Supreme Court of the United States

McCleskey v. Kemp

481 U.S. 279, 95 L. Ed. 2d 262, 107 S. Ct. 1756, 1987 U.S. LEXIS 1817, SCDB 1986-080

481 U.S. 279 (1987)

Decided April 22, 1987

[ … ]

JUSTICE POWELL delivered the opinion of the Court.

This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter[ … ]into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment.

I

McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia, on October 12, 1978. McCleskey's convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. All four were armed. McCleskey entered the front of the store while the other three entered the rear. McCleskey secured the front of the store by rounding up the customers and forcing them to lie face down on the floor. The other three rounded up the employees in the rear and tied them up with tape. The manager was forced at gunpoint to turn over the store receipts, his watch, and $6. During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As he was walking down the center aisle of the store, two shots were fired. Both struck the officer. One hit him in the face and killed him.

[ … ]

[ … ] The jury convicted McCleskey of murder.^{[ … ]}At the penalty hearing,^{[ … ]} the jury heard arguments as to the appropriate sentence. [ … ]The court followed the jury's recommendation and sentenced McCleskey to death.^{[ … ]}

[ … ]

II

McCleskey's first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.^{[ … ]}He argues that race has infected the administration of Georgia's statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers.^{[ … ]}As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. [ … ]

A

Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." [ … ] Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial[ … ] considerations played a part in his sentence. Instead, he relies solely on the Baldus study.^{[ … ]}McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey's claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.

The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a "stark" pattern to be accepted as the sole proof of discriminatory intent under the Constitution,^{[ … ]}Arlington Heights v. [294] Metropolitan Housing Dev. Corp., 429 U. S. 252, 266 (1977), "[b]ecause of the nature of the jury-selection task, . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes." Id., at 266, n. 13.^{[ … ]}Second, this Court has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964. Bazemore v. Friday, 478 U. S. 385, 400-401 (1986) (opinion of BRENNAN, J., concurring in part).

But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire-selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. [ … ] Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection[ … ]or Title VII case. In those cases, the statistics relate to fewer entities,^{[ … ]} and fewer variables are relevant to the challenged decisions.^{[ … ]}

[ … ]

McCleskey challenges decisions at the heart of the State's criminal justice system.[ … ]Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose.

B

McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal[ … ] Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. [ … ] For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. [ … ] There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose.^{[ … ]}

Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were [ … ]legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment, [ … ] we will not infer a discriminatory purpose on the part of the State of Georgia.^{[ … ]}Accordingly, we reject McCleskey's equal protection claims.

III

McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment.^{[ … ]}We begin our analysis of this claim by reviewing the restrictions on death sentences established by our prior decisions under that Amendment.

A

The Eighth Amendment prohibits infliction of "cruel and unusual punishments." [ … ]

Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey's disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. [ … ]

Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case.^{[ … ]}Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials.[ … ] The question [ … ]"is at what point that risk becomes constitutionally unacceptable," [ … ] McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.

Because of the risk that the factor of race may enter the criminal justice process, we have engaged in "unceasing efforts" to eradicate racial prejudice from our criminal justice system. [ … ] Our efforts have been guided by our recognition that "the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice," [ … ] Thus, it is the jury that is a criminal defendant's fundamental "protection of life and liberty against race or color prejudice."[ … ] Specifically, a capital sentencing jury representative of a criminal defendant's community assures a " `diffused impartiality,' " [ … ]in the jury's task of "express[ing] the conscience of the community on the ultimate question of life or death," [ … ]

The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury's function to make the difficult and uniquely human judgments that defy codification and that "buil[d] discretion, equity, and flexibility into a legal system." H. Kalven & H. Zeisel, The American Jury 498 (1966).

McCleskey's argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. [ … ] Similarly, the capacity of prosecutorial discretion [ … ] to provide individualized justice is "firmly entrenched in American law." [ … ] Of course, "the power to be lenient [also] is the power to discriminate," K. Davis, Discretionary Justice 170 (1973), but a capital punishment system that did not allow for discretionary acts of leniency "would be totally alien to our notions of criminal justice." Gregg v. Georgia, 428 U. S., at 200, n. 50.

C

At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.^{[ … ]} [ … ] As this Court has recognized, any mode for determining guilt or punishment "has its weaknesses and the potential for misuse." [ … ]Specifically, "there can be `no perfect procedure for deciding in which cases governmental authority should be used to impose death.' " [ … ]Despite these imperfections, our consistent rule has been that constitutional guarantees are met when "the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible." [ … ]Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.^{[ … ]}

V

Two additional concerns inform our decision in this case. First, McCleskey's claim, taken to its logical conclusion,[ … ] throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties.[ … ]Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.^{[[ … ]}Moreover, the claim that his sentence[ … ] rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups,^{[ … ]}and [ … ] even to gender.^{[ … ]}Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys^{[ … ]}or judges.^{[ … ]} Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant's facial characteristics,^{[ … ]}or the physical attractiveness of the defendant or the victim,^{[ … ]} that some statistical[ … ] study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.^{[ … ]} The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not "plac[e] totally unrealistic conditions on its use." Gregg v. Georgia, 428 U. S., at 199, n. 50.

Second, McCleskey's arguments are best presented to the legislative bodies. [ … ]It is the legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people." Furman v. Georgia, 408 U. S., at 383 (Burger, C. J., dissenting). Legislatures also are better qualified to weigh and "evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts," Gregg v. Georgia, supra, at 186. Capital punishment is now the law in more than two-thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. [ … ]

[320A]

VI

Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit.

It is so ordered.

[ … ]JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BLACKMUN and JUSTICE STEVENS join in all but Part I, dissenting.

[ … ]

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white.[ … ]Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks.[ … ]In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black,[ … ]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 black. [ … ]Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. [ … ]

The Court today [ … ] finds no fault in a system in which lawyers must tell their clients that race casts a[ … ]large shadow on the capital sentencing process. [ … ]

. . .

B

he Court assumes the statistical validity of the Baldus study, and acknowledges that McCleskey has demonstrated a risk that racial prejudice plays a role in capital sentencing in Georgia, ante, at ----, n. 7. Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern. Ante, at ----. Close analysis of the Baldus study, however, in light of both statistical principles and human experience, reveals that the risk that race influenced McCleskey's sentence is intolerable by any imaginable standard.The Baldus study indicates that, after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey's life had his victim been black. [ … ]

The statistical evidence in this case thus relentlessly documents the risk that McCleskey's sentence was influenced by racial considerations. This evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black. In determining whether this risk is acceptable, our judgment must be shaped by the awareness that "[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence," [ … ]In determining the guilt of a defendant, a State must prove its case beyond a reasonable doubt. That is, we refuse to convict if the chance of error is simply less likely than not. Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. In light of the gravity of the interest at stake, petitioner's statistics on their face are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned.

C

[ … ]

This Court has invalidated portions of the Georgia capital sentencing system three times over the past 15 years. [ … ]

it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey's evidence. "[A]mericans share a historical experience that has resulted in individuals within the culture ubiquitously attaching a significance to race that is irrational and often outside their awareness." Lawrence, The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L. [333] Rev. 327 (1987). [ … ]

Our cases reflect a realization of the myriad of opportunities for racial considerations to influence criminal proceedings[ … ].

The discretion afforded prosecutors and jurors in the Georgia capital sentencing system creates such opportunities.[ … ]

History and its continuing legacy thus buttress the probative force of McCleskey's statistics.[ … ] "subtle, less consciously held racial attitudes" continue to be of concern, 476 U. S., at 35, and the Georgia system gives such attitudes considerable room to operate. The conclusions drawn from McCleskey's statistical evidence are therefore consistent with the lessons of social experience.

[ … ]The majority thus misreads our Eighth Amendment jurisprudence in concluding that McCleskey has not demonstrated a degree of risk sufficient to raise constitutional concern. The determination of the significance of his evidence is at its core an exercise in human moral judgment, not a mechanical statistical analysis. It must first and foremost be informed by awareness of the fact that death is irrevocable, and that as a result "the qualitative difference of death from all other punishments requires a greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U. S., at 998-999. For this reason, we have demanded a uniquely high degree of rationality in imposing the death penalty. A capital sentencing system in which race more likely than not plays a role does not meet this standard. It is true that every nuance of decision cannot be statistically captured, nor can any individual judgment be plumbed with absolute certainty. Yet the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death. Sentencing data, history, and experience all counsel that Georgia has provided insufficient assurance of the heightened rationality we have required in order to take a human life.

[ … ]

Reliance on race in imposing capital punishment,[ … ] is antithetical to the very rationale for granting sentencing discretion. [ … ]

Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with this concern that an individual be evaluated as a unique human being. Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess. [ … ]

[ … ]Our desire for individualized moral judgments may lead us to accept some inconsistencies in sentencing outcomes. [ … ] There is [ … ] a presumption that actors in the criminal justice system exercise their discretion in responsible fashion, and we do not automatically infer that sentencing patterns that do not comport with ideal rationality are suspect.

As we made clear in Batson v. Kentucky, 476 U. S. 79 (1986), however, that presumption is rebuttable. [ … ] The Court's position converts a rebuttable presumption into a virtually conclusive one.

[ … ]

[ … ]The Court next states that its unwillingness to regard petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice. 

In fairness, the Court's fear that McCleskey's claim is an invitation to descend a slippery slope also rests on the realization that any humanly imposed system of penalties will exhibit some imperfection. Yet to reject McCleskey's powerful evidence on this basis is to ignore both the qualitatively different character of the death penalty and the particular repugnance of racial discrimination, considerations which may [340] properly be taken into account in determining whether various punishments are "cruel and unusual." [ … ]

It hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death. [ … ]

The Court's projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated. [ … ] Despite its acceptance of the validity of Warren McCleskey's evidence, the Court is willing to let his death sentence stand because it fears that we cannot successfully define a different standard for lesser punishments. This fear is baseless.

Finally, the Court justifies its rejection of McCleskey's claim by cautioning against usurpation of the legislatures' role in devising and monitoring criminal punishment. [ … ] The fact that "[c]apital punishment is now the law in more than two thirds of our States,"[ … ]however, does not diminish the fact that capital punishment is the most awesome act that a State can perform. The judiciary's role in this society counts for little if the use of governmental power to extinguish life does not elicit close scrutiny. [ … ]

V

At the time our Constitution was framed 200 years ago this year, blacks "had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect." Dred Scott v. Sandford, [344] 19 How. 393, 407 (1857). Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. Ibid. A mere three generations ago, this Court sanctioned racial segregation, stating that "[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." Plessy v. Ferguson, 163 U. S. 537, 552 (1896).

In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court's first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.

It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. "The destinies of the two races in this country are indissolubly linked together," id., at 560 (Harlan, J., dissenting), and the way in which we choose those who will die reveals the depth of moral commitment among the living.

[ … ]

[ … ]JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, and with whom JUSTICE BRENNAN joins in all but Part IV-B, dissenting.

The Court today sanctions the execution of a man despite his presentation of evidence that establishes a constitutionally intolerable level of racially based discrimination leading to the imposition of his death sentence. [ … ]

In sum, McCleskey has demonstrated a clear pattern of differential treatment according to race that is "unexplainable on grounds other than race." Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S., at 266.

III

The Court's explanations for its failure to apply this well-established equal protection analysis to this case are not persuasive. [ … ]

As discussed above, McCleskey presented evidence of numerous decisions impermissibly affected by racial factors over a significant number of cases. [ … ]

The Court's assertion that, because of the necessity of discretion in the criminal justice system, it "would demand exceptionally clear proof," ante, at 297, before inferring abuse of that discretion thus misses the point of the constitutional challenge in this case. [ … ] As the Court concedes, discretionary authority can be discriminatory authority. [ … ] Judicial scrutiny is particularly appropriate in McCleskey's case because "[m]ore subtle, less consciously held racial attitudes could also influence" the decisions in the Georgia capital sentencing system. [ … ]The Court's rejection of McCleskey's equal protection claims is[ … ] a far cry from the "sensitive inquiry" mandated by the Constitution. . .

One of the final concerns discussed by the Court may be the most disturbing aspect of its opinion. Granting relief to McCleskey in this case, it is said, could lead to further constitutional challenges. [ … ] That, of course, is no reason to deny McCleskey his rights under the Equal Protection Clause. If a grant of relief to him were to lead to a closer examination of the effects of racial considerations throughout the criminal justice system, the system, and hence society, might benefit. Where no such factors come into play, the integrity of the system is enhanced. Where such considerations are shown to be significant, efforts can be made to eradicate their impermissible influence and to ensure an evenhanded application of criminal sanctions.

B

Like JUSTICE STEVENS, I do not believe acceptance of McCleskey's claim would eliminate capital punishment in Georgia. [ … ]

Floyd v. City of New York (S.D.N.Y. 2013)

https://brooklaw.instructure.com/courses/2584/files/folder/Resources%20linked%20to%20H20%20casebook?preview=430516

Recent commentary linking McCleskey and Floyd:

“[L]anguage in the McCleskey opinion offers another powerful obstacle to discriminatory
purpose claims--allowing, if not encouraging, judges to refuse inferences of discriminatory
purpose from statistical disparities, unless litigants are creative in coupling statistical and
nonstatistical evidence as the plaintiffs were in Floyd v. City of New York, New York's stop-andfrisk
case. . . .With racism, and interest in discriminatory purpose doctrine resurgent, there is
good reason to examine the constraints on proof of purpose that the Rehnquist Court
incorporated into equal protection law as courts were ending the Second Reconstruction. It may
be that these constraints on the kinds of evidence that judges may consider in evaluating claims
of discriminatory purpose are due for reconsideration.
Although Justice Powell did not write McCleskey in such a way as to clarify the conditions
warranting restrictions on the use of statistical evidence, judges can read McCleskey with
attention to these questions. For instance, some courts have implied that they might consider
statistical studies that are coupled with circumstantial evidence or that focus on the specific
prosecutorial officer or entity at issue. In cases not involving the death penalty or prosecutorial
discretion, courts consider statistical evidence of discriminatory policing without pausing to
distinguish McCleskey. The use of statistics in these cases present openings for change. Judges
may not be moved by the same considerations that seemed to guide the McCleskey Court,
especially when judges can see the effects of decades of judicial abdication. Still, the spirit
of McCleskey continues to guide many judges. . . .”

Reva B. Siegel, Blind Justice: Why the Court Refused to Accept Statistical Evidence of
Discriminatory Purpose in Mccleskey v. Kemp-and Some Pathways for Change, 112 Nw. U. L.
Rev. 1269, 1287–89 (2018)

--

“[S]ystemic challenges to the operation of the criminal justice institutions have been wholly
absent from the Court's docket since the 1987 case of McClesky v. Kemp. In large measure, this
is because McCleskey established a near-insurmountable barrier to such challenges. In that
capital case, . . . [a]mong the reasons the Court offered for declining to entertain even powerful
statistical evidence, it worried that “if we accepted McCleskey's claim that racial bias has
impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims
as to other types of penalty,” including noncapital sentencing. This concern about what Justice
Brennan acerbically characterized as “a fear of too much justice” reoccurs in other instances in
which criminal justice disparities have been challenged. Absent the miraculous happenstance of
testimonial or documentary evidence of bias--a stroke of luck that befell plaintiffs in the
challenge to New York's SQF policy [in Floyd v. City of New York]--McCleskey means that the
courthouse door is effectively shut to discriminatory-purpose challenges in the criminal justice
context. McCleskey . . . drastically narrows litigants' opportunities to challenge the role of race in
criminal justice institutions.”

Aziz Z. Huq, The Consequences of Disparate Policing: Evaluating Stop and Frisk As A Modality
of Urban Policing, 101 Minn. L. Rev. 2397, 2453–55 (2017)