McCleskey v. Kemp

McCleskey v. Kemp, 481 U.S. 279 (1987), is a United States Supreme Court case, in which the death sentence of Warren McCleskey for armed robbery and murder was upheld. The Court said the "racially disproportionate impact" in the Georgia death penalty indicated by a comprehensive scientific study was not enough to mitigate a death penalty determination without showing a "racially discriminatory purpose." McCleskey has been described as the "most far-reaching post-_Gregg _ challenge to capital sentencing ."

McCleskey has been named as one of the worst Supreme Court decisions since World War II by a Los Angeles Times poll of liberal jurists. In a _New York Times _ comment eight days after the decision, Anthony Lewis charged that the Supreme Court had "effectively condoned the expression of racism in a profound aspect of our law." Anthony G. Amsterdam called it "the _Dred Scott _ decision of our time." Justice Lewis Powell wrote the majority opinion and when asked by his biographer if he wanted to change his vote in any case, replied, "Yes, McCleskey v. Kemp."

Contents

• 1 Background

• 2 Opinion of the Court

• 3 Dissenting opinions

• 4 Impact

• 5 See also

• 6 References

• 7 Further reading

• 8 External links

Background

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In October 1978, Warren McCleskey (March 17, 1945 – September 25, 1991) was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia. McCleskey was African American , and his victim was white Atlanta Police Officer Frank Schlatt, who was shot and killed on May 13, 1978, while trying to stop McCleskey and three other men, Bernard Depree, David Burney Jr., and Ben Wright, from robbing a furniture store. The employees had all been rounded in the back and tied up. Wright agreed to plead guilty and testify against his accomplices. In exchange, he was not prosecuted for murder and received a 20-year sentence for armed robbery. Depree and Burney Jr. were tried jointly for murder and two counts of armed robbery, found guilty, and both sentenced to life in prison.

Prosecutors sought a death sentence for McCleskey, who was believed to have been the triggerman. Immediately after they were arrested, both Depree and Burney, who were not offered plea agreements and did not testify at the trial of McCleskey, had told the police that McCleskey was the triggerman.

Tried alone, McCleskey proclaimed his innocence, but was found guilty on all counts. At his sentencing hearing, the jury found that two aggravating factors had been proven beyond a reasonable doubt: the murder was committed during the course of an armed robbery and had been committed upon a police officer engaged in the performance of his duties. The prosecution also introduced McCleskey's prior criminal history. In 1970, McCleskey was charged with 25 to 30 counts of armed robbery. He was convicted on three counts and received three life sentences. In 1971, McCleskey was resentenced to 18 years in prison. He was paroled in 1977. The prosecution claimed that McCleskey had three prior convictions of armed robbery, albeit this had been incorrect. He actually had eight prior convictions, as he had pleaded guilty to five other counts of armed robbery after his 1970 convictions.

The prosecution also presented evidence implicating McCleskey in two other armed robberies.

In his defense, McCleskey admitted to his role in the robbery, but denied being the triggerman. However, Wright testified that McCleskey had admitted to shooting the officer, while a jailhouse informant testified that McCleskey had bragged about killing Schlatt. Furthermore, Schlatt had been killed with a bullet fired from a .38 caliber Rossi revolver. The murder weapon was never recovered, but McCleskey had stolen such a gun during a previous robbery. The jury recommended a death sentence. The court followed the jury's recommendation and sentenced petitioner to death.

On appeal to the federal courts via a habeas petition, petitioner alleged the state's capital sentencing process was administered in a racially discriminatory manner in violation of the Fourteenth Amendment . Petitioner based his claims on a study, conducted by jurists David C. Baldus and Charles Pulaski , and statistician George Woodworth (the “Baldus study”), that indicated a risk that racial consideration entered into capital sentencing determinations.

Baldus, a law professor at the University of Iowa College of Law , studied 2500 murder cases in Georgia. Baldus' study concluded that all individuals convicted of murdering whites were far more likely to receive the death penalty, thus establishing that the application of the death penalty in Georgia was linked with the race of the victim. One of his models concluded 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 than defendants charged with killing black victims.

Opinion of the Court

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The Court, in an opinion by Justice Lewis Powell , held that the statistical study did not present substantial evidence that would require a reversal of petitioner's conviction. The Court concluded that the lower court had properly applied Georgia law.[_citation needed
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The decision said that even if Baldus' statistical data were accepted at face value, the defense failed to show evidence of conscious, deliberate bias by law officials associated with the case, and it dismissed evidence of general disparities in sentencing, such as the Baldus study, as "an inevitable part of our criminal justice system." A major point in dispute in reaching the majority's decision was the proposition that the 2,500 cases studied, like other cases in general, did not share common personnel or officials but each case involved a different set of jurors, frequently different judges, and different prosecutors. Thus no common mechanism was either identified or likely to explain a racially disparate impact. Without a plausible basis for inferring that a racially disparate effect was circumstantial evidence of a racially biased cause (even if a hidden cause), the Supreme Court majority did not find racial bias or discrimination. The majority sought to distinguish between a disparate effect as evidence of a discriminatory system from a disparate effect without a discriminatory cause. Thus, the Supreme Court left open the possibility that if a racially biased influence were identified the result might be different. Without more, the majority viewed each of the 2,500 cases in the study as a separate event without any discernible linkage between them.[_citation needed
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Dissenting opinions

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