McCleskey v. KempMcCleskey v. Kemp FactsFacts

McCleskey was a black defendantMcCleskey was a black defendant Charged with two counts of armed robbery and one count of murderCharged with two counts of armed robbery and one count of murder

Robbed a furniture storeRobbed a furniture store During the robbery, killed a police officer, Frank Schlatt, who was whiteDuring the robbery, killed a police officer, Frank Schlatt, who was white

During commission of the robberyDuring commission of the robbery McCleskey had three accomplices, all four were armedMcCleskey had three accomplices, all four were armed

McCleskey carried a .38 caliber Rossi nickel-plated revolver - the McCleskey carried a .38 caliber Rossi nickel-plated revolver - the others carried a sawed-off shotgun & pistolsothers carried a sawed-off shotgun & pistols

Three accomplices rounded up and tied up the employeesThree accomplices rounded up and tied up the employees Manager was forced at gunpoint to turn over store receipts, his Manager was forced at gunpoint to turn over store receipts, his

watch and $6watch and $6 The police officer entered the store while responding to a tripped silent The police officer entered the store while responding to a tripped silent

alarmalarm Officer Schlatt was shot twice, once in the face, and was killedOfficer Schlatt was shot twice, once in the face, and was killed

McCleskey v. Kemp continuedMcCleskey v. Kemp continued Facts ContinuedFacts Continued

McCleskey was subsequently arrested on unrelated chargesMcCleskey was subsequently arrested on unrelated charges Admitted participating in the robbery but denied shooting the officerAdmitted participating in the robbery but denied shooting the officer

At trial, state entered ballistics evidence which showed that Schlatt had been shot At trial, state entered ballistics evidence which showed that Schlatt had been shot with a .38 caliber Rossi revolverwith a .38 caliber Rossi revolver

However, McCleskey’s revolver was never locatedHowever, McCleskey’s revolver was never located State also entered two witness statements that McCleskey admitted the shootingState also entered two witness statements that McCleskey admitted the shooting

One such witness was one of his accomplices, the other was a jailhouse One such witness was one of his accomplices, the other was a jailhouse informant who overheard McCleskey admit to the shooting*informant who overheard McCleskey admit to the shooting*

Jury found two aggravating factors during mitigation/penalty phaseJury found two aggravating factors during mitigation/penalty phase Murder was committed during the course of an armed robberyMurder was committed during the course of an armed robbery Murder was committed against a “peace officer” during the course of his dutiesMurder was committed against a “peace officer” during the course of his duties

McCleskey offered no mitigating evidenceMcCleskey offered no mitigating evidence And, obviously, was sentenced to deathAnd, obviously, was sentenced to death

Under Georgia law, judge must follow jury recommendationUnder Georgia law, judge must follow jury recommendation Trial Jury – consisted of eleven white and one black jurorTrial Jury – consisted of eleven white and one black juror

McCleskey v. Kemp continuedMcCleskey v. Kemp continued Before the Supreme Court, McCleskey made two Before the Supreme Court, McCleskey made two

separate claimsseparate claims First, claimed tFirst, claimed that Georgia’s capital punishment statute hat Georgia’s capital punishment statute

violates the Equal Protection Clause of the Fourteenth violates the Equal Protection Clause of the Fourteenth AmendmentAmendment

Argued that racial discrimination had infected the whole institutional Argued that racial discrimination had infected the whole institutional adjudication of the death penalty process and every actor thereinadjudication of the death penalty process and every actor therein**

Second, claimed tSecond, claimed that Georgia’s capital punishment system hat Georgia’s capital punishment system is arbitrary and capricious in application and therefore is is arbitrary and capricious in application and therefore is excessive because racial considerations may influence excessive because racial considerations may influence capital sentencing decisions and is contrary to the Eighth capital sentencing decisions and is contrary to the Eighth AmendmentAmendment

Argued that the risk of prejudice under Georgia’s capital Argued that the risk of prejudice under Georgia’s capital punishment system rose to the level of being constitutionally punishment system rose to the level of being constitutionally unacceptable*unacceptable*

McCleskey v. Kemp continuedMcCleskey v. Kemp continued Justice Powell MajorityJustice Powell Majority

Equal Protection Claim – Equal Protection Claim – to prevail under this clause, to prevail under this clause, McCleskey must prove that the actors McCleskey must prove that the actors in his casein his case acted with acted with discriminatory purposediscriminatory purpose

He offered no such evidenceHe offered no such evidence Instead, he relied on an inference from the Baldus Study that he suffered Instead, he relied on an inference from the Baldus Study that he suffered

purposeful discrimination as evidenced by spurposeful discrimination as evidenced by statistical racial disparitiestatistical racial disparities Court had accepted statistical proof in other Equal Protection cases (during Court had accepted statistical proof in other Equal Protection cases (during

voir dire challenges and under Title VII of the Civil Rights Act) but declines to voir dire challenges and under Title VII of the Civil Rights Act) but declines to accept it here because of the particularities of the process for capital accept it here because of the particularities of the process for capital sentencing*sentencing*

McCleskey’s Capital Sentence Actors/FactorsMcCleskey’s Capital Sentence Actors/Factors Each properly composed jury is uniqueEach properly composed jury is unique

Weighs innumerable factors that vary according to the characteristics of the Weighs innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular offenseindividual defendant and the facts of the particular offense

State has no opportunity to rebut the Study - impracticalState has no opportunity to rebut the Study - impractical Ultimately, finds that there are too many decisionmakers involved for statistical Ultimately, finds that there are too many decisionmakers involved for statistical

proof to be be relevant under an equal protection clause challengeproof to be be relevant under an equal protection clause challenge

McCleskey v. Kemp continuedMcCleskey v. Kemp continued Justice Powell MajorityJustice Powell Majority

McCleskey’s Equal Protection ClaimMcCleskey’s Equal Protection Claim Implementation of the criminal justice laws necessarily requires Implementation of the criminal justice laws necessarily requires

discretionary judgmentsdiscretionary judgments Proof must be Proof must be exceptionally clearexceptionally clear before the Court will infer that before the Court will infer that

the discretion was abusedthe discretion was abused Holds – the Baldus Study is clearly insufficient to support an Holds – the Baldus Study is clearly insufficient to support an

inference that any of the decisionmakers in McCleskey’s case inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purposeacted with discriminatory purpose

Implies that statistical proof may support such an inference but Implies that statistical proof may support such an inference but does not state how much statistical proof or what does not state how much statistical proof or what additional/alternative kind of evidence may be necessarily additional/alternative kind of evidence may be necessarily sufficientsufficient

This is an unanswered question and has resulted in some of the This is an unanswered question and has resulted in some of the problems with Lower Courts implementing the McCleskey decision problems with Lower Courts implementing the McCleskey decision – applied erratically and inconsistently– applied erratically and inconsistently

McCleskey v. Kemp continuedMcCleskey v. Kemp continued Justice Powell MajorityJustice Powell Majority

McCleskey’s Eighth Amendment ClaimMcCleskey’s Eighth Amendment Claim At what point does the risk of prejudice become constitutionally unacceptable, At what point does the risk of prejudice become constitutionally unacceptable,

i.e., “excessive” amounting to “cruel and unusual” punishment?i.e., “excessive” amounting to “cruel and unusual” punishment? Capital sentencing decision requires jurors to focus their collective judgment Capital sentencing decision requires jurors to focus their collective judgment

on the unique characteristics of a particular criminal defendanton the unique characteristics of a particular criminal defendant Jury’s very function is to make the difficult and uniquely human judgments Jury’s very function is to make the difficult and uniquely human judgments

that defy codification and that build discretion, equity, and flexibility into a that defy codification and that build discretion, equity, and flexibility into a legal systemlegal system

Discretion has a fundamental role in the criminal justice systemDiscretion has a fundamental role in the criminal justice system When a jury exercises its discretion to acquit or to convict of a lesser charge, When a jury exercises its discretion to acquit or to convict of a lesser charge,

these decisions are not reviewable*these decisions are not reviewable* Likewise, prosecutorial discretion is firmly entrenched in the American legal Likewise, prosecutorial discretion is firmly entrenched in the American legal

systemsystem ““The power to be lenient is also the power to discriminate, but a capital The power to be lenient is also the power to discriminate, but a capital

punishment system that did not allow for discretionary acts of leniency punishment system that did not allow for discretionary acts of leniency would be totally alien to our notions of criminal justicewould be totally alien to our notions of criminal justice”*”*

Reinforces the Court’s position against a mandatory death penaltyReinforces the Court’s position against a mandatory death penalty

McCleskey v. Kemp continuedMcCleskey v. Kemp continued Justice Powell MajorityJustice Powell Majority

McCleskey’s Eighth Amendment Claim continuedMcCleskey’s Eighth Amendment Claim continued At most, the Baldus study indicates a discrepancy that appears to At most, the Baldus study indicates a discrepancy that appears to

correlate with racecorrelate with race Apparent disparities are an inevitable part of our criminal justice systemApparent disparities are an inevitable part of our criminal justice system There can be no perfect procedure for deciding in which cases There can be no perfect procedure for deciding in which cases

governmental authority should be used to impose deathgovernmental authority should be used to impose death Jury system, with necessary discretion, is the best we’ve gotJury system, with necessary discretion, is the best we’ve got

Constitutional guarantees are met when the mode for determining guilt Constitutional guarantees are met when the mode for determining guilt or punishment itself has been surrounded with safeguards to make it as or punishment itself has been surrounded with safeguards to make it as fair as possible*fair as possible*

Holds – in light of the safeguards designed to minimize racial bias in Holds – in light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal system, and the benefits that discretion provides to criminal defendants, defendants, the Baldus Study does not demonstrate a the Baldus Study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia constitutionally significant risk of racial bias affecting the Georgia capital sentencing processcapital sentencing process

McCleskey v. Kemp continuedMcCleskey v. Kemp continued

Justice Powell MajorityJustice Powell MajorityStates two additional concernsStates two additional concerns

First, MFirst, McCleskey’s claim, if successful, would cCleskey’s claim, if successful, would extend to all other areas of the criminal justice extend to all other areas of the criminal justice system including other types of penaltiessystem including other types of penalties

Second, it is not the responsibility, or even the Second, it is not the responsibility, or even the right, of the Court to determine the appropriate right, of the Court to determine the appropriate punishment for particular crimespunishment for particular crimes

That is the role of the legislatureThat is the role of the legislature It is only the Court’s role, in situations such as this, to It is only the Court’s role, in situations such as this, to

determine what laws are applied consistent with the determine what laws are applied consistent with the ConstitutionConstitution

McCleskey v. Kemp continuedMcCleskey v. Kemp continued Majority joined by Justices Rehnquist, White, O'Connor & ScaliaMajority joined by Justices Rehnquist, White, O'Connor & Scalia Justice Brennan’s dissentJustice Brennan’s dissent

(Justices Blackmun and Stevens also wrote dissents – Justice Marshall also dissent (Justices Blackmun and Stevens also wrote dissents – Justice Marshall also dissent but did not author an opinion)*but did not author an opinion)*

Hypothetical advice of counsel to McCleskeyHypothetical advice of counsel to McCleskey Few of the details of the crime were more important than the fact that his victim was white*Few of the details of the crime were more important than the fact that his victim was white* Defendants charged with killing white victims in Georgia are 4.3 times more likely to be Defendants charged with killing white victims in Georgia are 4.3 times more likely to be

sentenced to death as defendants charged with killing blackssentenced to death as defendants charged with killing blacks It was more likely than not that the race of McCleskey’s victim would determine whether he It was more likely than not that the race of McCleskey’s victim would determine whether he

received a death sentencereceived a death sentence 6 out of 11 defendants convicted of killing a white person would not have received the death 6 out of 11 defendants convicted of killing a white person would not have received the death

penalty if their victims had been black*penalty if their victims had been black* While among defendants with aggravating and mitigating factors comparable to While among defendants with aggravating and mitigating factors comparable to

McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black*black*

Reviews history of Georgia’s “dual-system” of justice that has historically Reviews history of Georgia’s “dual-system” of justice that has historically discriminated against black offenders*discriminated against black offenders*

Criticizes majority’s concern that a claim such as McCleskey’s could extend to other Criticizes majority’s concern that a claim such as McCleskey’s could extend to other areas by asking what the majority is afraid of – too much justice?areas by asking what the majority is afraid of – too much justice?

Warren McCleskey was executed on September 25, 1991Warren McCleskey was executed on September 25, 1991

He took into consideration 230 He took into consideration 230 variables that could have explained variables that could have explained the data on nonracial groundsthe data on nonracial grounds Examples are number of prior Examples are number of prior

felonies, number or prior violent felonies, number or prior violent crimes, motive (i.e. Insurance), role crimes, motive (i.e. Insurance), role in the crime (i.e. how many in the crime (i.e. how many assistants), victim relationship to assistants), victim relationship to defendant, contemporaneous defendant, contemporaneous offences, method of killing, offences, method of killing, aggravating and mitigating factors. aggravating and mitigating factors.

He sorted out cases where the He sorted out cases where the sentence of death was highly likely or sentence of death was highly likely or highly unlikely, leaving a midrange of highly unlikely, leaving a midrange of cases where the outcome was less cases where the outcome was less predictable. predictable.

The Baldus study examined over 2,000 murders that The Baldus study examined over 2,000 murders that occurred in Georgia during the 1970s. occurred in Georgia during the 1970s.

Baldus also found that prosecutors Baldus also found that prosecutors sought the death penalty in:sought the death penalty in: 70% of the cases involving black 70% of the cases involving black

defendants and white victimsdefendants and white victims32% of the cases involving white 32% of the cases involving white

defendants and white victimsdefendants and white victims19% of the cases involving white 19% of the cases involving white

defendants and black victims; anddefendants and black victims; and15% of the cases involving black 15% of the cases involving black

defendants and black victimsdefendants and black victims

Capital Punishment was Capital Punishment was Imposed in:Imposed in:

22% of the cases with black defendants 22% of the cases with black defendants and white victimsand white victims

8% of the cases with white defendants and 8% of the cases with white defendants and white victimswhite victims

3% of the cases with white defendants and 3% of the cases with white defendants and black victims black victims

1% of the cases with black defendants and 1% of the cases with black defendants and black victimsblack victims

Baldus concluded that defendants charged with Baldus concluded that defendants charged with killing white victims were 4.3 times more likely to killing white victims were 4.3 times more likely to receive the death penalty than defendants receive the death penalty than defendants charged with killing African Americans, and that charged with killing African Americans, and that Black defendants were 1.1 times more likely to Black defendants were 1.1 times more likely to receive the death penalty than other defendants.receive the death penalty than other defendants.

= Black defendant who had killed a white victim = Black defendant who had killed a white victim

had the greatest likelihood of receiving a death had the greatest likelihood of receiving a death sentence.sentence.

Homicides in 2004 (excluding “others”)Homicides in 2004 (excluding “others”)

Offender-HOffender-H

Victim-VVictim-V

WhiteWhite

~68% of ~68% of US Pop.US Pop.

BlackBlack

~13% of ~13% of US Pop.US Pop.

TotalTotal

WhiteWhite 4,7584,758 880880 5,6385,638

BlackBlack 358358 4,1984,198 4,5564,556

TotalTotal 5,1165,116 5,0785,078

Executions since 1976 – Race of VictimExecutions since 1976 – Race of Victim

VictimVictim Number Number Percentage Percentage

BlackBlack 225225 14%14%

HispanicHispanic 7878 4.7%4.7%

WhiteWhite 1,2681,268 79.3%79.3%

OtherOther 3232 2%2%

Executions since 1976 – Race of DefendantExecutions since 1976 – Race of Defendant

Defendant Number PercentageDefendant Number Percentage

BlackBlack 363363 34.1%34.1%

HispanicHispanic 7272 6.6%6.6%

WhiteWhite 607607 57%57%

OtherOther 2424 2.3%2.3%

Current Death Row Population Current Death Row Population by Raceby Race

RaceRace Number Percent Number Percent

BlackBlack

~13% of Total Pop.~13% of Total Pop.

1,3961,396 41.8%41.8%

HispanicHispanic 358358 10.7%10.7%

WhiteWhite

~68% of Total Pop.~68% of Total Pop.

1,5121,512 45.2%45.2%

OtherOther 7878 2.3%2.3%

2004 Executions by Race/Victim2004 Executions by Race/Victim

RaceRace Def # % Def # % Victim # % Victim # %

BlackBlack 1919 32.2%32.2% 1010 13.3%13.3%

WhiteWhite 3636 61%61% 6161 81.3%81.3%

HispanicHispanic 33 5%5% 33 4%4%

OtherOther 11 1.6%1.6% 11 1.3%1.3%

2005 Executions by Race/Victim2005 Executions by Race/Victim

Race Def # %Race Def # % Victim # % Victim # %

BlackBlack 1818 30%30% 1919 19.4%19.4%

WhiteWhite 3838 63.3%63.3% 6666 67%67%

HispanicHispanic 33 5%5% 99 9.2%9.2%

OtherOther 11 1.7%1.7% 44 4.1%4.1%

A parallel study using newer data and A parallel study using newer data and covering other states (covering other states (Gross S, Mauro R. Gross S, Mauro R. 1989. Death and Discrimination. Boston: 1989. Death and Discrimination. Boston: Northeast. Univ. PressNortheast. Univ. Press) came to very ) came to very similar conclusions. No later research has similar conclusions. No later research has seriously questioned these results seriously questioned these results

From the Death Penalty Information CenterFrom the Death Penalty Information Center

From the Death Penalty Information CenterFrom the Death Penalty Information Center

From the Death Penalty Information CenterFrom the Death Penalty Information Center

An analysis of death sentences in An analysis of death sentences in PhiladelphiaPhiladelphia between 1983 and 1993: determination by prosecutor of whether the death penalty should be sought between 1983 and 1993: determination by prosecutor of whether the death penalty should be sought

Philadelphia makes up 14% of the population of Pennsylvania Philadelphia makes up 14% of the population of Pennsylvania but produces more than half of the death sentences in the but produces more than half of the death sentences in the state. state.

83% of the Philly death row population are African American. 83% of the Philly death row population are African American. (US census says Blacks make up 43.22% of the population (US census says Blacks make up 43.22% of the population in Philadelphia) in Philadelphia)

Baldus and Woodworth found that even after controlling for Baldus and Woodworth found that even after controlling for case differences, Black defendants faced were 3.9 times case differences, Black defendants faced were 3.9 times more likely to receive a death sentence than other similarly more likely to receive a death sentence than other similarly situated defendants in the years 1983 to 1993. situated defendants in the years 1983 to 1993.

- DPICDPIC

-------------------------------------------------------------------------------------------------- Philadelphia's District Attorney, Lynne Abraham, was called "The Philadelphia's District Attorney, Lynne Abraham, was called "The

Deadliest D.A." in a 1995 New York Times article.Deadliest D.A." in a 1995 New York Times article.““Prosecutors in other cities seek death more often when the Prosecutors in other cities seek death more often when the victim is white. But Abraham seeks it regardless of the victim is white. But Abraham seeks it regardless of the victim's color or status. But because the killers of blacks tend victim's color or status. But because the killers of blacks tend to be black, that also means that Philadelphia's death row to be black, that also means that Philadelphia's death row has the highest percentage of African-Americans in the has the highest percentage of African-Americans in the country.” country.”

Former Assistant D.A. and Homicide Chief Barbara Christie Former Assistant D.A. and Homicide Chief Barbara Christie frequently had her convictions reversed by higher courts for frequently had her convictions reversed by higher courts for withholding evidence that demonstrated the defendant's withholding evidence that demonstrated the defendant's innocence and for keeping blacks off juries. innocence and for keeping blacks off juries.

Other Interpretations Other Interpretations of the Statistics of the Statistics

In his article, Racial Disparity and the Death In his article, Racial Disparity and the Death Sentence, John McAdams accepts that the Sentence, John McAdams accepts that the death penalty is sought more often in cases death penalty is sought more often in cases where the victim is white. where the victim is white.

But he says “Given the studies we have But he says “Given the studies we have reviewed showing that the system is lenient on reviewed showing that the system is lenient on those who kill blacks, and knowing that the vast those who kill blacks, and knowing that the vast majority of murders are intraracial, we might majority of murders are intraracial, we might conclude that white suspects get tougher conclude that white suspects get tougher treatment because they have overwhelmingly treatment because they have overwhelmingly killed whites.” killed whites.”

More conflicting data: More conflicting data:

In 2000, Alabama’s death row had 97 whites and 86 In 2000, Alabama’s death row had 97 whites and 86 blacks. blacks.

African Americans are 26% of Alabama's population, but African Americans are 26% of Alabama's population, but 47% of death row 47% of death row

Using a statistic that “a black is between 7 and 8 times Using a statistic that “a black is between 7 and 8 times more likely than a white to be a murderer” more likely than a white to be a murderer”

A figure that matches withA figure that matches withhttp://www.ojp.usdoj.gov/bjs/homicide/race.htmhttp://www.ojp.usdoj.gov/bjs/homicide/race.htm

Based on this, 72.9% of Alabama's death row should be Based on this, 72.9% of Alabama's death row should be

black black

The authors come to the conclusion that “With only 86 The authors come to the conclusion that “With only 86 blacks under sentence of death, Alabama's death row is blacks under sentence of death, Alabama's death row is too whitetoo white -- much too white!” -- much too white!”

http://www.lagriffedulion.f2s.com/DP.htmhttp://www.lagriffedulion.f2s.com/DP.htm

Applying this Formula to Each State:Applying this Formula to Each State:

Researchers found 44 cases from Philadelphia from 1979 to 1999 that involved Black male defendants who were convicted of murdering White victims.

They obtained the photographs of these defendants and presented them to raters who did not know that the photographs depicted convicted murderers.

Raters were asked to rate the stereotypicality of each Black defendant’s appearance and were told they could use any number of features (e.g., lips, nose, hair texture, skin tone) .

Thirty-two raters (26 White, 4 Asian, and 2 of other ethnicities) participated in the first session, and 19 raters (6 White, 11 Asian, and 2 of other ethnicities) participated in the second session. The raters were shown a black-and-white photograph of each defendant’s face.

Participants recorded stereotypicality ratings using a scale from 1 (not at all stereotypical) to 11 (extremely stereotypical).

24.4% of those Black defendants who fell in the lower half of the stereotypicality distribution received a death sentence, whereas 57.5% of those Black defendants who fell in the upper half received a death sentence.

Eberhardt, Davies, Purdie-Vaughs, and Johnson Study: “Looking Deathworthy: Perceived Steriotypicality of Black Defendants Predicts Capital Sentencing Outcomes”

John H. Blume, Theodore Eisenberg, & Sheri Lynn Johnson argue that John H. Blume, Theodore Eisenberg, & Sheri Lynn Johnson argue that

lower court’s have applied McCleskey too broadlylower court’s have applied McCleskey too broadly 83 Cornell L. Rev. 1771  83 Cornell L. Rev. 1771  

1st example: 1st example: Earl Matthews, a Black South Carolina death row inmateEarl Matthews, a Black South Carolina death row inmate In Charleston County, the prosecutor was far more likely to seek a death In Charleston County, the prosecutor was far more likely to seek a death

sentence for a Black defendant accused of killing a white victim than for any sentence for a Black defendant accused of killing a white victim than for any other racial combination, and also that these Black defendants were more other racial combination, and also that these Black defendants were more likely to actually receive a death sentence. likely to actually receive a death sentence.

Testimony from former Charleston County police officers, prosecutors, Testimony from former Charleston County police officers, prosecutors, defense lawyers, and community leaders indicated that racial considerations defense lawyers, and community leaders indicated that racial considerations affected the prosecution of capital cases in Charleston County. affected the prosecution of capital cases in Charleston County.

He also presented additional circumstantial evidence of racial discrimination, He also presented additional circumstantial evidence of racial discrimination, including information suggesting that certain hiring and firing practices and including information suggesting that certain hiring and firing practices and other prosecutorial actions in his case were racially motivated.other prosecutorial actions in his case were racially motivated.

The Federal district Court judge dismissed these claims, saying that The Federal district Court judge dismissed these claims, saying that McCleskey precluded this type of racial objection to the death penaltyMcCleskey precluded this type of racial objection to the death penalty ““In this case, the petitioner has pointed to no evidence or facts that the In this case, the petitioner has pointed to no evidence or facts that the

solicitor sought the death penalty in his case for a discriminatory solicitor sought the death penalty in his case for a discriminatory purpose. In addition, the [McCleskey] Court indicated a reluctance to purpose. In addition, the [McCleskey] Court indicated a reluctance to question the discretionary decisions of prosecutors and stated that a question the discretionary decisions of prosecutors and stated that a legitimate explanation exists for seeking the death penalty, that is, that legitimate explanation exists for seeking the death penalty, that is, that the petitioner committed a crime for which the laws permit the imposition the petitioner committed a crime for which the laws permit the imposition of the death penalty.” of the death penalty.”

2nd Example: 2nd Example: Raymond Patterson, an African American death row inmateRaymond Patterson, an African American death row inmate Patterson had robbed and murdered a white man from West Virginia. Patterson had robbed and murdered a white man from West Virginia. There had been 174 homicide victims in Lexington County since 1977 There had been 174 homicide victims in Lexington County since 1977 Of those, the state had never sought the death penalty where the victim was black, Of those, the state had never sought the death penalty where the victim was black,

in contrast to seeking the death penalty in 10.2% of cases where the homicide in contrast to seeking the death penalty in 10.2% of cases where the homicide victim had been white. victim had been white.

Blacks made up a disproportionably high percent of homicide victims in the county. Blacks made up a disproportionably high percent of homicide victims in the county. Patterson also introduced evidence of evidence a “racist innuendo from the solicitor Patterson also introduced evidence of evidence a “racist innuendo from the solicitor

prior to trial, the racist attitudes of the victim, and the solicitor's disparate treatment prior to trial, the racist attitudes of the victim, and the solicitor's disparate treatment of Black and white jurors.” of Black and white jurors.”

Q: What did [the police] ask you about? A: … And they asked me the color, you know, Q: What did [the police] ask you about? A: … And they asked me the color, you know, whether he was black, and I said yes, he was black. That's what made me so whether he was black, and I said yes, he was black. That's what made me so afraid. Q: Why would that make you afraid? A:I am just totally afraid of them. I afraid. Q: Why would that make you afraid? A:I am just totally afraid of them. I mean as long as they keep a distance from me, I'm all right, but I don't want their mean as long as they keep a distance from me, I'm all right, but I don't want their hands on me; I don't want anything, you know. Q:This is black people generally, hands on me; I don't want anything, you know. Q:This is black people generally, you mean? A:Yes. you mean? A:Yes.

The Court wrote that “Appellant must provide "exceptionally clear evidence" that The Court wrote that “Appellant must provide "exceptionally clear evidence" that the decision to prosecute was for an improper reason. In McCleskey, the Court held the decision to prosecute was for an improper reason. In McCleskey, the Court held similar statistics did not establish discrimination. Further, as we noted above, these similar statistics did not establish discrimination. Further, as we noted above, these statistics do not take the defendant's race or the aggravating or mitigating statistics do not take the defendant's race or the aggravating or mitigating circumstances into consideration. Appellant has not proven discriminatory purpose circumstances into consideration. Appellant has not proven discriminatory purpose by exceptionally clear evidence. Therefore, we hold the trial judge did not err in by exceptionally clear evidence. Therefore, we hold the trial judge did not err in denying appellant's motion. “denying appellant's motion. “

83 Cornell L. Rev. 1771, continued:83 Cornell L. Rev. 1771, continued:

Kentucky Racial Justice ActKentucky Racial Justice Act (1) No person shall be subject to or given a sentence of death that was sought on the basis (1) No person shall be subject to or given a sentence of death that was sought on the basis

of race.of race. (2) A finding that race was the basis of the decision to seek a death sentence may be (2) A finding that race was the basis of the decision to seek a death sentence may be

established if the court finds that race was a significant factor in decisions to seek the established if the court finds that race was a significant factor in decisions to seek the sentence of death in the Commonwealth at the time the death sentence was sought.sentence of death in the Commonwealth at the time the death sentence was sought.

(3) Evidence relevant to establish a finding that race was the basis of the decision to seek (3) Evidence relevant to establish a finding that race was the basis of the decision to seek a death sentence may include statistical evidence or other evidence, or both, that death a death sentence may include statistical evidence or other evidence, or both, that death sentences were sought significantly more frequently:sentences were sought significantly more frequently: (a) Upon persons of one race than upon persons of another race; or(a) Upon persons of one race than upon persons of another race; or (b) As punishment for capital offenses against persons of one race than as (b) As punishment for capital offenses against persons of one race than as

punishment for capital offenses against persons of another race.punishment for capital offenses against persons of another race. (4) The defendant shall state with particularity how the evidence supports a claim that (4) The defendant shall state with particularity how the evidence supports a claim that

racial considerations played a significant part in the decision to seek a death sentence in racial considerations played a significant part in the decision to seek a death sentence in his or her case. The claim shall be raised by the defendant at the pre-trial conference. The his or her case. The claim shall be raised by the defendant at the pre-trial conference. The court shall schedule a hearing on the claim and shall prescribe a time for the submission of court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties. If the court finds that race was the basis of the decision to seek evidence by both parties. If the court finds that race was the basis of the decision to seek the death sentence, the court shall order that a death sentence shall not be sought.the death sentence, the court shall order that a death sentence shall not be sought.

(5) The defendant has the burden of proving by clear and convincing evidence that race (5) The defendant has the burden of proving by clear and convincing evidence that race was the basis of the decision to seek the death penalty. The Commonwealth may offer was the basis of the decision to seek the death penalty. The Commonwealth may offer evidence in rebuttal of the claims or evidence of the defendant.evidence in rebuttal of the claims or evidence of the defendant.

Ernest van den Haag QuoteErnest van den Haag Quote

““Guilt is individual. If guilty whites or wealthy people Guilt is individual. If guilty whites or wealthy people escape the gallows and guilty poor people do not, the escape the gallows and guilty poor people do not, the poor or black do not become less guilty because the poor or black do not become less guilty because the others escaped their deserved punishment. Whether due others escaped their deserved punishment. Whether due to willful discrimination, capriciousness, or unavoidable to willful discrimination, capriciousness, or unavoidable accidental circumstances, some people will always get accidental circumstances, some people will always get away with murder. Is that a reason to deny the justice of away with murder. Is that a reason to deny the justice of the punishment of those guilty persons who did not get the punishment of those guilty persons who did not get away? Their guilt is not diminished by the escape of the away? Their guilt is not diminished by the escape of the others, nor do they deserve less punishment because others, nor do they deserve less punishment because others did not get the punishment they deserve. Justice others did not get the punishment they deserve. Justice involves punishment according to what is deserved by involves punishment according to what is deserved by the crime and the guilt of the criminal -- regardless of the crime and the guilt of the criminal -- regardless of whether others guilty of the same crime escape.”whether others guilty of the same crime escape.”