Published on: Friday, April 22, 2022

Today, April 22, 2022 marks the 35th anniversary of the Supreme Court’s decision in McCleskey v. Kemp, in which the court (5-4) narrowly rejected an equal-protection challenge to the discriminatory administration of the death penalty in Georgia based on statistical analysis showing the race of the victim to be a substantial factor in determining who is sentenced to death in violation of the Eighth and Fourteenth Amendments (article available here).

Specifically, according to a study that the justices stipulated to be valid for purposes of the case, defendants who murdered white people were 4.3 times more likely to receive the death penalty than were those who murdered black people.

Since that decision, the study has been replicated in many states.

The ruling not only led to the execution of Warren McCleskey, but essentially shut the door to all future claims based on a pattern of racial bias in sentencing.

Justice Lewis Powell wrote the majority opinion in McCleskey. After retiring from the Court, he was asked if there were any case that he wished he had decided differently. His reply was “McCleskey v. Kemp.”