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McCleskey v. Kemp, Racial discrimination claims, Death penalty, Capital sentencing, Earl Matthews, Furman v. Georgia, Equal protection clause, Fourteenth Amendment


Criminal Law | Criminal Procedure


In federal habeas corpus proceedings, Earl Matthews, an African American, South Carolina death row inmate, alleged that his death sentence was the result of invidious racial discrimination that violated the Equal Protection Clause of the Fourteenth Amendment. To support his contention, Matthews presented statistical evidence showing that in Charleston County, where a jury convicted him and sentenced him to death, the prosecutor was far more likely to seek a death sentence for a Black defendant accused of killing a white person than for any other racial combination of victims and defendants, and also that such a Black defendant was more likely to receive a death sentence.

One, of course, may disbelieve this evidence of racial animus. The court, however, did not assess the truthfulness of Matthews's allegations. Rather, the federal district court judge summarily dismissed Matthews's contentions on the ground that the Supreme Court's decision in McCleskey v. Kemp precluded this type of challenge to a death sentence. The Court of Appeals for the Fourth Circuit affirmed the district court's decision, and the State of South Carolina executed Matthews on November 6, 1997.

Although McCleskey has been widely criticized, this Article does not address its correctness. Rather, our analysis addresses flaws in the lower courts' treatment of post-McCleskey selective-prosecution claims. Any plausible reading of McCleskey suggests that Matthews's race-based claims warranted more serious treatment than the federal courts afforded them.

Part I describes the historical background of capital-sentencing racial discrimination claims and then discusses those types of discrimination claims that McCleskey did, and did not, foreclose. Part II presents the evidence of racial discrimination in the decision to seek death in two South Carolina capital cases, including the Matthews case, and describes the perfunctory way courts treated this evidence. It then summarizes how similar attacks have fared in other jurisdictions. Part III contrasts the adjudication of these cases with the disposition of analogous issues in other types of discrimination claims. Part IV outlines an approach to capital-sentencing racial discrimination claims that both comports with well-established equal protection standards and is consistent with McCleskey.

Publication Citation

Published in: Cornell Law Review, vol. 83, no. 6 (September 1998).