the death penalty to cases in which the jury finds at least one statutory aggravating circumstance beyond a reasonable doubt. Conversely, it allows the defendant to introduce any relevant mitigating evidence that might influence the jury not to impose a death sentence. The procedures also require a particularized inquiry into “‘the circumstances of the offense together with the character and propensities of the offender.'”  Thus, “while some jury discretion still exists, ‘the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.'”

Moreover, the Georgia system adds “an important additional safeguard against arbitrariness and caprice” in a provision for automatic appeal of a death sentence to the State Supreme Court. The statute requires that court to review each sentence to determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury’s finding of a statutory aggravating circumstance, and whether the sentence is disproportionate to sentences imposed in generally similar murder cases.  To aid the court’s review, the trial judge answers a questionnaire about the trial, including detailed questions as to “the quality of the defendant’s representation [and] whether race played a role in the trial.”


In the cases decided after Gregg, the Court has imposed a number of requirements on the capital sentencing process to ensure that capital sentencing decisions rest on the individualized inquiry contemplated in Gregg.  In Woodson v. North Carolina, we invalidated a mandatory capital sentencing system, finding that the “respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.”  Similarly, State must “narrow the class of murderers subject to capital punishment” by providing “specific and detailed guidance” to the sentencer.

In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.  “The sentencer . . . [cannot] be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”  Any exclusion of the “compassionate or mitigating factors stemming from the diverse frailties of humankind” that are relevant to the sentencer’s decision would fail to treat all persons as “uniquely individual human beings.”

Although our constitutional inquiry has centered on the procedures by which a death sentence is imposed, we have not stopped at the face of a statute, but have probed the application of statutes to particular cases.  For example, in Godfrey v. Georgia, the Court invalidated a Georgia Supreme Court interpretation of the statutory aggravating circumstance that the murder be “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.”  Although that court had articulated an adequate limiting definition of this phrase, we concluded that its interpretation in Godfrey was so broad that it may have vitiated the role of the aggravating circumstance in guiding the sentencing jury’s discretion.

Finally, where the objective indicia of community values have demonstrated a consensus that the death penalty is disproportionate as applied to a certain class of cases, we have established substantive limitations on its application.  In Coker v. Georgia, the Court held that a State may not constitutionally sentence an individual to death for the rape of an adult woman.  In Enmund v. Florida, the Court prohibited imposition of the death penalty on a defendant convicted of felony murder absent a showing that the defendant possessed a sufficiently culpable mental state.  Most recently, in Ford v. Wainwright, we prohibited execution of prisoners who are insane.


In sum, our decisions since Furman have identified constitutionally permissible range of discretion in imposing the death penalty.  First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense.  Second, States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.

  1. A.

In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is “disproportionate to the crime in the traditional sense.”  He does not deny that he committed a murder in the course of a planned robbery, a crime for which this Court has determined that the death penalty constitutionally may be imposed.  His disproportionality claim “is of a different sort.”  McCleskey argues that the sentence in his case is disproportionate to the sentences in other murder cases.

On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty.  On automatic appeal, the Georgia Supreme Court found that McCleskey’s death sentence was not disproportionate to other death sentences imposed in the State. The court supported this conclusion with an appendix containing citations to 13 cases involving generally similar murders.  Moreover, where the statutory procedures adequately channel the sentencer’s discretion, such proportionality review is not constitutionally required.

On the other hand, absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty.  In Gregg, the Court confronted the argument that “the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law,” specifically the opportunities for discretionary leniency, rendered the capital sentences imposed arbitrary and capricious.  We rejected this contention:

“The existence of these discretionary stages is not determinative of the issues before us.  At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.”

Because McCleskey’s sentence was imposed under Georgia sentencing procedures that focus discretion “on the particularized nature of the crime and the particularized characteristics of the individual defendant,” we lawfully may presume that McCleskey’s death sentence was not “wantonly and freakishly” imposed, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment.


Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey’s disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia.  We now address this claim.

To evaluate McCleskey’s challenge, we must examine exactly what the Baldus study may show.  Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case. Statistics at most may show only a likelihood that a particular factor entered into some decisions.  There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. The question “is at what point that risk becomes constitutionally unacceptable,” McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions.  This we decline to do.

Because of the risk that the factor of race may enter the criminal justice process, we have engaged in “unceasing efforts” to eradicate racial prejudice from our criminal justice system. Our efforts have been guided by our recognition that “the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice,” Thus, it is the jury that is a criminal defendant’s fundamental “protection of life and liberty against race or color prejudice.”  Specifically, a capital sentencing jury representative of a criminal defendant’s community assures a “‘diffused impartiality'” in the jury’s task of “expressing the conscience of the community on the ultimate question of life or death.”

Individual jurors bring to their deliberations “qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.”  The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant.  It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury’s function to make the difficult and uniquely human judgments that defy codification and that “build discretion, equity, and flexibility into a legal system.”

McCleskey’s argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system.  Discretion in the criminal justice system offers substantial benefits to the criminal defendant.  Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant’s interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable.  Similarly, the capacity of prosecutorial discretion to provide individualized justice is “firmly entrenched in American law.”  As we have noted, a prosecutor can decline to charge, offer a plea bargain, or decline to seek a death sentence in any particular case.  Of course, “the power to be lenient [also] is 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.”


At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. The discrepancy indicated by the Baldus study is “a far cry from the major systemic defects identified in Furman,” As this Court has recognized, any mode for determining guilt or punishment “has its weaknesses and the potential for misuse.”  Specifically, “there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.'”  Despite these imperfections, our consistent rule has been that 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.”  Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. 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, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.

Two additional concerns inform our decision in this case.  First, McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.  The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties.  Thus, if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.  Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender.  Similarly, since McCleskey’s claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges.

Also, there is no logical reason that such a claim need be limited to racial or sexual bias.  If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could—at least in theory—be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical  study indicates may be influential in jury decisionmaking.  As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment.  As we have stated specifically in the context of capital punishment, the Constitution does not “place totally unrealistic conditions on its use.”

Second, McCleskey’s arguments are best presented to the legislative bodies. It is not the responsibility—or indeed even the right—of this Court to determine the appropriate punishment for particular crimes.  It is the legislatures, the elected representatives of the people, that are “constituted to respond to the will and consequently the moral values of the people.”  Legislatures also are better qualified to weigh and “evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts,” Capital punishment is now the law in more than two-thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey’s wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society, the only question before us is whether in his case, the law of Georgia was properly applied.  We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case.


Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit.

It is so ordered.

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Last Modified: 04/30/2021

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