481 U. S. 279
April 22, 1987
During an armed robbery of a furniture store, Warren McCleskey murdered a police officer who had responded to a distress call. McCleskey was black and the police officer was white. After being convicted and sentenced to death, McCleskey argued in a habeas petition that race had played an impermissible role in his sentencing. As proof, he put forth a statistical study created by David Baldus, which showed that murderers who killed white victims were 4.3 times likelier to receive the death penalty than those who killed black victims.
Justice Powell wrote the majority opinion. The Court ruled 5-4 that the Baldus study did not prove that McCleskey’s sentence was unconstitutional. In response to an equal protection argument, Powell said that McCleskey did not specifically show that his sentencing was based on the race of the victim, and that the Baldus study could not support an inference that he had been victimized by racial discrimination on the part of the jurors or the State of Georgia. Powell then turned to McCleskey’s Eighth Amendment claim. He noted that McCleskey’s punishment was not “disproportionate to the crime in the traditional sense,” but only in relation to how others were sentenced. Because death penalty sentencing inevitably called for some discretion in jury judgments, this did not bother Powell. While racial disparities were troubling, Georgia’s process aimed to minimize them, and it would be unreasonable to expect all disparities to disappear in a discretionary system.
Powell closed with one extraordinarily powerful argument: “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties.” Thus, if in any crime at all sentencing disparities based on any illicit factor at all (such as race, gender, intelligence, wealth, or attractiveness) were to be found, any punishment at all would have to be declared unconstitutional.
Brennan, joined by Marshall, Blackmun, and Stevens, pointed out that the Court had used statistical disparity to find racial discrimination in the past, and added that the finality of the death penalty mandated that statistics showing such discrimination be given special weight. Georgia’s Jim Crow history lent further proof to the contention that McCleskey’s sentence had been influence by race. He also argued that the jury’s right of discretion ends when that discretion is based on racism. In response to Powell’s slippery slope argument, Brennan stressed that the criminal justice system would not be dismantled absent especially sophisticated and convincing statistical and historical proof.
Blackmun also wrote an opinion joined by the other three dissenters. He faulted the Court for ignoring the possibility of discrimination by the prosecutor, noting that they played a fundamental but horrendously unsupervised role in the system of capital punishment. Blackmun also contended that it was no better for race to be a de facto part of the process than it would be for race to be a de jure part. Finally, he submitted that the Baldus study could not possibly provide more proof for the assertion that Georgia’s sentencing system was racist. In a brief dissent, Stevens suggested that racism would not be a problem if the death penalty were restricted to only the most truly horrifying and egregious cases.
The Baldus study cannot be disputed. Racism plays a role in who receives the death penalty, and America has a moral obligation to end these disparities immediately. One day, God will judge and punish America for its evil and racist system of justice. But I can’t help but be annoyed with the dissents. Whatever the sins of McCleskey’s jury, McCleskey still committed a brutal murder, and he still deserved to die. There is absolutely no moral right to leniency just because others get leniency for the wrong reasons. Sin does not become less worthy of death because some sinners are unjustly given mercy. Mercy, by definition, is undeserved and not an entitlement. As I’ve mentioned before, God was not unjust in killing Ananias and Sapphira, even though He let others live who committed precisely the same sins.
The scripture says “Whoever sheds the blood of man, by man shall his blood be shed.” There can be absolutely no partiality. The rich must be sentenced to death just as the poor are. The murderers of black victims must be punished as murderers of white victims are. That will require Americans coming to grips with the true gravity of sin. The capital punishment system is broken, but the solution is not, contra the dissenters, abolishing the system – the solution is fixing it. Even when punishment is unevenly applied, the wages of sin is still death.
Jesus once warned about taking the speck out of another person’s eye when there’s a plank in your own. He spoke of straining at gnats, and swallowing camels. I was heavily reminded of this imagery as I read dissents which labored hard to minimize violent and cold-blooded murder. The approach of the liberal Justices in criminal cases is almost invariably one of privileging gants and specks over camels and planks. Over and over, they’ll say ‘a murderer’s guilt does not matter – what really matters are the comparatively trivial faults of policemen, prosecutors, and juries.’
Toward the end of Brennan’s opinion, he makes this statement “Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society’s demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life.”
It was when I read those words that I lost all respect for Justice Brennan. He, of all people, had no moral authority to accuse the Court of not hearing the voices of the voiceless. As a Catholic publication once wrote, “there will never ever be any poor who are poorer than unborn children, who are not yet favored with even the power to cry, to as much as murmur a protest against an attack on the single possession they have: life. The poor we will always have with us, but now there is this poor who is to be denied even the opportunity to share the inheritance of the earth. If mother, father, doctor, nurse, the whole of society’s mores, the whole of its civil authority, if all conspire to destroy this child, who – what – is left to defend him?” In his time on the Supreme Court, Brennan heard the voices of brutal murderers, but he deliberately chose to ignore the voices of innocent unborn children.
“This is why the law is ineffective and justice never emerges. For the wicked restrict the righteous; therefore, justice comes out perverted” – Habakkuk 1:4