In McCleskey v. Kemp 94 the Court rejected an equal protection claim of a black defendant who received a death sentence following conviction for murder of a white victim, even though a statistical study showed that blacks charged with murdering whites were more than four times as likely to receive a death sentence in the state than were defendants charged with killing blacks. The Court distinguished Batson v. Kentucky by characterizing capital sentencing as ''fundamentally different'' from jury venire selection; consequently, reliance on statistical proof of discrimination is less rather than more appropriate. 95 ''Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.'' 96 Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination; jurors may not be required to testify as to their motives, and for the most part prosecutors are similarly immune from inquiry. 97
[Footnote 94] 481 U.S. 279 (1987). The decision was 5-4, with Justice Powell's opinion of the Court being joined by Chief Justice Rehnquist and by Justices White, O'Connor, and Scalia, and with Justices Brennan, Blackmun, Stevens, and Marshall dissenting.
[Footnote 95] 481 U.S. at 294 . Dissenting Justices Brennan, Blackmun and Stevens challenged this position as inconsistent with the Court's usual approach to capital punishment, in which greater scrutiny is required. Id. at 340, 347-48, 366.
[Footnote 96] Id. at 297. Discretion is especially important to the role of a capital sentencing jury, which must be allowed to consider any mitigating factor relating to the defendant's background or character, or to the nature of the offense; the Court also cited the ''traditionally 'wide discretion''' accorded decisions of prosecutors. Id. at 296.
[Footnote 97] The Court distinguished Batson by suggesting that the death penalty challenge would require a prosecutor ''to rebut a study that analyzes the past conduct of scores of prosecutors'' whereas the peremptory challenge inquiry would focus only on the prosecutor's own acts. 481 U.S. at 296 n.17.