ERASED
McCleskey v. Kemp
481 U.S. 279 (1987) · 1987
Statistical proof that Georgia's death penalty was racially administered was deemed insufficient to be constitutional injury.
“Apparent disparities in sentencing are an inevitable part of our criminal justice system.”
The Ruling
5–4, opinion by Justice Powell. Warren McCleskey, a Black man sentenced to death for the killing of a white police officer, introduced the Baldus study: a regression analysis of more than 2,000 Georgia murder cases showing that defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than those charged with killing Black victims, after controlling for 230 non-racial variables. The Court held that the study, even if accepted as accurate, did not establish either an Equal Protection or Eighth Amendment violation absent proof of intentional discrimination in McCleskey's specific case.
The Personhood Argument Not Made
McCleskey is the doctrinal closing-off of pattern evidence in carceral personhood claims. It tells the racially-targeted defendant that the system as a whole may be demonstrably racist and his sentence may statistically be a product of that racism, but unless he can identify the individual prosecutor or juror whose racism produced his outcome, no constitutional injury attaches. The personhood denial is double: first the system extracts the disparate sentence, then the doctrine declares that the disparity itself is not cognizable. This is the architecture by which 'race-neutral' procedure absorbs and laundates racially-distributed harm.
The Execution Gap Created
Since McCleskey, no federal capital case has been overturned on the basis of statistical evidence of racial disparity, despite decades of replicating studies showing the same race-of-victim effect across jurisdictions. The Equal Justice Initiative reports that of more than 1,500 executions carried out in the U.S. since 1976, the race-of-victim disparity Baldus identified persists essentially unchanged. Justice Powell, after retirement, told his biographer he would change his vote in McCleskey if he could.
Primary sources & research
Related cases
Part of The Personhood Prism, the companion to The Execution Gap by Thomas William Hornig. See all personhood cases →