Inferring and Explaining

InferrIng and exPlaInIng this unique penalty to be so wantonly and so freak- 124 ishly imposed.” e 9 . mCCleskey V. kemP 481 u.s. 279 (1987) Warren McCleskey was a young black man who murdered a white police ofcer in the course of an armed robbery. At his appeal, evidence was introduced that seemed to show that “the Geor- gia capital sentencing process [was] admin- istered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amend- ments to the United States Constitution.” Justice Powell sees the racial disparities in Georgia’s death sentences (since the new law following Furman ) as falling exclusively under the Equal Protection Clause. He then fnds it relatively easy to dismiss the Fourteenth Amendment challenges to capital punishment. 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.” Whitus v. Georgia , 385 U.S. 545, 550 (1967). A corollary to this principle is that a criminal defendant must prove that the purposeful discrimi- nation “had a discriminatory efect” on him. Wayte v. United States , 470 U.S. 598, 608 (1985). Tus, to prevail under the Equal Protection Clause, McCles- key must prove that the decision makers in his case acted with discriminatory purpose. He ofers no evi- dence specifc to his own case that would support an inference that racial considerations played a part in his sentence. We shall have occasion to look at the data the Court was considering later in this chapter, but notice at this point how diferently this case was decided compared to Furman . In McGautha , the Court had ruled that potentially arbitrary and capricious sentences did not, in and of them- selves, constitute a denial of due process under the FourteenthAmendment, but in Furman , they ruled that these same worries about procedural unfairness did constitute a kind of cruel and unusual punishment under the Eighth Amend- ment. One might have thought, therefore, that even if equal protection precedent required purposeful and particularized discrimination, the Court could have found that discriminatory sentencing is even worse than arbitrary and capricious sentencing and therefore counted as a very serious form of procedural cruelty under the Eighth Amendment. Tis was not their rea- soning, though. And it’s hard for this author not to conclude that the real reason had to do with Justice Powell’s recognition that racial prejudice infects all the criminal justice system. McCleskey’s claim, taken to its logical conclusion, [p315] throws into serious question the principles that underlie our entire criminal justice system. Te Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Solem v. Helm, 463 U.S. 277, 289–290 (1983); see Rummel v. Estelle, 445 U.S. 263, 293 (1980) (POWELL, J., dis- senting). Tus, if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sen- tencing decision, we could soon be faced with similar claims as to other types of penalty. e 10 . CallIns V. CollIns no. 93–7054 (1994) I want to conclude this lengthy, and far from neutral, review of death penalty jurisprudence with one fnal case. Justice Blackmun, a moral opponent of capital punishment but an early