Few cases involving the intersection of race, criminal law, and procedure have had the reach and impact of McCleskey v. Kemp. The Supreme Court’s decision in McCleskey protected criminal justice laws and policies from being challenged on the basis of racially disparate impact. Ultimately, the McCleskey decision set the stage for more than 20 years of dramatically increasing racial disparities within the criminal justice system. Simply put, McCleskey now acts as a substantial barrier to the elimination of racial inequalities in the criminal justice system, perpetuating an unfair racial imbalance that has come to define criminal justice in America.
The case began with Warren McCleskey, an African-American man who was sentenced to death in 1978 for killing a white police officer during the robbery of a Georgia furniture store. McCleskey appealed his conviction and sentence, relying on the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of Equal Protection to argue that the death penalty in Georgia was administered in a racially discriminatory — and therefore unconstitutional–manner.
Jack Boger, then director of LDF’s Capital Punishment Project, argued the case before the Supreme Court on Mr. McCleskey’s behalf. Joining him on the briefs were Julius Chambers, James Nabrit III, Anthony G. Amsterdam, Deval Patrick, Robert Stroup, Vivian Berger, and Timothy Ford. In support of McCleskey’s argument, LDF presented the United States Supreme Court with strong statistical evidence showing that race played a pivotal role in the Georgia capital punishment system. LDF introduced a landmark study by Professor David Baldus, who examined over 2,000 Georgia murder cases. Baldus concluded that in capital cases, the race of the defendant and victim determined who was sentenced to death. Specifically, Professor Baldus found that that African-Americans were more likely to receive a death sentence than any other defendants, and that African-American defendants who killed white victims were the most likely to be sentenced to death. His findings indicated that racial bias permeated the Georgia capital punishment system.
Although the evidence presented by LDF gave the Court the opportunity to acknowledge and renounce the arbitrary influence of race on the administration of the death penalty, the Court found no constitutional error in a system where African-Americans and whites were treated unequally. In a 5-4 decision authored by Justice Lewis F. Powell, Jr., the Court ruled against McCleskey and found that unless he could submit evidence showing that a specific person in his case acted with a racially discriminatory purpose, McCleskey’s death sentence — and the stark racial disparities in Georgia’s capital punishment system — would stand. Justice Powell later admitted to his biographer that McCleskey was the one case in which, if given the chance, he would change his vote.
The McCleskey decision reached far beyond the confines of Georgia’s capital punishment system and Warren McCleskey’s appeal. It created a crippling burden of proof for anyone seeking to stamp out the corrosive influence of race in the criminal justice system. Numerous studies conducted in the 20 years that followed McCleskey have shown that race continues to play a critical role in virtually all aspects of the criminal justice process. African-Americans are stopped, ticketed, searched and/or arrested by the police at far higher rates than whites. Relative to their rates of arrest and participation in crime, African-Americans are represented within U.S. jails and prisons at unreasonably high rates. Indeed, within a decade of McCleskey, the number of minority citizens in prison exceeded the total number of persons incarcerated in the U.S. in the year preceding the decision.
Today, one in three African-American males will enter state or federal prison at some point in his lifetime. While African-Americans make up only 12 percent of the U.S. population, they amount to 44 percent of sentenced inmates—the largest group behind bars. Legal mobilizations such as the “War on Drugs” increased racial inequalities by enforcing harsher sentences for drugs whose impacts are disproportionately felt in communities of color. All the while, race continues to influence decisions of who lives and who dies at the hands of the criminal justice system.
McCleskey’s legacy will certainly be felt for generations to come. As Anthony Amsterdam once remarked, “McCleskey is the Dred Scott decision of our time.” For this reason, LDF continues working to eliminate the taint of race from the fair and just arbitration of the criminal law in the nation’s courts and legislatures, and to enhance public awareness about the ongoing systemic unfairness.