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
 
FREE EXCERPT
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.

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