David Baldus and the Legacy of McCleskey v. Kemp

• Author: Samuel R. Gross
• Position: Professor of Law, University of Michigan Law School
• Pages: 1905-1924

1905

David Baldus and the Legacy of

McCleskey v. Kemp

Samuel R. Gross

I. INTRODUCTION .................................................................................... 1906

II. THE CONTEXT: RACIAL DISCRIMINATION AND THE

CONSTITUTIONAL REGULATION OF THE DEATH PENALTY IN THE

UNITED STATES .................................................................................... 1907

III. THE MCCLESKEY LITIGATION ............................................................... 1910

A. PRE-MCCLESKEY CASES ................................................................. 1910

B. MCCLESKEY IN THE LOWER COURTS .............................................. 1911

C. THE SUPREME COURT .................................................................... 1915

IV. THE AFTERMATH .................................................................................. 1917

V. CONCLUSION ....................................................................................... 1921

 Thomas and Mabel Long Professor of Law, University of Michigan Law School.

1906 IOWA LAW REVIEW [Vol. 97:1905

I. INTRODUCTION

The first major empirical challenge to racial discrimination in the use

of the death penalty in the United States was presented in federal court in

the case of William L. Maxwell, who was sentenced to death in Arkansas in

1962 for the crime of rape.1 It was based on a landmark study by Marvin

Wolfgang, a distinguished criminologist who had collected data on some

3000 rape convictions from 1945 through 1965 in selected counties across

eleven southern states.2 He found that black men who were convicted of

rape were seven times more likely to be sentenced to death than white men,

and that black men who were convicted of raping white women were

eighteen times more likely to be sentenced to death than men convicted of

rape in any other racial combination.3 Wolfgang also examined other

variables and found that the only one that was strongly related to death

sentencing—the commission of a contemporaneous felony—did not explain

these racial patterns.4

In 1968, the Eighth Circuit, in an opinion by Judge (later Justice) Harry

Blackmun, rejected the Wolfgang study on three grounds.5 First, the court

held that the data were not specific enough: too few cases came from the county

in which Maxwell was prosecuted or even from Arkansas at all.6 Second, the

data were not sufficiently detailed: “They admittedly do not take every variable

into account.”7 Third, the study does not show intentional discrimination in

Maxwell’s case: “They do not show that the petit jury which tried and

convicted Maxwell acted in his case with racial discrimination.”8 Blackmun

added:

We can understand and appreciate the disappointment and

seeming frustration which Maxwell’s counsel must feel in again

failing to prevail on a still more sophisticated statistical approach.

They will ask themselves just how far they are required to go in

order to prevail.

We are not certain that, for Maxwell, statistics will ever be his

redemption. The facts as to rape charges in Garland County are

known and have been recited. Standing by themselves, they

1. Maxwell v. Bishop, 257 F.Supp. 710 (E.D. Ark. 1966), aff’d, 398 F.2d 138 (8th Cir.

1968), vacated, 398 U.S. 262 (1970).

2. Marvin E. Wolfgang & Marc Riedel, Race, Judicial Discretion, and the Death Penalty, 407

AM. ACAD. POL. & SOC. SCI. 119, 127 (1973).

3. Id. at 129–30.

4. Id. at 132.

5. Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968), vacated, 398 U.S. 262 (1970).

6. Id. at 146

7. Id. at 147

8. Id.