McCleskey v. Kemp: (Un)Equal Protection Before the Law

LAW ON THE BOOKS

It’s 1987, and the U.S. Supreme Court is faced with two difficult questions: what to do with the racial animus that persists beneath the surface of our criminal justice system and even of our conscious minds; and how far should the Court go to reform the discriminating institution of capital punishment when the law on the books just isn’t enough? In McCleskey v. Kemp, the Court answered: no further. Attempting to reverse his capital sentence, Warren McCleskey, a black man convicted of murdering a white police officer during an armed robbery, introduced statistical evidence on the staggering racial disparities in Georgia’s capital sentencing to invalidate the trial court’s ruling. Despite the Justices acknowledging the study’s validity, Warren McCleskey’s sentence was ultimately held on the grounds that race wasn’t proven to be a factor in the defendant’s particular case. And even if it was, such discrimination had to be purposeful, not simply accidental—regardless of how consequential its effects may be. Justice Powell’s opinion admits of the Court’s apprehension about transgressing the bounds of its delegated authority. Yet I argue that, in reality, the Court’s decision did just that: what was once a medium for minorities to amplify their voices against majoritarianism and government oppression has silenced the same people it was designed to protect.

McCleskey v. Kemp followed a series of challenges to the constitutionality of the death penalty premised on its disparate impact across different races. McGautha v. California (1971) was the first case to contest the unequal application of the death penalty as a potential violation of defendants’ constitutional rights. It wasn’t until a year later in Furman v. Georgia that the Court declared the death penalty a violation of the Eighth Amendment, citing the “arbitrary and capricious” ways it was being imposed by juries across various cases and throughout the country made it “cruel and unusual” (Amsterdam, 41-43). And so, the Court concluded that the mere risk of discrimination in capital sentencing rendered the death penalty unconstitutional. In the immediate aftermath of Furman, many states enacted new death penalty statues designed to mitigate the problem of arbitrariness, slowly terminating the de facto moratorium of capital punishment. Finally, in Gregg v. Georgia (1976), the Court upheld “guided discretion” statutes as constitutional means of narrowing discretionary effects, declaring that there was no longer any significant risk that the death penalty would be discriminatorily applied. However, McCleskey’s argument essentially highlighted the insufficiency of these statutory safeguards. According to Dr. David Baldus and his colleagues, black defendants convicted of killing white victims were at a disproportionately high risk of receiving the death penalty in Georgia simply due to the victim’s and the defendant’s race—findings which directly questioned Gregg’s ruling (McCleskey 16).

On whether these racial disparities rendered Georgia’s death penalty statute unconstitutional, the Court—in stark contrast to Furman’s ruling—answered ‘No.’ First, the Justices reasoned that for a statute to have a “discriminatory purpose” it must have been designed with the intent to discriminate (Personnel Administrator of Massachusetts v. Feeney). Any defendant making this claim has to prove that the adverse effects of a statute on minority groups constituted the legislature’s underlying motive for enacting and/or maintaining the statute (McCleskey 20, 21). Second, the Court rejected McCleskey’s suggestion that an overall pattern of discrimination in Georgia’s capital sentencing proves that racial prejudice percolated into his own sentencing (McCleskey 18, 25). The defendant had the burden of proof to show “exceptionally clear” evidence that the decision-makers in his own case acted with discriminatory purpose. Otherwise, the Court would be drawing conclusions out of mere speculation (McCleskey 20). Therefore, the Baldus study does not prove that the lower courts violated McCleskey’s rights. Finally, the Court argued that neither the Eighth nor the Fourteenth Amendment protect against unconscious dispositions such as racial biases, only “purposeful discrimination” (Washington v. Davis). All in all, the fact that discrimination is so pervasive in the American legal system speaks to the inescapable imperfection of a human institution. Yet, it’s an imperfection that does not behoove razing the entire system (McCleskey 28, 29). In a bizarre twist of constitutional reasoning, the Court effectively declared the risk of racial discrimination to be insufficient to render capital punishment unconstitutional.

With McCleskey v. Kemp, the SCOTUS blocked any and all seeking racial justice and equality in the penal system (and arguably beyond) if the discrimination in question was unconscious, systemic, or couldn’t be captured through clear and direct evidence—which, unfortunately, is the most pervasive and invidious form of racism in this country. The Court, nevertheless, was adamant that state and federal decision-makers can and should be the ones to curb the adverse effects of death penalty statutes (Alexander, 130).

In a fiery dissenting opinion, Justices Brennan, Blackmun, Stevens, and Marshall supported McCleskey’s argument on the Baldus study revealing—if not reaffirming—that capital punishment is indisputably unconstitutional. That the Court and the legislature have been relentless in their efforts to insulate the justice system from human folly and from a history of racial injustice does not render the prejudice that persists an inevitability, or simply an inconvenience; it is a condemnation of the death penalty in and of itself (McCleskey 31, 33). No amount of structural soundness nor systemic sophistication will sanitize the death penalty’s blatant violation of people’s constitutional rights. McCleskey did not mistake ‘inevitability’ for ‘arbitrariness’—as the majority suggested—rather, McCleskey successfully demonstrated the inevitability of arbitrariness in judicial actors’ decision on whether to take or spare a life. If racial discrimination remains, then it signals that such decisions are not for us to make.

LAW IN ACTION

McCleskey v. Kemp instantiated the Court’s increasing constriction on equal protection claims by adhering to the rigid standard of “purposeful discrimination”—i.e. a narrower, more blatant (and more infrequent) form of racism (Barnes et al., 1296-7). Any defendant claiming that their sentence or conviction was racially motivated must prove (i) that disparate racial impact exists within their area of law, (ii) that the discrimination was intentional and deliberately acted upon, and (iii) that such patterns of discrimination directly altered the outcome of their case (Barnes, 1300-1). As such, any statistical evidence presented in trial must go beyond simply demonstrating “a significant risk of racial bias”.

Fortunately, state legislatures have experimented on measures to remedy the insurmountable burden of proof imposed on minority defendants. Though no claim has been sustained, evidence suggests that such laws have encouraged a leveling in the treatment of black-victim and white-victim defendants in, for example, urban centers in Kentucky since 1998, with more black-victim cases resulting in death sentences (Baldus, 146-7). Other states, like New Jersey, have heeded Justice Brennan’s warning on the inextricable and humanly intolerable faults of capital punishment, and have abolished the death penalty altogether (Baldus, 147-8).

Nevertheless, the most ambitious push for racial equity in the field of capital punishment came in the form of the Racial Justice Act in 1994 as a part of President Clinton’s Crime Bill. The Racial Justice Act had the single purpose of recommitting the justice system to review and accept statistical data in death penalty cases as compelling evidence of a constitutional violation. The legislation responded to the Court’s denying that the Baldus study could propel an equal protection claim. Essentially, the Act aimed to prevent racial prejudice from seeping into court decisions as much as possible by broadening the kinds of arguments defendants could present in court. Racism is a constitutional malaise, regardless of the form it takes (Chemerinsky, 529-530). However, due to the Republicans threatening to filibuster the Crime Bill were the provision to remain, the Racial Justice Act was subsequently removed. Numerous states, nonetheless, have adopted similar versions of the Racial Justice Act in their own battle against capital sentencing discrimination.

McCleskey v. Kemp was a failure in more ways than one. Not only did it cripple the progressive push for civil rights across all spheres of the law, it also undermined the majority’s reasoning in the first place. To understand the inefficiency of the Court’s ruling in McCleskey, we must ask ourselves what purpose this judicial decision served in the eyes of the majority. For starters, the Rehnquist Court was hesitant to accept the power of statistical evidence to contextualize and reinterpret social realities in a way that granted the sciences undo authority to galvanize structural reform. Simultaneously, the direct cause of the social ills captured in the data is made nebulous and overly complex—something that the justice system could not fathom (Barnes et al, 1296). Because the data could reveal constitutional violations wherever it directed its scrutinizing eye, there was “a fear of too much justice”: painting these defects as constitutionally unacceptable would necessarily incite a legislative and judicial revolution to do away with any trace of unsavory inequality that the statistics could detect. This explains why in McCleskey’s opinion Justice Powell recommended redirecting such efforts for reform and rectification at the legislature’s table, and to leave all “sociological gobbledygook” outside the courthouse (Barnes et al, 1295).

What has in fact happened is quite the opposite to the Justices’ vision. The Court’s dismissal of any arguments that racial disparities pose an unbearable threat to the dictum of ‘equality before the law’ has provided ammunition for lawmakers opposing racial justice legislation to remain idle before accusations of discrimination and dress racial discrepancies as intractable yet necessary evils “that must be tolerated to retain the benefits of capital punishment” (Baldus et al, 145-6). It’s also been questioned whether the federal government even possesses the constitutional devices to contradict the Court’s decision. The power of Congress to overrule McCleskey by citing the Equal Protection Clause is threatened by the Court’s judicial review power over Section 5 of the Fourteenth Amendment, the Free Exercise Clause, which the Court argued in City of Boerne v. Flores (1997) remains outside the domain of Congress’s authority to alter or interpret. “[Congress] has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” (City of Boerne v. Flores).

Furthermore, the Court’s implied denial of any accountability in the application of the law and of judicial mechanisms authored by its own predecessors–on top of ignoring the United States’ history of regretful race relations—incentivised other judicial bodies to continue passing the buck. Lower-court judges and judicial actors would ask themselves ‘if the highest court in the land was unwilling to address the complicated and tumultuous issue of structural racism infesting our institutions, then why should we?’ (Baldus et al, 148). Besides, no one wants to be labeled a ‘racist’ in light of the moral opprobrium such a word carries, which explains the difficulty of these institutions to conceptualize such a terrible evil as anything but explicit, violent, and traceable (Kennedy, 1814).

When it comes to questions of reform, two primary strategies come up: either take the legislative route as the Court prescribed, or build an impeccable case to force the Court to reconsider its position. Reva Siegel advocates for using the legislature as the conduit for change since it is naturally more receptive to empirical data and the social sciences, as opposed to the reticent judiciary. Additionally, relying on the legislature to enact remedial policies on racial disparities in capital sentencing circumvents the challenge of locating intentional discrimination (Siegel, 1289-91). Though measures curbing discrimination in the legislature might be more actionable, the strategy fails to counter McCleskey in two ways. First, Reva seems to suggest something like a concentric-circles approach, with the changes in the more accessible and ubiquitous “outer circles” of the law being the first to reform, and will slowly translate that ripple of improvement towards the more exclusive “central circles” of the law where the death penalty lies. This doesn’t sound so much like a solution as it does a concession to the “evolving standard of decency” that equally delays remedy and tolerates present injustices. Moreover, lawmakers are beholden to reelection, and few other issues stir up support for a candidate in certain states than “tough on crime” rhetoric does, making it hard to imagine a large public backing of legislation geared towards helping convicted felons (Baldus 149).

There is a clear sense in which calls for reform of the death penalty is simply another means of surrendering to McCleskey’s legacy. Even states like New Jersey that abolished the Intent Doctrine could still detect the residue of racial disparities in capital sentencing, making abolition the only absolute response to Warren McCleskey’s challenge.

Bibliography

McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262, 1987 U.S. LEXIS 1817, 55 U.S.L.W. 4537 (Supreme Court of the United States April 22, 1987,     Decided).https://advance-lexis-com.libproxy.berkeley.edu/api/document?    collection=cases&id=urn:contentItem:3S4X-HH80-003B-40SH-00000-00&context=1516831

Bright, Stephen B. “Challenges to the Death Penalty Leading to it Being Declared Unconstitutional (s2a).” YouTube, uploaded by YaleCourses, 19 September 2014, https://www.youtube.com/watch?v=U6yAtdCPjCo&t=2139s

Amsterdam, Anthony G. “Opening Remarks: Race and the Death Penalty before and after McCleskey.” Columbia Human Rights Law Review, vol. 39, no. 1, Fall 2007, p. 34-58. HeinOnline.

Alexander, Michelle. “The Color of Justice.” In New Jim Crow: Mass Incarceration in the Age of Colorblindness, The New Press, 2010. ProQuest Ebook Central, https://ebookcentral-proquest-com.libproxy.berkeley.edu/lib/berkeley-ebooks    /detail.action?docID=4634781.

Kennedy, Randall L. “McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court.” Harvard Law Review , vol. 101, no. 7, May 1988, p. 1388-1443. HeinOnline,https://heinonline-org.libproxy.berkeley.edu/HOL/P?h=hein.journals/hlr101&i=1406.

Baldus, David C. , et al. “Race and Proportionality since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance.” Columbia Human Rights Law Review, vol. 39, no. 1, Fall 2007, p. 143-177. HeinOnline.

Barnes, Mario L., and Erwin Chemerinsky. “What Can Brown Do for You: Addressing McCleskey v. Kemp as a Flawed Standard for Measuring the Constitutionally Significant Risk of Race Bias.” Northwestern University Law Review, vol. 112, no. 6, 2018, p. 1293-1336. HeinOnline.

Siegel, Reva B. “Blind Justice: Why the Court Refused to Accept Statistical Evidence of     Discriminatory Purpose in McCleskey v. Kemp – And Some Pathways for Charge.”Northwestern University Law Review, vol. 112, no. 6, 2018, p. 1269-1292. HeinOnline,https://heinonline-org.libproxy.berkeley.edu/HOL/P?h=hein.journals/illlr112&i=1325.

Chemerinsky, Erwin. “Eliminating Discrimination in Administering the Death Penalty: The Need for the Racial Justice Act.” Santa Clara Law Review, vol. 35, no. 2, 1995, p. 519-534. HeinOnline.

Berger, Vada, et al. “Too Much Justice: A Legislative Reponse to McCleskey v. Kemp.”Harvard Civil Rights-Civil Liberties Law Review, vol. 24, no. 2, Spring 1989, p. 437-528. HeinOnline.