Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In McCleskey v. Kemp 1 the Court rejected an equal protection claim of a black defendant who received a death sentence following conviction for murder of a white victim, even though a statistical study showed that black defendants charged with murdering white people were more than four times as likely to receive a death sentence in the state than were defendants charged with killing black people. The Court distinguished Batson v. Kentucky by characterizing capital sentencing as
fundamentally different from jury venire selection; consequently, reliance on statistical proof of discrimination is less rather than more appropriate. 2
Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. 3 Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination; jurors may not be required to testify as to their motives, and for the most part prosecutors are similarly immune from inquiry. 4