Marking the 35th anniversary of one of the Supreme Court’s most egregious missed opportunities

Richard Dieter former Executive Director of the Death Penalty Information Center writes in the Medium.com:

April 22, 2022 marks the 35th anniversary of one of the Supreme Court’s most egregious missed opportunities. In a 5–4 decision, the Court rejected arguments that Georgia was applying the death penalty in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments. The ruling not only led to the execution of the defendant, Warren McCleskey, but essentially shut the door to all future claims based on a pattern of racial bias in sentencing.

McCleskey had challenged his death sentence by presenting a comprehensive study of 2,500 murder cases in Georgia over a six-year period. Those cases resulted in 128 death sentences. The study sought the reasons why those relatively few cases were chosen out of the huge number that were eligible for the death penalty. The results of that careful research revealed that, when it comes to death sentencing, black lives matter much less than white lives.

The study explored a broad range of factors that might have explained why some defendants were sent to death row while others were spared. Among the variables in the cases that led to death were such appropriate aggravators as the murder of a police officer, murder with kidnapping, and murder by a repeat offender. However, there was one factor in the cases studied that surpassed all three of those in predicting a death sentence: Those who killed a white victim were far more likely to be sentenced to death than those who killed a black victim.

The Court held that statistics did not prove that Mr. McCleskey himself was purposefully or unfairly treated. The strong predictive relation between the victim being white and an eventual death sentence was insufficient to convince the Court that an underlying preference was influencing prosecutors or jurors in deciding who should live and who should die. The racial discrepancy was particularly large in cases in the mid-range of severity, where the decision-makers had the most discretion. Of course, proving that a prosecutor deliberately pursued a death sentence because the murder victim was white is extremely difficult, especially since intent may be subconscious. This analysis made it exceedingly difficult that any future challenge to the death penalty based on studies of racial bias in sentencing would succeed.

The detrimental role that race plays in our society has been dramatically displayed in recent years. When it comes to hiring, housing, or being stopped by police, black lives often have mattered less than white lives. Such leanings were not necessarily those of white supremacists but rather of ordinary citizens at every level. Few would admit to such bias, but it existed nevertheless.

Justice Lewis Powell wrote the majority opinion in McCleskey. After retiring from the Court, he was asked if there were any case that he wished he had decided differently. His reply was “McCleskey v. Kemp.”

Justice William Brennan wrote the leading dissent. His explanation of the case in personal terms bears repeating:

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 (his) past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks.

Brennan concluded with a prophetic warning: “[T]he reverberations of injustice are not…easily confined. ‘The destinies of the two races in this country are indissolubly linked together,’ and the way in which we choose those who will die reveals the depth of moral commitment among the living.”

Since the McCleskey decision, there have been 1,473 executions; 78% of the underlying cases involved murders with white victims, in a country where the number of black murder victims exceeds the number of white victims. The Court expressed concern that if McCleskey’s sentence was overturned, it could mean that the remaining death sentences in Georgia would also be suspect, and similar studies might even present a challenge to other aspects of the justice system. Brennan described these concerns as a “fear of too much justice.” Although addressing racial bias on a societal level is indeed challenging, solving the problem of a biased system of capital punishment has a ready solution: stopping the death penalty altogether.

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