(1) Why was the death penalty upheld in McCleskey, but not in Furman? (just for your information, note what Furman did: p.779, question #1)
In McClesky, under Georgia law, the jury could consider the death penalty if it found beyond a reasonable doubt that the murder was accompanied by one of the statutory aggravating circumstances. The jury found beyond a reasonable doubt that the murder was accompanied by two statutory aggravating circumstances: (1) McCleskey committed the murder during the course of an armed robbery and (2) McCleskey murdered a peace officer engaged in the performance of his duties. As McCleskey offered no mitigating evidence, the jury recommended the death penalty on the murder charge and the court sentenced McCleskey to death.
McCleskey’s claim that Georgia’s capital punishment statute violates the Fourteenth Amendment Equal Protection clause based on racial discrimination against his color, which he based on statistical evidence of the overall application of the death penalty in Georgia was rejected by the Court on the grounds that he could not prove discrimination in his case. The Court also held that discretion is essential to the criminal justice process. The Court also rejected McCleskey’s further claim that the State had acted with a discriminatory purpose on the grounds that there was no evidence to that effect either.