Mccleskey v kemp deals with the issue of

And just the day before the McClesky decision, the Court appeared to expand the pool of defendants subject to the death penalty. Rehnquist and Justices Powell, Byron R. White and Antonin Scalia - said it was sometimes permissible to impose the death penalty on an accomplice in a crime resulting in murder, even if the accomplice neither committed the killing nor intended to kill. Holding that ''reckless disregard for human life'' could be sufficient, the Court undercut a decision that had led prosecutors and courts to view many defendant-accomplices as exempt from the death penalty.

Both decisions drew strong dissents from Justices William J. Brennan Jr. Blackmun and John Paul Stevens. In McCleskey, they termed the racial disparities ''abhorrent'' and ''intolerable''; Justice Brennan, who has long said that any execution constitutes cruel and unusual punishment, wrote that even if that were not so, Georgia's death penalty was evidently being administered with ''precisely the type of risk of irrationality'' that the Court deplored when it struck down the state's predecessor statute in That decision, which put an end to all executions in the United States for five years, rested largely on the Justices' conclusions that prosecutors, judges and juries had such wide berth that capital sentencing had become ''wanton'' and ''arbitrary,'' especially for blacks.

McCleskey v. Kemp

McCleskey's case is in most respects unexceptional. He was convicted in of shooting a police officer during a robbery in an Atlanta furniture store, and he was sentenced under procedural guidelines approved by the Supreme Court that year. Now, according to Tanya E. Coke of the fund's capital punishment project, there will be other appeals; last week's decision, she said, was ''not the end of the line for Mr.

Log In. 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.

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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 "plac[e] totally unrealistic conditions on its use. 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 court. I Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the decision below insofar as it left undisturbed the death sentence imposed in this case.

Lesson 3 McCleskey v Kemp Interview Thread

Even if I did not hold this position, however, I would reverse the Court of Appeals, for petitioner McCleskey has clearly demonstrated that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments. McCleskey has also demonstrated precisely the type of risk of irrationality in sentencing that we have consistently condemned in our Eighth Amendment jurisprudence. II At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die.

A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white.


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Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 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.

Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

The Court today holds that Warren McCleskey's sentence was constitutionally imposed. The Court arrives at this conclusion by stating that the Baldus study cannot "prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case. Since, according to Professor Baldus, we cannot say "to a moral certainty" that race influenced a decision, ante, at , n.

The Court reaches this conclusion by placing four factors on the scales opposite McCleskey's evidence: the desire to encourage sentencing discretion, the existence of "statutory safeguards" in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role. The Court's evaluation of the significance of petitioner's evidence is fundamentally at odds with our consistent concern for rationality in capital sentencing, and the considerations that the majority invokes to discount that evidence cannot justify ignoring its force.

Since Furman v. Georgia, the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty "may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. In addition, it reflects the fact that concern for arbitrariness focuses on the rationality of the system as a whole, and that a system that features a significant probability that sentencing decisions are influenced by impermissible considerations cannot be regarded as rational.

As a result, our inquiry under the Eighth Amendment has not been directed to the validity of the individual sentences before us. Defendants challenging their death sentences thus never have had to prove that impermissible considerations have actually infected sentencing decisions. We have required instead that they establish that the system under which they were sentenced posed a significant risk of such an occurrence.

McCleskey's claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate. The Court assumes the statistical validity of the Baldus study, and acknowledges that McCleskey has demonstrated a risk that racial prejudice plays a role in capital sentencing in Georgia.

Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern. Close analysis of the Baldus study, however, in light of both statistical principles and human experience, reveals that the risk that race influenced McCleskey's sentence is intolerable by any imaginable standard.

The Baldus study indicates that, after taking into account some nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey's life had his victim been black. The study distinguishes between those cases in which 1 the jury exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is appropriate; and 2 cases reflecting an "intermediate" level of aggravation, in which the jury has considerable discretion in choosing a sentence.

McCleskey's case falls into the intermediate range. Furthermore, even examination of the sentencing system as a whole, factoring in those cases in which the jury exercises little discretion, indicates the influence of race on capital sentencing.

Mccleskey V. Kemp: Field Notes from 1977-1991

For the Georgia system as a whole, race accounts for a six percentage point difference in the rate at which capital punishment is imposed. Of the more than variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates - as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide. These adjusted figures are only the most conservative indication of the risk that race will influence the death sentences of defendants in Georgia.

Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than the rate for black-victim cases. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. The statistical evidence in this case thus relentlessly documents the risk that McCleskey's sentence was influenced by racial considerations.

This evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black. In determining whether this risk is acceptable, our judgment must be shaped by the awareness that "[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence," and that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.

That is, we refuse to convict if the chance of error is simply less likely than not. Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. In light of the gravity of the interest at stake, petitioner's statistics on their face are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned.

C Evaluation of McCleskey's evidence cannot rest solely on the numbers themselves. We must also ask whether the conclusion suggested by those numbers is consonant with our understanding of history and human experience. Georgia's legacy of a race-conscious criminal justice system, as well as this Court's own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey's claim is not a fanciful product of mere statistical artifice. For many years, Georgia operated openly and formally precisely the type of dual system the evidence shows is still effectively in place.

The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery. During the colonial period, black slaves who killed whites in Georgia, regardless of whether in self-defense or in defense of another, were automatically executed The sentences for even major crimes are ordinarily reduced when the victim is another Negro.

Citation of past practices does not justify the automatic condemnation of current ones.

25 Years After McCleskey, Looking Forward to Legislative Fixes of Supreme Court Error

But it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey's evidence. The determination of the significance of his evidence is at its core an exercise in human moral judgment, not a mechanical statistical analysis. It must first and foremost be informed by awareness of the fact that death is irrevocable, and that as a result "the qualitative difference of death from all other punishments requires a greater degree of scrutiny of the capital sentencing determination.

A capital sentencing system in which race more likely than not plays a role does not meet this standard. It is true that every nuance of decision cannot be statistically captured, nor can any individual judgment be plumbed with absolute certainty. Yet the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death. Sentencing data, history, and experience all counsel that Georgia has provided insufficient assurance of the heightened rationality we have required in order to take a human life.

IV The Court cites four reasons for shrinking from the implications of McCleskey's evidence: the desirability of discretion for actors in the criminal justice system, the existence of statutory safeguards against abuse of that discretion, the potential consequences for broader challenges to criminal sentencing, and an understanding of the contours of the judicial role.

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While these concerns underscore the need for sober deliberation, they do not justify rejecting evidence as convincing as McCleskey has presented Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with this concern that an individual be evaluated as a unique human being.

Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess.