Opinion

    NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been pre- 
gars by the Reporter of Decisions for the convenience of the reader. See 
Tnited States v. Detroit Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

McCLESKEY » KEMP, SUPERINTENDENT, GEOR- 
GIA DIAGNOSTIC AND CLASSIFICATION CENTER 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

No. 84-6811. Argued October 15, 1986—Decided April 22, 1987 

In 1978, petitioner, a black man, was convicted in a Georgia trial court of 

armed robbery and murder, arising from the killing of a white police offi- 

cer during the robbery of a store. Pursuant to Georgia statutes, the 

jury at the penalty hearing censidered the mitigating and aggravating 

circumstances of petitioner’s conduct and recommended the death pen- 

alty on the murder charge. The trial court followed the recommenda- 

tion, and the Georgia Supreme Court affirmed. After unsuccessfully 
seeking postconviction relief in state courts, petitioner sought habeas 
corpus relief in Federal District Court. His petition included a claim 
that the Georgia capital sentencing process was administered in a ra- 
cially discriminatory manner in violation of the Eighth and Fourteenth 

Amendments. In support of the claim, petitioner proffered a statistical 

study (the Baldus study) that purports to show a disparity in the imposi- 
tion of the death sentence in Georgia based on the murder victim's race 
and, to a lesser extent, the defendant’s race. The study is based on over 

2,000 murder cases that occurred in Georgia during the 1970’s, and in- 
volves data relating to the victim's race, the defendant’s race, and the 

various combinations of such persons’ races. The study indicates that 
black defendants who killed white victims have the greatest likelihood 
of receiving the death penalty. Rejecting petitioner’s constitutional 
claims, the court dismissed his petition, and the Court of Appeals 

affirmed. It assumed the validity of the Baldus study but found the 
statistics insufficient to demonstrate unconstitutional discrimination 
in the Fourteenth Amendment context or to show irrationality, -arbi- 

trariness, and capriciousness under Eighth Amendment analysis. 

a , I 

 



  

McCLESKEY v». KEMP 

Syllabus 

Held: 
1. The Baldus study does not establish that the administration of the 

Georgia capital punishment system violates the Equal Protection Clause. 
Pp. 9-15. 

(a) To prevail under that Clause, petitioner must prove that the 
decisionmakers in his case acted with discriminatory purpose. Peti- 
tioner offered no evidence specific to his own case that would support 
an inference that racial considerations played a part in his sentence, 
and the Baldus study is insufficient to support an inference that any of 

the decisionmakers in his case acted with discriminatory purpose. This 
Court has accepted statistics as proof of intent to discriminate in the 
context of a State’s selection of the jury venire and in the context of 

statutory violations under Title VII of the Civil Rights Act of 1964. 
However, the nature of the capital sentencing decision and the relation- 

ship of the statistics to that decision are fundamentally different from the 
corresponding elements in the venire-selection or Title VII cases. Peti- 
tioner’s statistical proffer must be viewed in the context of his challenge 
to decisions at the heart of the State’s criminal justice system. Because 
discretion is essential to the criminal justice process, exceptionally clear 
proof is required before this Court will infer that the discretion has been 
abused. Pp. 10-14. 

(b) There is no merit to petitioner’s argument that the Baldus study 
proves that the State has violated the Equal Protection Clause by adopt- 
ing the capital punishment statute and allowing it to remain in force 
despite its allegedly discriminatory application. For this claim to pre- 
vail, petitioner would have to prove that the Georgia Legislature en- 
acted or maintained the death penalty statute because of an anticipated 
racially discriminatory effect. There is no evidence that the legislature 
either enacted the statute to further a racially discriminatory purpose, 
or maintained the statute because of the racially disproportionate impact 
suggested by the Baldus study. Pp. 14-15. 

2. Petitioner’s argument that the Baldus study demonstrates that the 
Georgia capital sentencing system violates the Eighth Amendment's pro- 
hibition of cruel and unusual punishment must be analyzed in the light of 
this Court’s prior decisions under that Amendment. Decisions since 
Furman v. Georgia, 408 U. S. 238, have identified a constitutionally per- 

missible range of discretion in imposing the death penalty. First, there 
is a required threshold below which the death penalty cannot be im- 
posed, and the State must establish rational criteria that narrow the 
decisionmaker’s judgment as to whether the circumstances of a particu- 
lar defendant’s case meet the threshold. Second, States cannot limit the 

sentencer’s consideration of any relevant circumstance that could cause 

it to decline to impose the death penalty. In this respect, the State can- 

 



  

McCLESKEY v. KEMP 11 

Syllabus 

not channel the sentencer’s discretion, but must allow it to consider any 
relevant information offered by the defendant. Pp. 15-22. 

3. The Baldus study does not demonstrate that the Georgia capital 
sentencing system violates the Eighth Amendment. Pp. 22-28. 

(a) Petitioner cannot successfully argue that the sentence in his case 

is disproportionate to the sentences in other murder cases. On the one 
hand, he cannot base a constitutional claim on an argument that his case 
differs from other cases in which defendants did receive the death pen- 
alty. The Georgia Supreme Court found that his death sentence was 
not disproportionate to other death sentences imposed in the State. On 
the other hand, absent a showing that the Georgia capital punishment 
system operates in an arbitrary and capricious manner, petitioner cannot 

prove a constitutional violation by demonstrating that other defendants 
who may be similarly situated did not receive the death penalty. The 
opportunities for discretionary leniency under state law does not render 
the capital sentences imposed arbitrary and capricious. Because peti- 
tioner’s sentence was imposed under Georgia sentencing procedures that 
focus discretion “on the particularized nature of the crime and the par- 
ticularized characteristics of the individual defendant,” it may be 
presumed that his death sentence was not “wantonly and freakishly” 
imposed, and thus that the sentence is not disproportionate within any 
recognized meaning under the Eighth Amendment. Gregg v. Georgia, 
428 U. S. 153, 206, 207. Pp. 22-24. 

(b) There is no merit to the contention that the Baldus study shows 
that Georgia's capital punishment system is arbitrary and capricious in 
application. The statistics do not prove that race enters into any capital 
sentencing decisions or that race was a factor in petitioner’s case. The 
likelihood of racial prejudice allegedly shown by the study does not con- 

stitute the constitutional measure of an unacceptable risk of racial preju- 
dice. 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 build discretion, equity, and flexibility into the legal system. 
Pp. 24-217. 

(c) At most, the Baldus study indicates a discrepancy that appears 
to correlate with race, but this discrepancy does not constitute a major 
systemic defect. Any mode for determining guilt or punishment has its 
weaknesses and the potential for misuse. Despite such imperfections, 
constitutional guarantees are met when the mode for determining guilt 
or punishment has been surrounded with safeguards to make it as fair as 
possible. Pp. 27-28. 

4. Petitioner’s claim, taken to its logical conclusion, throws into seri- 

ous question the principles that underlie the entire criminal justice 

 



  

v MCCLESKEY ». KEMP 

Syllabus 

system. His claim easily could be extended to apply to other types of 

penalties and to claims based on unexplained discrepancies correlating 

to membership in other minority groups and even to gender. The Con- 

stitution does not require that a State eliminate any demonstrable dis- 

parity that correlates with a potentially irrelevant factor in order to 

operate a criminal justice system that includes capital punishment. 

Petitioner’s arguments are best presented to the legislative bodies, not 

the courts. Pp. 28-31. 

753 F. 2d 877, affirmed. 

POWELL, J., delivered the opinion of the Court, in which REHNQUIST, 

C. J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J, 

filed a dissenting opinion in which MARSHALL, J., joined, and in all but 

Part I of which BLACKMUN, and STEVENS, JJ., joined. BLACKMUN, J., 

filed a dissenting opinion in which MARSHALL and STEVENS, JJ., joined, 

and in all but Part IV-B of which BRENNAN, J., joined. STEVENS, J., 

filed a dissenting opinion in which BLACKMUN, J., joined. 

 



  

Nora. This opinion is subject to formal revision before publication in the 
: chy the print of the United States Reports. Readers are requested to 

hotify the Sgr of Decisions, Supreme Court of the United States, Wash- 
ington, D 20543, of any typographical or other formal errors, in order 
that i R may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 
  

-No. 84-6811 

  

WARREN McCLESKEY, PETITIONER wv» RALPH 
KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC 

AND CLASSIFICATION CENTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT 

[April 22, 1987] 

JUSTICE POWELL delivered the opinion of the Court. 

This case presents the question whether a complex statisti- 
cal study that indicates a risk that racial considerations enter 
into capital sentencing determinations proves that petitioner 
McCleskey’s capital sentence is unconstitutional under the 
Eighth or Fourteenth Amendment. 

I 

McCleskey, a black man, was convicted of two counts of 
armed robbery and one count of murder in the Superior 
Court of Fulton County, Georgia, on October 12, 1978. 
McCleskey’s convictions arose out of the robbery of a furni- 
ture store and the killing of a white police officer during the 
course of the robbery. The evidence at trial indicated that 
McCleskey and three accomplices planned and carried out the 
robbery. All four were armed. McCleskey entered the 
front of the store while the other three entered the rear. 
McCleskey secured the front of the store by rounding up the 

. customers and forcing them to lie face down on the floor. 
The other three rounded up the employees in the rear and 
tied them up with tape. The manager was forced at gun- 
point to turn over the store receipts, his watch, and $6.00. 
During the course of the robbery, a police officer, answering 
a silent alarm, entered the store through the front door. As 

 



  

84-6811—0PINION 

2 McCLESKEY v. KEMP 

he was walking down the center aisle of the store, two shots 
were fired. Both struck the officer. One hit him in the face 
and killed him. 

Several weeks later, McCleskey was arrested in connection 
with an unrelated offense. He confessed that he had partici- 
pated in the furniture store robbery, but denied that he had 
shot the police officer. At trial, the State introduced evi- 
dence that at least one of the bullets that struck the officer 
was fired from a .38 caliber Rossi revolver. This description 
matched the description of the gun that McCleskey had car- 
ried during the robbery. The State also introduced the tes- 
timony of two witnesses who had heard McCleskey admit to 
the shooting. 

The jury convicted McCleskey of murder.! At the penalty 
hearing,? the jury heard arguments as to the appropriate 
sentence. Under Georgia law, the jury could not consider 
imposing the death penalty unless it found beyond a rea- 
sonable doubt that the murder was accompanied by one of 
the statutory aggravating circumstances. Ga. Code Ann. 

The Georgia Code has been revised and renumbered since McCleskey’s 
trial. The changes do not alter the substance of the sections relevant to 
this case. For convenience, references in this opinion are to the current 
sections. 

The Georgia Code contains only one degree of murder. A person com- 
mits murder “when he unlawfully and with malice aforethought, either ex- 
press or implied, causes the death of another human being.” Ga. Code 
Ann. §16-5-1(a) (1984). A person convicted of murder “shall be punished 
by death or by imprisonment for life.” §16-5-1(d). 

*Georgia Code Ann. § 17-10-2(c) (1982) provides that when a jury con- 
victs a defendant of murder, “the court shall resume the trial and conduct a 

presentence hearing before the jury.” This subsection suggests that a de- 
fendant convicted of murder always is subjected to a penalty hearing at 
which the jury considers imposing a death sentence. But as a matter of 

practice, penalty hearings seem to be held only if the prosecutor affirma- 
tively seeks the death penalty. If he does not, the defendant receives a 
sentence of life imprisonment. See Baldus, Pulaski, & Woodworth, Com- 

parative Review of Death Sentences: An Empirical Study of the Georgia 
Experience, 74 J. Crim. L. & C. 661, 674, n. 56 (1983). 

ae 

 



  

84-6811—OPINION 

McCLESKEY ». KEMP 3 

§ 17-10-30(c) (1982). The jury in this case found two ag- 
gravating circumstances to exist beyond a reasonable doubt: 
the murder was committed during the course of an armed 
robbery, §17-10-30(b)(2); and the murder was committed 
upon a peace officer engaged in the performance of his duties, 
§ 17-10-30(b)(8). In making its decision whether to impose 
the death sentence, the jury considered the mitigating 
and aggravating circumstances of McCleskey’s conduct. 

! A jury cannot sentence a defendant to death for murder unless it finds 
that one of the following aggravating circumstances exists beyond a rea- 
sonable doubt: 

“(1) The offense. . . was committed by a person with a prior record of con- 
viction for a capital felony; 

“(2) The offense . . . was committed while the offender was engaged in the 
commission of another capital felony or aggravated battery, or the offense 
of murder was committed while the offender was engaged in the commis- 
sion of burglary or arson in the first degree; 

“(@3) The offender, by his act of murder. . . knowingly created a great risk 
of death to more than one person in a public place by means of a weapon or 
device which would normally be hazardous to the lives of more than one 
person; 

“(4) The offender committed the.-offense . . . for himself or another, for the 

purpose of receiving money or any other thing of monetary value; 

“(5) The murder of a judicial officer, former judicial officer, district attor- 

ney or solicitor, or former district attorney or solicitor was commmitted 
during or because of the exercise of his official duties; 

“(6) The offender caused or directed another to commit murder or commit- 
ted murder as an agent or employee of another person; 

“(T) The offense of murder, rape, armed robbery, or kidnapping was outra- 
geously or wantonly vile, horrible, or inhuman in that it involved torture, 

depravity of mind, or an aggravated battery to the victim; 

“(8) The offense . . . was committed against any peace officer, corrections 
employee, or fireman while engaged in the performance of his official 
duties; 

“(9) The offense . . . was committed by a person in, or who has escaped 
from, the lawful custody of a peace officer or place of lawful confinment; or 

“(10) The murder was committed for the purpose of avoiding, interfering 
with, or preventing a lawful arrest or custody in a place of lawful confine- 
ment, of himself or another.” §17-10-30(b). 

a= 

 



  

84-6811—OPINION 

4 McCLESKEY ». KEMP 

§ 17-10-2(c). McCleskey offered no mitigating evidence. 

The jury recommended that he be sentenced to death on the 

murder charge and to consecutive life sentences on the armed 

robbery charges. The court followed the jury’s recommen- 

dation and sentenced McCleskey to death. 
On appeal, the Supreme Court of Georgia affirmed the con- 

victions and the sentences. McCleskey v. State, 245 Ga. 

108, 263 S. E. 2d 146 (1980). This Court denied a petition 

for a writ of certiorari. McCleskey v. Georgia, 449 U. S. 

‘891 (1980). The Superior Court of Fulton County denied 

McCleskey’s extraordinary motion for a new trial. McCles- 

key then filed a petition for a writ of habeas corpus in the 

Superior Court of Butts County. After holding an eviden- 

tiary hearing, the Superior Court denied relief. McCleskey 
v. Zant, No. 4909 (Apr. 8, 1981). The Supreme Court of 

Georgia denied McCleskey’s application for a certificate of 

probable cause to appeal the Superior Court’s denial of his 

petition, No. 81-5523, and this Court again denied certiorari. 
McCleskey v. Zant, 454 U. S. 1093 (1981). 

McCleskey next filed a petition for a writ of habeas corpus 

in the federal District Court for the Northern District of 

Georgia. His petition raised 18 claims, one of which was 
that the Georgia capital sentencing process is administered in 
a racially discriminatory manner in violation of the Eighth 

and Fourteenth Amendments to the United States Constitu- 
tion. In support of his claim, McCleskey proffered a statisti- 
cal study performed by Professors David C. Baldus, George 
Woodworth, and Charles Pulanski, (the Baldus study) that 

purports to show a disparity in the imposition of the death 
sentence in Georgia based on the race of the murder victim 
and, to a lesser extent, the race of the defendant. The Bal- 

dus study is actually two sophisticated statistical studies that 
examine over 2,000 murder cases that occurred in Georgia 

‘Georgia law provides that “{wlhere a statutory aggravating circum- 
stance is found and a recommendation of death is made, the court shall sen- 

tence the defendant to death.” §17-10-31. 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP 5 

during the 1970s. The raw numbers collected by Professor 
Baldus indicate that defendants charged with killing white 
persons received the death penalty in 11% of the cases, but 
defendants charged with killing blacks received the death 
penalty in only 1% of the cases. The raw numbers also indi- 
cate a reverse racial disparity according to the race of the 
defendant: 4% of the black defendants received the death 
penalty, as opposed to 7% of the white defendants. 

Baldus also divided the cases according to the combination 
of the race of the defendant and the race of the victim. He 
found that the death penalty was assessed in 22% of the cases 
involving black defendants and white victims; 8% of the cases 
involving white defendants and white victims; 1% of the cases 
involving black defendants and black victims; and 3% of the 
cases involving white defendants and black victims. Simi- 
larly, Baldus found that prosecutors sought the death penalty 
in 70% of the cases involving black defendants and white vic- 
tims; 32% of the cases involving white defendants and white 
victims; 15% of the cases involving black defendants and 
black victims; and 19% of the cases involving white defend- 
ants and black victims. 

Baldus subjected his data to an extensive analysis, taking 
account of 230 variables that could have explained the dispar- 
ities on nonracial grounds. One of his models concludes that, 
even after taking account of 39 nonracial variables, defend- 
ants charged with killing white victims were 4.3 times as 
likely to receive a death sentence as defendants charged with 
killing blacks. According to this model, black defendants 
were 1.1 times as likely to receive a death sentence as other 
defendants. Thus, the Baldus study indicates that black de- 
fendants, such as McCleskey, who kill white victims have the 
greatest likelihood of receiving the death penalty.’ 

$ Baldus’s 230-variable model divided cases into eight different ranges, 
according to the estimated aggravation level of the offense. Baldus ar- 
gued in his testimony to the District Court that the effects of racial bias 
were most striking in the mid-range cases. “{W]hen the cases become tre- 

a= 

 



  

84-6811—0OPINION 

6 McCLESKEY v. KEMP 

The District Court held an extensive evidentiary hearing 
on McCleskey’s petition. Although it believed that McCles- 
key’s Eighth Amendment claim was foreclosed by the Fifth 
Circuit’s decision in Spinkellink v. Wainwright, 578 F. 2d 
582, 612-616 (1978), cert. denied, 440 U. S. 976 (1979), it nev- 
ertheless considered the Baldus study with care. It con- 
cluded that McCleskey’s “statistics do not demonstrate a 
prima facie case in support of the contention that the death 
penalty was imposed upon him because of his race, because of 
the race of the victim, or because of any Eighth Amendment 
concern.” McCleskey v. Zant, 580 F. Supp. 338, 379 
(ND Ga. 1984). As to McCleskey’s Fourteenth Amendment 
claim, the court found that the methodology of the Baldus 
study was flawed in several respects. Because of these de- 

mendously aggravated so that everybody would agree that if we're going 
to have a death sentence, these are the cases that should get it, the race 

effects go away. It’s only in the mid-range of cases where the decision 

makers have a real choice as to what to do. If there’s room for the exer- 
cise of discretion, then the [racial] factors begin to play a role.” App. 36. 
Under this model, Baldus found that 14.4% of the black-victim mid-range 

cases received the death penalty, and 34.4% of the white-victim cases re- 
ceived the death penalty. See Exhibit DB 90, reprinted in Supplemental 
Exhibits 54. According to Baldus, the facts of McCleskey’s case placed it 
within the mid-range. App. 45-46. 

¢Baldus, among other experts, testified at the evidentiary hearing. 
The District Court “was impressed with the learning of all of the experts.” 
580 F. Supp., at 353 (emphasis omitted). Nevertheless, the District Court 
noted that in many respects the data were incomplete. In its view, the 
questionnaires used to obtain the data failed to capture the full degree of 
the aggravating or mitigating circumstances. Id., at 356. The Court 
criticized the researcher’s decisions regarding unknown variables. Id., at 
357-358. The researchers could not discover whether penalty trials were 
held in many of the cases, thus undercutting the value of the study’s statis- 
tics as to prosecutorial decisions. Id., at 359. In certain cases, the study 
lacked information on the race of the victim in cases involving multiple 
victims, on whether or not the prosecutor offered a plea bargain, and on 
credibility problems with witnesses. Id., at 360. The court concluded 
that McCleskey had failed to establish by a preponderance of the evidence 
that the data was trustworthy. “It is a major premise of a statistical case 

 



  

84-6811—OPINION 

McCLESKEY ». KEMP 4 

fects, the Court held that the Baldus study “fail{ed] to con- 
tribute anything of value” to McCleskey’s claim. Id., at 372 
(emphasis omitted). Accordingly, the Court dismissed the 
petition. 

The Court of Appeals for the Eleventh Circuit, sitting en 
bane, carefully reviewed the District Court’s decision on 
McCleskey’s claim. 753 F. 2d 877 (1985). It assumed the 
validity of the study itself and addressed the merits of 
McCleskey’s Eighth and Fourteenth Amendment claims. 
That is, the court assumed that the study “showed that sys- 
tematic and substantial disparities existed in the penalties 
imposed upon homicide defendants in Georgia based on race 
of the homicide victim, that the disparities existed at a less 
substantial rate in death sentencing based on race of defend- 

that the data base numerically mirrors reality. Ifit does not in substantial 
degree mirror reality, any inferences empirically arrived at are untrust- 
worthy.” Ibid. 

The District Court noted other problems with Baldus’ methodology. 
First, the researchers assumed that all of the information available from 
the questionnaires was available to the juries and prosecutors when the 
case was tried. The court found this assumption “questionable.” Id., at 
361. Second, the court noted the instability of the various models. Even 

with the 230-variable model, consideration of 20 further variables caused a 

significant drop in the statistical significance of race. In the court’s view, 
this undermined the persuasiveness of the model that showed the greatest 
racial disparity, the 39-variable model. Id., at 362. Third, the court 
found that the high correlation between race and many of the nonracial 
variables diminished the weight to which the study was entitled. Id., at 
363-364. 

Finally, the District Court noted the inability of any of the models to pre- 
dict the outcome of actual cases. As the court explained, statisticians use 
a measure called an “r*” to measure what portion of the variance in the de- 
pendent variable (death sentencing rate, in this case) is accounted for by 
the independent variables of the model. A perfectly predictive model 
would have an r? value of 1.0. A model with no predictive power would 
have anr?of 0. The r? value of Baldus’ most complex model, the 230-vari- 
able model, was between .46 and .48. Thus, as the court explained, “the 

230-variable model does not predict the outcome in half of the cases.” Id., 
at 361. 

a= 

 



  

84-6811—OPINION 

8 McCLESKEY ». KEMP 

ants, and that the factors of race of the victim and defendant 
were at work in Fulton County.” Id., at 895. Even assum- 
ing the study’s validity, the Court of Appeals found the sta- 

tistics “insufficient to demonstrate discriminatory intent or 
unconstitutional discrimination in the Fourteenth Amend- 
ment context, [and] insufficient to show irrationality, arbi- 
trariness and capriciousness under any kind of Eighth 
Amendment analysis.” Id., at 891. The court noted: 

“The very exercise of discretion means that persons 
exercising discretion may reach different results from 
exact duplicates. Assuming each result is within the 
range of discretion, all are correct in the eyes of the law. 
It would not make sense for the system to require the 
exercise of discretion in order to be facially constitu- 
tional, and at the same time hold a system unconstitu- 
tional in application where that discretion achieved dif- 
ferent results for what appear to be exact duplicates, 
absent the state showing the reasons for the differ- 
ence. . . . 

“The Baldus approach . . . would take the cases with 
different results on what are contended to be duplicate 
facts, where the differences could not be otherwise ex- 
plained, and conclude that the different result was based 
on race alone. ... This approach ignores the reali- 
ties. . . . There are, in fact, no exact duplicates in capital 
crimes and capital defendants. The type of research 
submitted here tends to show which of the directed fac- 
tors were effective, but is of restricted use in showing 
what undirected factors control the exercise of constitu- 
tionally required discretion.” Id., at 898-899. 

The court concluded: 

“Viewed broadly, it would seem that the statistical ev- 
idence presented here, assuming its validity, confirms 
rather than condemns the system. . . . The marginal dis- 
parity based on the race of the victim tends to support 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP 9 

the state’s contention that the system is working far 
differently from the one which Furman [v. Georgia, 408 
U. S. 238 (1972)] condemned. In pre-Furman days, 
there was no rhyme or reason as to who got the death 
penalty and who did not. But now, in the vast majority 
of cases, the reasons for a difference are well docu- 
mented. That they are not so clear in a small percent- 
age of the cases is no reason to declare the entire system 
unconstitutional.” Id., at 899. 

The Court of Appeals affirmed the dismissal by the District 
Court of McCleskey’s petition for a writ of habeas corpus, 
with three judges dissenting as to McCleskey’s claims based 
on the Baldus study. We granted certiorari, 478 U. S. —— 
(1986), and now affirm. ; 

II 

McCleskey’s first claim is that the Georgia capital punish- 
ment statute violates the Equal Protection Clause of the 
Fourteenth Amendment.” He argues that race has infected 
the administration of Georgia's statute in two ways: persons 
who murder whites are more likely to be sentenced to death 
than persons who murder blacks, and black murderers are 
more likely to be sentenced to death than white murderers.® 

"Although the District Court rejected the findings of the Baldus study 
as flawed, the Court of Appeals assumed that the study is valid and 
reached the constitutional issues. Accordingly, those issues are before us. 
As did the Court of Appeals, we assume the study is valid statistically 
without reviewing the factual findings of the District Court. Our assump- 
tion that the Baldus study is statistically valid does not include the assump- 
tion that the study shows that racial considerations actually enter into any 
sentencing decisions in Georgia. Even a sophisticated multiple regression 
analysis such as the Baldus study can only demonstrate a risk that the fac- 
tor of race entered into some capital sentencing decisions and a necessarily 
lesser risk that race entered into any particular sentencing decision. 

* Although McCleskey has standing to claim that he suffers discrimina- 
tion because of his own race, the State argues that he has no standing to 
contend that he was discriminated against on the basis of his victim’s race. 
While it is true that we are reluctant to recognize “standing to assert the 

 



  

84-6811—OPINION 

10 McCLESKEY v. KEMP 

As a black defendant who killed a white victim, McCleskey 

claims that the Baldus study demonstrates that he was dis- 

criminated against because of his race and because of the race 

of his victim. In its broadest form, McCleskey’s claim of dis- 

crimination extends to every actor in the Georgia capital sen- 

tencing process, from the prosecutor who sought the death 

penalty and the jury that imposed the sentence, to the State 

itself that enacted the capital punishment statute and allows 

it to remain in effect despite its allegedly discriminatory 

application. We agree with the Court of Appeals, and every 

other court that has considered such a challenge,’ that this 

claim must fail. 
A 

Our analysis begins with the basic principle that a defend- 

ant who alleges an equal protection violation has the burden 

of proving “the existence of purposeful discrimination.” 

rights of third persons,” Arlington Heights v. Metropolitan Housing Dev. 

Corp., 429 U. S. 252, 263 (1977), this does not appear to be the nature of 

McCleskey’s claim. He does not seek to assert some right of his victim, or 

the rights of black murder victims in general. Rather, McCleskey argues 

that application of the State’s statute has created a classification that is “an 

irrational exercise of governmental power,” Brief for Petitioner 41, be- 

cause it is not “necessary to the accomplishment of some permissible state 

objective.” Loving v. Virginia, 388 U. 8. 1, 11 (1967). See McGowan V. 

Maryland, 366 U. S. 420, 425 (1961) (statutory classification cannot be 

“wholly irrelevant to the achievement of the State’s objective”). It would 

violate the Equal Protection Clause for a State to base enforcement of its 

criminal laws on “an unjustifiable standard such as race, religion, or other 

arbitrary classification.” Oyler v. Boles, 368 U. S. 448, 456 (1962). See 

Cleveland Bd. of Ed. v. Lafleur, 414 U. S. 632, 652-653 (1974) (POWELL, 

J., concurring). Because McCleskey raises such a claim, he has standing. 

*See, ¢. g., Shaw v. Martin, 733 F. 2d 304, 311-314 (CA4), cert. denied, 

469 U. S. 873 (1984); Adams v. Wainwright, 709 F. 2d 1443 (CA11 1983) 

(per curiam), cert. denied, 464 U. S. 1063 (1984); Smith v. Balkcom, 660 

F. 2d 573, 584-585 (CAS5 Unit B 1981), modified, 671 F. 2d 858, 859-860 

(CA5) (per curiam), cert. denied, 459 U. S. 882 (1982); Spinkellink v. 
Wainwright, 578 F. 2d 582, 612-616 (CAS 1978), cert. denied, 440 U. S. 976 

(1979). 

 



  

84-6811—0OPINION 

McCLESKEY v». KEMP 11 

Whitus v. Georgia, 385 U. S. 545, 550 (1967). A corollary 
to this principle is that a criminal defendant must prove that 
the purposeful discrimination “had a discriminatory effect” on 
him. Wayte v. United States, 470 U. S. 598, 608 (1985). 

~ Thus, to prevail under the Equal Protection Clause, McCles- 
key must prove that the decisionmakers in his case acted 
with discriminatory purpose. He offers no evidence specific 
to his own case that would support an inference that racial 
considerations played a part in his sentence. Instead, he re- 
lies solely on the Baldus study.” McCleskey argues that the 
Baldus study compels an inference that his sentence rests on 
purposeful discrimination. McCleskey’s claim that these 
statistics are sufficient proof of discrimination, without re- 
gard to the facts of a particular case, would extend to all capi- 
tal cases in Georgia, at least where the victim was white and 
the defendant is black. 

The Court has accepted statistics as proof of intent to dis- 
criminate in certain limited contexts. First, this Court has 
accepted statistical disparities as proof of an equal protection 
violation in the selection of the jury venire in a particular dis- 
trict. Although statistical proof normally must present a 
“stark” pattern to be accepted as the sole proof of discrimina- 
tory intent under the Constitution,” Arlington Heights v. 

© See Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 
265; Washington v. Davis, 426 U. S. 229, 240 (1976). 

" McCleskey’s expert testified: 

“Models that are developed talk about the effect on the average. They do 
not depict the experience of a single individual. What they say, for exam- 
ple, [is] that on the average, the race of the victim, if it is white, increases 

on the average the probability . .. (that) the death sentence would be 
given. 

“Whether in a given case that is the answer, it cannot be determined from 
statistics.” 580 F. Supp., at 372. : 

2 Gomillion v. Lightfoot, 364 U. S. 339 (1960), and Yick Wo v. Hopkins, 
118 U. S. 356 (1886), are examples of those rare cases in which a statistical 
pattern of discriminatory impact demonstrated a constitutional violation. 
In Gomillion, a state legislature violated the Fifteenth Amendment by al- 

 



  

84-6811—0PINION 

12 McCLESKEY ». KEMP 

Metropolitan Housing Dev. Corp., 429 U. S. 252, 266 (1977), 

“Iblecause of the nature of the jury-selection task, ... we 
have permitted a finding of constitutional violation even 
when the statistical pattern does not approach [such] ex- 
tremes.” . Id., at 266, n. 13.® Second, this Court has 
accepted statistics in the form of multiple regression analysis 
to prove statutory violations under Title VII. Bazemore v. 
Friday, 478 U. S. ——, —— (1986) (opinion of BRENNAN, J., 

concurring in part). 
But the nature of the capital sentencing decision, and the 

relationship of the statistics to that decision, are funda- 
mentally different from the corresponding elements in the ve- 
nire-selection or Title VII cases. Most importantly, each 
particular decision to impose the death penalty is made by a 
petit jury selected from a properly constituted venire. Each 
jury is unique in its composition, and the Constitution re- 
quires that its decision rest on consideration of innumerable 
factors that vary according to the characteristics of the indi- 
vidual defendant and the facts of the particular capital of- 

tering the boundaries of a particular city “from a square to an uncouth 
twenty-eight-sided figure.” 364 U. S., at 340. The alterations excluded 
395 of 400 black voters without excluding a single white voter. In Yick 
Wo, an ordinance prohibited operation of 310 laundries that were housed in 
wooden buildings, but allowed such laundries to resume operations if the 

operator secured a permit from the government. When laundry operators 
applied for permits to resume operation, all but one of the white applicants 
received permits, but none of the over 200 Chinese applicants were suc- 
cessful. In those cases, the Court found the statistical disparities “to war- 

rant and require,” Yick Wo v. Hopkins, supra, at 373, a “conclusion [that 
was] irresistible, tantamount for all practical purposes to a mathematical 
demonstration,” Gomillion v. Lightfoot, supra, at 341, that the State acted 

with a discriminatory purpose. 
8 See, ¢. g., Castaneda v. Partida, 430 U. S. 482, 495 (1977) (2 to 1 dis- 

parity between Mexican-Americans in county population and those sum- 
moned for grand jury duty); Turner v. Fouche, 396 U. S. 346, 359 (1970) 
(1.6 to 1 disparity between blacks in county population and those on grand 
jury lists); Whitus v. Georgia, 385 U. S. 545, 552 (1967) (3 to 1 disparity 
between eligible blacks in county and blacks on grand jury venire). 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP / 13 

fense. See Hitchcock v. Wainwright, ante, at ——; Lockett 
v. Ohio, 438 U. S. 586, 602-605 (1978) (plurality opinion of 
Burger, C. J.). Thus, the application of an inference drawn 
from the general statistics to a specific decision in a trial and 
sentencing simply is not comparable to the application of an 
inference drawn from general statistics to a specific venire- 
selection or Title VII case. In those cases, the statistics re- 
late to fewer entities, and fewer variables are relevant to 

the challenged decisions.” 

“In venire-selection cases, the factors that may be considered are lim- 
ited, usually by state statute. See Castaneda v. Partida, 430 U. S., at 
485 (“A grand juror must be a citizen of Texas and of the county, be a quali- 
fied voter in the county, be ‘of sound mind and good moral character,’ be 
literate, have no prior felony conviction, and be under pending indictment 
‘or other legal accusation for theft or of any felony.’ ”); Turner v. Fouche, 
396 U. S., at 354 (jury commissioners may exclude any not ‘upright’ and 
‘intelligent’ from grand jury service); Whitus v. Georgia, 385 U. S., at 548 

(same). These considerations are uniform for all potential jurors, and al- 
though some factors may be said to be subjective, they are limited and, to a 
great degree, objectively verifiable. While employment decisions may in- 
volve a number of relevant variables, these variables are to a great extent 
uniform for all employees because they must all have a reasonable relation- 
ship to the employee’s qualifications to perform the particular job at issue. 
Identifiable qualifications for a single job provide a common standard by 
which to assess each employee. In contrast, a capital sentencing jury may 
consider any factor relevant to the defendant’s background, character, and 

the offense. See Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). There 

is no common standard by which to evaluate all defendants who have or 

have not received the death penalty. 
BWe refer here not to the number of entities involved in any particular 

decision, but to the number of entities whose decisions necessarily are re- 

flected in a statistical display such as the Baldus study. The decisions of a 
jury commission or of an employer over time are fairly attributable to the 
commission or the employer. Therefore, an unexplained statistical dis- 
crepancy can be said to indicate a consistent policy of the decisionmaker. 
The Baldus study seeks to deduce a state “policy” by studying the com- 
bined effects of the decisions of hundreds of juries that are unique in their 
composition. It is incomparably more difficult to deduce a consistent pol- 
icy by studying the decisions of these many unique entities. It is also 
questionable whether any consistent policy can be derived by studying the 

 



  

84-6811—OPINION 

14 McCLESKEY u KEMP 

Another important difference between the cases in which 
we have accepted statistics as proof of discriminatory intent 
and this case is that, in the venire-selection and Title VII con- 
texts, the decisionmaker has an opportunity to explain the 
statistical disparity. See Whitus v. Georgia, supra, at 552; 
Texas Dept. of Community Affairs v. Burdine, 450 U. S. 
248, 254 (1981); McDonnell Douglas Corp. v. Green, 411 
U. S. 792, 802 (1973). Here, the State has no practical 
opportunity to rebut the Baldus study. “[Clontrolling con- 
siderations of . .. public policy,” McDonald v. Pless, 238 
U. S. 264, 267 (1915), dictate that jurors “cannot be called 
. . . to testify to the motives and influences that led to their 
verdict.” Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 
593 (1907). Similarly, the policy considerations behind a 
prosecutor’s traditionally “wide discretion” suggest the 
impropriety of our requiring prosecutors to defend their deci- 
sions to seek death penalties, “often years after they were 
made.” See Imbler v. Pachtman, 424 U. S. 409, 425-426 

(1976). Moreover, absent far stronger proof, it is unnec- 

decisions of prosecutors. The District Attorney is elected by the voters in 
a particular county. See Ga. Const., Art. 6, §8, 11. Since decisions 

whether to prosecute and what to charge necessarily are individualized and 
involve infinite factual variations, coordination among DA offices across a 

State would be relatively meaningless. Thus, any inference from state- 
wide statistics to a prosecutorial “policy” is of doubtful relevance. More- 
over, the statistics in Fulton County alone represent the disposition of far 

fewer cases than the state-wide statistics. Even assuming the statistical 
validity of the Baldus study as a whole, the weight to be given the results 
gleaned from this small sample is limited. 

1 See Wayte v. United States, 470 U. S. 598, 607 (1985); United States v. 

Goodwin, 457 U. S. 368, 380, n. 11 (1982); Bordenkircher v. Hayes, 434 

U. S. 357, 365 (1978). See also ABA Standards for Criminal Justice 
3-3.8—3-3.9 (2d ed. 1982). 

'" Requiring a prosecutor to rebut a study that analyzes the past conduct 
of scores of prosecutors is quite different from requiring a prosecutor to 
rebut a contemporaneous challenge to his own acts. See Batson v. Ken- 
tucky, 476 U. S. — (1986). 

# Although Imbler was decided in the context of § 1983 damage actions 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP 15 

essary to seek such a rebuttal, because a legitimate and un- 
challenged explanation for the decision is apparent from the 
record: McCleskey committed an act for which the United 
States Constitution and Georgia laws permit imposition of 
the death penalty." 

Finally, McCleskey’s statistical proffer must be viewed in 
the context of his challenge. McCleskey challenges decisions 
at the heart of the State’s criminal justice system. “[OJne of 
society’s most basic tasks is that of protecting the lives of its 
citizens and one of the most basic ways in which it achieves 
the task is through criminal laws against murder.” Gregg v. 
Georgia, 428 U. S. 153, 226 (1976) (WHITE, J., concurring). 
Implementation of these laws necessarily requires discretion- 
ary judgments. Because discretion is essential to the crimi- 
nal justice process, we would demand exceptionally clear 
proof before we would infer that the discretion has been 
abused. The unique nature of the decisions at issue in this 
ease also counsel against adopting such an inference from the 
disparities indicated by the Baldus study. Accordingly, we 

brought against prosecutors, the considerations that led the Court to hold 
that a prosecutor should not be required to explain his decisions apply in 
this case as well: “if the prosecutor could be made to answer in court each 
time . . . a person charged him with wrongdoing, his energy and attention 
would be diverted from the pressing duty of enforcing the criminal law.” 
424 U. S., at 425. Our refusal to require that the prosecutor provide an 
explanation for his decisions in this case is completely consistent with this 
Court’s longstanding precedents that hold that a prosecutor need not ex- 
plain his decisions unless the criminal defendant presents a prima facie case 
of unconstitutional conduct with respect to his case. See, e. g., Batson v. 
Kentucky, supra; Wayte v. United States, supra. 

®In his dissent, JUSTICE BLACKMUN misreads this statement. See 

post, at —. We do not suggest that McCleskey’s conviction and sen- 
tencing by a jury bears on the prosecutor’s motivation. Rather, the fact 
that the United States Constitution and the laws of Georgia authorized the 
prosecutor to seek the death penalty under the circumstances of this case is 
a relevant factor to be weighed in determining whether the Baldus study 
demonstrates a constitutionally significant risk that this decision was moti- 
vated by racial considerations. 

 



  

84-6811—OPINION 

16 McCLESKEY » KEMP 

hold that the Baldus study is clearly insufficient to support an 

inference that any of the decisionmakers in McCleskey’s case 

acted with discriminatory purpose. 

B 

McCleskey also suggests that the Baldus study proves that 
the State as a whole has acted with a discriminatory purpose. 
He appears to argue that the State has violated the Equal 
Protection Clause by adopting the capital punishment statute 
and allowing it to remain in force despite its allegedly dis- 
criminatory application. But “‘{dliscriminatory purpose’ 
. . . implies more than intent as volition or intent as aware- 
ness of consequences. It implies that the decisionmaker, in 
this case a state legislature, selected or reaffirmed a particu- 
lar course of action at least in part ‘because of,’ not merely ‘in 
spite of,’ its adverse effects upon an identifiable group.” 
Personnel Administrator of Massachusetts v. Feeney, 442 
U. S. 256, 279 (1979) (footnote and citation omitted). See 
Wayte v. United States, 470 U. S. 598, 608-609 (1985). For 
this claim to prevail, McCleskey would have to prove that the 
Georgia Legislature enacted or maintained the death penalty 
statute because of an anticipated racially discriminatory ef- 
fect. In Gregg v. Georgia, 428 U. S. 153 (1976), this Court 
found that the Georgia capital sentencing system could oper- 
ate in a fair and neutral manner. There was no evidence 
then, and there is none now, that the Georgia Legislature en- 
acted the capital punishment statute to further a racially dis- 
criminatory purpose.® 

» McCleskey relies on “historical evidence” to support his claim of pur- 
poseful discrimination by the State. This evidence focuses on Georgia 
laws in force during and just after the Civil War. Of course, the “histori- 
cal background of the decision is one evidentiary source” for proof of inten- 
tional discrimination. Arlington Heights v. Metropolitan Housing Dev. 
Corp., 429 U. S., at 267. But unless historical evidence is reasonably con- 
temporaneous with the challenged decision, it has little probative value. 
Cf. Hunter v. Underwood, 471 U. S. 222, 228-233 (1985) (relying on legis- 
lative history to demonstrate discriminatory motivation behind state stat- 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP 17 

Nor has McCleskey demonstrated that the legislature 
maintains the capital punishment statute because of the 
racially disproportionate impact suggested by the Baldus 
study. As legislatures necessarily have wide discretion in 
the choice of criminal laws and penalties, and as there were 
legitimate reasons for the Georgia Legislature to adopt and 
maintain capital punishment, see Gregg v. Georgia, supra, at 
183-187 (joint opinion of Stewart, POWELL, and STEVENS, 
JJ.), we will not infer a discriminatory purpose on the part of 
the State of Georgia.? Accordingly, we reject McCleskey’s 
equal protection claims. 

ITI 

McCleskey also argues that the Baldus study demonstrates 
that the Georgia capital sentencing system violates the 
Eighth Amendment.2 We begin our analysis of this claim by 
reviewing the restrictions on death sentences established by 
our prior decisions under that Amendment. 

ute). Although the history of racial discrimination in this country is un- 
deniable, we cannot accept official actions taken long ago as evidence of 
current intent. ; 

2 JUSTICE BLACKMUN suggests that our “reliance on legitimate inter- 
ests underlying the Georgia Legislature’s enactment of its capital punish- 
ment statute is . . . inappropriate [because] it has no relevance in a case 
dealing with a challenge to the Georgia capital sentencing system as ap- 
plied in McCleskey’s case.” Post, at — (emphasis in original). As the 
dissent suggests, this evidence is not particularly probative when assessing 
the application of Georgia's capital-punishment system through the actions 
of prosecutors and juries, as we did in Part II-A, supra. But that is not 
the challenge that we are addressing here. As indicated above, the ques- 
tion we are addressing is whether the legislature maintains its capital pun- 
ishment statute because of the racially disproportionate impact suggested 
by the Baldus study. MecCleskey has introduced no evidence to support 

this claim. It is entirely appropriate to rely on the legislature’s legitimate 
reasons for enacting and maintaining a capital punishment statute to ad- 
dress a challenge to the legisiature’s intent. 

2 The Eighth Amendment applies to the States through the Due Process 
Clause of the Fourteenth Amendment. Robinson v. California, 370 U. S. 

660, 667 (1962). 

 



  

84-6811—OPINION 

18 McCLESKEY v. KEMP 

A 

The Eighth Amendment prohibits infliction of “cruel and 
unusual punishments.” This Court’s early Eighth Amend- 
ment cases examined only the “particular methods of ex- 
ecution to determine whether they were too cruel to pass 
constitutional muster.” Gregg v. Georgia, supra, at 170. 
See In re Kemmler, 136 U. S. 436 (1890) (electrocution); 
Wilkerson v. Utah, 99 U. S. 130 (1879) (public shooting). 
Subsequently, the Court recognized that the constitutional 
prohibition against cruel and unusual punishments “is not fas- 
tened to the obsolete but may acquire meaning as public opin- 
ion becomes enlightened by a humane justice.” Weems v. 
United States, 217 U. S. 349, 378 (1910). In Weems, the 
Court identified a second principle inherent in the Eighth 
Amendment, “that punishment for crime should be gradu- 
ated and proportioned to offense.” Id., at 367. 

Chief Justice Warren, writing for the plurality in Trop v. 
Dulles, 356 U. S. 86, 99 (1958), acknowledged the constitu- 
tionality of capital punishment. In his view, the “basic con- 
cept underlying the Eighth Amendment” in this area is that 
the penalty must accord with “the dignity of man.” Id., at 
100. In applying this mandate, we have been guided by his 
statement that “[t]lhe Amendment must draw its meaning 
from the evolving standards of decency that mark the prog- 
ress of a maturing society.” Id., at 101. Thus, our constitu- 
tional decisions have been informed by “contemporary values 
concerning the infliction of a challenged sanction,” Gregg v. 
Georgia, supra, at 173. In assessing contemporary values, 
we have eschewed subjective judgment, and instead have 
sought to ascertain “objective indicia that reflect the public 
attitude toward a given sanction.” Ibid. First among these 
indicia are the decisions of state legislatures, “because the 
. . . legislative judgment weighs heavily in ascertaining” con- 
temporary standards, id., at 175. We also have been guided 
by the sentencing decisions of juries, because they are “a sig- 
nificant and reliable objective index of contemporary values,” 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP 19 

id., at 181. Most of our recent decisions as to the constitu- 

tionality of the death penalty for a particular crime have 

rested on such an examination of contemporary values. 

E. g., Enmund v. Florida, 458 U. S. 782, 789-796 (1982) (fel- 

ony murder); Coker v. Georgia, 433 U. S. 5834, 592-597 (1977) 

(plurality opinion of WHITE, J.) (rape); Gregg v. Georgia, 

supra, at 179-182 (murder). 

B 

Two principal decisions guide our resolution of McCles- 

key’s Eighth Amendment claim. In Furman v. Georgia, 408 

U.S. 238 (1972), the Court concluded that the death penalty 

was so irrationally imposed that any particular death sen- 

tence could be presumed excessive. Under the statutes at 

issue in Furman, there was no basis for determining in any 

particular case whether the penalty was proportionate to the 

crime: “the death penalty [was] exacted with great infre- 

quency even for the most atrocious crimes and ... there 

[was] no meaningful basis for distinguishing the few cases in 

which it [was] imposed from the many cases in which it [was] 

not.” Id., at 313 (WHITE, J., concurring). 

In Gregg, the Court specifically addressed the question left 

open in Furman—whether the punishment of death for mur- 

der is “under all circumstances, ‘cruel and unusual’ in viola- 

tion of the Eighth and Fourteenth Amendments of the Con- 

stitution.” 428 U. S., at 168. We noted that the imposition 

of the death penalty for the crime of murder “has a long his- 

tory of acceptance both in the United States and in England.” 

Id., at 176. “The most marked indication of society’s en- 

dorsement of the death penalty for murder [was] the legisla- 

tive response to Furman.” Id., at 179. During the 4-year 

period between Furman and Gregg, at least 35 states had re- 

enacted the death penalty, and Congress had authorized the 

penalty for aircraft piracy. 428 U. S., at 179-180.2 The 

2 Thirty-seven States now have capital punishment statutes that were 

enacted since our decision in Furman. Thirty-three of these States have 

 



  

84-6811—OPINION 

20 McCLESKEY v». KEMP 

“getions of juries” were “fully compatible with the legislative 

judgments.” Id., at 182. We noted that any punishment 

might be unconstitutionally severe if inflicted without peno- 

logical justification, but concluded: 

“Considerations of federalism, as well as respect for the 

ability of a legislature to evaluate, in terms of its particu- 

lar State, the moral consensus concerning the death pen- 

alty and its social utility as a sanction, require us to con- 

clude, in the absence of more convincing evidence, that 

the infliction of death as a punishment for murder is not 

without justification and thus is not unconstitutionally 

severe.” Id., at 186-187. 

The second question before the Court in Gregg was the con- 

stitutionality of the particular procedures embodied in the 

Georgia capital punishment statute. We explained the fun- 

damental principle of Furman, that “where discretion is af- 

forded a sentencing body on a matter so grave as the deter- 

mination of whether a human life should be taken or spared, 

that discretion must be suitably directed and limited so as to 

minimize the risk of wholly arbitrary and capricious action.” 

428 U. S., at 189. Numerous features of the then new Geor- 

gia statute met the concerns articulated in Furman.* The 

Georgia system bifurcates guilt and sentencing proceedings 

so that the jury can receive all relevant information for sen- 

tencing without the risk that evidence irrelevant to the de- 
fendant’s guilt will influence the jury’s consideration of that 
issue. The statute narrows the class of murders subject to 

the death penalty to cases in which the jury finds at least one 
statutory aggravating circumstance beyond a reasonable 

imposed death sentences under the new statutes. NAACP Legal Defense 
& Educational Fund, Death Row, U. S. A. 1 (Oct. 1, 1986). A federal 

‘statute, amended in relevant part in 1974, authorizes the death penaity for 
aircraft piracy in which a death occurs. 49 U. S. C. App. § 1472()(1)(b). 
*We have noted that the Georgia statute generally follows the stand- 

ards of the ALI Model Penal Code § 201.6 (Prop. Off. Draft No. 13, 1961). 
Gregg v. Georgia, 428 U. S., at 194, n. 4. 

 



  

84-6811—0OPINION 

McCLESKEY v». KEMP 21 

doubt. Conversely, it allows the defendant to introduce any 
relevant mitigating evidence that might influence the jury 
not to impose a death sentence. See 428 U. S., at 163-164. 
The procedures also require a particularized inquiry into 
“‘the circumstances of the offense together with the charac- 
ter and propensities of the offender.”” Id., at 189 (quoting 
Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 
(1937). Thus, “while some jury discretion still exists, ‘the 
discretion to be exercised is controlled by clear and objective 
standards so as to produce non-discriminatory application.’” 
428 U. S., at 197-198 (quoting Coley v. State, 231 Ga. 829, 
834, 204 S. E. 2d 612, 615 (1974)). Moreover, the Georgia 
system adds “an important additional safeguard against arbi- 
trariness and caprice” in a provision for automatic appeal of a 
death sentence to the State Supreme Court. 428 U. S., at 
198. The statute requires that court to review each sen- 
tence to determine whether it was imposed under the influ- 
ence of passion or prejudice, whether the evidence supports 
the jury's finding of a statutory aggravating circumstance, 
and whether the sentence is disproportionate to sentences 
imposed in generally similar murder cases. To aid the 
court’s review, the trial judge answers a questionnaire about 
the trial, including detailed questions as to “the quality of the 
defendant’s representation [and] whether race played a role 
in the trial.” Id., at 167. 

C 

In the cases decided after Gregg, the Court has imposed a 
number of requirements on the capital sentencing process to 
ensure that capital sentencing decisions rest on the indi- 
vidualized inquiry contemplated in Gregg. In Woodson v. 
North Carolina, 428 U. S. 280 (1976), we invalidated a man- 
datory capital sentencing system, finding that the “respect 
for humanity underlying the Eighth Amendment requires 
consideration of the character and record of the individual 
offender and the circumstances of the particular offense as a 
constitutionally indispensable part of the process of inflicting 

 



  

84-6811—OPINION 

2 McCLESKEY v. KEMP 

the penalty of death.” Id., at 304 (plurality opinion of Stew- 

art, POWELL, and STEVENS, JJ.) (citation omitted). Simi- 

larly, a State must “narrow the class of murderers subject to 

capital punishment,” Gregg v. Georgia, supra, at 196, by pro- 

viding “specific and detailed guidance” to the sentencer.” 

Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion of 

Stewart, POWELL, and STEVENS, JJ.). 

In contrast to the carefully defined standards that must 

narrow a sentencer’s discretion to impose the death sentence, 

the Constitution limits a State’s ability to narrow a sen- 

tencer’s discretion to consider relevant evidence that might 

cause it to decline to impose the death sentence.” “[T]he 

sentencer . . . [cannot] be precluded from considering, as a 

mitigating factor, any aspect of a defendant’s character or 

record and any of the circumstances of the offense that the 

defendant proffers as a basis for a sentence less than death.” 

Lockett v. Ohio, 438 U. S., at 604 (plurality opinion of Bur- 

ger, C.J.) (emphasis in original; footnote omitted). See 

Skipper v. South Carolina, 476 U. S. —— (1986). Any ex- 

clusion of the “compassionate or mitigating factors stemming 

= Although the Court has recognized that jury sentencing in a capital 

case “can perform an important societal function,” Proffitt v. Florida, 428 

U. S. 242, 252 (1976) (joint opinion of Stewart, POWELL, and STEVENS, 

JJ.) (citing Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968), it 

“has never suggested that jury sentencing [in a capital case] is constitution- 

ally required.” 428 U. S., at 252. Under the Florida capital punishment 

system at issue in Proffitt, the jury’s verdict is only advisory. The trial 

judge determines the final sentence. Unlike in Georgia, a Florida trial 

judge may impose the death penalty even when the jury recommends oth- 

erwise. In Proffitt, we found that the Florida capital-sentencing proce- 

dures adequately channeled the trial judge’s discretion so that the Florida 

system, like the Georgia system, on its face “satisfie(d] the constitutional 

deficiencies identified in Furman.” Id., at 253. 
® We have not yet decided whether the Constitution permits a manda- 

tory death penalty in certain narrowly defined circumstances, such as 

when an inmate serving a life sentence without possibility of parole com- 
mits murder. See Shuman v. Wolff, 791 F. 2d 788 (CA9 1986), cert. 

granted sub nom. Sumner v. Shuman, 479 U. S. —— (1986). 

 



  

84-6811—0OPINION 

McCLESKEY ». KEMP 23 

from the diverse frailties of humankind” that are relevant to 
the sentencer’s decision would fail to treat all persons as 
“uniquely individual human beings.” Woodson v. North 
Carolina, supra, at 304. 

Although our constitutional inquiry has centered on the 
procedures by which a death sentence is imposed, we have 
not stopped at the face of a statute, but have probed the 
application of statutes to particular cases. For example, in 
Godfrey v. Georgia, 446 U. S. 420 (1980), the Court invali- 
dated a Georgia Supreme Court interpretation of the statu- 
tory aggravating circumstance that the murder be “out- 
rageously or wantonly vile, horrible or inhuman in that it 
involved torture, depravity of mind, or an aggravated bat- 
tery to the victim.” Ga. Code §27-2534.1(b)(7) (1978). 
Although that court had articulated an adequate limiting defi- 
nition of this phrase, we concluded that its interpretation 
in Godfrey was so broad that it may have vitiated the role 

of the aggravating circumstance in guiding the sentencing 
jury’s discretion. 

Finally, where the objective indicia of community values 
have demonstrated a consensus that the death penalty is dis- 
proportionate as applied to a certain class of cases, we have 
established substantive limitations on its application. In 
Coker v. Georgia, 433 U. S. 584 (1977), the Court held that a 
State may not constitutionally sentence an individual to death 
for the rape of an adult woman. In Enmund v. Florida, 458 

U. S. 782 (1982), the Court prohibited imposition of the death 
penalty on a defendant convicted of felony murder absent a 
showing that the defendant possessed a sufficiently culpable 
mental state. Most recently, in Ford v. Wainwright, 477 

U. S. —— (1986), we prohibited execution of prisoners who 
are insane. 

# This section is substantially identical to the current Georgia Code Ann. 

§ 17-10-30(b)(7) (1982), which is reprinted in n. 3, supra. 

 



  

84-6811—0OPINION 

24 McCLESKEY v». KEMP 

D 

In sum, our decisions since Furman have identified a con- 

stitutionally permissible range of discretion in imposing the 
death penalty. First, there is a required threshold below 
which the death penalty cannot be imposed. In this context, 
the State must establish rational criteria that narrow the 
decisionmaker’s judgment as to whether the circumstances of 
a particular defendant’s case meet the threshold. Moreover, 
a societal consensus that the death penalty is disproportion- 
ate to a particular offense prevents a State from imposing the 
death penalty for that offense. Second, States cannot limit 
the sentencer’s consideration of any relevant circumstance 

that could cause it to decline to impose the penalty. In this 
respect, the State cannot channel the sentencer’s discretion, 

but must allow it to consider any relevant information offered 
by the defendant. 

Iv 

A 

In light of our precedents under the Eighth Amendment, 
MecCleskey cannot argue successfully that his sentence is 
“disproportionate to the crime in the traditional sense.” See 
Pulley v. Harris, 465 U. S. 37, 43 (1984). He does not deny 
that he committed a murder in the course of a planned rob- 
bery, a crime for which this Court has determined that the 
death penalty constitutionally may be imposed. Gregg v. 
Georgia, 428 U. S., at 187. His disproportionality claim “is 
of a different sort.” Pulley v. Harris, supra, at 43. 

McCleskey argues that the sentence in his case is dispropor- 
tionate to the sentences in other murder cases. 

On the one hand, he cannot base a constitutional claim on 

an argument that his case differs from other cases in which 
defendants did receive the death penalty. On automatic ap- 
peal, the Georgia Supreme Court found that McCleskey’s 
death sentence was not disproportionate to other death sen- 
tences imposed in the State. McCleskey v. State, 245 Ga. 

 



  

84-6811—OPINION 

McCLESKEY v». KEMP 25 

108, 263 S. E. 2d 146 (1980). The court supported this con- 
clusion with an appendix containing citations to 13 cases 
involving generally similar murders. See Ga. Code Ann. 
§ 17-10-35(e) (1982). Moreover, where the statutory proce- 
dures adequately channel the sentencer’s discretion, such 
proportionality review is not constitutionally required. Pul- 
ley v. Harris, supra, at 50-51. 

On the other hand, absent a showing that the Georgia cap- 
ital punishment system operates in an arbitrary and ca- 
pricious manner, McCleskey cannot prove a constitutional 
violation by demonstrating that other defendants who may 
be similarly situated did not receive the death penalty. In 
Gregg, the Court confronted the argument that “the oppor- 
tunities for discretionary action that are inherent in the 
processing of any murder case under Georgia law,” Gregg v. 
Georgia, supra, at 199, specifically the opportunities for dis- 
cretionary leniency, rendered the capital sentences imposed 
arbitrary and capricious. We rejected this contention: 

“The existence of these discretionary stages is not de- 
terminative of the issues before us. At each of these 
stages an actor in the criminal justice system makes a 
decision which may remove a defendant from consider- 
ation as a candidate for the death penalty. Furman, in 
contrast, dealt with the decision to impose the death sen- 
tence on a specific individual who had been convicted of a 
capital offense. Nothing in any of our cases suggests 
that the decision to afford an individual defendant mercy 
violates the Constitution. Furman held only that, in 
order to minimize the risk that the death penalty would 
be imposed on a capriciously selected group of offenders, 
the decision to impose it had to be guided by standards 
so that the sentencing authority would focus on the par- 
ticularized circumstances of the crime and the defend- 
ant.” Ibid. 2 

=2The Constitution is not offended by inconsistency in results based on 

 



  

84-6811—0PINION 

26 McCLESKEY v. KEMP 

Because McCleskey’s sentence was imposed under Georgia 

sentencing procedures that focus discretion “on the particu- 

larized nature of the crime and the particularized charac- 

teristics of the individual defendant,” id., at 206, we lawfully 

may presume that McCleskey’s death sentence was not “wan- 

tonly and freakishly” imposed, id., at 207, and thus that the 

sentence is not disproportionate within any recognized mean- 

ing under the Eighth Amendment. 

B 

Although our decision in Gregg as to the facial validity of 

the Georgia capital punishment statute appears to foreclose 

McCleskey’s disproportionality argument, he further con- 

tends that the Georgia capital punishment system is ar- 

bitrary and capricious in application, and therefore his 

sentence is excessive, because racial considerations may in- 

fluence capital sentencing decisions in Georgia. We now ad- 

dress this claim. . 
To evaluate McCleskey’s challenge, we must examine ex- 

actly what the Baldus study may show. Even Professor Bal- 

dus does not contend that his statistics prove that race enters 

into any capital sentencing decisions or that race was a factor 

in McCleskey's particular case.® Statistics at most may 

the objective circumstances of the crime. Numerous legitimate factors 

may influence the outcome of a trial and a defendant’s ultimate sentence, 

even though they may be irrelevant to his actual guilt. If sufficient evi- 

dence to link a suspect to a crime cannot be found, he will not be charged. 

The capability of the responsible law enforcement agency can vary widely. 

Also, the strength of the available evidence remains a variable throughout 

the criminal justice process and may influence a prosecutor’s decision to 

offer a plea bargain or to go to trial. Witness availability, credibility, and 

memory also influence the results of prosecutions. Finally, sentencing in 

state courts is generally discretionary, so a defendant’s ultimate sentence 

necessarily will vary according to the judgment of the sentencing author- 
ity. The foregoing factors necessarily exist in varying degrees throughout 
our criminal justice system. 

® According to Professor Baldus: 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP 27 

show only a likelihood that a particular factor entered into 
some decisions. There is, of course, some risk of racial prej- 
udice influencing a jury’s decision in a criminal case. There 
are similar risks that other kinds of prejudice will influence 
other criminal trials. See infra, at 28-30. The question “is 
at what point that risk becomes constitutionally unaccept- 
able,” Turner v. Murray, 476 U. S. : , n. 8 (1986). 
McCleskey asks us to accept the likelihood allegedly shown 
by the Baldus study as the constitutional measure of an unac- 
ceptable risk of racial prejudice influencing capital sentencing 
decisions. This we decline to do. 

Because of the risk that the factor of race may enter the 
criminal justice process, we have engaged in “unceasing ef- 
forts” to eradicate racial prejudice from our criminal justice 
system. Batson v. Kentucky, 476 U. S. : (1986).% 

  

  

“McCleskey’s case falls in [a] grey area where ... you would find the 
greatest likelihood that some inappropriate consideration may have come | 
to bear on the decision. 

“In an analysis of this type, obviously one cannot say that we cansay toa 
moral certainty what it was that influenced the decision. We can’t do 
that.” App. 45-46. : 

®» This Court has repeatedly stated that prosecutorial discretion cannot 
be exercised on the basis of race. Wayte v. United States, 470 U. S. 598, 
608 (1985); United States v. Batchelder, 442 U. S. 114 (1979); Oyler v. 
Boles, 368 U. S. 448 (1962). Nor can a prosecutor exercise peremptory 
challenges on the basis of race. Batson v. Kentucky, 476 U.S. — 
(1986); Swain v. Alabama, 380 U. S. 202 (1965). More generally, this 
Court has condemned state efforts to exclude blacks from grand and petit 
juries. Vasquez v. Hillery, 474 U. S. —— (1986); Alexander v. Louisi- 
ana, 405 U. S. 625, 628-629 (1972); Whitus v. Georgia, 385 U. S. 545, 
549-550 (1967); Norris v. Alabama, 294 U. S. 587, 589 (1935); Neal v. Del- 

aware, 103 U. S. 370, 394 (1881); Strauder v. West Virginia, 100 U. S. 303, 

308 (1880); Ex parte Virginia, 100 U. S. 339 (1880). 
Other protections apply to the trial and jury deliberation process. 

Widespread bias in the community can make a change of venue constitu- 
tionally required. Irwin v. Dowd, 366 U. S. 717 (1961). The Constitution 
prohibits racially-biased prosecutorial arguments. Donnelly v. DeChris- 
toforo, 416 U. S. 637, 643 (1974). If the circumstances of a particular case 
indicate a significant likelihood that racial bias may influence a jury, the 

 



  

84-6811—OPINION 

28 McCLESKEY ». KEMP 

Our efforts have been guided by our recognition that “the in- 

estimable privilege of trial by jury . .. is a vital principle, 

underlying the whole administration of criminal justice,” Ex 

parte Milligan, 4 Wall. 2, 123 (1866). See Duncan v. Louisi- 

ana, 391 U. S. 145, 155 (1968). Thus, it is the jury that is 

a criminal defendant’s fundamental “protection of life and 

liberty against race or color prejudice.” Strauder v. West 

Virginia, 100 U. S. 303, 309 (1880). Specifically, a capital 

sentencing jury representative of a criminal defendant’s com- 

munity assures a “ ‘diffused impartiality,” Taylor v. Louisi- 

ana, 419 U. S. 522, 530 (1975) (quoting Thiel v. Southern 

* Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dis- 

senting), in the jury's task of “express[ing] the conscience of 

the community on the ultimate question of life or death,” 

Witherspoon v. Illinois, 391 U. S. 510, 519 (1968).® 

Constitution requires questioning as to such bias. Ristaino v. Ross, 424 

U. S. 589, 596 (1976). Finally, in a capital sentencing hearing, a defendant 

convicted of an interracial murder is entitled to such questioning without 

regard to the circumstances of the particular case. Turner v. Murray, 476 

U. S. — (1986). 
a In advocating the adoption of the Constitution, Alexander Hamilton 

stated: : 

“The friends and adversaries of the plan of the convention, if they agree in 

nothing else, concur at least in the value they set upon the trial by jury; or 

if there is any difference between them, it consists in this: the former re- 

gard it as a valuable safeguard to liberty, the latter represent it as the very 

palladium of free government.” The Federalist No. 83, p. 519 (J. Gideon 

ed. 1818). 
® In Witherspoon, JUSTICE BRENNAN joined the opinion of the Court 

written by Justice Stewart. The Court invalidated a statute that permit- 

ted a prosecutor to eliminate prospective jurors by challenging all who ex- 

press qualms about the death penalty. The Court expressly recognized 

that the purpose of the “broad discretion” given to a sentencing jury is “to 
decide whether or not death is ‘the proper penalty’ in a given case,” noting 
that “a juror’s general views about capital punishment play an inevitable 
role in any such decision.” 391 U. S., at 519 (emphasis omitted). Thus, a 
sentencing jury must be composed of persons capable of expressing the 
“conscience of the community on the ultimate question of life or death.” 
Itid. The Court referred specifically to the plurality opinion of Chief Jus- 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP 29 

Individual jurors bring to their deliberations “qualities of 
human nature and varieties of human experience, the range 
of which is unknown and perhaps unknowable.” Peters v. 
Kiff, 407 U. S. 493, 503 (1972) (opinion of MARSHALL, J.). 
The capital sentencing decision requires the individual jurors 
to focus their collective judgment on the unique characteris- 
tics 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.” H. Kalven & 
H. Zeisel, The American Jury 498 (1966). 

McCleskey’s argument that the Constitution condemns the 
discretion allowed decisionmakers in the Georgia capital sen- 
tencing system is antithetical to the fundamental role of dis- 
cretion in our criminal justice system. Discretion in the 
criminal justice system offers substantial benefits to the 
criminal defendant. Not only can a jury decline to impose 
the death sentence, it can decline to convict, or choose to con- 
viet of a lesser offense. Whereas decisions against a defend- 
ant’s interest may be reversed by the trial judge or on ap- 

tice Warren in Trop v. Dulles, 356 U. S. 86 (1958), to the effect that it is 

the jury that must “maintain a link between contemporary community val- 
ues and the penal system...” 391 U. S., at 519, n. 15. 

The dissent’s condemnation of the results of the Georgia capital-punish- 
ment system must be viewed against this background. As to community 
values and the constitutionality of capital punishment in general, we have 
previously noted, supra, n. 23, that the elected representatives of the peo- 
ple in 37 States and the Congress have enacted capital punishment stat- 
utes, most of which have been enacted or amended to conform generally to 

the Gregg standards, and that 33 States have imposed death sentences 
thereunder. In the individual case, a jury sentence reflects the conscience 

of the community as applied to the circumstances of a particular offender 
and offense. We reject the dissent’s contention that this important stand- 
ard for assessing the constitutionality of a death penalty should be 
abandoned. 

 



  

84-6811—0OPINION 

30 MCCLESKEY v. KEMP 

peal, these discretionary exercises of leniency are final and 

unreviewable.® Similarly, the capacity of prosecutorial dis- 

cretion to provide individualized justice is “firmly entrenched 

in American law.” 2 W. LaFave & D. Israel, Criminal Pro- 

cedure § 13.2(a), p. 160 (1984). As we have noted, a prosecu- 

tor can decline to charge, offer a plea bargain,* or decline to 

seek a death sentence in any particular case. See n. 12, 

supra. Of course, “the power to be lenient [also] is the 

power to discriminate,” K. Davis, Discretionary Justice 170 

(1973), but a capital-punishment system that did not allow for 

discretionary acts of leniency “would be totally alien to our 

notions of criminal justice.” Gregg v. Georgia, 428 U. S., at 

200, n. 50. 

C 

At most, the Baldus study indicates a discrepancy that ap- 

pears to correlate with race. Apparent disparities in sen- 

2 In the guilt phase of a trial, the Double Jeopardy Clause bars re- 

prosecution after an acquittal, even if the acquittal is “ ‘based upon an egre- 

giously erroneous foundation.’” United States v. DiF rancesco, 449 U. S. 

117, 129 (1980) (quoting Fong Foo v. United States, 369 U. S. 141, 143 

(1962). See Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 7-8 

(1966) (Despite the apparent injustice of such an acquittal, “t]he founding 

fathers, in light of history, decided that the balance here should be struck 

in favor of the individual”). 
In the penalty hearing, Georgia law provides that “unless the jury . . . 

recommends the death sentence in its verdict, the court shall not sentence 

the defendant to death.” Georgia Code Ann. § 17-10-31 (1982). In Bull- 

ington v. Missouri, 451 U. S. 430 (1981), this Court held that the Double 

Jeopardy Clause of the Constitution prohibits a State from asking for a sen- 

tence of death at a second trial when the jury at the first trial recom- 

mended a lesser sentence. 
% In this case, for example, McCleskey declined to enter a guilty plea. 

According to his trial attorney, “[TThe Prosecutor was indicating that we 

might be able to work out a life sentence if he were willing to enter a plea. 
But we never reached any concrete stage on that because Mr. McCleskey’s 
attitude was that he didn’t want to enter a plea. So it never got any fur- 
ther than just talking about it.” Tr. in No. 4909 (Jan. 30, 1981) p. 56. 

 



  

84-6811—OPINION 

MCCLESKEY v. KEMP 31 

tencing are an inevitable part of our criminal justice system.® 

The discrepancy indicated by the Baldus study is “a far cry 

from the major systemic defects identified in Furman,” Pul- 

ley v. Harris, 465 U. S., at 54.® As this Court has recog- 

nized, any mode for determining guilt or punishment “has its 

weaknesses and the potential for misuse.” Singer v. United 

States, 380 U.S. 24, 35 (1965). See Bordenkircher v. 

Hayes, 434 U. S. 3857, 365 (1978). Specifically, “there can be 

‘no perfect procedure for deciding in which cases govern- 

mental authority should be used to impose death.”” Zant v. 

Stephens, 462 U. S. 862, 884 (1983) (quoting Lockett v. Ohio, 

438 U. S., at 605 (plurality opinion of Burger, C. J.)). De- 

spite these imperfections, our consistent rule has been that 

constitutional guarantees are met when “the mode [for deter- 

mining guilt or punishment] itself has been surrounded with 

safeguards to make it as fair as possible.” Singer v. United 

States, supra, at 35. Where the discretion that is funda- 

mental to our crilinal process is involved, we decline to as- 

sume that what is unexplained is invidious. In light of the 

® Congress has acknowledged. the existence of such discrepancies in 

criminal sentences, and in 1984 created the United States Sentencing Com- 

mission to develop sentencing guidelines. The objective of the guidelines 

“is to avoid unwarranted sentencing disparities among defendants with 

similar records who have been found guilty of similar criminal conduct, 

while maintaining sufficient flexibility to permit individualized sentencing 
when warranted by mitigating or aggravating factors not taken into ac- 

count in the guidelines.” 52 Fed. Reg. 3920 (1987) (emphasis added). No 

one contends that all sentencing disparities can be eliminated. The guide- 

lines, like the safeguards in the Gregg-type statute, further an essential 

need of the Anglo-American criminal-justice system—to balance the de- 
sirability of a high degree of uniformity against the necessity for the exer- 

cise of discretion. 
%The Baldus study in fact confirms that the Georgia system results in a 

reasonable level of proportionality among the class of murderers eligible 
for the death penalty. As Professor Baldus confirmed, the system sorts 
out cases where the sentence of death is highly likely and highly unlikely, 
leaving a mid-range of cases where the imposition of the death penalty in 
any particular case is less predictable. App. 35-36. See n. 5, supra. 

 



  

84-6811—OPINION 

32 McCLESKEY v. KEMP 

safeguards designed to minimize racial bias in the process, 

the fundamental value of jury trial in our criminal justice sys- 

tem, and the benefits that discretion provides to criminal de- 

fendants, we hold that the Baldus study does not demon- 

strate a constitutionally significant risk of racial bias affecting 
the Georgia capital-sentencing process.” 

7 JUSTICE BRENNAN's eloquent dissent of course reflects his often re- 
peated opposition to the death sentence. His views, that also are shared 
by JUSTICE MARSHALL, are principled and entitled to respect. Neverthe- 
less, since Gregg was decided in 1976, seven members of this Court consist- 
ently have upheld sentences of death under Gregg-type statutes providing 

for meticulous review of each sentence in both state and federal courts. 

The ultimate thrust of JUSTICE BRENNAN’s dissent is that Gregg and its 
progeny should be overruled. He does not, however, expressly call for 
the overruling of any prior decision. Rather, relying on the Baldus study, 
JUSTICE BRENNAN, joined by JUSTICES MARSHALL, BLACKMUN and STE- 
VENS, questions the very heart of our criminal justice system: the tradi- 
tional discretion that prosecutors and juries necessarily must have. 
We have held that discretion in a capital punishment system is necessary 

to satisfy the Constitution. Woodson v. North Carolina, 428 U. S. 280 

(1976). See pp. 21-24, supra. Yet, the dissent now claims that the “dis- 
cretion afforded prosecutors and jurors in the Georgia capital sentencing 
system” violates the Constitution by creating “opportunities for racial con- 
siderations to influence criminal proceedings.” Post, at —. The dis- 

sent contends that in Georgia “[n]o guidelines govern prosecutorial deci- 
sions . . . and that Georgia provides juries with no list of aggravating and 
mitigating factors, nor any standard for balancing them against one an- 
other.” Post, at ——. Prosecutorial decisions necessarily involve both 
judgmental and factual decisions that vary from case to case. See ABA 
Standards for Criminal Justice, 3-3.8, 3-3.9 (2d ed. 1982). Thus, it is diffi- 

cult to imagine guidelines that would produce the predictability sought by 

the dissent without sacrificing the discretion essential to a humane and fair 
system of criminal justice. Indeed, the dissent suggests no such guide- 
lines for prosecutorial discretion. 

The reference to the failure to provide juries with the list of aggravating 
and mitigating factors is curious. The aggravating circumstances are set 
forth in detail in the Georgia statute. See supra, n. 3. The jury is not 
provided with a list of aggravating circumstances because not all of them 
are relevant to any particular crime. Instead, the prosecutor must choose 

the relevant circumstances and the State must prove to the jury that at 
least one exists beyond a reasonable doubt before the jury can even con- 

 



  

84-6811—OPINION 

McCLESKEY v. KEMP 33 

Vv 

Two additional concerns inform our decision in this case. 
First, McCleskey’s claim, taken to its logical conclusion, 
throws into serious question the principles that underlie our 
entire criminal justice system. The Eighth Amendment is 
not limited in application to capital punishment, but applies 

sider imposing the death sentence. It would be improper and often preju- 
dicial to allow jurors to speculate as to aggravating circumstances wholly 
without support in the evidence. 

The dissent’s argument that a list of mitigating factors is required is 
particularly anomalous. We have held that the Constitution requires that 
juries be allowed to consider “any relevant mitigating factor,” even if it is 

not included in a statutory list. Eddings v. Oklahoma, 455 U. S. 104, 112 
(1982). See Lockett v. Ohio, 438 U. S. 586 (1978). The dissent does not 

attempt to harmonize its criticism with this constitutional principle. The 
dissent also does not suggest any standard, much less a workable one, for 
balancing aggravating and mitigating factors. If capital defendants are to 
be treated as “uniquely individual human beings,” Woodson v. North Caro- 
lina, supra, at 304, then discretion to evaluate and weigh the circum- 

stances relevant to the particular defendant and the crime he committed is 
essential. : 

The dissent repeatedly emphasizes the need for “a uniquely high degree 
of rationality in imposing the death penalty.” Post, at ——. Again, no 
suggestion is made as to how greater “rationality” could be achieved under 
any type of statute that authorizes capital punishment. The Gregg-type 

statute imposes unprecedented safeguards in the special context of capital 
punishment. These include: (i) a bifurcated sentencing proceeding; (ii) the 
threshold requirement of one or more aggravating circumstances; and (iii) 
mandatory state Supreme Court review. All of these are administered 
pursuant to this Court’s decisions interpreting the limits of the Eighth 
Amendment on the imposition of the death penalty, and all are subject to 
ultimate review by this Court. These ensure a degree of care in the impo- 
sition of the sentence of death that can be described only as unique. Given 
these safeguards already inherent in the imposition and review of capital 
sentences, the dissent’s call for greater rationality is no less than a claim 
that a capital-punishment system cannot be administered in accord with 
the Constitution. As we reiterate, infra, the requirement of heightened 

rationality in the imposition of capital punishment does not “plac{e] totally 

unrealistic conditions on its use.” Gregg v. Georgia, 428 U. S., at 199, 
n. 50. 

 



  

84-6811—OPINION 

34 : McCLESKEY v. KEMP 

to all penalties. Solem v. Helm, 463 U. S. 277, 289-290 

(1983); see Rummel v. Estelle, 445 U. S. 263, 293 (1980) 

(POWELL, J., dissenting). Thus, if we accepted McCleskey’s 

claim that racial bias has impermissibly tainted the capital 

sentencing decision, we could soon be faced with similar 

claims as to other types of penalty.® Moreover, the claim 

that his sentence rests on the irrelevant factor of race easily 

could be extended to apply to claims based on unexplained 

discrepancies that correlate to membership in other minority 

groups,® and even to gender. Similarly, since McCleskey’s 
  

» Studies already exist that allegedly demonstrate a racial disparity in 

the length of prison sentences. See, e. g., Spohn, Gruhl, & Welch, The 

Effect of Race on Sentencing: A Reexamination of an Unsettled Question, 

16 Law & Soc. Rev. 71 (1981-1982); Unnever, Frazier & Henretta, Race 

Differences in Criminal Sentencing, 21 Sociological Q. 197 (1980). 

® In Regents of the University of California v. Bakke, 438 U. S. 265, 295 

(1978) (opinion of POWELL, J.), we recognized that the national “majority” 

“js composed of various minority groups, most of which can lay claim to a 

history of prior discrimination at the hands of the State and private in- 

dividuals.” See id., at 292 (citing Strauder v. West Virginia, 100 U. S., at 

308 (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) 

(Chinese); Truaz v. Raich, 239 U. S. 33, 36, 41-42 (1915) (Austrian resi- 

dent aliens); Korematsu v. United States, 323 U. S. 214, 216 (1944) (Japa- 

nese); Hernandez v. Texas, 347 U. S. 475 (1954) (Mexican-Americans)). 

See also Uniform Guidelines on Employee Selection Procedures (1978), 29 

CFR §1607.4(B) (1986). (employer must keep records as to the “following 

races and ethnic groups: Blacks, American Indians (including Alaskan na- 

tives), Asians (including Pacific Islanders), Hispanics (including persons of 

Mexican, Puerto Rican, Cuban, Central or South America, or other Span- 

ish origin or culture regardless of race), and whites (Caucasians) other than 
Hispanics”); U. S. Bureau of the Census, 1980 Census of Population, vol. 1, 

ch. B (PC80-1-B), reprinted in 1986 Statistical Abstract of the United 
States 29 (dividing United States population by “race and Spanish origin” 
into the following groups: White, Black, American Indian, Chinese, Fili- 

pino, Japanese, Korean, Vietnamese, Spanish origin, and all other races); 
U. S. Bureau of the Census, 1980 Census of the Population, Supplemen- 
tary Report, series PC80-S1-10, reprinted in 1986 Statistical Abstract of 

the United States 34 (listing 44 ancestry groups and noting that many indi- 
vidual reported themselves to belong to multiple ancestry groups). 

 



  

84-6811—OPINION 

MCCLESKEY v KEMP 35 

claim relates to the race of his victim, other claims could 
apply with equally logical force to statistical disparities 
that correlate with the race or sex of other actors in the crim- 
inal justice system, such as defense attorneys*, or 
judges.? Also, there is no logical reason that such a claim 
need be limited to racial or sexual bias. If arbitrary and ca- 
pricious punishment is the touchstone under the Eighth 
Amendment, such a claim could—at least in theory—be 

We also have recognized that the ethnic composition of the Nation is 
ever-shifting. Crawford v. Board of Ed., 458 U. S. 527 (1982) illustrates 

demographic facts that we increasingly find in our country, namely, that 
populations change in composition, and may do so in relatively short time 
spans. We noted: “In 1968 when the case went to trial, the [Los Angeles] 

District was 53.6% white, 22.6% black, 20% Hispanic, and 3.8% Asian and 

other. By October 1980, the demographic composition had altered rad- 
ically: 23.7% white, 23.3% black, 45.3% Hispanic, and 7.7% Asian and 
other.” Id., at 530, n. 1. Increasingly whites are becoming a minority in 
many of the larger American cities. There appears to be no reason why a 
white defendant in such a city could not make a claim similar to McCles- 
key’s if racial disparities in sentencing arguably are shown by a statistical 
study. 

Finally, in our heterogeneous: society the lower courts have found the 
boundaries of race and ethnicity increasingly difficult to determine. See 
Shaare Tefila Congregation v. Cobb, 785 F. 2d 523 (CA4 1986), cert. 
granted, 479 U. S. —— (1986), and Al-Khazraji v. Saint Francis College, 
784 F. 2d 505 (CA3 1986), cert. granted, 479 U. S. —— (1986) (argued 
February 25, 1987) (presenting the questions of whether Jews and Arabs, 
respectively, are “races” covered by 42 U. S. C. §§ 1981 and 1982). 

© See Chamblin, The Effect of Sex on the Imposition of the Death Pen- 
alty (paper presented at a symposium of the Amer. Psych. Assn., entitled 

“Extra-legal Attributes Affecting Death Penalty Sentencing,” New York 
City, Sept., 1979); Steffensmeier, Effects of Judge’s and Defendant's Sex 

on the Sentencing of Offenders, 14 Psychology 3 (1977). 
4 See Johnson, Black Innocence and the White Jury, 83 Mich. L. Rew. 

1611, 1625-1640, and n. 115 (1985) (citing Cohen & Peterson, Bias in the 
Courtroom: Race and Sex Effects of Attorneys on Juror Verdicts, 9 Social 
Behavior & Personality 81 (1981)); Hodgson & Pryor, Sex Discrimination 
in the Courtroom: Attorney’s Gender and Credibility, 55 Psychological 
Rep. 483 (1984). 

@ See Steffensmeier, supra, n. 31. 

 



  

84-6811—0OPINION 

36 McCLESKEY v. KEMP 

based upon any arbitrary variable, such as the defendant’s fa- 

cial characteristics, or the physical attractiveness of the de- 

fendant or the victim,“ that some statistical study indicates 

may be influential in jury decisionmaking. As these exam- 

ples illustrate, there is no limiting principle to the type of 

challenge brought by McCleskey.® The Constitution does 

4 See Kerr, Bull, MacCoun, & Rathborn, Effects of victim attractive- 

ness, care and disfigurement on the judgements of American and British 

mock jurors, 24 Brit. J. Social Psych. 47 (1985); Johnson, supra, 1638, 

n. 128 (citing Shoemaker, South, & Lowe, Facial Stereotypes of Deviants 

and Judgments of Guilt or Innocence, 51 Social Forces 427 (1973). 
“Some studies indicate that physically attractive defendants receive 

greater leniency in sentencing than unattractive defendants, and that of- 

fenders whose victims are physically attractive receive harsher sentences 

than defendants with less attractive victims. Smith & Hed, Effects of Of- 

fenders’ Age and Attractiveness on Sentencing by Mock Juries, 44 Psycho- 

logical R. 691 (1979); Kerr, Beautiful and Blameless: Effects of Vietim 

Attractiveness and Responsibility on Mock Jurors’ Verdicts, 4 Personality 

and Social Psych. Bull. 479 (1978). But see Baumeister & Darley, Reduc- 

ing the Biasing Effect of Perpetrator Attractiveness in Jury Simulation, 8 

Personality and Social Psych. Bull. 286 (1982); Schwibbe & Schwibbe, 
Judgment and Treatment of People of Varied Attractiveness, 48 Psycho- 

logical R. 11 (1981); Weiten, The Attraction-Leniency Effect in Jury Re- 
search: An Examination of External Validity, 10 J. Applied Social Psych. 

340 (1980). 
4 JUSTICE STEVENS, who would not overrule Gregg, suggests in his dis- 

sent that the infirmities alleged by McCleskey could be remedied by nar- 

rowing the class of death-eligible defendants to categories identified by the 
Baldus study where “prosecutors consistently seek, and juries consistently 
impose, the death penalty without regard to the race of the victim or the 
race of the offender.” Post, at ——. This proposed solution is unconvine- 
ing. First, “consistently” is a relative term, and narrowing the category 
of death-eligible defendants would simply shift the borderline between 
those defendants who received the death penalty and those who did not. 
A borderline area would continue to exist and vary in its boundaries. 
Moreover, because the discrepancy between borderline cases would be dif- 
ficult to explain, the system would likely remain open to challenge on the 
basis that the lack of explanation rendered the sentencing decisions uncon- 
stitutionally arbitrary. 

Second, even assuming that a category with theoretically consistent re- 
sults could be identified, it is difficult to imagine how JUSTICE STEVENS’ 

 



  

84-6811—OPINION 

MCCLESKEY v KEMP 37 

not require that a State eliminate any demonstrable disparity 

that correlates with a potentially irrelevant factor in order to 

operate a criminal justice system that includes capital punish- 

ment. As we have stated specifically in the context of capi- 

tal punishment, the Constitution does not “plac(e] totally un- 

realistic conditions on its use.” Gregg v. Georgia, 428 U. S., 

at 199, n. 50. 

Second, McCleskey’s arguments are best presented to the 

legislative bodies. It is not the responsibility—or indeed 

even the right—of this Court to determine the appropriate 

punishment for particular crimes. It is the legislatures, the 

elected representatives of the people, that are “constituted to 

respond to the will and consequently the moral values of the 

people.” Furman v. Georgia, 408 U. S., at 383 (Burger, 

C. J., dissenting). Legislatures also are better qualified to 
weigh and “evaluate the results of statistical studies in terms 
of their own local conditions and with a flexibility of approach 

that is not available to the courts,” Gregg v. Georgia, supra, 
at 186. Capital punishment is now the law in more than two 
thirds of our States. It is the ultimate duty of courts to 

proposal would or could operate on a case-by-case basis. Whenever a vic- 
tim is white and the defendant is a member of a different race, what steps 
would a prosecutor be required to take—in addition to weighing the cus- 
tomary prosecutorial considerations—before concluding in the particular 
case that he lawfully could prosecute? In the absence of a current, Baldus- 
type study focused particularly on the community in which the crime was 
committed, where would he find a standard? Would the prosecutor have 
to review the prior decisions of community prosecutors and determine the 
types of cases in which juries in his jurisdiction “consistently” had imposed 
the death penalty when the victim was white and the defendant was of a 
different race? And must he rely solely on statistics? Even if such a 

study were feasible, would it be unlawful for the prosecutor, in making his 
final decision in a particular case, to consider the evidence of guilt and the 
presence of aggravating and mitigating factors? However conscientiously’ 
a prosecutor might attempt to identify death-eligible defendants under the 
dissent’s suggestion, it would be a wholly speculative task at best, likely to 

result in less rather than more fairness and consistency in the imposition of 
the death penalty. 

 



  

84-6811—OPINION 

38 McCLESKEY v. KEMP 

determine on a case-by-case basis whether these laws are 

applied consistently with the Constitution. Despite 

McCleskey’s wide ranging arguments that basically challenge 

the validity of capital punishment in our multi-racial society, 

the only question before us is whether in his case, see supra, 

at 1-3, the law of Georgia was properly applied. We agree 

with the District Court and the Court of Appeals for the 

Eleventh Circuit that this was carefully and correctly done in 

this case. 
VI 

Accordingly, we affirm the judgment of the Court of 

Appeals for the Eleventh Circuit. 
It is so ordered. 

 



  

SUPREME COURT OF THE UNITED STATES 

No. 84-6811 

  

  

WARREN McCLESKEY, PETITIONER wv RALPH 
KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC 

AND CLASSIFICATION CENTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT 

[April 22, 1987] 

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, 
and with whom JUSTICE BLACKMUN and JUSTICE STEVENS 

join in all but Part I, dissenting. 

I 

Adhering to my view that the death penalty is in all cir- 
cumstances cruel and unusual punishment forbidden by the 
Eighth and Fourteenth Amendments, I would vacate the de- 
cision below insofar as it left undisturbed the death sentence 
imposed in this case. Gregg v. Georgia, 428 U. S. 153, 227 
(1976). The Court observes that “[t]he Gregg-type statute 
imposes unprecedented safeguards in the special context of 
capital punishment,” which “ensure a degree of care in the 
imposition of the death penalty that can be described only as 
unique.” Ante, at —, n. 31. Notwithstanding these ef- 
forts, murder defendants in Georgia with white victims are 
more than four times as likely to receive the death sentence 
as are defendants with black victims. Petitioner’s Exhibit 
DB 82. Nothing could convey more powerfully the intracta- 

‘ble reality of the death penalty: “that the effort to eliminate 
arbitrariness in the infliction of that ultimate sanction is"so 
plainly doomed to failure that it—and the death penalty— 
must be abandoned altogether.” Godfrey v. Georgia, 446 

 



  

84-6811—DISSENT 

2 McCLESKEY ». KEMP 

U. S. 420, 442 (1980) (MARSHALL, J., concurring in the 
judgment). 

Even if I did not hold this position, however, I would re- 
verse the Court of Appeals, for petitioner McCleskey has 
clearly demonstrated that his death sentence was imposed in 
violation of the Eighth and Fourteenth Amendments. While 
I join Parts I through IV-A of JUSTICE BLACKMUN’s dissent- 
ing opinion discussing petitioner’s Fourteenth Amendment 
claim, I write separately to emphasize how conclusively 
McCleskey has also demonstrated precisely the type of risk 
of irrationality in sentencing that we have consistently con- 
demned in our Eighth Amendment jurisprudence. 

II 

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 dis- 
turbing. First, counsel would have to tell MeCleskey 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. Petitioner’s- Supplemental Exhibits (Supp. 
Exh.) 50. Furthermore, counsel would feel bound to tell 
McCleskey that defendants charged with killing white vie- 
tims in Georgia are 4.3 times as likely to be sentenced to 
death as defendants charged with killing blacks. Petition- 
er’s Exhibit DB 82. 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, Supp. Exh. 51, while, among 
defendants with aggravating and mitigating factors compara- 
ble to McCleskey, 20 of every 34 would not have been sen- 
tenced to die if their victims had been black. Id., at 54. Fi- 
nally, 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 

 



  

84-6811—DISSENT 

McCLESKEY v». KEMP 3 

cases featuring any other racial combination of defendant and 
victim. Ibid. 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. 

The Court today holds that Warren McCleskey’s sentence 
was constitutionally imposed. It finds no fault in a system in 
which lawyers must tell their clients that race casts a large 
shadow on the capital sentencing process. The Court ar- 
rives at this conclusion by stating that the Baldus Study can- 
not “prove that race enters into any capital sentencing deci- 
sions or that race was a factor in McCleskey’s particular 
case.” Ante, at —— (emphasis in original). Since, accord- 
ing to Professor Baldus, we cannot say “to a moral certainty” 
that race influenced a decision, ante, at ——, n. 23, we can 
identify only “a likelihood that a particular factor entered into 
some decisions”, ante, at ——, and “a discrepancy that ap- 
pears to correlate with race.” Ante, at ——. This “likeli- 
hood” and “discrepancy,” holds the Court, is insufficient to 
establish a constitutional violation. The Court reaches this 
conclusion by placing four factors on the scales opposite 
McCleskey’s evidence: the desire to encourage sentencing 
discretion, the existence of “statutory safeguards” in the 
Georgia scheme, the fear of encouraging widespread chal- 
lenges to other sentencing decisions, and the limits of the ju- 
dicial role. The Court’s evaluation of the significance of peti- 
tioner’s evidence is fundamentally at odds with our consistent 
concern for rationality in capital sentencing, and the consid- 
erations that the majority invokes to discount that evidence 
cannot justify ignoring its force. 

III 

A 

It is important to emphasize at the outset that the Court’s 
observation that McCleskey cannot prove the influence of 
race on any particular sentencing decision is irrelevant in 
evaluating his Eighth Amendment claim. Since Furman v. 

 



  

84-6811—DISSENT 

4 McCLESKEY v». KEMP 

Georgia, 408 U. S. 238 (1972), the Court has been concerned 

with the risk of the imposition of an arbitrary sentence, 

rather than the proven fact of one. Furman held that the 

death penalty “may not be imposed under sentencing proce- 

dures that create a substantial risk that the punishment will 

be inflicted in an arbitrary and capricious manner.” Godfrey 

v. Georgia, 446 U. S., at 427. As JUSTICE O'CONNOR ob- 

served in Caldwell v. Mississippi, 472 U. S. 320, 343 (1985), 

a death sentence must be struck down when the circum- 

stances under which it has been imposed “creat(e] an unac- 

ceptable risk that ‘the death penalty [may have been] meted 

out arbitrarily or capriciously’ or through ‘whim or mistake’” 

(emphasis added) (quoting California v. Ramos, 463 U. S. 

992, 999 (1983)). - This emphasis on risk acknowledges the 

difficulty of divining the jury’s motivation in an individual 
case. In addition, it reflects the fact that concern for arbi- 

trariness focuses on the rationality of the system as'a whole, 

and that a system that features a significant probability that 

sentencing decisions are influenced by impermissible consid- 

erations cannot be regarded as rational.! As we said in 

Gregg v. Georgia, 428 U. S. 153, 200 (1976), “the petitioner 
looks to the sentencing system as a whole (as the Court did in 
Furman and we do today)”: a constitutional violation is es- 

'Once we can identify a pattern of arbitrary sentencing outcomes, we 

can say that a defendant runs a risk of being sentenced arbitrarily. It is 

thus immaterial whether the operation of an impermissible influence such 

as race is intentional. While the Equal Protection Clause forbids racial 
discrimination, and intent may be critical in a successful claim under that 

provision, the Eighth Amendment has its own distinct focus: whether pun- 
ishment comports with social standards of rationality and decency. It may 
be, as in this case, that on occasion an influence that makes punishment 

arbitrary is also proscribed under another constitutional provision. That 
does not mean, however, that the standard for determining an Eighth 

Amendment violation is superceded by the standard for determining a 
violation under this other provision. Thus, the fact that McCleskey 

presents a viable Equal Protection claim does not require that he demon- 
strate intentional racial discrimination to establish his Eighth Amendment 

claim. 

 



  

84-6811—DISSENT 

McCLESKEY v». KEMP Sats 

tablished if a plaintiff demonstrates a “pattern of arbitrary 
and capricious sentencing.” 428 U. S., at 195, n. 46 (empha- 
sis added). 

As a result, our inquiry under the Eighth Amendment has 
not been directed to the validity of the individual sentences 
before us. In Godfrey, for instance, the Court struck down 
the petitioner’s sentence because the vagueness of the statu- 
tory definition of heinous crimes created a risk that prejudice 
or other impermissible influences might have infected the 
sentencing decision. In vacating the sentence, we did not 
ask whether it was likely that Godfrey’s own sentence re- 
flected the operation of irrational considerations. Nor did 
we demand a demonstration that such considerations had ac- 
tually entered into other sentencing decisions involving hei- 
nous crimes. Similarly, in Roberts v. Louisiana, 428 U. S. 
325 (1976), and Woodson v. North Carolina, 428 U. S. 280 
(1976), we struck down death sentences in part because man- 
datory imposition of the death penalty created the risk that a 
jury might rely on arbitrary considerations in deciding which 
persons should be convicted of capital crimes. Such a risk 
would arise, we said, because of the likelihood that jurors re- 
luctant to impose capital punishment on a particular defend- 
ant would refuse to return a conviction, so that the effect of 
mandatory sentencing would be to recreate the unbounded 
sentencing discretion condemned in Furman. Roberts, 
supra, at 334-335; Woodson, supra, at 303. We did not ask 

whether the death sentences in the cases before us could 
have reflected the jury's rational consideration and rejection 
of mitigating factors. Nor did we require proof that juries 
had actually acted irrationally in other cases. 

Defendants challenging their death sentences thus never 
have had to prove that impermissible considerations have ac- 
tually infected sentencing decisions. We have required in- 
stead that they establish that the system under which they 
were sentenced posed a significant risk of such an occur- 
rence. McCleskey’s claim does differ, however, in one re- 

 



  

84-6811—DISSENT 

6 McCLESKEY v. KEMP 

spect from these earlier cases: it is the first to base a chal- 

lenge not on speculation about how a system might operate, 

but on empirical documentation of how it does operate. 

The Court assumes the statistical validity of the Baldus 

study, ante, at ——, n. 7, and acknowledges that McCleskey 

has demonstrated a risk that racial prejudice plays a role in 

capital sentencing in Georgia, ante, at ——. Nonetheless, it 

finds the probability of prejudice insufficient to create con- 

stitutional concern. Ante, at ——. Close analysis of the 

Baldus study, however, in light of both statistical principles 

and human experience, reveals that the risk that race influ- 

enced McCleskey’s sentence is intolerable by any imaginable 

standard. 
B 

The Baldus study indicates that, after taking into account 

some 230 nonracial factors that might legitimately influence a 

sentencer, the jury more likely than not would have spared 

McCleskey’s life had his victim been black. The study 

distinguishes between those cases in which (1) the jury exer- 

cises virtually no discretion because the strength or weak- 

ness of aggravating factors usually suggests that only one 

outcome is appropriate? and (2) cases reflecting an “interme- 

diate” level of aggravation, in which the jury has consider- 

able discretion in choosing a sentence.®! McCleskey’s case 

falls into the intermediate range. In such cases, death is im- 

posed in 34% of white-victim crimes and 14% of black-victim 

*The first two and the last of the study’s eight case-categories repre- 

sent those cases in which the jury typically sees little leeway in deciding on 

a sentence. Cases in the first two categories are those that feature ag- 
gravating factors so minimal that juries imposed no death sentences in the 

88 cases with these factors during the period of the study. Supp. Exh. 54. 

Cases in the eighth category feature aggravating factors so extreme that 

the jury imposed the death penalty in 88% of the 58 cases with these fac- 

tors in the same period. Ibid. 
In the five categories characterized as intermediate, the rate at which 

the death penalty was imposed ranged from 8% to 41%. The overall rate 
for the 326 cases in these categories was 20%. Ibid. 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 7 

crimes, a difference of 139% in the rate of imposition of the 
death penalty. Supp. Exh. 54. In other words, just under 

59%—almost 6 in 10—defendants comparable to McCleskey 

would not have received the death penalty if their victims 

had been black.! 
Furthermore, even examination of the sentencing system 

as a whole, factoring in those cases in which the jury exer- 
cises little discretion, indicates the influence of race on capital 
sentencing. For the Georgia system as a whole, race ac- 
counts for a six percentage point difference in the rate at 
which capital punishment is imposed. Since death is im- 
posed in 11% of all white-victim cases, the rate in comparably 
aggravated black-victim cases is 5%. The rate of capital sen- 
tencing in a white-victim case is thus 120% greater than the 
rate in a black-victim case. Put another way, over half— 
55%—of defendants in white-victim crimes in Georgia would 
not have been sentenced to die if their victims had been 
black. Of the more than 200 variables potentially relevant to 
a sentencing decision, race of the victim is a powerful ex- 
planation for variation in death sentence rates—as powerful 
as nonracial aggravating factors such as a prior murder con- 
viction or acting as the principal planner of the homicide.® 

‘The considerable racial disparity in sentencing rates among these 
cases is consistent with the “liberation hypothesis” of H. Kalven and H. 
Zeisel in their landmark work, The American Jury (1966). These authors 
found that, in close cases in which jurors were most often in disagreement, 
“lt The closeness of the evidence makes it possible for the jury to respond to 
sentiment by liberating it from the discipline of the evidence.” Id., at 165. 

While “the jury does not often consciously and explicitly yield to sentiment 
in the teeth of the law . . . it yields to sentiment in the apparent process of 
resolving doubts as to evidence. The jury, therefore, is able to conduct its 
revolt from the law within the etiquette of resolving issues of fact.” Ibid. 
Thus, it is those cases in which sentencing evidence seems to dictate nei- 

ther life imprisonment nor the death penalty that impermissible factors 
such as race play the most prominent role. 

*The fact that a victim was white accounts for a nine percentage point 
difference in the rate at which the death penalty is imposed, which is the 
same difference attributable to a prior murder conviction or the fact that 

 



  

84-6811—DISSENT 

8 McCLESKEY v. KEMP 

These adjusted figures are only the most conservative indi- 

cation of the risk that race will influence the death sentences 

of defendants in Georgia. Data unadjusted for the mitigat- 

ing or aggravating effect of other factors show an even more 

pronounced disparity by race. The capital sentencing rate for 

all white-victim cases was almost 11 times greater than the 

rate for black-victim cases. Supp. Exh. 47. Furthermore, 

blacks who kill whites are sentenced to death at nearly 22 

times the rate of blacks who kill blacks, and more than 7 

times the rate of whites who kill blacks. Ibid. In addition, 

prosecutors seek the death penalty for 70% of black defend- 

ants with white victims, but for only 15% of black defendants 

with black victims, and only 19% of white defendants with 
black victims. Id., at 56. Since our decision upholding the 
Georgia capital-sentencing system in Gregg, the State has ex- 

ecuted 7 persons. All of the 7 were convicted of killing 

whites, and 6 of the 7 executed were black.® Such execution 
figures are especially striking in light of the fact that, during 
the period encompassed by the Baldus study, only 9.2% of 
Georgia homicides involved black defendants and white vic- 
tims, while 60.7% involved black victims. 

McCleskey’s statistics have particular force because most 
of them are the product of sophisticated multiple-regression 

analysis. Such analysis is designed precisely to identify pat- 
terns in the aggregate, even though we may not be able to 
reconstitute with certainty any individual decision that goes 
to make up that pattern. Multiple-regression analysis is 

particularly well-suited to identify the influence of impermis- 
sible considerations in sentencing, since it is able to control 
for permissible factors that may explain an apparent arbi- 

the defendant was the “prime mover” in planning a murder. Supp. Exh. 
50. 

* NAACP Legal Defense and Educational Fund, Death Row U. S. A. 4 
(August 1, 1986). 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 9 

trary pattern.” While the decision-making process of a body 

such as a jury may be complex, the Baldus study provides a 

massive compilation of the details that are most relevant to 

that decision. As we held in the Title VII context last term 

in Bazemore v. Friday, 478 U.S. — (1986), a multiple- 

regression analysis need not include every conceivable vari- 

able to establish a party’s case, as long as it includes those 

variables that account for the major factors that are likely to 

influence decisions. In this case, Professor Baldus in fact 

conducted additional regression analyses in response to criti- 

cisms and suggestions by the District Court, all of which con- 

firmed, and some of which even strengthened, the study’s 

original conclusions. 
The statistical evidence in this case thus relentlessly docu- 

ments the risk that McCleskey’s sentence was influenced by 

racial considerations. This evidence shows that there is a 

better than even chance in Georgia that race will influence 

the decision to impose the death penalty: a majority of de- 

fendants in white-victim crimes would not have been sen- 

tenced to die if their victims had been black. In determining 

whether this risk is acceptable, our judgment must be shaped 

by the awareness that “[t]he risk of racial prejudice infecting 

a capital sentencing proceeding is especially serious in light of 

the complete finality of the death sentence.” Turner v. 

Murray, 476 U. S. ——, —— (1986), and that “(i]t is of vital 

importance to the defendant and to the community that any 
decision to impose the death sentence be, and appear to be, 
based on reason rather than caprice or emotion.” Gardner 
v. Florida, 430 U. S. 349, 358 (1977). In determining the 
guilt of a defendant, a state must prove its case beyond a rea- 
sonable doubt. That is, we refuse to convict if the chance of 

error is simply less likely than not. Surely, we should not be 
willing to take a person’s life if the chance that his death sen- 
tence was irrationally imposed is more likely than not. In 

See generally Fisher, Multiple Regression in Legal Proceedings, 80 
Colum. L. Rev. 701 (1980). 

 



  

84-6811—DISSENT 

10 MCCLESKEY v. KEMP 

light of the gravity of the interest at stake, petitioner’s statis- 

tics on their face are a powerful demonstration of the type of 

risk that our Eighth Amendment Jurisprudence has consist- 

ently condemned. 
C 

Evaluation of McCleskey’s evidence cannot rest solely on 

the numbers themselves. We must also ask whether the 

conclusion suggested by those numbers is consonant with our 

understanding of history and human experience. Georgia's 

legacy of a race-conscious criminal justice system, as well as 

this Court’s own recognition of the persistent danger that ra- 

cial attitudes may affect criminal proceedings, indicate that 

McCleskey’s claim is not a fanciful product of mere statistical 

artifice. 
For many years, Georgia operated openly and formally 

precisely the type of dual system the evidence shows is still 

effectively in place. The criminal law expressly differenti- 

ated between crimes committed by and against blacks and 

whites, distinctions whose lineage traced back to the time of 

slavery. During the colonial period, black slaves who killed 

whites in Georgia, regardless of whether in self-defense or in 

defense of another, were automatically executed. A. 

Higginbotham, In the Matter of Color: Race in the American 

Legal Process 256 (1978). 
By the time of the Civil War, a dual system of crime and 

punishment was well established in Georgia. See Ga. Penal 
Code (1861). The state criminal code contained separate sec- 
tions for “Slaves and Free Persons of Color”, Pt. 4, Tit. 3, 

* Death could also be inflicted upon a slave who “grievously wound[ed], 

maim[ed], or bruis{ed] any white person”, who was convicted for the third 

time of striking a white person, or who attempted to run away out of the 
province. A. Higginbotham, In the Matter of Color: Race in the American 
Legal Process 256 (1978). On the other hand, a person who willfully mur- 
dered a slave was not punished until the second offense, and then was re- 

sponsible simply for restitution to the slave owner. Furthermore, convic- 

tion for willful murder of a slave was subject to the difficult requirement of 
the oath of two white witnesses. Id., at 253-54, and n. 190. 

 



  

84-6811—DISSENT 

McCLESKEY v». KEMP 11 

Ch. 1, and for all other persons, Pt. 4, Tit. 1, Divs. 1-16. 

The code provided, for instance, for an automatic death sen- 
tence for murder committed by blacks, Pt. 4, Tit. 1, Art. II 
§4704, but declared that anyone else convicted of murder 
might receive life imprisonment if the conviction were 
founded solely on circumstantial testimony or simply if the 
jury so recommended. Pt. 4, Tit. 1, Div. 4 §4220. The code 
established that the rape of a free white female by a black 
“shall be” punishable by death. §4704. However, rape by 
anyone else of a free white female was punishable by a prison 
term not less than 2 nor more than 20 years. The rape of 
blacks was punishable “by fine and imprisonment, at the dis- 
cretion of the court.” §4249. A black convicted of assault- 
ing a free white person with intent to murder could be put to 
death at the discretion of the court, §4708, but the same of- 

fense committed against a black, slave or free, was classified 

as a “minor” offense whose punishment lay in the discretion 
of the court, as long as such punishment did not “extend to 
life, limb, or health.” Art. III §§4714, 4718. Assault with 

intent to murder by a white person was punishable by a 
prison term of from 2 to 10 years. Div. 4 §4258. While suf- 
ficient provocation could reduce a charge .of murder to man- 
slaughter, the code provided that “{o]bedience and submis- 

sion being the duty of a slave, much greater provocation is 
necessary to reduce a homicide of a white person by him to 
voluntary manslaughter, than is prescribed for white per- 
sons.” Art. IT §4711. 

In more recent times, some 40 years ago, Gunnar Myrdal’s 
epochal study of American race relations produced findings 
mirroring McCleskey’s evidence: 

“As long as only Negroes are concerned and no whites 
are disturbed, great leniency will be shown in most 

cases .... The sentences for even major crimes are 
ordinarily reduced when the victim is another Negro . 

 



  

84-6811—DISSENT 

12 McCLESKEY v. KEMP 

For offenses which involve any actual or potential dan- 

ger to whites, however, Negroes are punished more se- 

verely than whites . 

On the other hand, it is quite common for a white crim- 

inal to be set free if his crime was against a Negro.” 

Myrdal, An American Dilemma 551-553 (1944). 

This Court has invalidated portions of the Georgia capital 

sentencing system 3 times over the past 15 years. The spec- 

ter of race discrimination was acknowledged by the Court in 

striking down the Georgia death-penalty statute in Furman. 

Justice Douglas cited studies suggesting imposition of the 

death penalty in racially discriminatory fashion, and found 

the standardless statutes before the Court “pregnant with 

discrimination.” 408 U. S., at 257 (Douglas, J., concurring). 

JUSTICE MARSHALL pointed to statistics indicating that “Ne- 

groes [have been] executed far more often than whites in pro- 

portion to their percentage of the population. Studies indi- 

cate that while the higher rate of execution among Negroes is 

partially due to a higher rate of crime, there is evidence of 

racial discrimination.” Id:, at 364 (MARSHALL, J., concur- 

ring). Although Justice Stewart declined to conclude that 

racial discrimination had been plainly proven, he stated that 

“Im]y concurring Brothers have demonstrated that, if any 

basis can be discerned for the selection of these few to be sen- 

tenced to die, it is the constitutionally impermissible basis of 

race.” Id., at 310. In dissent, Chief Justice Burger ac- 

knowledged that statistics “suggest, at least as a historical 
matter, that Negroes have been sentenced to death with 
greater frequency than whites in several States, particularly 
for the crime of interracial rape.” Id., at 289, n. 12. Fi- 
nally, also in dissent, JUSTICE POWELL intimated that an 
Equal Protection Clause argument would be available for a 
black “who could demonstrate that members of his race were 
being singled out for more severe punishment than others 
charged with the same offense.” Id., at 449. He noted that 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 13 

although the Eighth Circuit had rejected a claim of dis- 

crimination in Maxwell v. Bishop, 398 F. 2d 138 (CAS 1968), 

vacated and remanded on other grounds, 398 U.S. 262 

(1970), the statistical evidence in that case “tend[ed] to show 

a pronounced disproportion in the number of Negroes receiv- 

ing death sentences for rape in parts of Arkansas and else- 

where in the South.” 408 U. S., at 449. It is clear that the 

Court regarded the opportunity for the operation of racial 

prejudice a particularly troublesome aspect of the unbounded 

discretion afforded by the Georgia sentencing scheme. 

Five years later, the Court struck down the imposition of 

the death penalty in Georgia for the crime of rape. Coker v. 

Georgia, 433 U. S. 584 (1977). Although the Court did not 

explicitly mention race, the decision had to have been in- 

formed by the specific observations on rape by both the Chief 

Justice and JUSTICE POWELL in Furman. Furthermore, ev- 

idence submitted to the Court indicated that black men who 

committed rape, particularly of white women, were consider- 

ably more likely to be sentenced to death than white rapists. 

For instance, by 1977 Georgia had executed 62 men for rape 

since the Federal Government began compiling statistics in 

1930. Of these men, 58 were black and 4 were white. See 

Brief for Petitioner in Coker v. Georgia, O.T. 1976, 

No. 75-5444, p. 56; see also Wolfgang & Riedel, Rape, Race, 

and the Death Penalty in Georgia, 45 Am. J. Orthopsychiatry 

658 (1975). 
Three years later, the Court in Godfrey found one of the 

State’s statutory aggravating factors unconstitutionally 

vague, since it resulted in “standardless and unchanneled im- 
position of death sentences in the uncontrolled discretion of a 
basically uninstructed jury...” 446 U. S., at 429. Jus- 
TICE MARSHALL, concurring in the the judgment, noted that 
“lt]he disgraceful distorting effects of racial discrimination 

and poverty continue to be painfully visible in the imposition 

of death sentences.” Id., at 439 (footnote omitted). 

 



  

84-6811—DISSENT 

14 McCLESKEY v». KEMP 

This historical review of Georgia criminal law is not in- 

tended as a bill of indictment calling the State to account for 

past transgressions. Citation of past practices does not jus- 

tify the automatic condemnation of current ones. But it 

would be unrealistic to ignore the influence of history in as- 

sessing the plausible implications of McCleskey’s evidence. 

“{ Almericans share a historical experience that has resulted 

in individuals within the culture ubiquitously attaching a sig- 

nificance to race that is irrational and often outside their 

awareness.” Lawrence, The Id, The Ego, and Equal Pro- 

tection: Reckoning With Unconscious Racism, 39 Stan. L. 

Rev. 327 (1987). See generally id., at 328-344 (describing 

the psychological dynamics of unconscious racial motivation). 

As we said in Rose v. Mitchell: 

“Wle . . . cannot deny that, 114 years after the close of 
the War Between the States and nearly 100 years after 
Strauder, racial and other forms of discrimination still 

remain a fact of life, in the administration of justice as in 
our society as a whole. Perhaps today that discrimina- 

tion takes a form more subtle than before. But it is not 
less real or pernicious.” 443 U. S. 545, 558-559 (1979). 

The ongoing influence of history is acknowledged, as the 
majority observes, by our “unceasing efforts’ to eradicate ra- 

cial prejudice from our criminal justice system.” Ante, at 

—— (quoting Batson v. Kentucky, 476 U. S. : 
(1986). These efforts, however, signify not the elimination 
of the problem but its persistence. Our cases reflect a real- 
ization of the myriad of opportunities for racial considerations 
to influence criminal proceedings: in the exercise of peremp- 
tory challenges, Batson v. Kentucky, supra; in the selection 
of the grand jury, Vasquez v. Hillery, 474 U. S. 254 (1986); in 
the selection of the petit jury, Whitus v. Georgia, 385 U. S. 
545 (1967); in the exercise of prosecutorial discretion, Wayte 
v. United States, 470 U. S. 598 (1985); in the conduct of argu- 
ment, Donnelly v. DeChristoforo, 416 U. S. 637 (1974); and 
in the conscious or unconscious bias of jurors, Turner v. Mur- 

  

 



  

84-6811—DISSENT 

McCLESKEY ». KEMP 15 

ray, 476 U. S. — (1986), Ristaino v. Ross, 424 U. S. 589 

(1976). 
The discretion afforded prosecutors and jurors in the Geor- 

gia capital-sentencing system creates such opportunities. 
No guidelines govern prosecutorial decisions to seek the 
death penalty, and Georgia provides juries with no list of ag- 
gravating and mitigating factors, nor any standard for bal- 
ancing them against one another. Once a jury identifies one 
aggravating factor, it has complete discretion in choosing life 
or death, and need not articulate its basis for selecting life 
imprisonment. The Georgia sentencing system therefore 
provides considerable opportunity for racial considerations, 
however subtle and unconscious, to influence charging and 
sentencing decisions.’ 

*The Court contends that it is inappropriate to take into .account the 
wide latitude afforded actors in the Georgia capital sentencing system, 
since “[w]e have held that discretion in a capital-punishment system i$ nec- 

essary to satisfy the Constitution,” ante, at ——, n. 31, and “no suggestion 

is made as to how greater ‘rationality’ could be achieved under any type of 
statute that authorizes capital punishment.” Ibid. The first point is true, 
but of course the Court struck down the death penalty in Furman v. Geor- 
gia, 408 U. S. 238 (1972) because the sentencing systems before it provided 
too much discretion. Since Gregg v. Georgia, 428 U. S. 153 (1976), the 

Court’s death penalty jurisprudence has rested on the premise that it is 
possible to establish a system of guided discretion that will both permit in- 
dividualized moral evaluation and prevent impermissible considerations 
from being taken into account. As JUSTICE BLACKMUN has persuasively 
demonstrated, post, at ——, Georgia provides no systematic guidelines for 
prosecutors to utilize in determining for which defendants the death pen- 
alty should be sought. Furthermore, whether a State has chosen an effec- 
tive combination of guidance and discretion in its capital-sentencing system 
as a whole cannot be established in the abstract, as the Court insists on 

doing, but must be determined empirically, as the Baldus study has done. 
With respect to the Court's criticism that McCleskey has not shown how 

Georgia could do a better job, supra, at —, once it is established that the 
particular system of guided discretion chosen by a State is not achieving its 
intended purpose, the burden is on the State, not the defendant, to devise a 

more rational system if it wishes to continue to impose the death penalty. 

 



  

84-6811—DISSENT 

16 McCLESKEY v». KEMP 

History and its continuing legacy thus buttress the proba- 

tive force of McCleskey’s statistics. Formal dual criminal 

laws may no longer be in effect, and intentional discrimina- 

tion may no longer be prominent. Nonetheless, as we ac- 

knowledged in Turner, “subtle, less consciously held racial 

attitudes” continue to be of concern, 476 U. S., at ——, and 

the Georgia system gives such attitudes considerable room to 

operate. The conclusions drawn from McCleskey’s statisti- 

cal evidence are therefore consistent with the lessons of so- 

cial experience. 
The majority thus misreads our Eighth Amendment juris- 

prudence in concluding that McCleskey has not demonstrated 

a degree of risk sufficient to raise constitutional concern. 
The determination of the significance of his evidence is at its 
core an exercise in human moral judgment, not a mechanical 
statistical analysis. It must first and foremost be informed 
by awareness of the fact that death is irrevocable, and that as 
a result “the qualitative difference of death from all other 
punishments requires a greater degree of scrutiny of the cap- 
ital sentencing determination.” California v. Ramos, 463 

U. S. 992, 998-999 (1983). For this reason, we have de- 
manded 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. 
It is true that every nuance of decision cannot be statistically 

captured, nor can any individual judgment be plumbed with 
absolute certainty. Yet the fact that we must always act 
without the illumination of complete knowledge cannot in- 
duce paralysis when we confront what is literally an issue of 
life and death. Sentencing data, history, and experience all 
counsel that Georgia has provided insufficient assurance of 
the heightened rationality we have required in order to take 
a human life. 

IV 

The Court cites four reasons for shrinking from the impli- 
cations of McCleskey’s evidence: the desirability of discretion 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 17 

for actors in the criminal-justice system, the existence of 
statutory safeguards against abuse of that discretion, the po- 
tential consequences for broader challenges to criminal sen- 
tencing, and an understanding of the contours of the judicial 
role. While these concerns underscore the need for sober 
deliberation, they do not justify rejecting evidence as con- 
vincing as McCleskey has presented. 

The Court maintains that petitioner’s claim “is antithetical 
to the fundamental role of discretion in our criminal justice 
system.” Ante, at ——. It states that “[w]here the discre- 
tion that is fundamental to our criminal process is involved, 
we decline to assume that what is unexplained is invidious.” 
Ante, at —. 

Reliance on race in imposing capital punishment, however, 
is antithetical to the very rationale for granting sentencing 
discretion. Discretion is a means, not an end. It is be- 
stowed in order to permit the sentencer to “trea[t] each de- 
fendant in a capital case with that degree of respect due the 
uniqueness of the individual.” Lockett v. Ohio, 438 U. S. 
586, 605 (1978). The decision to impose the punishment of 
death must be based on a “particularized consideration of rel- 
evant aspects of the character and record of each convicted 
defendant.” Woodson v. North Carolina, 428 U. S., at 303. 
Failure to conduct such an individualized moral inquiry 
“treats all persons convicted of a designated offense not as 
unique individual human beings, but as members of a face- 
less, undifferentiated mass to be subjected to the blind inflic- 

tion of the penalty of death.” Id., at 304. 
Considering the race of a defendant or victim in deciding if 

the death penalty should be imposed is completely at odds 
with this concern that an individual be evaluated as a unique 
human being. Decisions influenced by race rest in part on a 
categorical assessment of the worth of human beings accord- 
ing to color, insensitive to whatever qualities the individuals 
in question may possess. Enhanced willingness to impose 
the death sentence on black defendants, or diminished will- 

 



  

84-6811—DISSENT 

. 18 McCLESKEY v. KEMP 

ingness to render such a sentence when blacks are victims, 
reflects a devaluation of the lives of black persons. When 
confronted with evidence that race more likely than not plays 
such a role in a capital-sentencing system, it is plainly insuffi- 
cient to say that the importance of discretion demands that 
the risk be higher before we will act—for in such a case the 
very end that discretion is designed to serve is being 

undermined. 
Our desire for individualized moral judgments may lead 

us to accept some inconsistencies in sentencing outcomes. 
Since such decisions are not reducible to mathematical 
formulae, we are willing to assume that a certain degree of 
variation reflects the fact that no two defendants are com- 
pletely alike. There is thus a presumption that actors in the 
criminal-justice system exercise their discretion in responsi- 
ble fashion, and we do not automatically infer that sentencing 
patterns that do not comport with ideal rationality are 
suspect. 

As we made clear in Batson v. Kentucky, 476 U. S. — 
(1986), however, that presumption is rebuttable. Batson 
dealt with another arena in which considerable discretion tra- 
ditionally has been afforded, the exercise of peremptory chal- 
lenges. Those challenges are normally exercised without 
any indication whatsoever of the grounds for doing so. The 
rationale for this deference has been a belief that the unique 
characteristics of particular prospective jurors may raise con- 
cern on the part of the prosecution or defense, despite the 
fact that counsel may not be able to articulate that concern in 
a manner sufficient to support exclusion for cause. As with 
sentencing, therefore, peremptory challenges are justified as 
an occasion for particularized determinations related to spe- 
cific individuals, and, as with sentencing, we presume that 
such challenges normally are not made on the basis of a factor 
such as race. As we said in Batson, however, such features 

do not justify imposing a “crippling burden of proof”, 1id., at 
——, in order to rebut that presumption. The Court in this 

 



  

84-6811—DISSENT 

McCLESKEY v». KEMP 19 

case apparently seeks to do just that. On the basis of the 
need for individualized decisions, it rejects evidence, drawn 
from the most sophisticated capital-sentencing analysis ever 
performed, that reveals that race more likely than not infects 
capital-sentencing decisions. The Court’s position converts 
a rebuttable presumption into a virtually conclusive one. 

The Court also declines to find McCleskey’s evidence suffi- 
cient in view of “the safeguards designed to minimize racial 
bias in the [capital sentencing] process.” Ante, at —. In 
Gregg v. Georgia, 428 U. S., at 226, the Court rejected a fa- 
cial challenge to the Georgia capital sentencing statute, de- 
scribing such a challenge as based on “simply an assertion of 
lack of faith” that the system could operate in a fair manner.” 
(WHITE, J., concurring). JUSTICE WHITE observed that the 
claim that prosecutors might act in an arbitrary fashion was 
“unsupported by any facts”, and that prosecutors must be as- 
sumed to exercise their charging duties properly “[a]bsent 
facts to the contrary.” Id., at 225. It is clear that Gregg 
bestowed no permanent approval on the Georgia system. It 
simply held that the State’s statutory safeguards were as- 
sumed sufficient to channel discretion without evidence 
otherwise. . 

It has now been over 13 years since Georgia adopted the 
provisions upheld in Gregg. Professor ‘Baldus and his col- 
leagues have compiled data on almost 2500 homicides commit- 
ted during the period 1973-1979. They have taken into ac- 
count the influence of 230 nonracial variables, using a 
multitude of data from the State itself, and have produced 
striking evidence that the odds of being sentenced to death 
are significantly greater than average if a defendant is black 
or his or her victim is white. The challenge to the Georgia 
system is not speculative’or theoretical; it is empirical. Asa 
result, the Court cannot rely on the statutory safeguards in 

discounting McCleskey’s evidence, for it is the very effective- 
ness of those safeguards that such evidence calls into ques- 
tion. While we may hope that a model of procedural fairness 

 



  

84-6811—DISSENT 

20 McCLESKEY v. KEMP 

will curb the influence of race on sentencing, “we cannot sim- 

ply assume that the model works as intended; we must cri- 

tique its performance in terms of its results.” Hubbard, 

“Reasonable Levels of Arbitrariness” in Death Sentencing 

Patterns: A Tragic Perspective on Capital Punishment, 18 

U. C. Davis L. Rev. 1113, 1162 (1985). 

The Court next states that its unwillingness to regard the 

petitioner’s evidence as sufficient is based in part on the fear 

that recognition of McCleskey’s claim would open the door to 

widespread challenges to all aspects of criminal sentencing. 

Ante, at ——. Taken on its face, such a statement seems to 

suggest a fear of too much justice. Yet surely the majority 

would acknowledge that if striking evidence indicated that 

other minority groups, or women, or even persons with blond 

hair, were disproportionately sentenced to death, such a 

state of affairs would be repugnant to deeply rooted concep- 

tions of fairness. The prospect that there may be more 

widespread abuse than McCleskey documents may be dis- 

maying, but it does not justify complete abdication of our ju- 

dicial role. The Constitution was framed fundamentally as a 

bulwark against governmental power, and preventing the ar- 

bitrary administration of punishment is a basic ideal of any 

society that purports to be governed by the rule of law." 

® As Maitland said of the provision of the Magna Carta regulating the 

discretionary imposition of fines, “[vlery likely there was no clause in 
Magna Carta more grateful to the mass of the people.” F. Maitland, Pleas 
of the Crown For the County of Gloucester xxxdv (1884). In our own coun- 
try, the point is underscored by Patrick Henry’s remarks in support of the 
adoption of a Bill of Rights: 

“Congress, from their general powers, may fully go into business of human 
legislation. They may legislate, in criminal cases, from treason to the low- 
est offence—petty larceny. They may define crimes and prescribe punish- 

ments. In the definition of crimes, I trust they will be directed by what 
wise representatives ought to be governed by. But when we come to pun- 
ishments, no latitude ought to be left, nor dependence put on the virtue of 
representatives.” 3J. Elliot’s Debates on the Constitution 447 (1854). 

 



  

84-6811—DISSENT 

McCLESKEY ». KEMP 21 

In fairness, the Court’s fear that McCleskey's claim is an 

invitation to descend a slippery slope also rests on the realiza- 

tion that any humanly imposed system of penalties will ex- 

hibit some imperfection. Yet to reject McCleskey’s power- 

ful evidence on this basis is to ignore both the qualitiatively 
different character of the death penalty and the particular re- 
pugnance of racial discrimination, considerations which may 
properly be taken into account in determining whether vari- 
ous punishments are “cruel and unusual.” Furthermore, it 
fails to take account of the unprecedented refinement and 
strength of the Baldus study. 

It hardly needs reiteration that this Court has consistently 
acknowledged the uniqueness of the punishment of death. 
“Death, in its finality, differs more from life imprisonment 
than a 100-year prison term differs from one of only a year or 
two. Because of that qualitiative difference, there is a cor- 
responding difference in the need for reliability in the deter- 
mination that death is the appropriate punishment.” 
Woodson, 428 U. S., at 305. Furthermore, the relative in- 
terests of the state and the defendant differ dramatically in 
the death penalty context. The marginal benefits accruing 
to the state from obtaining the death penalty rather than life 
imprisonment are considerably less than the marginal differ- 
ence to the defendant between death and life in prison. Such 
a disparity is an additional reason for tolerating scant arbi- 
trariness in capital sentencing. Even those who believe that 
society can impose the death penalty in a manner sufficiently 
rational to justify its continuation must acknowledge that the 
level of rationality that is considered satisfactory must be 
uniquely high. As a result, the degree of arbitrariness that 
may be adequate to render the death penalty “cruel and un- 
usual” punishment may not be adequate to invalidate lesser 
penalties. What these relative degrees of arbitrariness 
might be in other cases need not concern us here; the point is 
that majority's fear of wholesale invalidation of criminal sen- 
tences is unfounded. 

 



  

84-6811—DISSENT 

22 McCLESKEY ». KEMP 

The Court also maintains that accepting McCleskey’s claim 
would pose a threat to all sentencing because of the prospect 
that a correlation might be demonstrated between sentencing 
outcomes and other personal characteristics. Again, such a 
view is indifferent to the considerations that enter into a 
determination of whether punishment is “cruel and unusual.” 
Race is a consideration whose influence is expressly constitu- 
tionally proscribed. We have expressed a moral commit- 
ment, as embodied in our fundamental law, that this specific 
characteristic should not be the basis for allotting burdens 
and benefits. Three constitutional amendments, and numer- 
ous statutes, have been prompted specifically by the desire to 
address the effects of racism. “Over the years, this Court 
has consistently repudiated ‘[dlistinctions between citizens 
solely because of their ancestry’ as being ‘odious to a free peo- 
ple whose institutions are founded upon the doctrine of equal- 
ity.” Loving v. Virginia, 388 U. S. 1, 11 (1967) (quoting 
Hirabayashi v. United States, 320 U. S. 81, 100 (1943)). 
Furthermore, we have explicitly acknowledged the illegiti- 
macy of race as a consideration in capital sentencing, Zant v.’ 
Stephens, 462 U. S. 862, 885 (1983). That a decision to im- 
pose 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.” 

Certainly, a factor that we would regard as morally irrele- 
vant, such as hair color, at least theoretically could be associ- 
ated with sentencing results to such an extent that we would 
regard as arbitrary a system in which that factor played a 
significant role. As I have said above, however, supra, at 

——, the evaluation of evidence suggesting such a correla- 
tion must be informed not merely by statistics, but by history 
and experience. One could hardly contend that this nation 
has on the basis of hair color inflicted upon persons depriva- 
tion comparable to that imposed on the basis of race. Recog- 
nition of this fact would necessarily influence the evaluation 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP : 23 

of data suggesting the influence of hair color on sentencing, 
and would require evidence of statistical correlation even 
more powerful than that presented by the Baldus study. 

Furthermore, the Court’s fear of the expansive ramifica- 
tions of a holding for McCleskey in this case is unfounded be- 
cause 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 sys- 
tem 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. Ac- 
ceptance of petitioner’s evidence would therefore establish a 
remarkably stringent standard of statistical evidence un- 
likely 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 juris- 
prudence 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. 
Finally, the Court justifies its rejection of McCleskey’s 

claim by cautioning against usurpation of the legislatures’ 
role in devising and monitoring criminal punishment. The 
Court is, of course, correct to emphasize the gravity of con- 
stitutional intervention and the importance that it be spar- 
ingly employed. The fact that “[c]apital punishment is now 
the law in more than two thirds of our States”, ante, at —, 

however, does not diminish the fact that capital punishment 
is the most -awesome act that a State can perform. The judi- 
ciary’s role in this society counts for little if the use of govern- 

 



  

84-6811—DISSENT 

24 McCLESKEY v. KEMP 

mental power to extinguish life does not elicit close scrutiny. 

It is true that society has a legitimate interest in punishment. 

Yet, as Alexander Bickel wrote: 

“It is a premise we deduce not merely from the fact of a 
written constitution but from the history of the race, and 
ultimately as a moral judgment of the good society, that 
government should serve not only what we conceive 
from time to time to be our immediate material needs 
but also certain enduring values. This in part is what is 
meant by government under law.” A. Bickel, The 
Least Dangerous Branch 24 (1962) 

Our commitment to these values requires fidelity to them 
even when there is temptation to ignore them. Such temp- 
tation is especially apt to arise in criminal matters, for those 
granted constitutional protection in this context are those 
whom society finds most menacing and opprobious. Even 
less sympathetic are those we consider for the sentence of 
death, for execution “is a way of saying, “You are not fit for 
this world, take your chance elsewhere.” Furman, 408 
U. S., at 290 (BRENNAN, J., concurring) (quoting Stephen, 
Capital Punishments, 69 Fraser’s Magazine 753, 763 (1864)). 

For these reasons, “[t]he methods we employ in the en- 
forcement of our criminal law have aptly been called the 
measures by which the quality of our civilization may be 
judged.” Coppedge v. United States, 369 U. S. 438, 449 
(1962). Those whom we would banish from society or from 
the human community itself often speak in too faint a voice to 
be heard above society’s demand for punishment. It is the 
particular role of courts to hear these voices, for the Con- 
stitution declares that the majoritarian chorus may not alone 
dictate the conditions of social life. The Court thus fulfills, 
rather than disrupts, the scheme of separation of powers by 
closely scrutinizing the imposition of the death penalty, for no 
decision of a society is more deserving of the “sober second 
thought.” Stone, The Common Law in the United States, 50 
Harv. L. Rev. 4, 25 (1936). 

 



  

84-6811—DISSENT 

McCLESKEY ». KEMP 25 

y 

At the time our Constitution was framed 200 years ago this 
year, blacks “had for more than a century before been re- 
garded as beings of an inferior order, and altogether unfit to 
associate with the white race, either in social or political rela- 
tions; and so far inferior, that they had no rights which the 
white man was bound to respect.” Dred Scott v. Sandford, 
19 How. 393, 407 (1857). Only 130 years ago, this Court re- 
lied on these observations to deny American citizenship to 
blacks. Ibid. A mere three generations ago, this Court 
sanctioned racial segregation, stating that “[i]f one race be in- 
ferior to the other socially, the Constitution of the United 
States cannot put them upon the same plane.” Plessy v. 
Ferguson, 163 U. S. 537, 552 (1896). 

In more recent times, we have sought to free ourselves 
from the burden of this history. Yet it has been scarcely a 
generation since this Court’s first decision striking down ra- 
cial segregation, and barely two decades since the legislative 
prohibition of racial discrimination in major domains of na- 
tional life. These have been honorable steps, but we cannot 
pretend that in three decades we have completely escaped 
the grip of an historical legacy spanning centuries. Warren 
McCleskey’s evidence confronts us with the subtle and 
persistent influence of the past. His message is a disturbing 
one to a society that has formally repudiated racism, and a 
frustrating one to a Nation accustomed to regarding its des- 
tiny as the product of its own will. Nonetheless, we ignore 
him at our peril, for we remain imprisoned by the past as long 
as we deny its influence in the present. 

It is tempting to pretend that minorities on death row 
share a fate in no way connected to our own, that our treat- 
ment of them sounds no echoes beyond the chambers in which 
they die. Such an illusion is ultimately corrosive, for the 
reverberations of injustice are not so easily confined. “The 
destinies of the two races in this country are indissolubly 
linked together,” id., at 560, (Harlan, J., dissenting), and the 

 



  

84-6811—DISSENT 

26 McCLESKEY v. KEMP 

way in which we choose those who will die reveals the depth 
of moral commitment among the living. 

The Court’s decision today will not change what attorneys 

in Georgia tell other Warren McCleskeys about their chances 

of execution. Nothing will soften the harsh message they 

must convey, nor alter the prospect that race undoubtedly 

will continue to be a topic of discussion. McCleskey’s evi- 

dence will not have obtained judicial acceptance, but that will 

not affect what is said on death row. However many criti- 

cisms of today’s decision may be rendered, these painful con- 

versations will serve as the most eloquent dissents of all. 

 



  

SUPREME COURT OF THE UNITED STATES 

No. 84-6811 

  

  

WARREN McCLESKEY, PETITIONER wv» RALPH 
KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC 

AND CLASSIFICATION CENTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT 

[April 22, 1987] 

JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and 
JUSTICE STEVENS join and with whom JUSTICE BRENNAN 
joins in all but Part IV-B, dissenting. 

The Court today sanctions the execution of a man despite 
his presentation of evidence that establishes a constitution- 
ally intolerable level of racially based discrimination leading 
to the imposition of his death sentence. I am disappointed 
with the Court’s action not only because of its denial of con- 
stitutional guarantees to petitioner McCleskey individually, 
but also because of its departure from what seems to me to be 
well-developed constitutional jurisprudence. 

JUSTICE BRENNAN has thoroughly demonstrated, ante, 
that, if one assumes that the statistical evidence presented 
by petitioner McCleskey is valid, as we must in light of the 
Court of Appeals’ assumption,’ there exists in the Georgia 
capital-sentencing scheme a risk of racially based discrimina- 
tion that is so acute that it violates the Eighth Amendment. 
His analysis of McCleskey’s case in terms of the Eighth 
Amendment is consistent with this Court’s recognition that 

'1 agree with JUSTICE STEVENS’ position that the proper course is to 
remand this case to the Court of Appeals for determination of the validity 
of the statistical evidence presented. Post, at —— (slip op. 2). Like 
JUSTICE STEVENS, however, I am persuaded that the Baldus study is valid 
and would remand merely in the interest of orderly procedure. 

 



  

84-6811—DISSENT 

2 McCLESKEY v». KEMP 

because capital cases involve the State’s imposition of a pun- 
ishment that is unique both in kind and degree, the decision 
in such cases must reflect a heightened degree of reliability 
under the Amendment's prohibition of the infliction of cruel 
and unusual punishments. See Woodson v. N orth Carolina, 
428 U. S. 280, 305 (1976) (plurality opinion). I therefore 
Join Parts II through V of JUSTICE BRENNAN’s dissenting 
opinion. 

Yet McCleskey’s case raises concerns that are central not 
only to the principles underlying the Eighth Amendment, 
but also to the principles underlying the Fourteenth Amend- 
ment. Analysis of his case in terms of the Fourteenth 
Amendment is consistent with this Court’s recognition that 
racial discrimination is fundamentally at odds with our con- 
stitutional guarantee of equal protection. The protections 
afforded by the Fourteenth Amendment are not left at the 
courtroom door. Hill v. Texas, 316 U. S. 400, 406 (1942). 
Nor is equal protection denied to persons convicted of crimes. 
Lee v. Washington, 390 U. S. 333 (1968) (per curiam). The 
Court in the past has found that racial discrimination within 
the criminal-justice system is particularly abhorrent: “Dis- 
crimination on the basis of race, odious in all aspects, is espe- 
cially pernicious in the administration of justice.” Rose v. 
Mitchell, 443 U. S. 545, 555 (1979). Disparate enforcement 
of criminal sanctions “destroys the appearance of justice and 
thereby casts doubt on the integrity of the judicial process.” 
Id., at 555-556. And only last term JUSTICE POWELL, writ- 
ing for the Court, noted: “Discrimination within the judicial 
System is most pernicious because it is ‘a stimulant to that 
race prejudice which is an impediment to securing to [black 
citizens] that equal justice which the law aims to secure to all 
others.”” Batson v. Kentucky, 476 U. S. . (1986)   

(slip op. 7), quoting Strauder v. West Virginia, 100 U. S. 3083, 
308 (1880). 

 



  

84-6811—DISSENT 

McCLESKEY ». KEMP 3 

Moreover, the legislative history of the Fourteenth 
Amendment reminds us that discriminatory enforcement of 
States’ criminal laws was a matter of great concern for the 
drafters. In the introductory remarks to its Report to 
Congress, the Joint Committee on Reconstruction, which re- 
ported out the Joint Resolution proposing the Fourteenth 
Amendment, specifically noted: “This deep-seated prejudice 
against color . . . leads to acts of cruelty, oppression, and 
murder, which the local authorities are at no pains to prevent 
or punish.” H. R. Jt. Comm. Rep. No. 30, 39th Cong., 1st 
Sess., p. XVII (1866). Witnesses who testified before the 
Committee presented accounts of criminal acts of violence 
against black persons that were not prosecuted despite evi- 
dence as to the identity of the perpetrators.? 

See, ¢. g., H. R. Jt. Comm. Rep. No. 30, 39th Cong., 1st Sess., pt. II, 

p. 25 (1866) (testimony of George Tucker, Virginia attorney) (“They have 
not any idea of prosecuting white men for offenses against colored people; 
they do not appreciate the idea”); id., at 209 (testimony of Dexter H. 
Clapp) (“Of the thousand cases of murder, robbery, and maltreatment of 
freedmen that have come before me, . . . I have never yet known a single 

case in which the local authorities or police or citizens made any attempt or 
exhibited any inclination to redress any of these wrongs or to protect such 
persons”); id., at 213 (testimony of J. A. Campbell) (although identities of 
men suspected of killing two blacks known, no arrest or trial had occurred); 
id., pt. III, p. 141 (testimony of Wagner Swayne) (“I have not known, after 
six months’ residence at the capital of the State, a single instance of a white 
man being convicted and hung or sent to the penitentiary for crime against 
a negro, while many cases of crime warranting such punishment have been 
reported to me”); id., pt. IV, p. 75 (testimony of Maj. Gen. George A. Cus- 
ter) (“it is of weekly, if not of daily, occurrence that freedmen are 

murdered. . . . [Slometimes it is not known who the perpetrators are; but 
when that is known no action is taken against them. I believe a white man 
has never been hung for murder in Texas, although it is the law”). 

In Brown v. Board of Education, 347 U. S. 483 (1954), this Court held 

that, despite the fact that the legislative history of the Fourteenth Amend- 
ment indicated that Congress did not view racial discrimination in public 
education as a specific target, the Amendment nevertheless prohibited 
such discrimination. The Court today holds that even though the Four- 
teenth Amendment was aimed specifically at eradicating discrimination in 

 



  

84-6811—DISSENT 

4 McCLESKEY v. KEMP 

I 

A 

The Court today seems to give a new meaning to our recog- 

nition that death is different. Rather than requiring “a 

correspondingly greater degree of scrutiny of the capital sen- 

tencing determination,” California v. Ramos, 463 U. S. 992, 

998-999 (1983), the Court relies on the very fact that this is a 
case involving capital punishment to apply a lesser standard 
of scrutiny under the Equal Protection Clause. The Court 
concludes that “legitimate” explanations outweigh McCles- 
key’s claim that his death sentence reflected a constitution- 
ally impermissible risk of racial discrimination. The Court 
explains that McCleskey’s evidence is too weak to require 
rebuttal “because a legitimate and unchallenged explanation 
for the decision is apparent from the record: McCleskey com- 
mitted an act for which the United States Constitution and 
Georgia laws permit imposition of the death penalty.” Ante, 
at —— (slip op. 15). The Court states that it will not infer a 
discriminatory purpose on the part of the state legislature 
because “there were legitimate reasons for the Georgia Leg- 
islature to adopt and maintain capital punishment.” Ante, at 
—— (slip op. 17). 

The Court’s assertion that the fact of McCleskey’s convic- 
tion undermines his constitutional claim is inconsistent with a 
long and unbroken line of this Court’s case law. The Court 
on numerous occasions during the past century has recog- 
nized that an otherwise legitimate basis for a conviction does 
not outweigh an equal protection violation. In cases where 
racial discrimination in the administration of the criminal- 

the enforcement of criminal sanctions, allegations of such discrimination 
supported by substantial evidence are not constitutionally cognizable. 
But see Batson v. Kentucky, 476 U. S. ——, —— (1986) (slip op. 5) (allega- 
tions of racially discriminatory exercise of peremptory challenges by 
prosecutor subject to review under Fourteenth Amendment because “(e]x- 
clusion of black citizens from service as jurors constitutes a primary 
example of the evil the Fourteenth Amendment was designed to cure”). 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 5 

justice system is established, it has held that setting aside 
the conviction is the appropriate remedy. See, e. g., Rose V. 
Mitchell, 443 U. S., at 559; Whitus v. Georgia, 385 U. S. 
545, 549-550 (1967); Strauder v. West Virginia, supra. The 
Court recently reaffirmed the propriety of invalidating a con- 
viction in order to vindicate federal constitutional rights. 
Vasquez v. Hillery, 474 U. S. 254 (1986). Invalidation of a 
criminal conviction on federal constitutional grounds does not 
necessarily preclude retrial and resentencing of the defend- 
ant by the State. Hill v. Texas, 316 U. S. 400, 406 (1942). 
The Court has maintained a per se reversal rule rejecting 
application of harmless-error analysis in cases involving ra- 
cial discrimination that “strikes at the fundamental values of 
our judicial system and our society as a whole.” Kose v. 
Mitchell, 443 U. S., at 556. We have noted that a conviction 
“in no way suggests that the discrimination did not impermis- 
sibly infect” earlier phases of the criminal prosecution “and, 
consequently, the nature or very existence of the proceedings 
to come.” Vasquez v. Hillery, 474 U. S., at — (slip op. 9). 
Hence, MecCleskey’s conviction and the imposition of his 
death sentence by the jury do not suggest that discrimination 
did not impermissibly infect the earlier steps in the prosecu- 
tion of his case, such as the prosecutor’s decision to seek the 
death penalty. 

The Court’s reliance on legitimate interests underlying the 
Georgia Legislature’s enactment of its capital punishment 
statute is likewise inappropriate. Although that reasoning 
may be relevant in a case involving a facial challenge to the 
constitutionality of a statute, it has no relevance in a case 

dealing with a challenge to the Georgia capital sentencing 
system as applied in McCleskey’s case. In Batson v. Ken- 
tucky, supra, we rejected such reasoning: “The Constitution 
requires . . . that we look beyond the face of the statute . . . 
and also consider challenged selection practices to afford ‘pro- 
tection against action of the State through its administrative 
officers in effecting the prohibited discrimination.” 476 

 



  

84-6811—DISSENT 

6 McCLESKEY ». KEMP 

U. S., at — (slip op. 7), quoting Norris v. Alabama, 294 
U. S. 587, 589 (19395). 

B 

In analyzing an equal protection claim, a court must first 
determine the nature of the claim and the responsibilities 
of the state actors involved to determine what showing 
is required for the establishment of a prima facie case. 
Castaneda v. Partida, 430 U. S. 482, 493-494 (1977). The 

Court correctly points out: “In its broadest form, McCles- 
key’s claim of discrimination extends to every actor in the 
Georgia capital sentencing process, from the prosecutor who 
sought the death penalty and the jury that imposed the sen- 
tence, to the State itself that enacted the capital punishment 
statute and allows it to remain in effect despite its allegedly 

discriminatory application.” Ante, at —— (slip op. 10). 
Having recognized the complexity of McCleskey’s claim, 
however, the Court proceeds to ignore a significant element 
of that claim. The Court treats the case as if it is limited 
to challenges to the actions of two specific decisionmaking 
bodies—the petit jury and the state legislature. Ante, at 
—— (slip op. 12-13, 16-17). This self-imposed restriction 
enables the Court to distinguish this case from the venire- 
selection cases and Title VII cases in which it long has 
accepted statistical evidence and has provided an easily 
applicable framework for review. See e. g., Castaneda v. 
Partida, supra; Bazemore v. Friday, 478 U. S. — (1986) 

(BRENNAN, J., for a unanimous Court concurring in part). 

Considering McCleskey’s claim in its entirety, however, re- 
veals that the claim fits easily within that same framework. 
A significant aspect of his claim is that racial factors imper- 
missibly affected numerous steps in the Georgia capital- 
sentencing scheme between his indictment and the jury's 
vote to sentence him to death. The primary decisionmaker 
at each of the intervening steps of the process is the prosecu- 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 7 

tor, the quintessential state actor in a criminal proceeding.’ 
The District Court expressly stated that there were “two 
levels of the system that matter to [McCleskey], the decision 
to seek the death penalty and the decision to impose the 
death penalty.” 580 F. Supp. 338, 379-380 (ND Ga. 1984). 
I agree with this statement of McCleskey’s case. Hence, my 
analysis in this dissenting opinion takes into account the role 
of the prosecutor in the Georgia capital-sentencing system. 
I certainly do not address all the alternative methods of proof 
in the Baldus study. Nor do I review each step in the proc- 
ess which McCleskey challenges. I concentrate on the deci- 
sions within the prosecutor’s office through which the State 
decided to seek the death penalty and, in particular, the point 
at which the State proceeded to the penalty phase after con- 
viction. This is a step at which the evidence of the effect of 

The Court refers to the prosecutor’s role in the capital-sentencing 
process without analyzing the import of the statistical evidence concerning 
the steps of the process at which the prosecutor determines the future of 
the case. The Court recognizes that the prosecutor determines whether a 
case even will proceed to the penalty phase. If the prosecutor does not 
pursue the death penalty, a mandatory sentence of life imprisonment is 
imposed. See ante, at —, n. 2 (slip op. 2, n. 2). It lists many of the 
factors that prosecutors take into account in making their decisions, ante, 
at — (slip op. 25, n. 28), and recognizes that in each case the prosecutor 

can decline to charge, or to offer a plea bargain, or to seek a death 
sentence, ante, at —— (slip op. 30). It also notes that the Baldus study 
“found that prosecutors sought the death penalty in 70% of the cases 
involving black defendants and white victims; 32% of the cases involving 
white defendants and white victims; 15% of the cases involving black 
defendants and black victims; and 19% of the cases involving white defend- 
ants and black victims,” ante, at — (slip op. 5). 

The Court relies heavily on its assertion that prosecutorial discretion 
should not be reviewed, ante, at ——, —— (slip op. 14-15, 29-30), but else- 

where concedes that such discretion may not be exercised in a racially dis- 
criminatory manner, ante, at — (slip op. 27, n. 30). It nowhere explains 
why this limitation on prosecutorial discretion does not require the same 
analysis that we apply in other cases involving equal protection challenges 
to the exercise of prosecutorial discretion. See e. g., Batson v. Kentucky, 
supra. 

 



  

84-6811—DISSENT 

8 McCLESKEY v. KEMP 

the racial factors was especially strong, see Supplemental 

Exhibits (S. E.) 56, 57; Transcript of Federal Habeas Corpus 

Hearing (Tr.) 894-926, but is ignored by the Court. 

II 

A 

A criminal defendant alleging an equal protection viola- 

tion must prove the existence of purposeful discrimination. 

Washington v. Davis, 426 U. S. 229, 239-240 (1976); Whatus 

v. Georgia, 385 U. S., at 550. He may establish a prima 

facie case of purposeful discrimination “by showing that the 

totality of the relevant facts gives rise to an inference of dis- 

criminatory purpose.” Batson v. Kentucky, 476 U. S., at 

—— (slip op. 13).* Once the defendant establishes a prima 

facie case, the burden shifts to the prosecution to rebut that 

case. “The State cannot meet this burden on mere general 

*The use of the prima facie case method to structure proof in cases 

charging racial discrimination is appropriate because it “progressively . . . 

sharpen(s] the inquiry into the elusive factual question of intentional dis- 

crimination.” Texas Dept. of Community Affairs v. Burdine, 450 U. S. 

248, 255, n. 8 (1981); see McCleskey v. Kemp, 753 F. 2d 877, 912 (CAll 

1985) (Johnson, J., dissenting in part and concurring in part) (where the 

“prosecutor has considerable discretion and the jury has bounded but irre- 

ducible discretion,” the discretion could easily mask conscious or uncon- 

scious racial discrimination and indirect methods of proof are therefore 

required as outlined in Washington v. Davis, 426 U. S. 229, 241-242 

(1976), and Arlington Heights v. Metropolitan Housing Development 

Corp., 429 U. S. 252, 266, n. 13 (1977). 

The Court recently explained: “In deciding if the defendant has carried 

his burden of persuasion, a court must undertake ‘a sensitive inquiry into 

such circumstantial and direct evidence of intent as may be available.’ 

Village of Arlington Heights v. Metropolitan Housing Development Corp., 

429 U. S. 252, 266 (1977). Circumstantial evidence of invidious intent 

~ may include proof of disproportionate impact. Washington v. Davis, 426 

U. S., at 242. We have observed that under some circumstances proof of 

discriminatory impact ‘may for all practical purposes demonstrate uncon- 
stitutionality because in various circumstances the discrimination is very 

difficult to explain on nonracial grounds.” Ibid.” Batson v. Kentucky, 

476 U. S., at — (slip op. 13). 

 



  

84-6811—DISSENT 

MCCLESKEY v. KEMP 9 

assertions that its officials did not discriminate or that they 
properly performed their official duties.” Ibid. The State 
must demonstrate that the challenged effect was due to 
“‘Dermissible racially neutral selection criteria.’” Ibid., 
quoting Alexander v. Louisiana, 405 U. S. 625, 632 (1972). 

Under Batson v. Kentucky and the framework established 
in Castaneda v. Partida, McCleskey must meet a three- 
factor standard. First, he must establish that he is a mem- 
ber of a group “that is a recognizable, distinct class, singled 
out for different treatment.” 430 U. S., at 494. Second, he 
must make a showing of a substantial degree of differential 
treatment.® Third, he must establish that the allegedly 
discriminatory procedure is susceptible to abuse or is not 
racially neutral. Ibid. 

B 

There can be no dispute that McCleskey has made the reg- 
uisite showing under the first prong of the standard. The 
Baldus study demonstrates that black persons are a distinct 
group that are singled out for different treatment in the 
Georgia capital-sentencing system. The Court acknowl- 
edges, as it must, that the raw statistics included in the Bal- 
dus study and presented by petitioner indicate that it is much 
less likely that a death sentence will result from a murder of a 
black person than from a murder of a white person. Ante, at 
—— (slip op. 5). White-victim cases are nearly 11 times 
more likely to yield a death sentence than are black-victim 
cases. S. E. 46. The raw figures also indicate that even 
within the group of defendants who are convicted of killing 

‘In Castaneda, we expiained that in jury-selection cases where the 

criminal defendant is attempting to prove that there was discriminatory 
exclusion of potential jurors we apply the “rule of exclusion” method of 
proof. 430 U. S., at 494. The underlying rationale is that “(if a disparity 
is sufficiently large, then it is unlikely that it is due solely to chance or acci- 
‘dent, and, in the absence of evidence to the contrary, one must conclude 

that racial or other class-related factors entered into the selection process.” 
Id., at 494, n. 13. 

 



  

84-6811—DISSENT 

10 McCLESKEY v. KEMP 

white persons and are thereby more likely to receive a death 

sentence, black defendants are more likely than white de- 

fendants to be sentenced to death. S. E. 47. 

With respect to the second prong, McCleskey must prove 

that there is a substantial likelihood that his death sentence is 

due to racial factors. See Hunter v. Underwood, 471 U. S. 

222 228 (1985). The Court of Appeals assumed the validity 

of the Baldus study and found that it “showed that systemic 

and substantial disparities existed in the penalties imposed 

upon homicide defendants in Georgia based on the race of the 

homicide victim, that the disparities existed at a less substan- 

tial rate in death sentencing based on race of defendants, and 

that the factors of race of the victim and defendant were at 
work in Fulton County.” 753 F. 2d 877, 895 (CA1l 1985). 

The question remaining therefore is at what point does that 

disparity become constitutionally unacceptable. See Turner 

v. Murray, 476 U. S. g , n. 8 (1986) (plurality opin- 
ion) (slip op. 8, n. 8). Recognizing that additional factors can 
enter into the decisionmaking process that yields a death sen- 
tence, the authors of the Baldus study collected data concern- 
ing the presence of other relevant factors in homicide cases in 

Georgia during the time period relevant to McCleskey’s case. 

They then analyzed the data in a manner that would permit 
them to ascertain the independent effect of the racial 

factors.’ 

  

* Although the Court states that it assumes the validity of the Baldus 
study for purposes of its analysis, because of its detailed discussion of the 
District Court's reasons for rejecting its validity I am compelled to record 
my disagreement with the District Court’s reasoning. As a member of the 
United States Court of Appeals, I was confronted in 1968 with a challenge 
to the constitutionality of a State’s capital-sentencing system based on alle- 
gations of racial discrimination supported by statistical evidence. Writing 
for a panel of the court, I rejected that challenge for reasons similar to 
those espoused by the Court today. Maxwell v. Bishop, 398 F. 2d 138 
(CAS 1968), vacated and remanded, sua sponte, by the Court on grounds 

not raised below, 398 U. S. 262 (1870) (per curiam). 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 11 

McCleskey demonstrated the degree to which his death 
sentence was affected by racial factors by introducing multi- 
ple-regression analyses that explain how much of the statisti- 
cal distribution of the cases analyzed is attributable to the 
racial factors. McCleskey established that because he was 
charged with killing a white person he was 4.3 times as likely 
to be sentenced to death as he would have been had he been 
charged with killing a black person. Petitioner’s Exhibit DB 
82. McCleskey also demonstrated that it was more likely 
than not that the fact that the victim he was charged with 
killing was white determined that he received a sentence of 
death—20 out of every 34 defendants in McCleskey’s mid- 
range category would not have been sentenced to be exe- 
cuted if their victims had been black. S. E. 54.28 The most 
persuasive evidence of the constitutionally significant effect 
of racial factors in the Georgia capital-sentencing system is 
McCleskey’s proof that the race of the victim is more impor- 
tant in explaining the imposition of a death sentence than is 

the factor whether the defendant was a prime mover in the 

The Court of Appeals found the evidence presented by Maxwell incom- 
plete, not directly relevant to his individual claim, and statistically insuf- 
ficient. McCleskey’s evidence, however, is of such a different level of 

sophistication and detail that it simply cannot be rejected on those 
grounds. Unlike the evidence presented by Maxwell, which did not con- 
tain data from the jurisdiction in which he was tried and sentenced, 

McCleskey’s evidence includes data from the relevant jurisdiction. 
Whereas the analyses presented by Maxwell did not take into account a 
significant number of variables and were based on a universe of 55 cases, 

the analyses presented by McCleskey’s evidence take into account more 

than 400 variables and are based on data concerning all offenders arrested 
for homicide in Georgia from 1973 through 1978, a total of 2,484 cases. 

Moreover, the sophistication of McCleskey’s evidence permits consider- 
ation of the existence of racial discrimination at various decision points in 

the process, not merely at the jury decision. It is this experience, in part, 
that convinces me of the significance of the Baldus study. 

‘See Brief for Dr. Franklin M. Fisher, Dr. Richard O. Lempert, 

Dr. Peter W. Sperlich, Dr. Marvin E. Wolfgang, Professor Hans Zeisel, 
and Professor Franklin E. Zimring as Amici Curiae 19. 

 



  

84-6811—DISSENT 

12 McCLESKEY v. KEMP 

homicide. Petitioner’s Exhibit DB 82.° Similarly, the race- 

of-victim factor is nearly as crucial as the statutory aggravat- 

ing circumstance whether the defendant had a prior record of 
a conviction for a capital crime.” Ibid. See Ga. Code Ann. 
§ 17-10-30(b) (1982), ante, at —, n. 3 (slip op. 3, n. 3). 

The Court has noted elsewhere that Georgia could not attach 

“the ‘aggravating’ label to factors that are constitutionally 
impermissible or totally irrelevant to the sentencing process, 
such as for example the race, religion, or political affiliation of 

the defendant.” Zant v. Stephens, 462 U. S. 862, 885 (1983). 
What we have held to be unconstitutional if included in the 
language of the statute, surely cannot be constitutional be- 
cause it is a de facto characteristic of the system. 

McCleskey produced evidence concerning the role of racial 
factors at the various steps in the decisionmaking process, 
focusing on the prosecutor’s decision as to which cases merit 
the death sentence. MecCleskey established that the race of 
the victim is an especially significant factor at the point 
where the defendant has been convicted of murder and the 
prosecutor must choose whether to proceed to the penalty 

phase of the trial and create the possibility that a death 
sentence may be imposed or to accept the imposition of a 
sentence of life imprisonment. McCleskey demonstrated 

this effect at both the statewide level, see S. E. 56, S. E. 57, 
Tr. 897-910, and in Fulton County where he was tried and 
sentenced, see S. E. 59, S. E. 60, Tr. 978-981. The state- 
wide statistics indicated that black defendant/white victim 
cases advanced to the penalty trial at nearly five times the 
rate of the black defendant/black victim cases (70% vs. 15%), 

and over three times the rate of white defendant/black victim 

*A defendant’s chances of receiving a death sentence increase by a 
factor of 4.3 if the victim is white, but only by 2.3 if the defendant was the 
prime mover behind the homicide. 

® A prior record of a conviction for murder, armed robbery, rape, or 
kidnaping with bodily injury increases the chances of a defendant’s receiv- 

ing a death sentence by a factor of 4.9. 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 13 

cases (70% vs. 19%). See S. E. 56. The multiple-regres- 
sion analysis demonstrated that racial factors had a readily 
identifiable effect at a statistically significant level. See 
S. E. 57; Tr. 905. The Fulton County statistics were con- 
sistent with this evidence although they involved fewer 
cases. See S. E. 59, S. E. 60. 

Individualized evidence relating to the disposition of 
the Fulton County cases that were most comparable to 
McCleskey’s case was consistent with the evidence of the 
race-of-victim effect as well. Of the 17 defendants, including 
MecCleskey, who were arrested and charged with homicide of 
a police officer in Fulton County during the 1973-1979 period, 

* McCleskey, alone, was sentenced to death. The only other 
defendant whose case even proceeded to the penalty phase 
received a sentence of life imprisonment. That defendant 
had been convicted of killing a black police officer. See 
S. E. 61-63; Tr. 1050-1062. 

As to the final element of the prima facie case, McCleskey 
showed that the process by which the State decided to seek 
a death penalty in his case and to pursue that sentence 
throughout the prosecution was susceptible to abuse. Peti- 
tioner submitted the deposition of Lewis R. Slaton, who, as 
of the date of the deposition, had been the District Attorney 
for 18 years in the county in which McCleskey was tried and 
sentenced. Deposition of Lewis R. Slaton, Aug. 4, 1983, 
p. 5; see McCleskey v. Zant, 580 F'. Supp., at 377, n. 15; Tr. 

1317. As Mr. Slaton explained, the duties and responsibil- 
ities of that office are the prosecution of felony charges within 
the Atlanta Judicial Circuit that comprises Fulton County. 

The universe of cases from Fulton County analyzed by Baldus included 
629 killings, 581 of which yielded murder indictments. S. E. 59; S. E. 60; 
Tr. 978-981. The evidence indicated that at each step in the process from 
indictment to sentence, there is a differential treatment in the disposition 
of white-victim and black-victim cases, with the white-victim cases having 

a higher likelihood of being retained in the system and risking a death sen- 
tence. S. E. 60; Tr. 978-981. 

 



  

84-6811—DISSENT 

14 McCLESKEY v». KEMP 

Deposition, at 7-8. He testified that during his years in the 
office, there were no guidelines informing the Assistant Dis- 
trict Attorneys who handle the cases how they should pro- 
ceed at any particular stage of the prosecution. There were 
no guidelines as to when they should seek an indictment for 
murder as opposed to lesser charges, id., at 10-11; when they 
should recommend acceptance of a guilty plea to murder, 
acceptance of a guilty plea to a lesser charge, reduction 
of charges, or dismissal of charges at the postindictment- 
preconviction stage, id., at 25-26, 31; or when they should 
seek the death penalty. Id., at 31. Slaton testified that 
these decisions were left to the discretion of the individual 
attorneys who then informed Slaton of their decisions as they 
saw fit. Id., at 13, 24-25, 37-38. 

Slaton’s deposition proves that, at every stage of a pros- 
ecution, the Assistant District Attorney exercised much dis- 
cretion. The only guidance given was “on-the-job training.” 
Id., at 20. Addressing plea bargaining, for example, Slaton 
stated that “through the training that the assistant DA’s get, 
I think we pretty much think alike on the cases, on what we 
suggest.” Id., at 25. The sole effort to provide any consis- 
tency was Slaton’s periodic pulling of files at random to check 
on the progress of cases. Id., at 28-29. Slaton explained 
that as far as he knew, he was the only one aware of this 
checking. Id., at 28. The files contained information only 
as to the evidence in the case, not any indication as to why an 
attorney made a particular decision. The attorneys were not 
required to record why they sought an indictment for murder 
as opposed to a lesser charge, id., at 19, or why they recom- 
mended a certain plea. Id., at 29-30.* The attorneys were 
not required to report to Slaton the cases in which they de- 

2 In his deposition, Russell Parker, the Assistant District Attorney 
who prosecuted McCleskey’s case, contradicted the statement cited by the 
Court, ante, at ——, n. 34 (slip op. 30, n. 34), concerning plea negotiations 
during McCleskey’s trial. Parker testified that he never discussed a plea 
with McCleskey. Deposition of Russell Parker, Feb. 16, 1981, p. 15. 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 15 

cided not to seek the death penalty, id., at 34-36, 38, or the 

cases in which they did seek the death penalty, id., at 41. 
When questioned directly as to how the office decided 

whether to seek the death penalty, Slaton listed several fac- 

tors he thought relevant to that decision, including the 
strength of the evidence, the atrociousness of the crime, and 
the likelihood that a jury would impose the death sentence. 
Id., at 59. He explained that the attorneys did not seek the 
death penalty in every case in which statutory aggravating 
factors existed. Id., at 38. Slaton testified that his office 

still operated in the same manner as it did when he took office 
in 1964, except that it has not sought the death penalty in any 
rape cases since this Court’s decision in Coker v. Georgia, 433 
U. S. 584 (1977). Deposition, at 60. 

In addition to this showing that the challenged system was 
susceptible to abuse, McCleskey presented evidence of the 
history of prior discrimination in the Georgia system. Jus- 
TICE BRENNAN has reviewed much of this history in detail in 
his dissenting opinion, ante, at - (slip op. 10-15), 

including the history of Georgia's racially based dual system 
of criminal justice. This historical background of the state 
action challenged “is one evidentiary source” in this equal 
protection case. Arlington Heights v. Metropolitan Hous- 
ing Development Corp., 429 U. S. 252, 267 (1977); see also 
Rogers v. Lodge, 458 U. S. 613, 618, 623-625 (1982). Al- 

though I would agree that evidence of “official actions taken 
long ago” could not alone establish that the current system is 
applied in an unconstitutionally discriminatory manner, I 
disagree with the Court’s statement that such evidence is 
now irrelevant. Ante, at - , n. 20 (slip op. 16, 
n. 20). 

  

  

The above-described evidence, considered in conjunction 
with the other record evidence outlined by JUSTICE BREN- 
NAN, ante, at - (slip op. 6-9), and discussed in   

 



  

84-6811—DISSENT 

16 McCLESKEY v. KEMP 

opinions dissenting from the judgment of the Court of 

Appeals, 753 F. 2d, at 919 (Hatchett, J., dissenting in part 

and concurring in part); id., at 920-923 (Clark, J., dissenting 

in part and concurring in part), gives rise to an inference of 

discriminatory purpose. See Washington v. Dawis, 426 

U. S., at 239-242. As in the context of the rule of exclusion, 

see supra, n. 6, McCleskey’s showing is of sufficient magni- 
tude that, absent evidence to the contrary, one must con- 

clude that racial factors entered into the decisionmaking 

process that yielded McCleskey’s death sentence. See 
Castaneda v. Partida, 430 U. S., at 494, n. 13. The.burden, 
therefore, shifts to the State to explain the racial selections. 
It must demonstrate that legitimate racially neutral criteria 

and procedures yielded this racially skewed result. 
In rebuttal, the State’s expert suggested that if the Baldus 

thesis was correct then the aggravation level in black-victim 
cases where a life sentence was imposed would be higher 
than in white-victim cases. See 580 F. Supp., at 373. The 
expert analyzed aggravating and mitigating circumstances 

“one by one, demonstrating that in life sentence cases, to the 

extent that any aggravating circumstance is more prevalent 
in one group than the other, there are more aggravating fea- 
tures in the group of white-victim cases than in the group of 
black-victim cases. Conversely, there were more mitigating 
circumstances in which black-victim cases had a higher pro- 
portion of that circumstance than in white-victim cases.” 
Ibid. The District Court found that the State’s suggestion 

was plausible. It concluded, however, that the State did not 
conclusively disprove McCleskey’s case; yet it reasoned that 
the State’s theory “stands to contradict any prima facie 
case.” Ibid. I find that reasoning wrong as a matter of law, 

and the conclusion clearly erroneous. 
The State did not test its hypothesis to determine if white- 

victim and black-victim cases at the same level of aggravat- 

 



  

84-6811—DISSENT 

McCLESKEY v». KEMP 17 

ing circumstances were similarly treated. Tr. 1613-1614, 
1664. McCleskey’s experts, however, performed this test on 
their data. Id., at 1297, 1729-1732, 1756-1761. They dem- 
onstrated that the racial disparities in the system were not 
the result of the differences in the average aggravation levels 
between white-victim and black-victim cases. See S. E. 72; 

Tr. 1291-1296; Petitioner’s Exhibit DB 92. The State’s mea- 

ger and unsophisticated evidence cannot withstand the ex- 
tensive scrutiny given the Baldus evidence.” Here, as in 
Bazemore v. Friday, the State did not “demonstrate that 
when the] factors were properly organized and accounted for 
there was no significant disparity” between the death sen- 

¥ As a result of McCleskey’s discovery efforts, the record also contains 
relevant testimonial evidence by two state officials. The Fulton County 
District Attorney, testified that he did not recall any instance in which race 
was a factor in a death penalty case in his office. Deposition of Lewis R. 
Slaton, Aug. 4, 1983, p. 78. He later recalled one case that was in the 

office when he first began, in which the office set aside the death penalty 
because of the possibility that race had been involved. Id., at 79-80. The 

Assistant District Attorney who prosecuted McCleskey’s case testified 
that race did not influence his decision to seek the death penalty in the 
present case. Deposition of Russell Parker, Feb. 16, 1981, p. 17. 

These general assertions by state officials that they did not discriminate 
or that they properly performed their official duties, however, cannot meet 
the State’s burden of rebuttal of the prima facie case. See Alexander v. 
Louisiana, 405 U. S. 625, 631-632 (1972); Whitus v. Georgia, 385 U. S. 
545, 551-552 (1967). Moreover, there are many ways in which racial fac- 

tors can enter indirectly into prosecutorial decisions. For example, the 
authors of a study similar to that of Baldus explained: “Since death penalty 
prosecutions require large allocations of scarce prosecutorial resources, 
prosecutors must choose a small number of cases to receive this expensive 
treatment. In making these choices they may favor homicides that are 
visible and disturbing to the majority of the community, and these will tend 
to be white-victim homicides.” Gross & Mauro, Patterns of Death: An 

Analysis of Racial Disparities in Capital Sentencing and Homicide Vie- 
timization, 37 Stan. L. Rev. 27, 106-107 (1984); see generally, Johnson, 

Race and the Decision to Detain a Suspect, 93 Yale L. J. 214 (1983); 

Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Uncon- 

scious Racism, 39 Stan. L. Rev. 317 (1987). 

 



  

84-6811—DISSENT 

18 McCLESKEY v. KEMP 

tences imposed on defendants convicted of killing white vic- 
tims and those imposed on defendants convicted of killing 
black victims. 478 U. S., at —, n. 14 (slip op. 16, n. 14). 
In Castaneda, we rejected a similar effort by the State to 
rely on an unsupported countervailing theory to rebut the 
evidence. 430 U. S., at 500. In sum, McCleskey has dem- 
onstrated a clear pattern of differential treatment according 
to race that is “unexplainable on grounds other than race.” 
Arlington Heights v. Metropolitan Housing Development 
Corp., 429 U. S., at 266. 

III 

The Court’s explanations for its failure to apply this well- 
established equal protection analysis to this case are not per- 
suasive. It first reasons that “each particular decision to 
impose the death penalty is made by a petit jury” and that 
the “application of an inference drawn from the general sta- 
tistics to a specific decision in a trial and sentencing simply is 
not comparable to the application of an inference drawn from 
general statistics to a specific venire-selection or Title VII 
case.” Ante, at — (slip op. 13). According to the Court, 
the statistical evidence is less relevant because, in the two 
latter situations, there are fewer variables relevant to the de- 
cision and the “statistics relate to fewer entities.” Ibid. 

I disagree with the Court’s assertion that there are fewer 
variables relevant to the decisions of jury commissioners or 
prosecutors in their selection of jurors, or to the decisions of 
employers in their selection, promotion, or discharge of em- 
ployees. Such decisions involve a multitude of factors, some 
rational, some irrational. Second, I disagree with the com- 
ment that the venire-selection and employment decisions are 
“made by fewer entities.” Certainly in the employment con- 
text, personnel decisions are often the product of several 
levels of decisionmaking within the business or government 
structure. The Court’s statement that the decision to im- 
pose death is made by the petit jury also disregards the fact 
that the prosecutor screens the cases throughout the pretrial 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 19 

proceedings and decides to seek the death penalty and to 
pursue a capital case to the penalty phase where a death 
sentence can be imposed. McCleskey’s claim in this regard 
lends itself to analysis under the framework we apply in 
assessing challenges to other prosecutorial actions. See 
Batson v. Kentucky, supra; see also Wayte v. United States, 
470 U. S. 598, 608, n. 10 (1985) (applying Castaneda frame- 
work in challenge to prosecutor’s allegedly selective enforce- 
ment of criminal sanction). It is appropriate to judge claims 
of racially discriminatory prosecutorial selection of cases ac- 
cording to ordinary equal protection standards. Id., at 608. 

The Court’s other reason for treating this case differently 
from venire-selection and employment cases is that in these 
latter contexts, “the decisionmaker has an opportunity to ex- 
plain the statistical disparity,” but in the instant case the 
State had no practical opportunity to rebut the Baldus study. 
Ante, at — (slip op. 14). According to the Court, this is 
because jurors cannot be called to testify about their verdict 
and because policy considerations render it improper to re- 
quire “prosecutors to defend their decisions to seek death 
penalties, ‘often years after they were made.”” Ante, at 
—— (slip op. 14), quoting Imbler v. Pachtman, 424 U. S. 
409, 425 (1976). 

I agree with the Court’s observation as to the difficulty of 
examining the jury's decisionmaking process. There per- 
haps is an inherent tension between the discretion accorded 
capital-sentencing juries and the guidance for use of that dis- 
cretion that is constitutionally required. In his dissenting 
opinion, JUSTICE BRENNAN demonstrates that the Eighth 
Amendment analysis is well suited to address that aspect of 
the case. Ante, at — (slip op. 4-5). The Court’s refusal 
to require that the prosecutor provide an explanation for his 
actions, however, is completely inconsistent with this Court’s 
longstanding precedents. The Court misreads Imbler v. 
Pachtman. In that case, the Court held that a prosecutor 
who acted within the scope of his duties was entitled to abso- 

 



  

84-6811—DISSENT 

20 McCLESKEY v». KEMP 

lute immunity in a §1983 action for damages. We recog- 

nized that immunity from damages actions was necessary to 

prevent harassing litigation and to avoid the threat of civil 

litigation undermining the prosecutor’s independence of judg- 

ment. We clearly specified, however, that the policy consid- 

erations that compelled civil immunity did not mean that 

prosecutors could not be called to answer for their actions. 

We noted the availability of both criminal sanctions and pro- 

fessional ethical discipline. 424 U. S., at 429. Prosecutors 

undoubtedly need adequate discretion to allocate the re- 

sources of their offices and to fulfill their responsibilities 

+ to the public in deciding how best to enforce the law, but this 

does not place them beyond the constraints imposed on state 

action under the Fourteenth Amendment. Cf. Ex Parte 

Virginia, 100 U. S. 339 (1880) (upholding validity of convic- 

tion of state judge for discriminating on the basis of race in 

his, selection of jurors). : 
The Court attempts to distinguish the present case from 

Batson v. Kentucky, in which we recently reaffirmed the fact 
that prosecutors’ actions are not unreviewable. See ante, at 
—— (slip op. 14, n. 17). I agree with the Court’s observa- 
tion that this case is “quite different” from the Batson case. 
Ibid. The irony is that McCleskey presented proof in this 
case that would have satisfied the more burdensome standard 
of Swain v. Alabama, 380 U.S 202 (1965), a standard that 

was described in Batson as having placed on defendants a 
“crippling burden of proof.” 476 U. S., at — (slip op. 12). 
As discussed above, McCleskey presented evidence of nu- 
merous decisions impermissibly affected by racial factors 
over a significant number of cases. The exhaustive evidence 
presented in this case certainly demands an inquiry into the 
prosecutor’s actions. 

The Court’s assertion that, because of the necessity of dis- 
cretion in the criminal-justice system, it “would demand 
exceptionally clear proof,” ante, at —— (slip op. 15), before 
inferring abuse of that discretion thus misses the point of the 

 



  

84-6811—DISSENT 

McCLESKEY » KEMP 21 

constitutional challenge in this case. Its conclusory state- 
ment that “the capacity of prosecutorial discretion to provide 
individualized justice is ‘firmly entrenched in American 
law,”” ante, at —— (slip op. 30), quoting 2 W. LaFave & D. 
Israel, Criminal Procedure § 13.2(a), p. 160 (1984), is likewise 
not helpful. The issue in this case is the extent to which the 
constitutional guarantee of equal protection limits the discre- 
tion in the Georgia capital-sentencing system. As the Court 
concedes, discretionary authority can be discriminatory au- 
thority. Ante, at —— (slip op. 30). Prosecutorial decisions 
may not be “‘deliberately based upon an unjustifiable stand- 
ard such as race, religion, or other arbitrary classification.’” 
Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978), quoting 
Oyler v. Boles, 368 U. S. 448, 456 (1962). Judicial scrutiny 
is particularly appropriate in McCleskey’s case because 
“Im]ore subtle, less consciously held racial attitudes could 
also influence” the decisions in the Georgia capital-sentencing 
system. Turner v. Murray, 476 U. S. —, —— (1986) (slip 
op. 6); see n. 13, supra. The Court's rejection of 
McCleskey’s equal protection claims is a far cry from the 
“sensitive inquiry” mandated by the Constitution. 

IV 

A 

One of the final concerns discussed by the Court may be 
the most disturbing aspect of its opinion. Granting relief to 
McCleskey in this case, it is said, could lead to further con- 
stitutional challenges. Ante, at — (slip op. 33-37). That, 
of course, is no reason to deny McCleskey his rights under 
the Equal Protection Clause. If a grant of relief to him were 
to lead to a closer examination of the effects of racial consid- 
erations throughout the criminal-justice system, the system, 
and hence society, might benefit. Where no such factors 
come into play, the integrity of the system is enhanced. 
Where such considerations are shown to be significant, ef- 
forts can be made to eradicate their impermissible influence 

 



  

84-6811—DISSENT 

22 McCLESKEY v. KEMP 

and to ensure an evenhanded application of criminal 
sanctions. 

B 

Like JUSTICE STEVENS, I do not believe acceptance of 
McCleskey’s claim would eliminate capital punishment in 
Georgia. Post, at —— (slip op. 2). JUSTICE STEVENS 
points out that the evidence presented in this case indicates 
that in extremely aggravated murders the risk of discrimina- 
tory enforcement of the death penalty is minimized. Ibid. I 
agree that narrowing the class of death-eligible defendants is 
not too high a price to pay for a death-penalty system that 
does not discriminate on the basis of race. Moreover, the 
establishment of guidelines for Assistant District Attorneys 
as to the appropriate basis for exercising their discretion at 
the various steps in the prosecution of a case would provide 
at least a measure of consistency. The Court’s emphasis on 
the procedural safeguards in the system ignores the fact that 
there are none whatsoever during the crucial process leading 
up to trial. As JUSTICE WHITE stated for the plurality in 
Turner v. Murray, I find “the risk that racial prejudice may 
have infected petitioner’s capital sentencing unacceptable in 
light of the ease with which that risk could have been mini- 
mized.” 476 U. S., at — (slip op. 7). I dissent. 

 



  

SUPREME COURT OF THE UNITED STATES 

No. 84-6811 

  

  

WARREN McCLESKEY, PETITIONER wv» RALPH 
KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC 

AND CLASSIFICATION CENTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT 

[April 22, 1987] 

JUSTICE STEVENS, with whom JUSTICE BLACKMUN ‘joins, 

dissenting. - 

There “is a qualitative difference between death and any 
other permissible form of punishment,” and hence, “‘a 
corresponding difference in the need for reliability in the 
determination that death is the appropriate punishment in a 
specific case.” Zant v. Stephens, 462 U. S. 862, 884-885 
(1983), quoting Woodson v. North Carolina, 428 U. S. 280, 
305 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). 
Even when considerations far less repugnant than racial dis- 
crimination are involved, we have recognized the “vital im- 
portance to the defendant and to the community that any de- 
cision to impose the death sentence be, and appear to be, 
based on reason rather than caprice or emotion.” Gardner 
v. Florida, 430 U. S. 349, 358 (1977). “[Allthough not every 
imperfection in the deliberative process is sufficient, even in 
a capital case, to set aside a state-court judgment, the sever- 
ity of the sentence mandates careful scrutiny in the review of 
any colorable claim of error.” Zant, supra, at 885. 

In this case it is claimed—and the claim is supported by 
elaborate studies which the Court properly assumes to be 
valid—that the jury’s sentencing process was likely distorted 
by racial prejudice. The studies demonstrate a strong prob- 
ability that McCleskey’s sentencing jury, which expressed 

 



  

84-6811—DISSENT 

2 McCLESKEY v. KEMP 

“the community’s outrage—its sense that an individual has 
lost his moral entitlement to live,” Spaziano v. Florida, 468 
U. S. 447, 469 (1984) (STEVENS, J., dissenting)—was influ- 
enced by the fact that McCleskey is black and his victim was 
white, and that this same outrage would not have been gen- 
erated if he had killed a member of his own race. This sort 
of disparity is constitutionally intolerable. It flagrantly vio- 
lates the Court’s prior “insistence that capital punishment be 
imposed fairly, and with reasonable consistency, or not at 
all.” Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). 

The Court’s decision appears to be based on a fear that the 
acceptance of McCleskey’s claim would sound the death knell 
for capital punishment in Georgia. If society were indeed 
forced to choose between a racially discriminatory death pen- 
alty (one that provides heightened protection against murder 
“for whites only”) and no death penalty at all, the choice man- 
dated by the Constitution would be plain. Eddings v. Okla- 

“homa, supra. But the Court’s fear is unfounded. One of 
the lessons of the Baldus study is that there exist certain cat- 
egories of extremely serious crimes for which prosecutors 
consistently seek, and juries consistently impose, the death 
penalty without regard to the race of the victim or the race of 
the offender. If Georgia were to narrow the class of death- 
eligible defendants to those categories, the danger of arbi- 
trary and discriminatory imposition of the death penalty 
would be significantly decreased, if not eradicated. As JUs- 
TICE BRENNAN has demonstrated in his dissenting opinion, 
such a restructuring of the sentencing scheme is surely not 

too high a price to pay. 
Like JUSTICE BRENNAN, I would therefore reverse the 

judgment of the Court of Appeals. I believe, however, that 
further proceedings are necessary in order to determine 
whether McCleskey’s death sentence should be set aside. 

First, the Court of Appeals must decide whether the Baldus 
study is valid. I am persuaded that it is, but orderly proce- 
dure requires that the Court of Appeals address this issue 

 



  

84-6811—DISSENT 

McCLESKEY v. KEMP 3 

before we actually decide the question. Second, it is neces- 
sary for the District Court to determine whether the par- 
ticular facts of McCleskey’s crime and his background place 
this case within the range of cases that present an unaccept- 
able risk that race played a decisive role in McCleskey’s 
sentencing. 

Accordingly, I respectfully dissent.