In a 1992 dissenting opinion, Justice Antonin Scalia contemplated a painting of Chief Justice Roger Taney created a few years after Taney’s infamous Dred Scott v. Sandford decision on race and slavery. Scalia imagined that the case still burned in Taney’s conscience as he posed for the painting, seeing in Taney’s eyes a “profound sadness and disillusionment.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., dissenting); see Dred Scott v. Sandford, 60 U.S. 393 (1857).
Whether Justice Scalia’s perception of Taney’s sadness was real or imagined, a Supreme Court justice rarely shows remorse for a prior decision. But in the area of capital punishment, several justices have done so. One important statement of regret came from the author of McCleskey v. Kemp, 481 U.S. 279 (1987), a decision some compare to Dred Scott. In McCleskey, the Supreme Court considered evidence of racial bias in the capital punishment system and held that the significant risk of racial discrimination did not violate the Constitution. McCleskey remains an important Court decision on capital punishment and a turning point in death penalty litigation.
Starting in the early 1970s, the Supreme Court began issuing opinions on the constitutionality of capital punishment that would eventually lead to McCleskey. In Furman v. Georgia, the Court held that the existing state death penalty statutes violated the Eighth and Fourteenth Amendments. The justices did not agree on a rationale, with each one writing a separate opinion. But the majority expressed general concerns about the way the statutes allowed for arbitrariness. Thus, the case effectively ended executions in the country for a brief period. See Furman v. Georgia, 408 U.S. 238 (1972).
After many state legislatures rewrote death penalty statutes, though, a majority in Gregg v. Georgia and several other 1976 cases held some of the new statutes constitutional. The justices reasoned that these new laws provided more guidance to juries and judges, thus limiting discretion and arbitrariness. See Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976).
As executions resumed in the 1970s and ’80s after Gregg, capital defense attorneys continued to argue that the death penalty system remained arbitrary and racially discriminatory. Such claims were not new, as death penalty critics had raised arguments about the discriminatory application of the death penalty since the early days of the United States, when laws blatantly discriminated against African Americans. And when attorneys at the Legal Defense and Educational Fund of the NAACP started coordinating constitutional attacks on capital punishment in the 1950s, much of their focus centered on systemic racial bias.
Many Supreme Court justices of the era recognized the connection between race and capital punishment. In Furman, Justice William O. Douglas reasoned that the nation’s death penalty laws were “pregnant with discrimination.” Furman, 408 U.S. at 256 (Douglas, J., concurring). But the Supreme Court avoided directly addressing race in its decisions on the constitutionality of capital punishment. For example, even though, nearly 90 percent of those executed for rape crimes during 1937–1967 were African Americans, the Court did not mention that fact when it held that the death penalty for rape violated the Constitution in Coker v. Georgia, 433 U.S. 584 (1977).
Eventually, though, the Supreme Court justices could no longer avoid the issue when lawyers in McCleskey v. Kemp presented them with statistical evidence of racial bias in the capital punishment system. Warren McCleskey’s attorneys presented two studies known collectively as “the Baldus study,” after one of the authors. Researchers David C. Baldus, George G. Woodworth, and Charles A. Pulaski Jr. categorized hundreds of factors that might affect whether a person was sentenced to death, such as the type of crime, the number of victims, and the defendant’s record. Doing a sophisticated statistical analysis, they discovered that the race of the victim played a significant role in the capital sentencing decision. Specifically, a defendant like McCleskey who killed a white person during a robbery was more than twice as likely to get the death penalty as a defendant who killed an African-American victim, everything else being equal. McCleskey’s attorneys believed they finally had convincing evidence that the death penalty remained arbitrary and racially discriminatory.
But the evidence would not save McCleskey. In the Supreme Court, Justice Lewis Powell wrote the majority opinion in the 5–4 decision, beginning with the assumption that the Baldus study findings about the risk of racial bias in capital sentencing were true. Still, the Court found that the evidence did not amount to either an Eighth or Fourteenth Amendment violation. Justice Powell concluded that even if the results appeared unfair, that did not mean McCleskey’s sentence was disproportionate to the crime in violation of the Constitution. The Court reasoned that the capital sentencing procedures themselves remained fair. Regarding any discrepancies that correlated with race, Powell conceded that “[a]pparent disparities in sentencing are an inevitable part of our criminal justice system.” McCleskey, 481 U.S. at 308, 317.
Beyond the constitutional arguments, the majority and dissenting opinions in McCleskey disagreed about the case’s possible effects on the future. Near the end of the majority opinion, Justice Powell expressed concern that a result in favor of McCleskey might undermine the entire criminal justice system. The majority claimed that if it decided in favor of McCleskey, other defendants would raise similar claims about racial bias and other arbitrariness factors in all kinds of criminal cases.
In dissent, Justice William J. Brennan Jr. responded to the majority’s angst about opening the door to widespread challenges. Noting that the Court’s statement might illustrate a “fear of too much justice,” he countered that a decision in favor of McCleskey would not have to be as broad as the majority anticipated. In light of the Court’s previous cases, a decision could easily have been limited to race and capital punishment. Id. at 339 (Brennan, J., dissenting).
Underlying McCleskey was an additional fear about the future. Although the point was not discussed in the majority opinion, Justice Powell and others worried that a decision in favor of McCleskey would effectively end capital punishment in the United States. During the justices’ discussion of the case, Powell warned in an interoffice memo, “This case presents, as we know, an attack on capital punishment itself.” Memorandum to Leslie from Justice Lewis F. Powell Jr. of 16 Sept. 1986, McCleskey v. Kemp Case File, No. 811-6811, at 6, Justice Lewis F. Powell Jr. Archives, Washington and Lee University, Lexington, Va. By contrast, in dissent, Justice Stevens argued that the Court could have addressed the racial bias in McCleskey without ending capital punishment everywhere.
The majority and dissent did not only disagree about the possible future impact of the case, but they also disagreed about the relevance of the past. One could not dispute that the United States, the legal system, and Georgia had a long history of racial discrimination. But Justice Powell disregarded evidence of racial discrimination that was not “reasonably contemporary” with the case as having “little probative value.” McCleskey, 481 U.S. at 298 n.20. By contrast, Justice Brennan stressed that “we remain imprisoned by the past as long as we deny [racism’s] influence on the present.” Id. At 344 (Brennan, J., dissenting).
Thus, two of the biggest dividing lines in the 5–4 decision were about the importance of the past and the implications for the future. The majority’s offhand indifference to the relevance of America’s past resulted in one of the great failures of the modern Supreme Court. The risk of bias in capital sentencing in Georgia was not something that sprang out of thin air; it connected back through markers of intolerance in and around McCleskey’s hometown, including Stone Mountain, the spot where Leo Frank was lynched in 1915, and the segregated schools McCleskey attended. One also could see signs of the past in nearby Civil War references and in the Confederate battle flag incorporated into Georgia’s flag at the time of McCleskey’s trial and execution.
Regarding the future, scholars still debate whether a different result in McCleskey v. Kemp would have ended the death penalty in the United States. But the majority’s ruling against McCleskey impacted the system in different ways. In one sense, the decision made it much more difficult for capital defendants to bring Fourteenth and Eighth Amendment challenges alleging racial bias. The high hurdle for Equal Protection challenges in this context, requiring capital defendants to show purposeful discrimination with a discriminatory effect, meant that defendants could not stop their executions by showing a significant risk that racial bias had dictated the outcome of their cases. So, despite the fact that numerous studies in other states followed the Baldus study in finding racial bias in capital sentencing, courts generally followed McCleskey in rejecting claims based on such studies. Another negative impact was that many considered McCleskey the last major opportunity to challenge the U.S. death penalty. Indeed, with a major constitutional hurdle removed after McCleskey, the number of U.S. executions continued to climb.
But in the longer term, McCleskey highlighted major fault lines in the American death penalty debate that affect our view of capital punishment today. After McCleskey, politicians and activists recognized that the Supreme Court’s constitutional jurisprudence was not going to repair major problems with capital punishment. The decision and research building on the Baldus study contributed to changes in the debate, attempts to address racial bias through legislation, and even, in several states, efforts to abolish the death penalty.
The relevance of McCleskey v. Kemp continues, even if, at the time of the decision, majority justices failed to recognize they created their own legacy that some would compare to Chief Justice Taney’s. Justice Powell, however, did not leave it to future writers to look at his portrait to try to discern some anguish about McCleskey v. Kemp. After he retired, his biographer asked him if he regretted any of his decisions. Justice Powell responded that he wished he had struck down the death penalty in McCleskey v. Kemp.
In recent decades, others have expressed regret at supporting the death penalty in the past. Many, including Justices Harry A. Blackmun and John Paul Stevens, who both eventually lamented prior decisions upholding the death penalty, explain their change of heart partly by citing the racial bias evidence presented in McCleskey v. Kemp. The case continues to resonate.