Constitutional Reform and Its Limits

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court invalidated the death sentences before it under the Eighth and Fourteenth Amendments. The Justices issued separate opinions, with concerns including arbitrary punishment and racial discrimination. The decision disrupted existing death penalty systems; it did not produce a majority holding that every death sentence was unconstitutional.

Four years later, in Gregg v. Georgia, 428 U.S. 153 (1976), the Court upheld Georgia’s revised capital sentencing system. The decision accepted procedural safeguards intended to guide sentencing and reduce arbitrary decisions.

Under Supreme Court precedent, capital punishment is not categorically unconstitutional. The argument for abolition therefore challenges both the practice and the legal framework that permits it.

The central problem remained: could those procedures overcome racial inequality?

In McCleskey v. Kemp, 481 U.S. 279 (1987), a Black defendant sentenced to death for killing a white police officer presented a statistical study of Georgia capital cases. The study identified substantial racial disparities, particularly associated with the victim’s race. The Court assumed the study’s validity for purposes of its analysis but rejected his constitutional claims. For equal protection, it required proof of discriminatory purpose in his own case; it also rejected his Eighth Amendment challenge.

The Court left McCleskey’s death sentence in place despite evidence of racial inequality in Georgia’s capital sentencing system. Its demand for proof of discriminatory purpose in his individual case created a barrier to challenging racism operating across the system.

A system can produce racial disparities across many decisions without giving each defendant the evidence needed to prove discriminatory purpose in an individual case. By rejecting the statistical evidence as sufficient, the Court left systemic racial inequality without a constitutional remedy in McCleskey’s case.

Procedural reform deserves scrutiny by its results. The existence of a trial, an appeal, and a written judgment does not establish that racial injustice has been removed.