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Response Comment: Race and the Death Penalty
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By Dudley Sharp

The following comments are sent in response to to piece in International Affairs Forum issue, Race and the Death Penalty: Interview with Prof. Jeffrey Kirchmeier 

McCleskey v Kemp, the infamous race based death penalty case decided by the US Supreme Court (SCOTUS)

 The US Supreme Court misunderstood the math involved, ignorantly writing: "defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks."

 This is totally inaccurate. It was by odds of 4.3 times, or an odds multiplier of 4.3, which can mean  a difference as low as 2-4%, as opposed to the 330% difference represented by 4.3 times (as with Baldus' Philadelphia study).

 Furthermore, the database, which, allegedly supported McCleskey's charge of racism, did no such thing and was, completely, unreliable.

"The best models which (David) Baldus was able to devise (within McCleskey v Georgia (Kemp) which account to any significant degree for the major non-racial variables, including strength of the evidence, produce no statistically significant evidence that race plays a part in either [the prosecutor’s or the jury’s] decisions in the State of Georgia." (1) 

"After a thorough review, Judge Forrester concluded that “the (Baldus) data base has substantial flaws and . . . petitioner has failed to establish by a preponderance of the evidence that it is essentially trustworthy." (1)

" ... Baldus et al. failed to prove (and the State’s experts succeeded in rebutting) the basic claims made in the Baldus study.45 They did not just fail; they failed dismally. The Baldus study lay in shreds when Judge Forrester got through with it." (1) 

 "The Court of Appeals for the Eleventh Circuit, sitting en banc, commended the district court “for its outstanding endeavor” in analyzing the validity of the Baldus study, and there is little doubt that a review of the factual finding that the study was invalid would have been affirmed under the applicable “clearly erroneous” standard." (1)

Read Federal District Court Judge Forrester's full rejection of Baldus' database for McCleskey.

A even more thorough review is provided by Joseph Katz, who did the methodological review of the Baldus database, which was rife with errors and problems. I have it, if you care to research.

Based upon experience, most, if not all law schools, wrongly confirm the Baldus database.

These two articles, below, give a good explanation of some core problem with David Baldus, in the McCleskey case and another of his reviews. 

I am unaware of Baldus making any efforts to correct these many misconceptions, over the many years that he should have. I debated Baldus on these issues.

A) "The Math Behind Race, Crime and Sentencing Statistics"

By John Allen Paulos, Los Angeles Times, July 12, 1998


 B) See “The Odds of Execution” within “How numbers are tricking you”, by Arnold Barnett, MIT Technology Review October, 1994


 (1)  Rebutting the Myths About Race and the Death Penalty, Kent Scheidegger, 10 Ohio St. J. Crim. L. 147 (2012).



Dudley Sharp is an independent death penalty activist and Former Vice President and Political Director of Justice for All.

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