How does one determine who should or should not receive a death sentence? Herein lies the question of fairness of the entire system of capital punishment. Gross and Mauro, in their book Death and Discrimination, delicately phrase their opinion on the issue. They write, ‘It is no small comment on our society that we openly and consciously tolerate a system in which race frequently determines whom we execute and whom we spare.
Following various failed attempts in the Georgia Courts, Warren McClesky’s case was reviewed by the U.S. Supreme Court. McClesky, a black man convicted for the murder of a white person was sentenced to the death penalty. Armed with the findings of the Baldus Study (a statistical study of death sentence patterns in eight states, from 1976-1980), McClesky accused the Georgia courts of racial discrimination in its death penalty sentencingviolating the Eighth and Fourteenth Amendments.
The data presented in the study was rejected by the U.S. Supreme Court and it affirmed the findings of the lower courts. The Court acknowledges that race continues to play a role in capital sentencing, but has decided to do nothing toward correcting it and refuses to hear future claims on the subject. Justice Powell writes in delivery of the Court’s opinion‘Implementation of these laws necessarily requires discretionary judgments.‘
I am sure that there is little disagreement that discretionary judgment is necessary. However, we know that the Court cannot regulate the thoughts, ideas or prejudices of any one person, including its own, who is directly involved in the process. Because there is no sure way of eliminating personal sentiments regarding race and other social variables, the death penalty should be abandoned in the interest of fairness.
The position taken by the court in McClesky dealt not with the claims brought by McClesky, but rather the evidence that was presented in defense of his claim and the position in which the court would be placed if it ruled in his favor. In the Court’s opinion, ‘a defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination.‘
The Court held that statistical evidence of racial discriminationthe type of evidence presented in the Baldus Study was insufficient to establish an unconstitutional pattern of capital sentencing under the Eighth or Fourteenth Amendment. Since McClesky could offer no proof of discrimination in his own case, the Court did not have to entertain his claim or any that would likely follow.
Further McClesky claimed and offered Baldus’ statistics as proof, that most of the cases in which the victim was white and the defendant black more often received the death penalty (6.6 % or 51/773). In cases where the victim was black and the defendant was also black, the death penalty was not applied as often (0.7% or 10/1,345). In Georgia’s Middle Judicial Circuit where the population was 40% black, 77% of black defendants received death penalty rulings.
McClesky also suggested that the State violated the equal protection law by adapting capital punishment and allowing it to exist despite claims of its alleged discriminatory practices. The opinion of the concurring justices skirted around truthfulness about the Georgia system. They cited findings in other casesFurman, Gregg and others as precedents and they noted that Georgia had strengthened its system by adopting laws which were in compliance with post-Furman practices. However to agree with McClesky would mean that the entire system of capital punishment in America was unconstitutional, per se.
It was the job of the dissenting justices to offer an opinion that was more closely related to truth about the system of capital punishment as questioned in this case. Justice Brennan who opposes the death penalty notes that Georgia has long practiced a dual system of criminal justice. He also wrote ‘.. . Georgia’s legacy of a race-conscious criminal justice system, as well as this courts own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicate that McClesky’s claim is not a fanciful product of mere statistical artifice.‘