NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.12 Racial Discrimination In Capital Sentencing

In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court rejected Eighth and Fourteenth Amendment challenges to the Georgia capital punishment statute and its administration, based on a study (“the Baldus study”) indicating that, in Georgia, persons who murder whites receive the death penalty more often than persons who murder blacks, and that black murderers of whites receive the death penalty more often than white murderers of whites.

The Court held that for such a claim to prevail under the equal protection clause of the Fourteenth Amendment, a petitioner must prove that the decision makers in his or her case acted with discriminatory purpose. The Court held that the Baldus study was insufficient to support an inference that any of the decision makers in McCleskey’s case acted with discriminatory purpose.

The Court further denied the claim that the Georgia capital punishment statute was cruel and unusual punishment under the Eighth Amendment because of its arbitrary and capricious application due to the influence of racial considerations on the sentencing decisions. The Court upheld the Georgia statute–already found constitutional in previous decisions–finding that the Baldus study did not prove that race entered into any capital sentencing procedures or that race was a factor in petitioner’s case; the study established only a likelihood that race entered into some decisions. In concluding, the Court held that, although the Constitution does not require such disparities to be eliminated, the legislature is entitled to address the disparities with statutory mechanisms.

In response to the Court’s suggestion that the matter be resolved legislatively, legislation has twice been introduced to effectively reverse McCleskey. In 1990 and 1994, the House voted to include the Racial Justice Act in its version of pending crime control legislation. The Racial Justice Act responded to McCleskey by proscribing imposition of the death penalty unless it is applied in a race-neutral manner, and by allowing a defendant to challenge a death sentence by showing that race played a statistically significant role in capital sentencing in the jurisdiction in which he or she was tried. However, Congress omitted the Racial Justice Act from the final version of the 1994 crime bill, the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 140 Cong. Rec. 8772.

United States v. Bass, 536 U.S. 862 (2002) (per curiam) (holding that defendant, who was claiming government selectively sought death penalty based on race, was not entitled to discovery of information relating to government's capital charging practices and that district court erred in dismissing death penalty notice after government informed court it would not comply with discovery request based on defendant’s evidence of purported nationwide statistics demonstrating that United States charges blacks with death-eligible offense more than twice as often as it charges whites and that United States enters into plea bargains more frequently with whites than it does with black, where such raw statistics regarding overall charges said nothing about charges brought against similarly situated defendants, and where plea bargain statistics were even less relevant, since respondent was offered plea bargain but declined it).

United States v. Armstrong, 517 U.S. 456 (1996) (holding in a non-capital case that in order to make a claim of selective prosecution based on race, petitioner must show that similarly situated defendants of another race could have been prosecuted but were not).

McCleskey v. Kemp, 481 U.S. 279 (1987) (holding statistical evidence of disparity in imposition of death penalty due to race of victim and of defendant insufficient to demonstrate denial of equal protection or violation of cruel and unusual punishment clause; to show denial of equal protection, defendant must prove that sentencers in his or her case acted in discriminatory manner, or that state enacted or maintained death penalty statute “because of” its racially discriminatory effect).

Jeffers v. Lewis, 38 F.3d 411 (9th Cir. 1994) (finding no evidence that the Arizona sentencing process discriminates against impoverished males convicted of killing males), cert. denied, 514 U.S. 1071 (1995).

Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992) (following Richmond and McCleskey, in holding statistical information showing increased likelihood of death penalty where murder victim is white is insufficient to establish equal protection violation), cert. denied, 507 U.S. 992 (1993).

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) (holding evidentiary hearing properly denied because statistical evidence indicating that Arizona’s administration of the death penalty is racially, sexually, and socio-economically discriminatory is insufficient to demonstrate that the decision makers in his or her case acted with discriminatory purpose), rev’d on other grounds, 506 U.S. 40 (1992).

Harris v. Pulley, 885 F.2d 1354 (9th Cir. 1988) (following McCleskey in denying statistics-based challenge to death penalty statute as violative of Fourteenth and Eighth Amendments; statistical study showing disproportionate application of death penalty along racial or gender lines is insufficient to demonstrate (1) decision makers in particular case acted with “discriminatory purpose” or (2) racial or gender bias affected state’s capital sentencing process), cert. denied, 493 U.S. 1051 (1990).

Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989) (holding failure to raise claim of discriminatory application of death penalty not ineffectiveness of counsel because claim is barred under McCleskey), vacated on other grounds, 500 U.S. 901 (1992).

Gerlaugh v. Lewis, 898 F. Supp. 1388 (D. Ariz. 1995) (applying McClesky, Richmond, holding petitioner failed to prove that prosecution acted with discriminatory purpose in not presenting plea offer to him), aff’d, 129 F.3d 1027 (9th Cir. 1997), cert. denied, 525 U.S. 903 (1998).

Dobbs v. Zant, 963 F.2d 1403 (11th Cir. 1991) (holding backgrounds and general racial attitudes of various trial participants insufficient to show racial prejudice influenced state’s decision to impose death penalty), rev’d on other grounds, 506 U.S. 357 (1993).

Byrd v. Armontrout, 880 F.2d 1 (8th Cir. 1989) (holding prosecution’s use of peremptory challenges to achieve all white jury (against black defendant) insufficient to prove decision to seek death penalty motivated by racial prejudice; therefore, evidentiary burden under McCleskey to prove decision maker acted with “discriminatory purpose” not met), cert. denied, 494 U.S. 1019 (1990).

Griffin v. Dugger, 874 F.2d 1397 (11th Cir. 1989) (holding statistical evidence of discriminatory application of death penalty insufficient to prove prosecutor acted with discriminatory intent in commenting on race of victims), cert. denied, 493 U.S. 1051 (1990).

Bundy v. Dugger, 850 F.2d 1402 (11th Cir. 1988) (upholding district court’s denial of evidentiary hearing on claim that Florida death penalty is discriminatorily applied where victim is white because no evidence decision makers in case acted with discriminatory purpose), cert. denied, 488 U.S. 1034 (1989).

Smith v. Dugger, 840 F.2d 787 (11th Cir. 1988) (rejecting petitioner’s request for evidentiary hearing because, under McCleskey, statistical studies showing discriminatory application of death penalty are insufficient to demonstrate unconstitutional discrimination under Fourteenth Amendment or arbitrariness under Eighth Amendment), cert. denied, 494 U.S. 1047 (1990).

David C. Baldus et al., Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts, 15 Stetson L. Rev. 133 (1986) (analyzing evidence of and reasons for racial discrimination in post Furman capital sentencing and proposing remedies for such discrimination).

Fredric J. Bendremer et al., Note, McCleskey v. Kemp: Constitutional Tolerance for Racially Disparate Capital Sentencing, 41 U. Miami L. Rev. 295 (1986) (analyzing racial disparity in capital sentencing under Eighth and Fourteenth Amendments and critiquing analysis in McCleskey and other decisions).

John H. Blume et al., Symposium, How the Death Penalty Works: Empirical Studies of the Modern Capital Sentencing System: Post-McCleskey Racial Discrimination Claims in Capital Cases, 83 Cornell L. Rev. 1771 (1998) (discussing court’s reluctance to find intentional discrimination by state officials; ten years post-McCleskey and not one claimant has prevailed.

Stephen B. Bright, Symposium, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995) (discussing racial discrimination in capital sentencing).

Erwin Chemerinsky, Symposium, Eliminating Discrimination in Administering the Death Penalty: The Need for the Racial Justice Act, 35 Santa Clara L. Rev. 519 (1995) (addressing racial discrimination in death penalty administration and need for Racial Justice Act).

M. Shanara Gilbert, Racism and Retrenchment in Capital Sentencing: Judicial and Congressional Haste Toward the Ultimate Injustice, 18 N.Y.U. Rev. L. & Soc. Change 51 (1990) (exploring racism in death sentencing in light of McCleskey and proposed 1990 Racial Justice Act).

Samuel R. Gross & Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27 (1984) (analyzing patterns in capital sentencing from 1976-1980 in southern states, based on race of both defendant and victim).

Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388 (1988) (analyzing McCleskey from community-oriented race-of-victim theory; asserting African American community denied equal protection because killers of blacks are less vigorously prosecuted).

Katherine R. Kruse, Race, Angst and Capital Punishment: The Burger Court’s Existential Struggle, 9 Seton Hall Const. L.J. 67 (1998) (explaining the Burger Court’s failure to remedy racism in the discretionary capital sentencing system; prescribing a more effective response).