McCleskey argued that empirically proven racial disparity in capital sentencing of killers of white victims was a violation of both the 8th and 14th amendments. In its decision, the court held that these discriminatory sentencing patterns did not constitute proof of discriminatory intent, without which proof claims of constitutional violations must fail. This note argues that sentencing offenders to death because of their race or the race of their victims constitutes a grave injustice. While racial discrimination may be deeply rooted in society, this does not justify giving constitutional approval to such a repugnant practice, particularly in a context as severe as capital punishment. To make the racial animus of judges, prosecutors, and jurors an aggravating circumstance in death sentencing is to permit indirectly the arbitrary and capricious imposition of the death penalty -a practice which the U.S. Supreme Court forbade in its decision in Furman v. Georgia. 380 footnotes.