Amdt14.S1.9.4 Capital Punishment

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. Kemp1 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


  1.  Jump to essay-1481 U.S. 279 (1987). The decision was 5-4, with Justice Powell’s opinion of the Court being joined by Chief Justice Rehnquist and by Justices White, O’Connor, and Scalia, and with Justices Brennan, Blackmun, Stevens, and Marshall dissenting.
  2.  Jump to essay-2481 U.S. at 294. Dissenting Justices Brennan, Blackmun and Stevens challenged this position as inconsistent with the Court’s usual approach to capital punishment, in which greater scrutiny is required. Id. at 340, 347-48, 366.
  3.  Jump to essay-3481 U.S. at 297. Discretion is especially important to the role of a capital sentencing jury, which must be allowed to consider any mitigating factor relating to the defendant’s background or character, or to the nature of the offense; the Court also cited the traditionally ‘wide discretion’ accorded decisions of prosecutors. Id. at 296.
  4.  Jump to essay-4The Court distinguished Batson by suggesting that the death penalty challenge would require a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors whereas the peremptory challenge inquiry would focus only on the prosecutor’s own acts. 481 U.S. at 296 n.17.