Chaka M. Patterson(1)  

Race and the Death Penalty: the Tension Between Individualized Justice And Racially Neutral Standards, 2 Texas. Wesleyan Law Review 45, 80-95(Summer, 1995) (Cites Omitted) (Permission Requested)

The question presented in McCleskey v. Kemp(2) was whether a complex statistical study which indicated racial considerations entered the capital sentencing process made a prima facie case to hold a capital sentence unconstitutional under the Eighth or Fourteenth Amendment. The United States Supreme Court found the defendant's Eighth Amendment rights were not violated even where a study showed a sentencing disparity appeared to correlate with race; it did not necessarily follow there was a constitutionally significant risk of racial bias in Georgia's capital sentencing of a particular defendant. The Court held that McCleskey's Fourteenth Amendment rights were not violated because the Baldus study failed to establish that any of the decision makers in McCleskey's own case acted with specific discriminatory intent.(3) In McCleskey, the decision thus marked the end of an era in death penalty jurisprudence.

In rejecting McCleskey's claim of systemic race bias in capital punishment administration, the Court rejected the last major challenge to the death penalty in America. McCleskey appears to be the death knell for the anti- death penalty campaign. After McCleskey, all that remains is "small-scale tinkering with the details of [the death penalty's] administration and, of course, persistent claims in lower courts of specific errors in the multitude of cases where the sentence is imposed."

Warren McCleskey was a black man convicted of murdering a white police officer. The McCleskey jury, eleven whites and one black, found McCleskey guilty of murder. In the penalty phase, under Georgia law, a jury could not consider imposing the death sentence unless it found beyond a reasonable doubt the murder was accompanied by one of several statutorily specified aggravating circumstances. The McCleskey jury found such aggravating circumstances: the murder was committed during the course of an armed robbery and the victim was a peace officer engaged in the performance of his duties. McCleskey offered no evidence to mitigate this aggravating circumstance. The jury recommended the death penalty.(4) The Georgia Supreme Court affirmed the conviction and the United States Supreme Court denied certiorari.

McCleskey filed a writ of habeas corpus in federal district court, alleging the Georgia death penalty was imposed in a racially discriminatory manner. He based his claim on statistics gathered as part of the Baldus study.(5) The study indicated black defendants who killed whites have the greatest likelihood of receiving the death penalty, other factors notwithstanding. The district court questioned the validity of the study, and denied Eighth and Fourteenth Amendment relief. On appeal, the Eleventh Circuit Court of Appeals assumed the validity of the study, but affirmed the district court's decision because the statistics were insufficient to show when arbitrariness or discriminatory intent in the imposition of the penalty occurred. McCleskey appealed to the United States Supreme Court, which granted certiorari.

McCleskey made two arguments to the Court. First, McCleskey argued the Baldus study demonstrated discriminatory intent by Georgia in the imposition of its death penalty statute in violation of the Fourteenth Amendment's Equal Protection Clause. Second, McCleskey claimed his sentence was disproportionate to similarly situated defendants and the level of the jury's sentencing discretion allowed racial prejudices to improperly affect its decisions.

Rejecting McCleskey's arguments, Justice Powell's majority opinion rested on two primary factors: (1) a desire to encourage sentencing discretion; and (2) the existence of "statutory safeguards." Powell argued that for McCleskey to prevail under the Fourteenth Amendment, he must show there was discriminatory intent in Georgia's death penalty scheme and that such discriminatory intent affected his particular case. McCleskey offered no such connection. He relied solely on the Baldus study as evidence that murderers of whites, and black murderers, were the two groups most likely to receive a death sentence.(6)

To establish a prima facie case under a disparate impact analysis, a petitioner must show "the totality of the relevant facts give rise to an inference of discriminatory purpose." Once the petitioner establishes a prima facie case, the burden shifts to the prosecution, the state's primary actor in the criminal justice system, to rebut that case. Justice Blackmun's dissent opined, " T he State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties." Apparently, however, the state's general denial of discriminatory intent in sentencing was enough for the majority.

According to Justice Powell, McCleskey's evidence satisfied the disparate impact standard in contexts such as jury venire and Title VII (Civil Rights) cases, but not in a death penalty context. The McCleskey Court rejected disparate impact analysis in capital cases because, in Powell's view, such evidence threatened the discretion that is fundamental to the criminal justice system.(7)

"McCleskey challenges decisions at the heart of the State's criminal justice system. . . . 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." Thus, the majority held the Baldus study "is clearly insufficient to support an inference that any of the decision makers in McCleskey's case acted with discriminatory purpose."

The majority foreclosed the possibility of shifting the burden of explaining discriminatory impact to the state, claiming in order to encourage discretion in the criminal justice system, neither prosecutors nor juries can be called upon to explain their actions or decisions. McCleskey's use of the Baldus study could only prevail under the Batson v. Kentucky standards of shifting the burden to the state. Thus, by not allowing the burden to shift, the majority in effect established a standard of proof that was impossible to meet.(8)

Assuming the majority was correct in rendering it impossible for McCleskey to prevail under the Fourteenth Amendment, what about his Eighth Amendment claim? McCleskey alleged the discretion given a jury allowed room for racial prejudice, and that prejudice especially affected black defendants accused of killing whites.(9) To support his claim, McCleskey relied solely on the Baldus study.

In its analysis of McCleskey's Eighth Amendment claim, the majority began by reaffirming the Court's decision in Gregg. The majority argued the infirmities of arbitrariness or discrimination in the imposition of the death penalty found in Furman were solved in Gregg.(10) Given Gregg-type safeguards, the majority argued since McCleskey's sentence was imposed under Georgia's sentencing procedures that focus discretion "'on the particularized nature of the crime and the particularized characteristics of the individual defendant,' the Court lawfully may presume that McCleskey's death sentence was not 'wantonly and freakishly' imposed."

Justice Brennan's dissent argued that where evidence indicated the odds of being sentenced to death were significantly greater than average if a defendant was black and the victim white, "the Court cannot rely on the statutory safeguards in discounting McCleskey's evidence, for it is the very effectiveness of those safeguards that such evidence calls into question. . . . '[W]e must critique [the safeguards'] performance in terms of results."'

After finding McCleskey's sentence was not wantonly or freakishly imposed, the majority stated, "[t]here is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. . . . The question 'is at what point that risk becomes constitutionally unacceptable."' While the majority recognized jury actions were often inexplicable, the Court noted,

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 "buil[d] discretion, equity, and flexibility into a legal system."(11)

However, the Court historically asserted that because death is different, a capital sentencing system requires a heightened degree of reliability. Nonetheless, in McCleskey, the majority retreated from this insistence on optimum reliability by acknowledging that no system is perfect and any mode for determining guilt or punishment has the weakness and potential for misuse.(12)

[T]here 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.' . . . In light of the safeguards designed to minimize racial bias in the process, the fundamental value of a 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.

Justice Brennan, in his McCleskey dissent, argued death was different because it was irrevocable--it defied the belief that the justice system rehabilitates, and denied the defendant the right to have rights. As such, the Court demanded a "uniquely high degree of rationality in imposing the death penalty. A capital sentencing system in which race more likely than not plays a role does not meet this standard." Thus, for Brennan, an imperfect death penalty scheme did not comport with this uniquely high standard of rationality.

In addition to this demand for heightened rationality, Justice Brennan also argued the Baldus study must be examined in relation to history.(13) Brennan reasoned McCleskey's claim was consistent with an understanding of history and human experience relative to Georgia's race-conscious criminal justice system legacy, as well as the Court's own historical recognition of the persistent danger that racial attitudes affect criminal proceedings. In Justice Brennan's view, this history was enough to suggest McCleskey's claim was not just a "fanciful product of mere statistical artifice." Brennan argued the Court had been, and should continue to be, concerned with the risk of discrimination in the imposition of the death penalty, not whether a defendant can prove actual discrimination. Brennan opined, " D efendants 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." Brennan repeatedly argued when race and death are linked, as the Baldus study demonstrated, the Court should demand the highest scrutiny of the process of imposing the death penalty. Justice Brennan's dissent is similar in tenor to the argument he advanced in Harris.

[I]f the Court is going to fulfill its constitutional responsibilities, then it cannot sanction continued executions on the unexamined assumption that the death penalty is being administered in a rational, nonarbitrary, and noncapricious manner. Simply to assume that the procedural protections mandated by this Court's prior decisions eliminate the irrationality underlying application of the death penalty is to ignore the holding of Furman and whatever constitutional difficulties may be inherent in each State's death penalty system.

Consequently, if there is a risk that the death penalty is being imposed discriminatorily, no matter how remote, the penalty should be considered cruel and unusual punishment. As Justice Brennan stated, "[T]hat a decision to impose the death penalty could be influenced by race is thus a particularly repugnant prospect, and evidence that race may play even a modest role in levying a death sentence should be enough to characterize that sentence as 'cruel and unusual."'

At the heart of the McCleskey decision was the Court's desire to protect sentencing discretion and individualized justice. Conversely, at the heart of Justice Brennan's opinion was his desire to promote equality and consistency. The majority, however, erred in McCleskey in two ways. First, the majority erred when it stated the risk of discrimination must be constitutionally significant before it provides grounds to overturn a death sentence. Second, the majority's reliance on Gregg-type safeguards was flawed because those standards were eviscerated to the point where they were ineffective--as the Baldus study demonstrated. The Court's previous death penalty decisions supported this proposition.

For example, the Furman Court stated 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." Consider also Justice O'Connor's opinion that a death sentence must be struck down when the circumstances under which it is imposed creates "an unacceptable risk that 'the death penalty may have been meted out arbitrarily or capriciously,' or through 'whim or mistake."'

In Godfrey, the Court struck down the petitioner's sentence because the vagueness of the statutory definition of heinous crimes created a risk that prejudice or other impermissible influences might have affected the sentencing decision. As Justice Brennan noted, "[I]n vacating the sentence, we did not ask whether it was likely that Godfrey's own sentence reflected the operation of irrational considerations. Nor did we demand a demonstration that such considerations had actually entered into other sentencing decisions involving heinous crimes."

Prior to McCleskey, the Court used the risk of discrimination as the established standard for prevailing under the Eighth Amendment. Incredibly, after reiterating the risk standard in McCleskey, the majority claimed, despite the Baldus study, that McCleskey failed to meet this standard. Nowhere in previous cases was there such a high threshold for constitutionally significant levels of risk. Moreover, if McCleskey failed to meet this standard, who can succeed? The McCleskey majority apparently ruled as it did to protect the death penalty from claims based on statistical evidence. As Justice Brennan observed in McCleskey,

[T]he Court's fear of the expansive ramifications of a holding for McCleskey in this case is unfounded because it fails to recognize the uniquely sophisticated nature of the Baldus study. McCleskey presents evidence that is far and away the most refined data ever assembled on any system of punishment, data not readily replicated through casual effort. Moreover, that evidence depicts not merely arguable tendencies, but striking correlations, all the more powerful because nonracial explanations have been eliminated. Acceptance of petitioner's evidence would therefore establish a remarkably stringent standard of statistical evidence unlikely to be satisfied with any frequency.

The Court's projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated. The Court can indulge in such speculation only by ignoring its own jurisprudence demanding the highest scrutiny on issues of death and race. As a result, it fails to do justice to a claim in which both those elements are intertwined--an occasion calling for the most sensitive inquiry a court can conduct. Despite its acceptance of the validity of Warren McCleskey's evidence, the Court is willing to let his death sentence stand because it fears that we cannot successfully define a different standard for lesser punishments. This fear is baseless.

It can be argued that it is generally dangerous, indeed in most cases undesirable, to apply aggregate statistics to specific cases. However, the majority ignored the death is different argument previously recognized by the Court. Death is different because it is the ultimate human sanction and is irrevocable. The Constitution's evolving standard of decency demands that a punishment comport with human dignity, as defined by Justice Brennan in Furman. In order for a penalty to comport with human dignity, it must be imposed under the most reliable system possible. Consequently, if a petitioner demonstrates, through the use of statistics, that there is a risk the system under which his death sentence was imposed discriminates against black defendants with white victims, and his case fits that pattern, his death sentence should be overturned.

Further, the McCleskey majority's reliance on Gregg-type safeguards failed to acknowledge that the Court had retreated from vigorously enforcing those safeguards. As previously noted, in Lockett, Godfrey, Harris, and Zant, the Court changed the very nature and function of those standards, yet persisted in referring to those standards as if they were the same as when first constitutionalized by the Gregg Court. For example, contrary to the McCleskey majority's assumptions, jury discretion in capital cases is not guided. In Georgia, other than establishing death eligibility, the finding of aggravating circumstances "does not play any role in guiding the sentencing body in the exercise of its discretion."

Justice Stevens said, commenting on the Zant pyramid method of analyzing Georgia's death penalty scheme, "[T]here is an absolute discretion in the factfinder to place any given case below the [third plane] and not impose death." Viewed conversely, this must mean after meeting statutory requirements a jury has absolute discretion to place a case at the top level and impose the death penalty. Justice Stevens said, " T he jury itself draws that final line, though it is guided in that it can only lift a defendant onto the final level if it is justified by the totality of the evidence." Thus the defendant climbs to the fourth level by a process of controlled absolute discretion.

This means the jury's next decision, the actual sentence, is not reviewed. Justice Rehnquist opined in Zant that the chance improper instructions or guidance to the jury in the death eligibility stage alters the outcome at the sentencing stage is "all but nonexistent" and largely beyond review. If the jury sets the final level, then it exercises absolute discretion without control or guidance. This conclusion is contrary to the Gregg holding--that the standards are to provide a rational basis for distinguishing those who receive the death penalty from those who do not, rather than merely determining death eligibility.

The whole point was that the actual determination that a defendant should live or die had to be guided by clear and objective standards, not just the threshold decision of death eligibility. Furman overturned statutes that gave the jury "practically untrammeled discretion to let an accused live or insist that he die." The only difference between this pyramid scheme and the statutes we overturned then is that the unbridled discretion once present in all murder cases is not limited to those with one aggravating circumstance.

Hence, it is fair to say procedures now in place make the jury less arbitrary than before Furman because those who are death eligible are not capriciously chosen. However, the standards do not, as the McCleskey majority would have us believe, govern choices within this sub-class as to who shall actually die. Charles Black says, "[T]he practical position remains unchanged; the Georgia jury, without real restraint and without real standards, chooses life or death. . . . The new statutes do not effectively restrict the discretion of juries by any real standards." Under Furman, if there were no standards that actually worked to prevent discriminatory imposition of the death penalty, the death penalty should be abolished because unfettered jury discretion gives rise to the possibility of arbitrary or discriminatory imposition.

As stated, the McCleskey decision rejects this logic in favor of a flawed system simply because no system is perfect. The McCleskey majority correctly recognized no system is perfect. In non-capital cases, it is clear that while discrimination may exist, the Court has done the very best it can to minimize discrimination. The cost to society of eliminating the criminal justice system is much greater than the cost of having a system in which discrimination may occur. The McCleskey majority made this same argument with respect to the death penalty. This argument failed, however, because given the erosion of the standards, it is difficult to imagine how the majority could claim they have done the very best they could to prevent discrimination from entering into death penalty decisions. Rather than take measures that might mitigate discrimination, the McCleskey majority merely dismissed existing discrimination as a necessary cost of the death penalty.(14)

Under McCleskey, juries have unfettered discretion. Consequently, a jury can sentence blacks to death solely because the defendant is black and the victim white. This is the very flaw in capital punishment application condemned in Furman. What was unconstitutional under Furman was characterized in McCleskey as acceptable, if not desirable, discretion. The discretion the Court accepted as a hallmark of individualized justice undermined the purpose for which discretion existed. Thus, in an environment where racial discrimination was historically prevalent, what was unexplained could very well be invidious, especially in light of the Baldus study. By attempting to strike a balance in capital sentencing between racially neutral standards and individualized justice, the Court effectively validated discrimination by emphasizing the latter at the expense of equality.

In the absence of a workable balance between equality and individualization, the death penalty, for the reasons stated in Furman, should once again be abolished.(15) Charles Black, quoting the law of Moses, writes,

The Law of Moses is full of the death penalty. But as time went on the court in ancient Jerusalem, without of course touching one syllable of this Law, devised procedural safeguards so refined, so difficult of satisfying, that the penalty of death could only very rarely be exacted.

. . . .

I think the rabbis, in surrounding the punishment of death with nearly unsatisfiable procedural safeguards, were groping (or perhaps consciously moving) toward a truth . . . I think they were saying at last, "Though the justice of God may indeed ordain that some should die, the justice of man is altogether and always insufficient for saying who these may be."

CONCLUSION

The State of Georgia executed Warren McCleskey on September 25, 1991. As Justice Brennan poignantly stated in his McCleskey dissent,

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. 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. 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.

This is the story of Warren McCleskey and those similarly situated told in the context of race and the death penalty. By holding Georgia acted constitutionally when sentencing McCleskey to die, the Court firmly and finally tipped the scales in favor of individualized justice and sentencing discretion over equality and racial neutrality. In so doing, the Court brought its death penalty jurisprudence full circle. In Furman, the Court invalidated the death penalty because unguided jury discretion created individualized justice at an unacceptable price--equality and racial neutrality. The Gregg Court rejected mandatory death sentences in favor of statutes providing for guided discretion. The Gregg Court noted mandatory death sentences produced equality, but at the expense of individualization, whereas, according to the Court, guided discretion struck a balance between those two extremes. After Gregg, however, the Court compromised those standards. By the time McCleskey presented the Baldus study, it was clear that guided discretion did not work. Nonetheless, rather than admit guided discretion was unworkable, the Court adopted the imperfect system argument. In effect, the Court decided discretion and individualized justice were so important to the system that they would take precedence over even equality and racial neutrality.

This author does not criticize the Court for seeking to resolve the tension between individualized justice and equality. This author criticizes the Court for choosing to resolve the tension in a way that ignored the significant risk of discrimination the State of Georgia and other jurisdictions created when they executed defendants like Warren McCleskey without carefully weighing aggravating and mitigating circumstances and, moreover, because the Court failed to impose every precaution it could to ensure the defendant was not executed because he was black and his victim white--and that is aggravating enough.

1. A.B., 1990 Amherst College, J.D., 1994 Harvard Law School. Mr. Patterson is currently a law clerk for the Honorable Solomon Oliver, Jr., Federal District Judge for the United States District Court for the Northern District of Ohio. He is a member of the State Bar of Illinois and California and will join the Chicago law firm of Jenner & Block as an associate in September, 1995. Mr. Patterson would like to thank his parents, Austin Sarat, and especially R.M.J.

2. 481 U.S. 279 (1987)

3. In Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968), vacated and remanded, 398 U.S. 262 (1970), a petitioner submitted data to show discrimination against black offenders in rape cases, especially those with white victims. Id. at 141-44. The court refused to grant relief based on the statistics presented. The Maxwell court rejected this social scientific data as faulty because it did not demonstrate that petitioner's sentence was the product of specific acts of discrimination or discrimination by the jury that imposed it. Id. at 147. The McCleskey Court used this reasoning a decade later in rejecting McCleskey's Fourteenth Amendment claim. McCleskey, 481 U.S. at 292-93.

4. In Gregg v. Georgia, 428 U.S. 153 (1976), the Court approved Georgia's capital punishment statute. Id. at 207. The statute provides for the following: a pre-sentence trial in front of the jury that finds the defendant guilty; automatic life sentence, unless the prosecutor seeks the death penalty at the sentencing phase; in cases where the prosecutor does seek the death penalty, the jury must find beyond a reasonable doubt the existence of one of several aggravating circumstances, and; if the jury sentences the defendant to death, after finding one of the aggravating circumstances existed, the sentence is automatically appealed to the Georgia State Supreme Court. Id. at 163-66.

5. The study, conducted by Professors David C. Baldus, Charles Pulaski, and George Woodworth, will hereinafter be referred to as the "Baldus" study. Id. at 286. The study is based on more than 2,000 murder cases that occurred in Georgia from 1973-78 and involves data relating to the victim's race and the defendant's race. Id. The authors controlled 230 variables which might have offered a nonracial explanation for the disparities found. Id. at 287. Baldus and his colleagues published their findings in several forms. See David C. Baldus et al., Monitoring and Evaluating Temporary Death Sentencing Systems: Lessons From Georgia, 18 U.C. DAVIS L. REV. 1375 (1985); David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. CRIM. L. & CRIMINOLOGY 661 (1983).

The results of the study indicated defendants charged with killing whites received the death penalty in 11% of the cases while defendants charged with killing blacks received the death penalty in 1% of the cases. McCleskey, 481 U.S. at 286. The death penalty was assessed in 22% of the cases with a black defendant and a white victim; in 8% of the cases with a white defendant and a white victim; in 1% of the cases with a black defendant and a black victim; and in 3% of the cases with a white defendant and a black victim.

The authors found that defendants charged with killing whites were 4.3 times more likely to receive the death penalty as defendants charged with killing blacks. Black defendants were 1.1 times more likely to receive the death penalty than other defendants. Id. at 286-87.

6. See Baldus study, supra note 219. There are several studies that corroborate this claim. For example, Hans Zeisel analyzing Florida convictions between 1972 and 1977 found of 78 black defendants with white victims, 37 received the death penalty; of 190 white defendants with white victims, 46 received the death penalty; of 102 black defendants with black victims, 1 received the death penalty; of 8 white defendants with black victims, none received the death penalty. Moreover, 31% of convicted defendants with white victims reached death row, while only 1% of those with black victims did. Zeisel, supra note 114, at 459.

William Bowers studied convictions in Florida, Texas, and Ohio between 1974 and 1977. In Ohio, for instance, black defendants with white victims received the death penalty in 44 of 173 cases; white defendants with white victims received the death penalty in 37 of the 803 cases; black defendants with black victims received the death penalty in 20 of the 1170 cases; and white defendants with black victims received the death penalty in none of the 47 cases. They found the figures strongly suggested judgments of the crime's severity and a criminal's blameworthiness are greatly influenced by deep-seated racial prejudices. It appears juries regard the killing of a white by a black as a more serious crime than the killing of a black by a white, and blacks killing whites deserve more severe punishments than whites killing blacks. W. BOWERS ET AL., LEGAL HOMICIDE 222-66 (1984). Clearly, the statistics demonstrate that black defendants with white victims are substantially more likely to receive the death penalty than any other defendant-victim racial combination.

7. According to Justice Powell, the Court has accepted statistics in jury venire and Title VII cases to demonstrate disparate impact which raises the possibility of discriminatory intent. However, Powell argued that McCleskey's case differs from the above contexts in the following ways: each death sentence determination is made by a properly constituted jury; juries are supposed to consider the characteristics and background of defendants along with the nature of the crime; there are fewer entities and variables than in Title VII cases and jury venire composition; and juries and prosecutors cannot be called to explain their behavior the way a jury foreman or employer could be. McCleskey, 481 U.S. at 293-96.

8. The Court imposed an impossible task on McCleskey in setting forth his burden of proving discriminatory intent on the part of the actors in his case. This would involve proving that jury members were prejudiced and that they discriminated against him. The Court, however, claimed the jury could not be called to testify as to their motives. Thus, the very task they set for McCleskey was forbidden by public policy and thus impossible to complete.

9. Indeed, McCleskey's claim that where there was discretion, there was also the potential for discrimination, was supported by several United States Supreme Court decisions. In Turner v. Murray, 476 U.S. 28 (1986), the Court overturned a death sentence because the trial judge did not allow the defendant to question prospective jurors concerning racial bias. Speaking through Justice Stevens, the Court said, "[b]ecause of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected." Id. at 35. Furthermore, in the same case, the Court noted, "[m]ore subtle, less consciously held racial attitudes could also influence a juror's decision in this case. Fear of blacks, which could easily be stirred up by the violent facts of petitioner's crime, might incline a juror to favor the death penalty." Id. at 35. In Rosales-Lopez v. United States, 451 U.S. 182 (1981), the Court wrote that "[i]t remains an unfortunate fact in our society that violent crimes perpetrated against members of other racial or ethnic groups often raise a [reasonable possibility that racial prejudice would influence the jury]." Id. at 192.

10. To support the claim that the remedies in Gregg solved the infirmities found in Furman, the Court reviewed the safeguards: a bifurcated trial system; jury discretion is limited by clear and objective standards so as to produce non-discriminatory application of the death penalty; automatic appeal of all death sentences to the Georgia State Supreme Court; threshold under which a defendant cannot receive the death penalty; the state cannot disallow mitigating factors; and a societal consensus that the death penalty is indeed constitutional for murder.

11. Id. at 311 (quoting H. KALVEN & H. ZEISEL, THE AMERICAN JURY 498 (1966)) (alteration in original). Professor Carter describes a phenomenon known as racialism, where people are predisposed to view things from certain perspectives, like racial stereotypes. Carter, supra note 112, at 430. This is distinct from racism, where one's prejudice is converted to actions. Racialism becomes racism based on what Carter calls personal choice. For example, if a juror thinks all blacks are criminals, and is especially offended by blacks who prey on whites, the juror may use absolute (strong) discretion allowed by Stephens to recommend a death sentence for a black defendant with a white victim. This juror's racialism became racism when he recommended the death penalty solely because the defendant was black and the victim was white. Carter says, "[t]he jury brings with it a range of preconceptions, and if racialist [stereotypes] are widespread in society, then racialist preconceptions would be among the factors shaping the 'discretion, equity, and flexibility' the McCleskey Court extolled." Carter, supra note 112, at 443.

Justice White acknowledged this phenomenon. "[A] juror who believes that blacks are violence prone or morally inferior might well be influenced by that belief in deciding whether [a defendant's] crime involved . . . aggravating factors . . . . More subtle, less consciously held racial attitudes could also influence a juror's decision." Turner v. Murray, 476 U.S. 28, 35 (1986).

12. McCleskey, 481 U.S. at 312-13. In his opinion in Louisiana ex rel Francis v. Resweber, 329 U.S. 459 (1947) (holding Louisiana could presumably execute a prisoner twice because the electric chair failed to work properly the first time), Justice Reed wrote "[w]hen an accident, with no suggestion of malevolence, prevents the consummation of a sentence, the state's subsequent course in the administration of its criminal law is not affected on that account by any requirement of due process under the Fourteenth Amendment." Id. at 463. Fundamentally, Reed set up a negligence test. Since the electric chair failed as a result of an "accident," and not cruel motive on the part of Louisiana, the Due Process Clause of the Fourteenth Amendment was not violated. This same logic was used in McCleskey by Justice Powell who argued that accidents are a cost of having the death penalty. McCleskey, 481 U.S. at 312-13. Thus, if by heightened need for reliability, the Court meant the greatest possible precaution against discrimination, the Court ignored this standard where death was concerned.

Significantly, Justice Powell abandoned this position several years later, too late to save Warren McCleskey from the electric chair. See David Von Drehle, Powell Is Said to Favor Ending Executions, WASH. POST, June 10, 1994, at A1.

13. The history of racism and American law is manifest in the following joke about the law of homicide in Kentucky:

If a black man kill a white man, that be first degree murder; if a white man kill a white man, that be second degree murder; if a black man kill a black man, that be manslaughter; but if a white man kill a black man, that be excusable homicide--unless a woman was involved, in which case the black man died of apoplexy.

Hans Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 HARV. L. REV. 456, 467 (1981).

Another example can be found in the use of capital punishment for rape convictions, which was found to be unconstitutional in Coker v. Georgia, 433 U.S. 584 (1977). Of the 455 people executed for rape, in the United States, 405 were black and all 455 had white victims. Hugo Bedau said,

White men were rarely indicted and sentenced to death for rape of a black woman, whereas a black man convicted of raping a white woman was all but assured of a death sentence. . . . This is the most dramatic type of case in which we can see how the racist heritage of our society made the death penalty fall with disproportionate and unfair frequency on nonwhite offenders.

CAPITAL PUNISHMENT IN THE UNITED STATES, supra note 23, at 188.

14. It can also be argued that the death penalty, unlike the criminal justice system, is not necessary. Therefore, the cost to society of having a death penalty with its potential for discrimination is greater than the cost to society of not having the death penalty at all. The cost can be measured in terms of retribution and deterrence; the death penalty has not been proven to be of any more retributory or deterrent value than life imprisonment. Thus, society has more to lose by allowing a state to impose the death penalty (under a system that gives rise to discriminatory influences), than by not having the penalty at all.

15. It is important to note that this author is not suggesting the Court do anything further. In McCleskey, the Court faced virtually the same situation as in Furman. Thus, the Court should have rendered the same decision in McCleskey as in Furman. Moreover, the Court in Furman rendered its decision in the absence of any empirical evidence. In McCleskey, the Justices were presented with the most comprehensive study ever conducted on the death penalty--a study which largely confirmed the Court's findings in Furman. Therefore, it was not unreasonable or illogical to have expected the Court to have ruled in McCleskey, as it did in Furman, that the death penalty was unconstitutional.