NCJ Number
131925
Journal
Jurimetrics Journal of Law, Science and Technology Volume: 31 Issue: 1 Dated: (Fall 1990) Pages: 125-141
Date Published
1990
Length
17 pages
Annotation
The U.S. Supreme Court cases of Gregg v. Georgia and Furman v. Georgia encompassed two constitutionally grounded values by which to judge capital sentencing statutes, particularized consideration of the offense and the offender and freedom from racial bias, and the effect of victim race on capital sentencing is examined in the McClesky v. Kemp case.
Abstract
McClesky was convicted in 1978 of armed robbery and malice murder. At the penalty trial, the jury found two statutory aggravating circumstances: murder during the course of another capital felony and murder of an on-duty policeman. The jury sentenced McClesky to death on the murder charge. After exhausting his State appellate remedies, McClesky sought relief by writ of habeas corpus in Federal district court. He challenged Georgia's death penalty statute on equal protection grounds. The author shows that the statistical basis of McClesky's race-of-the-victim claim was fundamentally compromised due to underadjustment bias. The author argues that, in the context of the death penalty, epistemological doubts about systemic racial effects should be resolved in favor of defendants. Because of the underadjustment bias, the two values identified in the Gregg and Furman cases, particularized consideration and freedom from racial bias, cannot be jointly satisfied as the law currently stands. One possible legal response is to abandon or curtail the constitutional commitment to particularized consideration of the crime and the defendant in death cases. Another legal response involves a proposed Racial Justice Act that will assure particularized deliberation in death sentencing and nondiscrimination. 63 footnotes