Challenging the Death Penalty with Statistics: Furman, McCleskey and a Single County Case Study

57 Pages Posted: 13 Sep 2012 Last revised: 29 Oct 2018

See all articles by Steven F. Shatz

Steven F. Shatz

University of San Francisco - School of Law

Terry Dalton

University of California, Irvine

Date Written: September 13, 2012


In the forty year history of the Supreme Court's modern death penalty jurisprudence, two cases — Furman v. Georgia (1972) and McCleskey v. Kemp (1987) — stand out above all others. Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent — even altogether inconsistent — results. In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment. In McCleskey, the Court, despite being presented with statistical evidence that race played a significant role in death-charging and death-sentencing in Georgia, upheld the revised Georgia scheme and McCleskey's death sentence against Equal Protection and Eighth Amendment challenges. The McCleskey decision called into question the use of statistical evidence to challenge the death penalty.

In the present article, we report on a unique empirical study of the administration of the death penalty in Alameda County, California — the largest single-county death penalty study and the only study to examine intra-county geographic disparities in death-charging and death-sentencing. The data set, drawn from 473 first degree murder convictions for murders occurring over a 23-year period, compares death-charging and death-sentencing in the two halves of the county. During the study period, the two halves differed significantly in racial makeup — the population of North County was over 30% African-American, and of South County less than 5% African-American; and the two halves differed in the race of homicide victims — in North County, African-Americans were homicide victims roughly 4.5 times as often as Whites, while, in South County, Whites were homicide victims more than three times as often as African-Americans. The study reveals that there were statistically significant disparities in death-charging and death-sentencing according to the location of the murder: the Alameda County District Attorney was substantially more likely to seek death, and capital juries, drawn from a county-wide jury pool, were substantially more likely to impose death, for murders that occurred in South County. We argue that, McCleskey notwithstanding, statistical evidence such as the "race of neighborhood" disparities found in the present study should support constitutional challenges to the death penalty under both the Equal Protection Clause and the Eighth Amendment.

Keywords: Death penalty, capital punishment, statistical analysis, empirical evidence, Eighth Amendment, equal protection, disparity, Furman v. Georgia, McCleskey v. Kemp, Alameda county California

Suggested Citation

Shatz, Steven F. and Dalton, Teresa, Challenging the Death Penalty with Statistics: Furman, McCleskey and a Single County Case Study (September 13, 2012). Cardozo Law Review, Vol. 34, No. 4, 2013, Univ. of San Francisco Law Research Paper No. 2012-23, Available at SSRN: or

Steven F. Shatz (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

Teresa Dalton

University of California, Irvine ( email )

Campus Drive
Irvine, CA 62697-3125
United States

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