San Diego Law Review


Robert Batey

Library of Congress Authority File


Document Type

Symposium Article


McCleskey v. Kemp is without doubt a memorable case. Professor David C. Baldus and his colleagues, Charles A. Pulaski and George Woodworth, had produced a detailed statistical study of the operation of the death penalty in Georgia showing, in the words of the Supreme Court, that "black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty." McCleskey used this study to challenge his capital sentence under both the Equal Protection and Cruel and Unusual Punishment Clauses. Like any statistical proof, the Baldus study had been challenged on methodological grounds. The Supreme Court assumed its validity, but still rejected all of McCleskey's constitutional claims. In a five-to-four decision, Justice Powell first held that although the Baldus study may have established a racially discriminatory effect, it did not prove the racially discriminatory purpose necessary for an equal protection violation. Powell also rejected McCleskey's allegation that the Baldus study showed Georgia's imposition of the death penalty was arbitrary and capricious and thus unconstitutionally cruel and unusual.