McCleskey v. Kemp Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae in Support of the Petition for Certiorari

    No, 84-6811

IN THE

fflm nrt xxt %  M ntteb  S ta te #
October Term, 1984

WARREN McCLESKEY, 

against
Petitioner,

RALPH M. KEMP, Superintendent, Georgia Diagnostic & 
Classification Center,

Respondent.

On Petition For Writ of Certiorari To The United States 
Court of Appeals For The Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND BRIEF AMICUS CURIAE FOR THE 
CONGRESSIONAL BLACK CAUCUS IN SUPPORT 

OF THE PETITION FOR CERTIORARI

Hon. John Conyers, Jr. 
2313 Rayburn House Office Bldg. 

Washington, D. C. 20515

*Seth P. W axman 
2555 M Street, N.W. ' 

Suite 500
Washington, D. C. 20037

Attorneys for Amicus Curiae

* Attorney of Record



TABLE OF CONTENTS
Page

Table of Authorities .............. ii
Motion For Leave To File

Brief Amicus Curiae .......... iv
Summary of Argument ............... 1
Argument

Neither The Eighth Amendment 
Nor The Equal Protection Clause 
Of The Fourteenth Amendment 
Allow Courts Or Juries Sys­
tematically To Punish Black 
Defendants, Or Those Whose 
Victims Are White, More 
Severely For Similar Crimes 
Than White Defendants, Or
Those Victims Are Blacks ....  3

Conclusion .................. ...... 10

l



TABLE OF AUTHORITIES

Avery v. Georgia, 345 U.S. 559
(1953) .......................  7

Briscoe v. LaHue, 460 U.S. 325
(1983) .......................  6

Carter v. Texas, 177 U.S. 442
(1900) .......................  6

Castaneda v. Partida, 430 U.S. 482
(1977) .......................  9

Furman v. Georgia, 408 U.S. 238
(1972)   6

General Building Contractors
Ass'n, Inc. v. Pennsylvania,
458 U.S. 375 ( 1982)    5

Hazelwood School District v.
United States, 433 U.S. 299
(1977)   9

Loving v. Virginia, 388 U.S. 1
(1967) .......................  6

McCleskey v. Kemp, 753 F.2d 877 
(11th Cir. 1985)(en
banc) ...................  vi, vii ,5,8

Norris v. Alabama, 294 U.S. 587
(1935) .......................  6

Rose v. Mitchell, 443 U.S. 545
(1979)   7

Strauder v. West Virginia, 100 U.S.
303 ( 1 880) .......................... 6

Page

- ii -



Page
Texas Dep't of Community Affairs 

v. Burdine, 450 U.S. 248 
( 1981 )   9

Turner v. Fouche, 396 U.S. 346
( 1970) ..............    7

Yick Wo v. Hopkins, 118 U.S.
356 ( 1886) ...................  6

Zant v. Stephens, 462 U.S. 862
(1983) .......................  viii

- iii -



No. 84-6811

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1984

WARREN McCLESKEY,
Petitioner,

- against -
RALPH M. KEMP, Superintendent, 
Georgia Diagnostic & Classification 
Center,

Respondent.

On Petition For Writ of Certiorari 
To The United States Court of Appeals 

For The Eleventh Circuit

MOTION FOR LEAVE TO 
FILE BRIEF AMICUS CURIAE

The Congressional Black Caucus 
respectfully moves this Court, pursuant to

IV



Rule 36.1 of its Rules, for leave to file
the attached brief amicus curiae in 
support of Warren McCleskey's petition for 
certiorari in this case. The consent of 
the petitioner has been obtained. Counsel 
for respondent, however, has declined our 
request for consent, necessitating this 
motion.

The Congressional Black Caucus ("the 
Caucus") is composed of all 20 black 
members of the United States House of 
Representatives. The primary function of 
the Caucus is to implement and preserve 
the constitutional guarantee of equal 
justice under the law for all Americans, 
particularly black Americans.

v



The Caucus requests leave to file a 
brief amicus curiae to make plain the 
troubling constitutional implications it 
finds in the opinion of the Court of 
Appeals, and the consequent importance to 
black citizens of the issues raised by the 
McCleskey v. Kemp case.

Warren McCleskey has presented 
substantial evidence that racial discrimi­
nation is at work in the capital punish­
ment statutes of the State of Georgia. His 
claims, based primarily on the comprehen­
sive studies of Professor David Baldus, 
are well-documented, and the State's 
contrary evidence appears insubstantial 
and unpersuasive.

We come before this Court, however, 
not to debate the merits of McCleskey's 
evidence, for the Court of Appeals itself 
did not decide against McCleskey by 
dismissing his factual case. Instead, it

vi



explicitly accepted, for purposes of the 
appeal, the validity of the Baldus study, 
and assumed that McCleskey v. Kemp, 753 
F.2d 877, 886 (11th Cir. 1985)(en banc) 
"proves what it claims to prove." Id. 
Even so, the Court of Appeals reasoned 
that petitioner has stated no claim under 
the Eighth or Fourteenth Amendments.

It is this extraordinary constitu­
tional ruling that prompts our interven­
tion as amicus curiae. Even while 
acknowledging substantial disparities by 
race in Georgia's death sentencing rates 
— • approaching twenty percentage points in 
the midrange of homicide cases —  and an 
overall average racial disparity exceeding 
six percentage points, the Court of 
Appeals holds that Eighth and Fourteenth 
Amendments are unaffected.

If this troubling opinion goes unre­
viewed, fundamental constitutional issues

V l l



long ago settled in this nation will once
again be open to serious question. It is 
cause enough for grave concern if the 
pattern of executions now being carried 
out in this country is infected by racial 
discrimination. Yet if a federal court 
may announce that such discrimination 
makes no legal difference, if it holds 
that such a pattern affronts no constitu­
tional principles, the time has come, the 
Caucus believes, for this Court to be 
heard.

As the ultimate guardian of our 
constitutional values, this Court cannot 
afford to overlook a pronouncement, by a 
majority of the United States Court of 
Appeals for the Eleventh Circuit sitting 
en banc, that appears to condone some 
measure of racial discrimination in 
capital sentencing. This Court has noted 
that "Georgia may not attach the 'aggra-

- viii -



vating' label to factors that are consti­
tutionally impermissible or totally 
irrelevant to the sentencing process, such 
as ... race." Zant v. Stephens (II) 462
U.S. 862 , 885 ( 1983). Yet the McCleskey
opinion threatens to give _de facto 
sanction to just such a practice. The 
Caucus, one of whose principal aims is to 
ensure that equal justice under law
remains a reality for all citizens,
respectfully requests leave to file this 
brief amicus amicus to address these
important issues.
Dated: June 28, 1985

Respectfully submitted,
HON. JOHN CONYERS, JR.

2313 Rayburn House Office Bldg.
Washington, D.C. 20515

*SETH P. WAXMAN
2555 M Street, N.W.
Suite 500
Washington, D.C. 20037 

ATTORNEYS FOR AMICUS CURIAE 
B y __________ ________________ _

*Attorney of Record
- IX



No. 84-6811

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1984

WARREN McCLESKEY,
Petitioner,

- against -
RALPH M. KEMP, Superintendent,
Georgia Diagnostic & Classification 
Center,

Respondent.

On Petition For Writ of Certiorari 
To The United States Court of Appeals 

For The Eleventh Circuit

BRIEF AMICUS CURIAE OF THE 
BLACK LEGISLATIVE CAUCUS

SUMMARY OF ARGUMENT

The Court of Appeals, for purpose of 
Warren McCleskey's appeal, has accepted 
the validity of his statistical evidence



2

demonstrating (i) that black defendants, 
or those whose victims are white, are 
substantially more likely to receive death 
sentences in the State of Georgia than are 
white defendants, or those whose victims 
are black; and (ii) that these record 
disparities are not explained by any of 
over 230 other legitimate sentencing 
factors. Despite this overwhelming proof 
that race plays a part Georgia's capital 
sentencing system, the Court of Appeals 
had held that neither the Eighth nor the 
Fourteenth Amendments are implicated, 
apparently because it finds the magnitude 
of the racial influence to be relatively 
minor. Viewed as a statement of legal 
principle, this opinion by the Court of 
Appeals is astonishing; it turns its back 
on a consistent, hundred-year history of 
interpretation of the Equal Protection 
Clause. Viewed as a statement of fact, 
the opinion is equally deficient. It



3

misunderstands the true magnitude and 
importance of the statistical results 
reported in the Baldus studies. Under any 
analysis, the opinion deserves review by 
this Court.

ARGUMENT

NEITHER THE EIGHTH AMENDMENT NOR THE 
EQUAL PROTECTION CLAUSE OF THE FOUR­
TEENTH AMENDMENT ALLOW COURTS OR JURIES 
SYSTEMATICALLY TO PUNISH BLACK DEFEN­
DANTS, OR THOSE WHOSE VICTIMS ARE 
WHITE, MORE SEVERELY FOR SIMILAR CRIMES 
THAN WHITE DEFENDANTS, OR THOSE WHOSE 
VICTIMS ARE BLACK

The Baldus studies examine the dis­
position by Georgia's criminal justice 
system of a wide range of homicides 
committed over a seven-year period from 
1973 through 1979. Baldus and his 
colleagues collected data from official 
state files on over 500 items of informa­
tion for each case, providing a comprehen­
sive picture of the crimes, the defen­



4

dants, the victims, and the strength of 
the State's evidence. After employing a 
variety of accepted social scientific 
methods to analyze his data -- each of 
which the Court of Appeals assumed to be 
valid for purposes of McCleskey's appeal 
—  Baldus reported that "systematic and 
substantial disparities exist in the 
penalties imposed upon homicide defendants 
in the State of Georgia based upon the 
race of the homicide victim," (Fed. Hab. 
Tr. 726-27) (Professor Baldus), and to a 
slightly lesser extent, "upon the race of 
the defendant." (Id.) Baldus found no 
"legitimate factors not controlled for in 
[his] analyses which could plausibly 
explain the persistence of these racial 
disparities," (Id. 728).

In short, the Baldus studies conclude 
that race continues to play a real, 
systematic role in determining who will 
receive life sentences and who will be



5

executed in the State of Georgia. By 
assuming the truth of those conclusions, 
the Court of Appeals has sharply focused 
the underlying constitutional issue on 
this appeal: does proven racial discrimi­
nation in capital sentencing violate the 
Eighth or Fourteenth Amendments. The 
astonishing answer of the Court of Appeals 
is that it does not.

The Court does take issue with the 
Baldus studies on the exact magnitude of 
the racial effect —  whether it is nearer 
six percentage points or twenty points. 
See McCleskey v. Kemp, 753 F. 2d 877, 
896-98 (11th Cir. 1985)(en banc). That 
question, however, seems plainly beside 
the point. The Black Caucus has long 
understood that unequal enforcement of 
criminal statutes based upon racial 
considerations violates the Fourteenth 
Amendment. Such distinctions, whatever 
their magnitude, have "no legitimate



6

overriding purpose independent of invidi­
ous racial discrimination ... [justifying] 
the classification," Loving v. Virginia, 
388 U.S. 1, 11 (1967); Yick Wo v. Hopkins, 
118 U.S. 356 (1886); cf. Furman v. Geor­
gia, 408 U.S. 238, 389 n.12 (Burger, C.J., 
dissenting).

One of the chief aims of the Equal 
Protection Clause was to eliminate of 
discrimination against black defendants 
and black victims of crime. See General 
Building Contractors Ass'n, Inc. v. 
Pennsylvania, 458 U.S. 375, 382-91 (1982); 
Briscoe v. LaHue, 460 U.S. 325, 337-40 
(1983). Indeed, for well over 100 years, 
this Court has consistently interpreted 
the Equal Protection Clause to prohibit 
racial discrimination in the administra­
tion of the criminal justice system. See, 
e.g., Strauder v. West Virginia, 100 U.S. 
303 (1880); Carter v. Texas, 177 U.S. 442
(1900); Norris v. Alabama, 294 U.S. 587



Avery v. Georgia, 345 U.S. 559( 1 935 ) ;
( 1 9 5 3 ); Turner v. Fouche, 396 U.S. 346 
( 1 970 ); Rose v. Mitchell, 443 U.S. 545 
(1979). While questions concerning the 
necessary quantum of proof have occasion­
ally proven perplexing, no federal court 
until now has ever, to our knowledge, 
seriously suggested that racial discrimi­
nation at any level of magnitude, if 
clearly proven, can be constitutionally 
tolerated. Yet that is precisely the 
holding of the Court of Appeals.

Moreover, even if the magnitude of 
discrimination were a relevant constitu­
tional consideration, Warren McCleskey's 
evidence has demonstrated an extraordinary 
racial effect. The increased likelihood 
of a death sentence if the homicide victim 
is white, for example, is .06, or six 
percentage points, holding all other 
factors constant. Since the average 
death-sentence rate among Georgia cases is



8

only .05, the fact that a homicide victim 
is white, rather than black, increases the 
average likelihood of a death sentence by 
120%, from .05 to .11. The suggestion of 
the Court of Appeals that race affects at 
most a "small percentage of the cases," 
McCleskey v. Kemp, supra, 753 F.2d at 899, 
scarcely does justice to these figures.

In plainest terms, these percentages 
suggest that, among every 100 homicides 
cases in Georgia, 5 would receive a death 
sentence if race were not a factor; in 
reality, where white victims are involved, 
11 out of 100 do. Six defendants are 
sentenced to death with no independent 
explanation other than the race of their 
victims.

Furthermore, the racial disparities 
are far more egregious among those cases 
where death sentences are most frequently 
imposed. Baldus' studies demonstrate 
that, among the midrange of cases, the



9 -

race of victim has a .20, or twenty 
percentage point impact in addition to 
every other factor considered. Such 
results simply are intolerable under our 
Constitution, especially when the stakes 
are life and death.

We are tempted to believe that the 
Court of Appeals' opinion reflects, in 
part, less a conscious decision to 
tolerate racial discrimination than a 
sense that the Baldus studies are not 
sufficiently reliable. However, accepted 
at face value as the Court announces it 
has done, the Baldus studies account for 
over 230 non-racial variables, and far 
exceed any reasonable prima facie standard 
of proof ever announced by this Court. 
See generally, Texas Dept, of Community 
Affairs v. Burdine, 450 U.S. 248 (1981); 
Hazelwood School District v. United 
States, 433 U.S. 299 (1977); Castaneda v.
Partida, 430 U.S. 482 (1977).



10

The practical effect of the McCleskey 
holding, therefore, will be to declare 
that capital punishment may be imposed and 
carried out throughout the states of the 
Eleventh Circuit —  Georgia, Florida, and 
Alabama —  even if race continues to 
influence sentencing decisions in those 
states. We strongly urge the Court to 
grant certiorari to review the opinion of 
the Court of Appeals

CONCLUSION
The petition for certiorari should be 

granted.

Dated: June 28, 1985
Respectfully submitted,

HON. JOHN CONYERS, JR.
2313 Rayburn House Office Bldg.
Washington, D.C. 20515



*SETH P. WAXMAN
2555 M Street, N.W. 
Suite 500
Washington, D, C. 20037

ATTORNEYS FOR AMICUS CURIAE

By: _____ 
*Attorney of Record



CERTIFICATE OF SERVICE

I hereby certify that I am a member of 
the bar of this Court, and that I served 
the annexed Motion for Leave to File Brief 
Amicus Curiae and Brief Amicus Curiae on 
the parties by placing copies in the 
United States mail, first class mail, 
postage prepaid, addressed as follows:

John Charles Boger, Inc. 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, New York 10013
Mary Beth Westmoreland, Esq. 
132 State Judicial Bldg.
40 Capitol Square, S.W. 
Atlanta, Georgia 30334
Martin F. Richman, Esq. 
Barrett, Smith, Shapiro 

Simon & Armstrong 
26 Broadway
New York, New York 10014
Ralph G. Steinhardt, Esq. 
Patton, Boggs & Blow 
2550 M Street, N.W. 
Washington, D.C. 20037



Done this 28 th day of June, 1985.

Attorney for Amicus Curiae



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