Mere statistical disparity in sentencing does not prove a constitutional violation. The Tison and McCleskey cases resolved procedural uncertainties that have delayed numerous executions. Other issues still must be decided by the Court, including the constitutionality of executing persons who were under 18 years of age when they committed the crime. But the McCleskey case is especially significant because it laid to rest the statistical argument on racial discrimination that has been a staple of death penalty appeals for decades. It follows inescapably that whites would represent a comparable percentage of murder victims killed during a rape or robbery.
Capital punishment is now the law in more than two thirds of our States.
Tison and McCleskey do not decide whether the death penalty is good or bad. Rather, in accord with the intent of the framers, they recognize that the policy choice is up to the state legislatures rather than the unelected judiciary. .