McCleskey v. Kemp was a historic case in Georgia that showed how racial discrimination perpetuates unfair sentences for black defendants. 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. 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.
McCleskey v. Kemp began in 1978 after Warren McCleskey, a Black man, 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 Black defendants were more likely to receive a death sentence than any other defendants and that Black 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 Black and white Americans a 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.
Black people 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, Black individuals 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 Black men will enter state or federal prison at some point in his lifetime. While Black people 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.
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 criminal law in the nation’s courts and legislatures and to enhance public awareness about the ongoing systemic unfairness.
For decades, LDF has been a pioneering voice in the fight to abolish capital punishment and eliminate racial discrimination from the courts. Racism is inextricable from capital punishment. The death penalty has its roots in slavery, lynchings, white vigilantism, and the racial inequities in sentencing persist to this day. Whether administered by federal or state government, the death penalty is infected with fundamental flaws, including persistent racial discrimination, and human error. There is no credible evidence that the death penalty deters crime. Since 1973, at least 189 people wrongly convicted and sentenced to death have been exonerated. 100 of the death row exonerees are Black.
LDF releases a quarterly report tracking death row populations by state, as well as other statistics pertaining to capital punishment in the United States. Read the reports here.