The Death Penalty in the OSCE Area 39 Alleged Racial Disparities The Equal Protection Clause of the Fourteenth Amendment to the Constitution guarantees all individuals in the United States equality before the law. To establish that a violation of this guarantee has occurred, a criminal defendant must show that his prosecution or conviction was the result of purposeful discrimination. The scope of this guarantee was one of the major post-Furman Constitutional challenges to the death penalty. In McCleskey v. Kemp, 481 U.S. 279 (1987), a convicted murderer claimed that his death sentence should be overturned because the Georgia state capital system was racially biased in violation of the Equal Protection Clause, based on a statistical study purporting to show that murderers of white victims were more likely to be sentenced to death than murderers of black victims. (The McCleskey study, as virtually all studies subsequent to it, demonstrated no statistically significant evidence of discrimination based on the race of the defendant. The debate about racial disparities has therefore focused on the race of the victim.) The Supreme Court rejected McClesky’s claim, holding that a statistical study, even if true, could not prove intentional discrimination in his individual case. In addition, the Court held that the study, even if true, could not prove that the entire system had been adopted and maintained by the Georgia state legislature for racially discriminatory purposes and could not prove that the system was arbitrary and capricious as applied to his own case or resulted in a sentence disproportionate to his crime. It is important to note that, although the Supreme Court, for purposes of argument, accepted the validity of the underlying statistical study at issue in the case,48 the study was decisively rejected by the district court.49 The district court found errors and missing information in the databases used in the study, unwarranted assumptions, unreliable statistical models, and flawed interpretations of the data. It concluded, “[T]here is no statistically significant evidence produced by a reasonably comprehensive model that prosecutors are seeking the death penalty or juries are imposing the death penalty because the defendant is black or the victim is white.”50 Indeed, the extent of racial disparities in capital cases in the United States has been vastly exaggerated. For example, a widely quoted General Accounting Office (GAO) 48 49 50 Id. at 292, n7. See McCleksky v. Zant, 580 F. Supp. 338 (NDGA, 1984). Id. at 379-380; Opponents of capital punishment still claim, however, not only that the Baldus study was valid but that the Supreme Court’s decision actually accepted its validity as a matter of fact. See Charles J. Ogletree Jr. and Austin Sarat (eds.), From Lynch Mobs to the Killing State: Race and the Death Penalty in America 2 (2006). This is in direct contrast to the Court’s words that, “Our assumption that the Baldus study is statistically valid does not include the assumption that the study shows that racial considerations actually enter into any sentencing decisions in Georgia.” McClesky, 481 U.S. at 292 at n7.