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Volume 3, Number 1
THE SUPREME COURT SANCTIONS UNEQUAL JUSTICE
by Diann Rust-Tierney, ACLU Legislative Counsel
On April 22, 1987, the Supreme Court ruled in a 5-4 decision written by Justice Lewis Powell, (McCleskey v. Kemp, 1075 S-Ct- 1756), that Georgia's death sentence was constitutional despite evidence that the death sentence was exercised in a discriminatory manner. In the case, Warren McCleskey, a black man who was convicted and sentenced to die for the murder of a white police officer, challenged his Georgia death sentence based on evidence which demonstrated that race was probably the most important factor in the decision to sentence him to death. McCleskey based his claim on a study by University of Iowa Law Professor David Baldus. After examining nearly 2,000 homicide cases occurring in Georgia between 1973 and 1979, Baldus discovered that the Georgia capital sentencing scheme operated on a dual standard of justice: a dual standard that turned on the race of the defendant and his or her victim. Baldus found that when Georgia exercised its most awesome power, the power to kill as punishment for a crime, it was more likely to exercise that power when the victim of the crime was white and particularly when the defendant is black. He found that 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. Prosecutors in Georgia sought the death penalty for 70 percent of black defendants with white victims, but only 15 percent of black defendants with black victims and only 19 percent of white defendants with black victims.
During the same period of time, only 9.2 percent of Georgia's homicides involved black defendants and white victims. Over sixty percent of Georgia homicides involved black victims. When the McCleskey case was decided in April 1987 Georgia had executed 7 people since its statute had been approved by the Court in 1976. Six of the seven people who were killed were black. All of those killed were killed as punishment for the murders of white victims.
In addition to the statistical evidence presented to the Court, McCleskey's lawyers demonstrated that the distribution of death sentences mirrored the pattern of capital sentencing that Georgia statutes once provided for explicitly by law. Georgia's Civil War criminal code had a separate section for "Slaves and Free Persons of Color" which provided for an automatic death sentence for murder committed by blacks. Anyone else convicted of the same offense might receive life imprisonment. That code also provided that rape of a free white female by a black was punishable by a mandatory death sentence. The same crime when committed by anyone else was punishable by a prison term of not less than 2 nor more than 20 years. The rape of a black woman was punishable by "fine or imprisonment at the discretion of the court."
The Court ruled, despite this evidence, that Warren McCleskey's death sentence was not unconstitutional. The Court acknowledged that such evidence, in another context, would raise an inference of race discrimination that would have entitled McCleskey to relief. However, the Court reasoned that because "McCleskey challenges decisions at the heart of the State's criminal justice system," it was justified in imposing a higher standard of proof. The Court went on to say "if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we would soon be faced with similar claims as to other types of penalties." The Supreme Court thus created a new and impossibly difficult standard of proof which protects what it viewed to be the more important principle: preserving the character of Georgia's criminal justice system. The Court weighed the individual's right to be free from race discrimination in the most extreme case - when the discrimination would cost him his life - against Georgia's interest in preserving the status quo and the status quo won.
  
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