This research paper discusses and analyzes the decision of the United States Supreme Court in the case of McCleskey v. Kemp, 481 U.S. 279 (1987), which revealed that the Court was at that time unable or unwilling to come to grips with the problem of racial discrimination in sentencing decisions imposing the death penalty. In a poorly reasoned opinion, written for the majority by Justice Lewis Powell, the Court largely discounted substantial statistical and other evidence documenting a pattern of discrimination against blacks in capital punishment cases in Georgia. By its 5-4 decision, the Court largely reversed itself, and completed its retreat from its decision fifteen years before in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 341 (1972) in which it laid the framework for abolishing capital punishment unless the states could liberate themselves from their historical racial biases in capital cases.
In Furman v. Georgia, the Court considered the petitions of three black defendants, one convicted of rape and one of murder in Georgia and one convicted of rape in Texas, all of whom had been sentenced to death by state trial courts. In an unusual per curiam, opinion, all nine Justices wrote opinions, five in favor and four against striking down the state statutes involved on the grounds that the way in which they imposed the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
Justices William Brennan and Thurgood Marshall found any form of capital punishment to be unconstitutional. All five Justices which composed the majority found themselves in agreement that the arbitrary manner in which these states imposed the death penalty discriminated against racial minorities. Justice William O. Douglas found that it is "'cruel and unusual' punishment [and violative of the defendants' rights to equal protection and due process under the Fifth Amendment] "to apply the death penalty . ...