Interpreting the McCleskey V. Kemp (1983) Decision

The 14th Amendment of the Constitution states that the State shall not deprive any person equal protection of the laws. When equal protection is guaranteed, the outcome must be fair; in other words, substantive justice must be present. Based on this interpretation, McCleskey v. Kemp should be overturned because McCleskey’s death was a racially biased and unfair outcome that was not constitutionally protected by the Equal Protection Clause of the 14th Amendment. Justice Blackmun wrote in his dissenting opinion that in order for McCleskey to prove his innocence and the presence of a racially discriminatory criminal sentencing procedure, he had to meet a three-factor standard. First, he had to prove he was a member of a group that has historically suffered differential treatment. Second, McCleskey had to establish the extent of this treatment. Last, he had to prove that the process by which the death penalty was chosen was open to racial bias. McCleskey met all three prongs of this standard, and even though the Court’s decision denied his claim that he was not guaranteed equal protection, there is enough evidence to prove the selection process was not racially neutral and that a violation of the 14th Amendment was present. Furthermore, Justice Kennedy’s idea of “evolving standards of decency” in Roper v. Simmons (2005) demonstrates that the growing national consensus is against the death penalty and therefore in favor of equal protection for all persons.

In order to prove the existence of purposeful discrimination, McCleskey must first demonstrate that he belonged to a group “that is a recognizable, distinct class, singled out for different treatment” (McCleskey v. Kemp 318). Here, McCleskey relied on the Baldus study, a statistical study that shows a “disparity in the imposition of the death sentence…based on the race of the murder victim and…the race of the defendant” (McCleskey v. Kemp 300). The study showed that black defendants have the greatest likelihood of receiving the death penalty; therefore, McCleskey did in fact belong to a group that has historically been singled out. The Court denied McCleskey’s claim, stating that the sole reliance on the Baldus study does not provide ample evidence to prove the existence of racial discrepancies. It held that “the Baldus study failed to contribute anything of value” (McCleskey v. Kemp 300). Even though the Court agreed with the validity of the test, the actual study itself did not contribute anything to McCleskey’s case. Therefore, the Court argued, McCleskey did not prove he was a member of a group that has been singled out because he lacked the evidence needed to show the racial bias against him, since the statistics provided in Baldus study were irrelevant to this case.

McCleskey, on the other hand, argued that he did in fact meet this first prong. The study shows the racially biased capital sentencing system in Georgia by demonstrating how Black defendants have received the death penalty much more often than White defendants do. The discrimination also extends to the race of the victims. The study “indicates that it is much less likely that a death sentence will result from a murder of a black person than from a murder of a white person” (McCleskey v. Kemp 319). In other words, Black defendants are treated more harshly than White defendants, and Black victims receive less justice than White victims. The racial discrepancy that lies here is sufficient proof to establish McCleskey as a member of a group that has been historically singled out. However, the Court believed this wasn’t enough evidence, even though it specifically states that “the Court has accepted statistics as proof of intent to discriminate in certain limited contexts” (McCleskey v. Kemp 301). The inconsistency in the Court’s decisions as to what constitutes as statistics acceptable for use improves on McCleskey’s argument because it shows that the Baldus study could quite possibly be used as “proof of intent to discriminate” against McCleskey, a Black defendant. McCleskey obviously met the first prong of the three-factor standard, proving that he was a member of a group that has been historically prejudiced against. Therefore, his equal protection rights under the 14th Amendment were clearly violated because of his connection to a racial group unfairly targeted.

The second factor states that McCleskey must “make a showing of a substantial degree of differential treatment” (McCleskey v. Kemp 318). McCleskey used the Baldus study to demonstrate the considerable likelihood that race was the deciding factor in his death sentence. The Court argued that the extent to which McCleskey has received differential treatment cannot be established by the use of race as the determining factor because the murder he committed during the robbery is a “crime for which this Court has determined that the death penalty constitutionally may be imposed” (McCleskey v. Kemp 305). The “particularized nature of the crime” was the deciding factor for his death sentence, not race (McCleskey v. Kemp 305). Therefore, McCleskey had no valid proof of the degree of this differential treatment because he would receive such a harsh punishment regardless of his race, since the “punishment for crime should be graduated and proportioned to offense” (McCleskey v. Kemp 303). The Court determined that since McCleskey could not demonstrate the degree to which the racial disparities were constitutionally unacceptable in his case, his claim of differential treatment had no merit.

As a matter of fact, McCleskey did demonstrate the degree to which the differential treatment was based on racial factors. He introduced the idea of multiple-regression analysis that “explains how much of the statistical distribution of the cases analyzed is attributable to the racial factors” (McCleskey v. Kemp 319). McCleskey demonstrated that he was 4.3 times as likely to receive the death sentence because he was charged with killing a white person as opposed to killing a black person (McCleskey v. Kemp 319). He provided substantial evidence demonstrating that the race-of-victim factor was crucial to his death sentencing by showing that “20 out of every 34 defendants in [his] midrange category would not have been sentenced to be executed if their victims had been black” (McCleskey v. Kemp 319). He also claimed that “the race of the victim is more important…than whether the defendant was a prime mover in the homicide”

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