McClesky vis-à-vis Furman

Christopher Hurtado —  March 25, 2010
McClesky vis-à-vis Furman | Christopher Hurtado
(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.

In Furman, the court held that the death penalty was unconstitutional in all cases on the grounds that it is inconsistent with four principles that serve to determine that it is “cruel and unusual” and thus goes against the Cruel and Unusual Punishment Clause enumerated as a restraint upon the Government in the Bill of Rights: (1) The death sentence is an unusually severe and degrading punishment, (2) it is most likely applied arbitrarily, (3) it is rejected by the vast majority of society, and (4) it serves no penal purpose more effectively than the less severe punishment of imprisonment.

(2) Do you agree with these results? Why or why not?

I agree with the McCleskey holding on the grounds that the burden of proof of racial discrimination lies with McCleskey who is making the positive claim and McCleskey did not prove his claim. As for the McCleskey sentence, I agree with it provided that McCleskey did, in fact, murder the his victim. If, as he claims, McCleskey did not murder his victim, but accidentally discharged his weapon, then I do not agree with the sentence. Manslaughter is not deserving of capital punishment.

I disagree with the Furman holding on the grounds that: (1) The death sentence is not an unusually severe punishment for murder. Furthermore, it is not degrading in that it upholds the value society places on life. (2) It cannot be proven that it is applied arbitrarily, and even if it could, this would not constitute grounds for abolishment, but rather for closer scrutiny in its application. (3) Given the fact that almost two thirds of the states in the Union have a death penalty, it seems false that “it is rejected by the vast majority of society.” (4) It serves a penal purpose imprisonment cannot serve, especially in the case of inmates who would otherwise be able to commit murder with impunity or murderers awaiting trial who likewise would be able to commit further murders with impunity.

Christopher Hurtado

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Christopher Hurtado is President and CEO of Linguistic Solutions and Adjunct Instructor of Philosophy and Political Science at Utah Valley University. He holds a BA in Middle East Studies/Arabic and Philosophy and an MA in Nonproliferation and Terrorism Studies. He coauthored Vacation Spanish: A Survival Guide for Mexico, the Caribbean, Central & South America. He is married to children's book author and homeschool mom, Alysia Gonzalez. Together they have nine children. They are active in their church and in their community.