McCleskey v. Kemp

In Furman, an underlying fear was that juries sentencing decisions were not just arbitrary, but may also be discriminatory (i.e., based on impermissible factors such as race). Fifteen years later, in McCleskey v. Kemp, the Court confronted that argument directly. Petitioners presented the court with a sophisticated statistical study showing stark racial disparities in the imposition of the death penalty. A majority of the Court was unmoved.

As you read McCleskey, consider these questions: 

1. Assuming the validity of the Baldus study (and it has been largely uncontradicted), how can we justify the imposition of the death panelty?

2. Any human system--including the criminal legal system--is going to carry a risk of error. With what level of risk of error should we be comfortable when imposing punishment? 

3. If the death penalty should be abandoned because of racial disparities, what about other parts of the criminal legal system: policing practices, arrest decisions, charging decisions, plea bargaining, jury determinations of guilt, sentencing decisions? If statistical studies showed racial disparities in these stages of criminal prosecutions, what should be the remedy or result?