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McCleskey v. Kemp

McCleskey v. Kemp
Argued October 15, 1986
Decided April 22, 1987
Full case name Warren McCleskey v. Kemp, Superintendent, Georgia Diagnostic and Classification Center
Citations 481 U.S. 279 (more)
107 S. Ct. 1756; 95 L. Ed. 2d 262; 1987 U.S. LEXIS 1817; 55 U.S.L.W. 4537
Prior history Certiorari to the United States Court of Appeals for the Eleventh Circuit
Despite the presentation of empirical evidence that asserted racial disparity in application of the death penalty, aggregate evidence is insufficient to invalidate an individual defendant's death sentence.
Court membership
Case opinions
Majority Powell, joined by Rehnquist, White, O'Connor, Scalia
Dissent Brennan, joined by Marshall; Blackmun, Stevens (in part)
Dissent Blackmun, joined by Marshall, Stevens; Brennan (in pertinent part)
Dissent Stevens, joined by Blackmun
Laws applied
Equal protection clause, Title VII

McCleskey v. Kemp, Gregg challenge to capital sentencing.”[3]

McCleskey was named one of the worst Supreme Court decisions since World War II by a Los Angeles Times survey among legal scholars.[4] In a New York Times comment eight days after the decision, Anthony Lewis charged that the Supreme Court had “effectively condoned the expression of racism in a profound aspect of our law.”[5] Anthony G. Amsterdam called it “the Dred Scott decision of our time.”[6]

Justice Lewis Powell, when asked by his biographer if he wanted to change his vote in any case, replied, "Yes, McCleskey v. Kemp."[6]


  • Background 1
  • Opinion of the Court 2
  • Dissenting opinions 3
  • Impact 4
  • See also 5
  • References 6
  • Further reading 7
  • External links 8


Petitioner, Warren McCleskey, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia. McCleskey was African American; his victim was white Atlanta Police Officer Frank Schlatt. At the sentencing hearing, the jury found that two aggravating circumstances existed beyond a reasonable doubt: the murder was committed during the course of an armed robbery, and the murder was committed upon a police officer engaged in the performance of his duties. A finding of either aggravating circumstance was sufficient to impose the death penalty. Petitioner did not provide any mitigating circumstances, and the jury recommended the death penalty. The court followed the jury's recommendation and sentenced petitioner to death.

On appeal to the federal courts via a habeas petition, petitioner alleged the state's capital sentencing process was administered in a racially discriminatory manner in violation of the

  • Abstract of case
  • Case transcript
  • Appeal transcript
  • Discussion of the death penalty
  • McCleskey v. Kemp 25th Anniversary

External links

  • Amsterdam, Anthony G. (2007). "Race and the Death Penalty Before and After McCleskey". Columbia Human Rights Law Review 39: 34.  
  • Baldus, David C.; Pulaski, Charles A.; Woodworth, George (1990). Equal Justice and the Death Penalty: A Legal and Empirical Analysis. Boston: Northeastern University Press.  
  • Baldus, David C.; Pulaski, Charles A.; Woodworth, George (1992). "Law and Statistics in Conflict: Reflections on McCleskey v. Kemp". In Kagehiro, Dorothy K.; Laufer, William S. (eds.). Handbook of Psychology and Law. New York: Springer-Verlag. pp. 271–291.  
  • Graines, Steven; Wyatt, Justin (2000). "The Rehnquist Court, Legal Process Theory, and McCleskey v. Kemp". American Journal of Criminal Law 28: 1.  
  • Kennedy, Randall L. (1988). "McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court".  
  • Patterson, Chaka M. (1995). "Race and the Death Penalty: the Tension Between Individualized Justice And Racially Neutral Standards". Texas Wesleyan Law Review 2: 80–95.  

Further reading

  1. ^ a b 481 U.S. 279 (Text of the opinion from Findlaw)
  2. ^ "McCleskey v. Kemp opinion". Google Scholar. Retrieved 2010-05-09. 
  3. ^ "McCleskey v. Kemp (1987)". New Georgia Encyclopedia (on-line ed.). 2004. 
  4. ^ Savage, David G. (2008-10-22). "Roe vs. Wade? Bush vs. Gore? What are the worst Supreme Court decisions?". Los Angeles Times. 
  5. ^ Lewis, Anthony (1987-04-28). "Bowing To Racism". New York Times. 
  6. ^ a b Liptak, Adam (2008-04-29). "New Look at Death Sentences and Race".  
  7. ^ a b Baldus, David C.; Pulaski, Charles; Woodworth, George (1983). "Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience". Journal of Criminal Law and Criminology 74 (3): 661–753.  
  8. ^ Michelle Alexander, appearing with Bryan Stevenson and Bill Moyers (2 April 2010). Bill Moyers Journal Retrieved 15 July 2013. 


See also

McClesky versus Kemp has immunized the criminal justice system from judicial scrutiny for racial bias. It has made it virtually impossible to challenge any aspect, criminal justice process, for racial bias in the absence of proof of intentional discrimination, conscious, deliberate bias ... Evidence of conscious intentional bias is almost impossible to come by in the absence of some kind of admission. But the U.S. Supreme Court has said that the courthouse doors are closed to claims of racial bias in the absence of that kind of evidence, which has really immunized the entire criminal justice system from judicial and to a large extent public scrutiny of the severe racial disparities and forms of racial discrimination that go on every day unchecked by our courts and our legal process.[8]

Michelle Alexander, author of The New Jim Crow, has criticized the decision, saying that

McCleskey v. Kemp has bearing on claims broader than those involving the death penalty. McCleskey has been used to illustrate that claims based on government denial of "equal protection of the laws" to racial minorities may fail unless something more than a mere discriminatory effect can be shown. The Supreme Court generally requires, in addition to discriminatory effect, that a discriminatory purpose be shown as the government's motivation for creation the law in the first place (See: Washington v. Davis, 426 US 229 (1976), and Personnel Administrator of Massachusetts v. Feeney, 442 US 256 (1979) for further clarification of this concept). Thus, although a discriminatory effect may be an ingredient of a successful Equal Protection claim, it is probably insufficient on its own (See Palmer v. Thomas, 403 US 217 (1971).). Overall, McCleskey may be seen to clarify the Supreme Court's desire to punish discriminatory acts by government rather than merely discriminatory effects.


Stevens did not go so far as to suggest that the death penalty was inherently inappropriate under these circumstances, but stated that the case should have been remanded to the Court of Appeals for a determination of the validity of the Baldus study.

Blackmun's dissent largely echoed Brennan's concerns regarding the evidence of racial bias in capital cases.

Brennan's lengthy dissent noted at the outset the belief he shared with Justice Marshall that "the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments." Brennan further contended that, even if capital punishment were constitutional, this could hardly be so where it was demonstrably biased against members of a particular race.

Three dissenting opinions were filed by Justices Brennan, Blackmun, and Stevens. The dissenters largely agreed with and cross-joined one another's dissents, and Justice Marshall joined two of the dissents.

Dissenting opinions

The McCleskey ruling said that, even if Baldus' statistical data were accepted at face value, the defense failed to show evidence of conscious, deliberate bias by law officials associated with the case, and dismissed evidence of general disparities in sentencing, such as the Baldus study, as "an inevitable part of our criminal justice system."[1]

The Court, in an opinion by Justice Lewis Powell, held that the statistical study did not present substantial evidence that would require a reversal of petitioner's conviction. The Court concluded that the lower court had properly applied Georgia law.

Opinion of the Court

[7] Baldus, a law professor at the


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