McCleskey v. Kemp

Following is the case brief for McCleskey v. Kemp, 481 U.S. 279 (1987)

Case Summary of McCleskey v. Kemp:

  • Petitioner, an African-American man, was convicted in Georgia for murdering a white police officer and was sentenced to death.
  • Seeking habeas corpus relief in federal district court, petitioner claimed that his death sentence was unconstitutional based on statistical study showing that African-American defendants who kill white victims have a greater likelihood of receiving the death penalty.
  • The U.S. Supreme Court held that the statistical study is not sufficient to show that Georgia’s death penalty laws are unconstitutionally discriminatory under the Eight or Fourteenth Amendments.

McCleskey v. Kemp Case Brief

Statement of the Facts:

Petitioner McCleskey, an African-American man, was convicted of armed robbery and murder in Georgia.  The murder victim was a white police officer.  At the penalty phase of his trial, the jury recommended the death penalty, which the trial court imposed.  Petitioner exhausted his direct appeals.

On a habeas corpus petition in federal district court, petitioner claimed that Georgia’s capital sentencing process is carried out in a racially discriminatory manner.  As proof, petitioner presented the “Baldus study,” which is a statistical analysis showing that murder defendants with white victims are more than four times as likely to receive the death penalty than defendants who kill African-American victims.

Procedural History:

  • The district court denied the petition.
  • The Eleventh Circuit Court of Appeals affirmed, finding that the statistics were not sufficient to find a constitutional violation.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Does a statistical study showing a risk of racial bias in death penalty determinations demonstrate that a particular African-American’s death sentence is unconstitutional under the Eighth or Fourteenth Amendments?  No.


The Eleventh Circuit decision is affirmed.

Rule of Law or Legal Principle Applied:

A statistical study showing the risk of racial bias does not conclusively establish that any one defendant’s death sentence violates equal protection or is cruel and unusual punishment.


With regard to the Equal Protection Clause, petitioner could not prove that the judge and jury in his case acted with discriminatory intent.  Assuming the Baldus study was accurate, it still does not show any intent to discriminate against petitioner, nor does the study establish that Georgia adopted its death penalty process with discriminatory intent.

With regard to the Eighth Amendment’s prohibition of cruel and unusual punishment, the Baldus study does not establish that his death sentence was disproportionate to other murder defendants.  Further, there is discretion built into the death penalty determination.  Therefore, the fact that juries, by their nature, are unpredictable does not mean that they, or the process, should be found unconstitutional.

Concurring and Dissenting Opinions:

Dissenting Opinion (Brennan):

The death penalty should no longer exist in this country because it is, at all times, cruel and unusual.  In addition, the Baldus study shows just how arbitrary the death penalty determination is, thereby further demonstrating why it must be abandoned altogether.  Finally, the Court ignores the fact that the Baldus study is proof of the historic discrimination against African-Americans that continues to the present.

Dissenting Opinion (Blackmun):

The Baldus study establishes “a constitutionally intolerable level of racially based discrimination leading to the imposition of [petitioner’s] death sentence.”  Therefore, petitioner presents both an Eighth Amendment and Fourteenth Amendment, Equal Protection Clause, violation.

Dissenting Opinion (Stevens):

Death is qualitatively different than any other form of punishment.  The case should be remanded to determine whether the Baldus study is valid, and whether petitioner’s case is within the range of cases that have a risk of racial discrimination.


McCleskey v. Kemp is a profound decision because it essentially shielded the criminal justice system, as a whole, from claims of racial bias.  Short of direct, “smoking gun” proof of racism, the racial bias in our criminal justice system, as proven by the Baldus study, is shielded from scrutiny due to this case.  The case has been roundly criticized.  Justice Powell, the author of the majority opinion, later admitted in retirement that he regretted his vote in this case.

Student Resources:

Read Full Text of Opinion

Listen to the Oral Argument

New York Times Article Noting Justice Powell’s Regret Over McCleskey