General - Working Files, Vivian Berger's Vol. 2 of 4

    SUPREME CQURT THE UNITED STATE 

October Term, 1985 

  

WARREN McCLESKXEY, | 

Petitioner, 

-_ly  - 

RALPH M. XEMP, Superintendent, 

Georgia Diagnostic & Classification 

Center.- 

  

  

  

On Writ of Certicrari tc the United States 

Court of Appeals for the Zleventh Circulx 

BRIEF FOR PETITIONER 

JULIUS L. CEAMBERS 

JAMES M. NABRIT, Il 

* JOHN CHARLES Bo 

DEVAL L. PATRIC 

VIVIAN BERGER 

89 Eudscn Street 

New York, New York 10C13 

{212} 218-1300 

ROBERT B. STROUZ 

141 Walton Street 

Atlanta, Georgia 3C303 

MOTE? X. FORD 

800 Figngsr Building 

Seattl Washington ©8104 

ANTEONY G. AMSTERDAM 

New York University 

Scheel of Law 

40 Washington Square Scout 

New York, New York 1CCl2 

*Avrorney OF Record 
ATTORNEYS PCR PETITIONER 

 



  

QUESTIONS PRESENTED 
  

1. To make out a prima facie case 
  

under the Equal Protection Clause of the 

Fourteenth Amendment, must a condemned’ 

inmate alleging racial discrimination in 

2 State's application of its capital 

sentencing statutes present statistical 

evidence "so strong as to permit no 

inference other than that the results 

are a product of racially discriminatory 

intent or purpose?" 

2 Is proof of intent *o 

discriminate a necessary element of an 

Eighth Amendment claim that a State has 

applied i=s capital statutes in an 

bitrary, capricious and unequal 

manner? 

3. Must a condemned inmate present 

specific evidence that he was perscnally 

discriminated against in order to obtain 

either Eighth or Fourteenth Amendment 

relief on the grounds that he was 

i 

 



  

‘sentenced to die under a statutes 

administered in an arbitrary or racially 

discriminatory manner? 

4. Does a proven racial disparity 

in the imposition of capital sentences, 

reflecting a systematic bias against 

black defendants and those whose victims 

are white, offend the Eighth or 

Fourteenth Amendments irrespective of 

its magnitude? . ” 

Sie Does an average 20-point racial 

isparity in death-sentencing rates’ 

among that class of cases in which a 

death sentence is a serious possibility 

so undermine the evenhandedness of a 

capital sentencing system as to violate 

the Eighth or Fourteenth Amendment 

rights of a death-sentenced black 

inmate? 

 



  

  

QUESTIONS PRESENTED 

CITATIONS TO OPINIONS BELOW 

JURISDICTION 

CONSTITUTIONAL PROVISIONS INVOLVED 

STATEMENT OF THE CASE 

A. Course of Proceedings 

B. Petitioner's Evidence of 

Racial Discrimination: The 

Baldus Studies 

Cc. The Decisions Below 

SUMMARY OF ARGUMENT 

I. RACE IS AN INVIDIOUS AND 

UNCONSTITUTIONAL CONSIDERATICN II 

CAPITAL SENTENCING PROCEEDINGS 

A. The Equal Protection 

Clause Of The 

Fourteenth Amendment 

Forbids Racial 

Discrimination In The 

Administration Of 

Criminal Statutes 

B. The Eighth Amendment 
Prohibits Racial Bias 

In Capital Sentencing 

IT. THE COURT OF APPEALS 
FASHIONED UNPRECEDENTED STANDARDS 

QF PROOF WHICH FORECLOSE ALL 

MEANINGFUL REVIEW OF RACIAL 

31d 

2
 

ro
 

(9
) 

|)
 

iP
 

2
 

 



  

DISCRIMINATION IN CAPITAL 

SENTENCING PROCEEDINGS cE eage Bl Led B 

A. The Court of Appeals 

Ignored This Court's 

Decisions Delineating 

A Party's Prima Facile 

Burden Of Proof Under 

The Equal Protection 

Clause . ED. IRE 47 

  

B. The Court of Appeals 

Disregarded This 

Court's Teachings On 

The Proper Role Of 

Statistical Evidence 

In Proving Intentional 

Discrimination . . . . 84 

C. The Court Of Appeals 

Erroneously Held That 

Even Proven 

Patterns Of Racial 

Discrimination Will 

Not Violate The 
Constitution Unless 

Racial Disparities Are 

Cf Large Magnitude ... 7 ~J
 

D. The Court Of Appeals 

Erred in Demanding 

Proof of "Specific 

Intent TO ; 
Discriminate" As A 
Necessary Element Of 

An Eighth Amendment 

Claim «0 . 0 iwi ep wt DY 

III. THE COURT SHOULD EITHER GRANT 

PETITIONER RELIEF OR REMAND THE CASE 

TO THE COURT QF APPEALS FOR FURTHER 

CONSIDERATION UNDER APPROPRIATE LEGAL 

STANDARDS wv Wil, aiid iiteites od illo 04 

iv 

 



  

[
3
 

| 
n
d
 

O
 

CONCLUSION 

 



  

  
TABLE OF AUTHORITIES 

Cases : Pages 

Alabama v. Evans, 

£81 T.35..230 (1983) suevvnnninnves 95 

Alexander v. Louisiana, 405 U.S. 

625 CST) fy svn rv nssvrensvinsnn 47,48 

Avery v. Georgia, 345 U.S. 

BEG (1983), vce svinssienoiiense 78 

Ballew v. Georgia, ; 

4358 17.85..223 {1978) ccs svnnnevss 84 

Batson v. Kentucky, B.S. ’ 

S80 L.Bd., 24.89 

  

{1988 0. vedic ava 24,26,27,33,47.74% 

Bazemore v. Friday, U.S ; 

3106 S.0%. 3000 

{13BB) 4 oevinv es 27.20,84,73,75,28,108 

Briscoe vv. Lahue, 

480 U.S. 328 (1983) vse ngeisa vases 38 

Brown Vv. Board of Education, 

45 U.S. 483 (1984). vnc conn 32 

Castaneda v. Partida, 

430 U.85. 482 

{ 3922 vrs sina chien 27,49, 58,88 ,73,7°9 

Chapman v. California, 

3868 U.5. 18. (19687) vs iain arar sn 108 

Cleveland Bcard of Education v. 

LaFleur, 414 U.S. 632 (1974)...39,44 

vi 

 



  

Coble v. Hot Springs School District 

No.8, 882 F. 28 721 48th 

Cir. 1882Y. vr... AETV ELT oa 66 

Eastland v. TVA, 

M4 TF. 24 813 (11th Cir, 1983)... 66 

Eddings v. Oklahoma, 

488 U,.8. 104 [1982 . casein vivinss 93 

E20C v. Ball Corp... 

861 7. 2¢ 53% (8th Qirs 1981)... 68 

Furman v. Georgia, 

408 U.S. 238 

£1972) ues vic va vioies 24,81 ,43,97,3107 

Gardner v. Florida, 

430 U.S. 349 (1972). cr evs na 44,98,99 

General Building Contractors Ass'n, 

Inc. v. Pennsvlvania, 458 U.S. 

B78 {1983 vr sisrianasnsnsrnine vise 34 

Giglio v. United States, 

405 U.S. 180 {1972 sven evs naveeny 4 

Godfrey v. Georgia, 

4486 U.S. 420 

{3080 ) svn nissan enn 28.3%1,42,57,98 

Graves Vv. Barnes, 

408 U.S. 31201 (1972), cece ricss 95 

Gregg v. Georgia, 

428 U.S. 153 

LI978) van ns ni vin 28,40,42,537,59,589,98 

Hazelwcod School District v. United 

Skates, 433 U.S. 299 (1977) «cn. 85 

Ho Ah Xow v. Nunan, 12 Fed. Cas. 252 

(No. 6548) (C.C. D., Cal. 1878).. 34 

vii 

 



  

Hunter v. Underwecced, g.8. " 

85 LL. E&, 2d 222 

LLOBEY. vss senses a einbinre a 33,680,911 

Jones v. Georgia, 

380 U.S. 24 (1987) cvsisin cv vuinvininis 48 

Loving v. Virginia, 

388 U.S. 1:.{1887 us seen vvesening 35 

Lyons v. Oklahoma, 

323 U.S, 8596 (1944), vei vsis sain 108 

McClesky v. State, 245 Ga. 108, 2863 

S.E. 2d 14, cert. denied, 44° 

U.S. 8981 (1880). vivsrnsovnnsnnss 8 
  

McCleskey v. Zant, 

AB4 U.S... 3093 (1981). vienna rninnen (0
) 

McLaughlin v. Florida, 

: 379 U.S. 134 
L1OBAY . vi vvtipiv ss vma vs inn 34,35,38 

Mt. Healthy City Board of Educ. v. 

Doyle, 429 U.S. 274 (1877)...107,108 

Neal vv. Delaware, 100 U.S. 370 

{1B8l) evs snnsicncensirnsoidnsnss ids 49 

Nixon v. Herndon, 273 U.S. 5386 

{18272 avn n uns cinvisininin sina ola ois 33 

Papasan v. Allain, 5.5, ' 

108 S.C. 2932 (1986) + vain snivin 28,78 

Parker v. North Carclina, 

362 0.85, 790 H1970) cers voiminvisin nn 108 

Patton v. Mississippi, 

332 U.S. 483 {1947 ) vets sein nnsirs 76 

Personnel Administrator of 

Massachusetts v. Feeney, 

viii 

 



  

E1878) si canis vind Fe a we sieie ell 35,74 

Rhodes v. Chapman, 452 U.S. 337 

(3OBL) «vain ov tinin vein sowie sinielvutaeioiste 39 

"Roe v. Wade, 410 U.S. 113 

{3S73). ve ; 39,43 

Recgers v. Lodge, 458 U.S. 613 

(3882) ver ciswnins on dn adie Je ah ha 50,80 

{31979 ) 00s dren REA AN Sa rg 33 

Rozecki v. Gaughan, 

489 'F. 28 8 {18st Cir. 1972) .+.v ee. 99 

Segar v. Smith, 738 F. 24 1249 

(D.0.,. C3ir., 1984). uss vivnnee 66,78 

Skinner v. Oklahoma, 

318 0.8. 538 (1042) cvs sinrnesnnnvi 39 

Skipper v. South Carolina, 7.5, 

, 90 L. B84, 24.1 {1988)..4¢+4 104 

smith v. Texas, 311 U.S. 128 
Bn Lag ae os wil 32,45 

Spain v. Procunier, 600 F. 2d 189 

{9th Cir. 1978)... FP Eh RR SQ 

tanley v. Illinois, 

408 U.S. B48 (1372) viv des va vnws 39,44 

Strauder v. West Virginia, 

100 U.S. 303 (3380) cin nnin ini 34,41 

Sullivan v. Wainwright, 484 0.8. 108, 

LIOR ia ee ts nse vinta e sneer ale 3 

Teamsters v. United States, 
431 U.S. 324 (19770 vii sinnninnes 85 

ix 

 



  

Texas Dep't of Community Affairs v. 

Burdine, 450 U.S. 248 

(3S8L). ruts vi snainnes 29.,48,78,178 

Turner v. Murray, U.S. ; 

90 L. Bd, 24 .27 
{1088). cuvie vs nicsinv 24,33,568,78,103 

Vasquez v. Hillery, B.S. ..., 

88 L. BE&. 24 Bos 
{1988 ) os entin iiss nannsnn svoningrsish 24 

village of Arlington Heights v. 

Metropolitan Housing Development 

Corp.., 429 U.S. 232 

(1977) csr iiarinnnnnsrens 23,80,52,58 

i 

Vuyanich v. Republic National Bank, 

8508 F. Supp. 224 (N.D. Tex. 

1980) vacated on other grounacs, 

733 PF. 24 1198 (5th Cir.1984)... 88 
  

Wainwright v. Adams, 466 U.S. S64 

(3984). santa niviessinmiv ss tiv snio nny 93 

Wainwright v. Ford, 467 U.S. 1220 

(1984) cu nin tins sooinn vin ioe siWhy in own ¢3 

Washington v. Davis, 
428 U.8. 223 

{3928}. co vinnannininieie 27.,32,47,48.,74 

Wayte v. United States, 3.5, ; 

84 0. Bd. 24 847 (1988) ..0sr vrs 49 

Whitus v. Georgia, 385 U.S. 545 

{IOBZY cs rinnn vr ssdassnnnssnvsnhe 47,356 

 



  

Wilkins v. University of Houston, 

854 F. 284 388 (5zh:Cir. 1981), 

vacated and remanded on other 
  

  

grounds, 439 U.S. 809 (1¢82).... 66 

Wolfe vw. Georgia Ry. & Elec. Co., 

2 Ga. App. 499, ; 583 :S,E., 899 

(1807) i ive io seini svn sneisine, 61 

Wong Sun Vv. United States, 

83731 U.S. 471 11983): i siven va sieninis 103 

Yick Wo v. Hopkins, 

118 0.5, 386 (1886) cicero nsnnsy 33,38 

Zant v. Stephens, 462 U.S. 862 

{1983 vu ravin reins o olen ayy sity viene o 43,57 

Zant v. Stephens, 456 U.S. 410 

{1982) (per curiam)... ..oconvaivn 43 

Statutes 

28 3.8.0. 8 1284 {3} su vinir vide ogans 2 

28 U.8.0.. 8 224% (CT) (BY unvwpgsinvniss 1086 

Rule 408, FF. Rule Fvid....onsecevves 22 

Former Ga. Code Ann. § 27-2534.1 

{BYU cis ss carinii  amins ve iviavns 5 

Former Ga. Code Ann. § 27-2534.1 

LD LB) ce venn sine sivimndoiedeimtinein ss 3 

Other Authorities 
  

D. Baldus & J. Cola, Statistical 
  

xi 

 



  

Proof of Discriminaticn (1980).. 8 
  

Baldus, Pulaski & Woodworth, 

Arbitrariness and Discrimination 

in the Administration of the 

Death Penalty: A Challenge to State 

Supreme Courts, 15 Stetson L. 

Rev. 133 {1088) . vas vsnrsrvrsrins 8 

  

  

  

  

Baldus, Pulaski & Woodworth, 

Comparative Review of Death 

Sentences: An Empirical Studv of 

the Georgia Experiences, 74 J. 

Crim. Law & Criminology 661 

{1883 ) 4 ssc nine vomits is wiolaneiee 8 

  

  

  

Baldus, Pulaski, Woodworth & Kyle, 

Identifving Comparativelwy 

Excessive Sentences of Death: A , 

Quantitative Approach, 33 Stan. 

Le Rav. 1 (31977) ev ecravevovitions 8 

  

  

  

Baldus, Woodworth & Pulaski, 
Monitoring and Evaluating 

Contemporary Death Sentencing 

Systems: Lessons from Georgia, 

13 U.C. Davis L. Rev, 1375 

{ROBB ou sv rn nse sme vrs nts saghive ss 8 

  

  

  

Barnett, Some Distribution Patterns 

for the Georgia Death Sentence, 

13 U.C. Davis L. Rev, 1327 

{1888 4s ies vvnss sv vesisrsos va pwinas 51 

  

  

Bentele, The Death Penaltv in Georgia: 

Still Arbitrary, 61 Wash. U.L.Q. 

B73 131988) esse vivnssoe oa eee +e de 59 

  

  

Bowers & Pierce, Arbitrariness and 

Discrimination Under Post-Furman 

Capital Statutes, 26 Crime & 

Dealing. 863 (1980)... 004 vs sins sina 21 

  

  

  

Finkelstein, The Judicial Reception of 
  

wii 

 



  

Multiple Regression Studies in Race 

and Sex Discrimination Cases, 30 

Colum. L. Rav, 737 (1980) +. erins 66 

  

  

Fisher, Multiple Regression in Legal 

Proceedings, 30 Colum. L. Rev. 737 

{1080 ) wuss nsvintin divin Sie cin in aie in pee 66 

  

  

Gross, Race and Death: The Judicial 

Evaluation of Evidence cof 

Discrimination in Capital 

Sentencing, 18 J.C. Davis L. Rev. 

12378 (1988). vids vr vrais sin vnniny 81,90 

  

  

  

  

Gross & Mauro, Patterns of Death: 

Disparities in Capital Sentencing 

and Homicide Victimization, 37 

Stan. L. Rev. 27 (1988). .... 51 

  

  

  

H. Kalven & H. Zeisel, The American 

SUNY (1088). sane viv svat sie snirinnie 84 
  

B. Nakell & X. Hardy, 
The Arbitrariness of the Death 

Penalty, (1986) 

{Zon RhCoOmiTIO) cvs svvv ss vines vin vn vin 100 

  

Report of the Joint Committ=se on 

Reconstruction at the First 

Session, Thirtv-Ninth Congress, 

LABBB vi vie visa nny sim sian ieie 4 ninth S37 

  

  

  

Statement of Rep. Thaddeus Stevens, 

Cong. Globe, 3%th Cong., lst 

Sess. 2459 (1968); Accord, 

statement of Sen. Pollard, Cong. 

Globe, 38th Cong., lst Sess, 
2081 L313688) 4.0 vinsmans vais sonrnn 37 

Wolfgang & Riedel, Races, Judicial 

Discretion and the Death Penalty, 

407 Annals 119 (May 1973) ......5 51 

  

  

Wolfgang & Riedel, Race, Rape, and the 
  

ziil 

 



  

Death Penalty in Georgia, 485 Am. J. 

Orthopsychiat. 658 (1975)....... 51 
  

xiv 

 



  

No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

  

WARREN McCLESKLY, 

Petitioner, 

- A 

RALPH M. KEMP, Superintendent, 

Georgia Diagnostic & 
Classification Center. 

  

On Writ of Certiorari to the 

United States Court of Appeals for 

+he Eleventh Circuit 

  

BRIEF FOR PETITIONER 

  

CITATIONS TO OPINIONS BELGOW 

The opinion of the United States 

Court of Appeals for the Eleventh 

Circuit is reported at 753 F.24 8177 

{11th Ci, 1985) (en banc). The opinion 

of the United States District Court for 

the Northern District of Georgla is 

reported at 58C F. Supp. 338 (N.D. Ga. 

 



  

1984). 

JURISDICTION 

The judgment of the Court of Appeals 

was entered on January 29, 1985. A 

timely motion for rehearing was denied 

on March 26, 1983. The Court granted 

certicrari on Judy 7, 1386. The 

jurisdiction of this Court is invoked 

pursuant to 28 U.S.C. § 1284(1). 

CONSTITUTIONAL 
PROVISIONS INVOLVED 

This case involves the Eighth and 

the Fourteenth Amendments to the 

Constitution of the United States. 

STATEMENT OF THE CASE 

A. Course of Proceedings 

Petitioner Warren McCleskey 1s a 

young black man who was tried in the 

Superior Court of Fulton County, 

Georgia, for the murder of a white 

police officer, Frank Schlatt. The 

homicide occurred on May 13, 1978 during 

an armed robbery of the Dixie Furniture 

2 

 



  

Store in Atlanta. In a statement to 

police, petitioner admitted that he had 

been present during the robbery, but he 

denied that he had fired the shot that 

killed Officer Schlatt. (Tr, T. 483).% 

Petitioner was tried by 2. sjury 

comprised of eleven whites and one 

black. (Fed.Tr.1318). The State's case 

rested principally upon certain disputed 

forensic and other circumstantial 

evidence suggesting that petitioner may 

have fired the murder weapon, and upon 

  

1 Each reference vo the *yial 

transcript will be indicated Dy the 

abbreviation Hf». 2. and to the 

federal habeas corpus transcript, by the 

abbreviation "Fed.Tr." 

References to the Joint Appendix 

will be indicated by the abbreviation 

"J.A." and to the Supplemental Exhibits, 

by ns...” Petitioner's exhibits 

submitted to the District Court during 

the federal hearing were identified 

throughout the proceedings by the 

initials of the witness during whose 

testimony they were introduced, followed 

by an exhibit number. For example, the 

First  aexhibir introduced during the 

testimony of Professor David Baldus was 

designated "DB 1." 

 



  

purported confessions made to a co- 

defendant and to a cellmate, Offie 

Evans. 2 

  

2 The co-defendant, Ben Wright, had 

a possible personal motive to shift 

responsibility from himself to 

petitioner. Inmate Evans testified 

without any apparent self-interest that 

petitioner had boasted to im in the 

cell about shooting Officar Schlartrr. 

However, the District Court later found 

that Evans had concealed from 

petitioner's jury a detective's promise 

of favorable treatment concerning 

pending federal charges. Holding that 

this promise was "within the scope of 

Giglio [v. United States, 405 03.8. 1580 

{197231 .% {+J.A.188), the District Cours 

granted petitioner habeas corpus relief: 

"{G]iven the circumstantial nature of 

the evidence that McCleskey was the 

triggerman who killed Officer Schlatt 

  

and the damaging nature of ZEZvans' 

testimony as to this issue and the issue 

of malice . . . the jury may reascnably 

have reached a different verdict on the 

charge of malice murder had the promise 

of favorable treatment been disclosed.” 

{J.24.180). 

The Court of Appeals reversed, 

holding that the detective's promises to 

witness Evans were insufficiently 

substantial to require full disclosure 

under Giglio, and that any errors in 

concealing the promises were harmless. 

(JT.A.242-44). Five judges dissented, 

contending that Giglic had plainly been 

violated; four of the five also believed 

that the concealed promise was not 

4 

 



  

The jury convicted petiticner on all 

charges. Following the penalty phase, 

it returned a verdict finding two 

aggravating circumstances 2 and 

recommending a sentence of death. On 

October 12, 1978, the Superior Court 

imposed a death sentences for murder and 

life sentences for armed robbery. 

(J.A.112). After his convictions and 

sentences had been affirmed on direct 

  

appeal, McCleskyvy v. State, 243 Ga. 108, 

283 S.2.24 148, CarL, denied, 449 U.S. 
  

891 (1980), petitioner filed a petition 

for habeas - corpus in the Superior Court 

of Butts County, . alleging, inter ails, 
  

  

harmless. (J.A.287-89) (Godbold, Ch.J., 

dissenting in part); ig. at 2885; 

{(Rravitch, J., concurringl. 

3 The jury found that the murder 

had been committed during an armed 

robbery, former Ga. Code Ann. § 27- 

2534.1(b) (2) (current version 0.C.G.A. § 

17-310~30(b){2)), and that it had p=en 

committed against 2 police officer, 

Former Ga. Code Ann. § 27 

2534.1(b) (8) 

17-10-30(b) (38 

current version O0.C.G.A. § 

)) 

 



  

that he - had been condemned pursuant to 

capital statutes which were being 

"applied arbitrarily, capriciously and 

whimsically” in violation of the Eighth 

Amendment (State Habeas Petition, § 10), 

and in a "pattern . . . to discriminates 

intentionally and purposefully on 

grounds of race,” in viclation of the 

Equal Protection Clause. {Zd8, ¢ 113. 

The Superior Court denied relief on 

April 8, 1381. 

After unsuccessfully seeking review 

from the Supreme Court of Georgia and 

his Court, see McCleskey vv. Zant, 454 
  

U.S. 1093 (1981) (denying certiorari), 

petitioner filed a federal habeas corpus 

petition reasserting his claims of 

systemic racial discrimination and 

arbitrariness. (Fed. Habeas Pet. {9 45- 

850: 81-53). The District Court held an 

evidentiary hearing on these claims in 

August of 1983. 

 



  

The evidence presented by petitioner 

at the federal nearing is integrally 

related to the issues now on certiorari. 

In the next section, we will summarize 

that evidence briefly; fuller discussion 

will be included with the legal 

arguments as it becomes relevant.® 

B. Petitioner's Evidence of Racial 

Discrimination: The Baldus Studies 

Petitioner's principal witness at 

the federal habeas hearing was 

Professor David CC. Baldus, one of the 

nation's leading experts on the legal 

  

4 Discussion oF the research 

design of the Baldus studies appears at 

pp. 50-55 jinfra. Statistical methods 

used by Professor Baldus and his 

colleagues are described at pp. 66-71. 

The principal findings are reviewed at 

Pp. 80-89. 

A more detailed description of 

the research methodology of the Baldus 

studies -- including study design, 
questionnaire construction, data 

sources, data collection methods, and 

methods of statistical analysis -- can 

be found in Appendix E to the Petition 

for Certiorari, McCleskey v. Kemp, No. 

84-6811. 
  

 



  

use of statistical evidence. a 

Professor Baldus testified concerning 

two meticulous and comprehensive studies 

he had undertaken with Dr. George 

Woodworth 8 and Professor Charles 

  

5 professor Baldus is the  coO—- 

author of an authoritative text in the 

field, D.Baldus & J. Cole, Statistical 

Proof of Discrimination (1980), as well 

as a number of law review articles 

relevant to his testimony in this case. 

Baldus, Pulaski, Woodworth & Kyle, 

Identifving Comparativelvw Excessive 

Sentences of Death, 33 Stan. L. Rev. 601 

(1980); Baldus, Pulaski & Wcodworth, 

Comparative Review of Death Sentences: 

An Empirical Study of ‘the Georgia 

Experience, 74 J. Crim. Law & 

Criminology 661 (1983); Baldus, 

Woodworth & Pulaski, Monitering and 

Evaluating Contempcorary Death Sentencing 

Systems: Lessons From Georgia, 18 U.C. 

Davis L. Rev. 1374 (1985); Baldus, 

Pulaski & Woodworth, Arbitrariness and 

Discrimination in the Administration of 

the Death Penalty: A Challenge to State 

Supreme Courts, 15 Stetscn L. Rev. 133 

(1988). 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

& pr. Woodworth is Associate 
Professor of Statistics at the 

University of Iowa and the founder of 

Iowa's Statistical Consulting Center, 

(Fed.Tr.1203-04). He has consulted on 

statistical techniques for over eighty 

empirical studies (id. 1203-04) and has 

taught and written widely on statistical 

issues. (GW 1). 

 



  

Pulaski.’ Professor Baldus explained 

+hat he had undertaken the studies to 

examine Georgia's capital sentencing 

experience under its post-Furman 

statutes. The studies drew from a 

remarkable variety of official records 

on Georgia defendants convicted of 

murder and voluntary manslaughter, to 

which Professor Baldus obtained access 

through the secperation of the Georgia 

Supreme Court, the Georgia Board of 

  

7 professor Charles A. Pulaski, 

Jr., is Professor of Law at Arizona 

State University College OF Law, 

specializing in criminal procedure. 

Professor Pulaski did not testify during 

the federal hearing. 

Petitioner also presented expert 

testimony from Dr. Richard A. Berk, 

Professor of Sociology and Directer of 

the Social Process Research Institute at 

the University of California t Santa 

Barbara, and a nationally prominent 

expert on research methodology, 

especially in the area of criminal 

justice research. He was a member of 

the National Academy of ciences’ 

Committee on Sentencing Research. px. 

Berk gave testimony evaluating the 

appropriateness of Baldus' method and 

the significance of his findings. 

8 

 



  

Pardons and Paroles, and other state 

agencies. These records included not 

only trial transcripts and appellate 

briefs but also detailed parcle board 

records, prison files, police reports 

and other official documents. (8.2%. 43). 

Using a carefully tailored 

questionnaire, Professor Baldus gathered 

over five hundred items of information 

on each case concerning the defendant, 

the victim, the crime, the aggravating 

snc mitigating circumstances, and the 

strength of the evidence. In addition, 

the Baldus questionnaire required 

researchers to prepare a narrative 

summary to capture individual features 

cf each case. The full questionnaire 

appears as DB 38 in the Supplemental 

Exhibits. (S.EB, Teandi Empleyving 

generally accepted data collection 

methods at each step, Professor Baldus 

cross—-checked the accuracy of the data 

10 

 



  

both manually and by computer-aided 

systems. (Fed.Tr.585-616). 

Professor Baldus found that during 

the 1973-1979 period, 2484 murders and 

non-negligent manslaughters occurred in 

the State of Georgia. Approximately 

1665 of those involved black defendants; 

819 involved white defendants. Blacks 

were the victims of homicides in 

approximately 61 percent of the cases, 

whites in 39 percent. When Professor 

Baldus began to examine the State's 

subsequent charging and sentencing 

patterns, however, he found that the 

racial proportions were heavily 

inverted. Among the 128 cases in which 

a death sentence was imposed, 108 or 87% 

involved white victims. As exhibit DB 

62 demonstrates, white victim cases were 

nearly eleven times more likely to 
  

receive a sentence of death than were 

black victim cases. (S.E. 46). When the 

¢ 75 4 

 



  

cases were further subdivided by race of 

defendant, Processor Baldus discovered 

that 22 percent of black defendants in 

Georgia who murdered wiites were 

sentenced to death, while scarcely 3 

percent of white defendants who murdered 

4 blacks faced a capital sentence. (S. 

47). 

These unexplained racial disparities 

prompted Professors Baldus and Woodworth 

+o undertake an exhaustive statistical 

inquiry. They first defined hundreds of 

variables, each capturing a single 

feature of the cases.® Using various 

statistical models, each comprised of 

selected groups of different variables 

  

(see Fed. Te. 689-708), Baldus and 

Woodworth tested whether other 

8 For example, one variable might 

pe defined to reflect whether a case was 

characterized by the presence or absence 

of a statutory aggravating circumstance, 

such as the murder of a pclice victim. 

(See Fed.Tr.617-22). 

12 

 



  

characteristics of Georgia homicide 

cases might suffice to explain the 

racial disparities they had observed. 

Through the use of multiple regression 

analysis, Baldus and Woodworth were able 

to measure the independent impact of the 

racial factors while simultaneously 

taking into account or controlling for 

more than two hundred aggravating and 

mitigating factors, strength of evidence 

factors, and cther legitimate sentencing 

considerations. {Sea, 2.0., S.E, 51). 
  

Professors Baldus and Woodworth 

subjected the data to a wide variety of 

statistical procedures, including cross- 

tabular comparisons, weighted and 

unweighted least-squares regressicns, 

logistic regressions, index methods, 

cohort studies and other appropriate 

scientific tecnniques. Yet regardless 

of which of these analytical tools 

Baldus and Woodworth brought to bear, 

13 

 



  

race held firm as a prominent determiner 

of life or death. Race proved no less 

significant in determining the 

likelihood of a death sentence than 

aggravating circumstances such as 

whether the defendant had a prior murder 

conviction or whether he was the prime 

mover in the homicide. {S.E. 80). 

Indeed, Professor Baldus testified that 

his best statistical model, which 

"captured the essence of [the Georgia] 

system” (Fed.Tr.308), revealed that 

after taking into account most 

legitimate reasons for sentencing 

distinctions, the odds of receiving a 

death sentence were still more than 4.3 

times greater for those whose victims 

were white than for those whose victims 

were black. (Fed.Tr. 813; DB 82), 

Focusing directly on petitioner's case, 

Baldus and his colleagues estimated that 

for homicide cases "at Mr. McCleskey's 

14 

 



  

level of aggravation the average white 

victim case has approximately a twenty 

[20] percentage point higher risk of 

receiving a death sentence than. a 

similarly situated black victim case." 

(34. 1740).8 Professor Baldus also 

testified that black defendants whose 

victims were white were significantly 

more likely to receive death sentences 

than were white defendants, especially 

among cases of the general nature of 

  

® These figures represent a twenty 
percentage point, not a twenty percent, 

increase in the likelihood of death. 

Among those cases where the average 

death-sentencing rate is .24 or 24-in- 

100, the white-victim rate would be 

approximately .34 Or 34-in-100, the 

Black-victin rate, only .14, or l4-in- 

100. This means that the sentencing rate 
in white victim cases would be over 

  

  

twice as high (.34 vs. .1l4) as in black 

victim cases. Thus, on the average, 

among every 34 Georgia defendants 

sentenced to death at this level of 

aggravation for the murders of whites, 

20 would likely not have received a 

death sentence had their victims been 

black. 

15 

 



  

petitioner's. (Fed.Tr. 863-84). 

Professor Baldus demonstrated that 

nls "dual system" of capital sentencing 

was fully at work in Fulton County where 

petitioner had been tried and sentencad 

to death. Not only 434 county 

statistical patterns replicate the 

statewide trends, but several non- 

statistical comparisons of Fulton County 

cases further emphasized the importance 

of race. For example, among those 17 

defendants who had been charged with 

homicides of Fulton County police 

officers between 1973 and 1880, only 

one defendant other than petitioner had 

even received a penalty trial. In that 

case, where the victim was black, a life 

sentence was imposed. (Fed.Tr.1050-62). 

The State of Georgia produced little 

affirmative evidence to rebut 

petitioner's case. It offered n 

alternative model that might have 

16 

 



  

reduced or eliminated the racial 

variables. {Fad. Tr. 1809). te id not 

even propose, much less test the effect 

of, additional factors concerning 

Georgia crimes, defendants or victims, 

admitting that it did not know whether 

such factors "would have any effect or 

not.’ (1d. 1569). The State expressly 

declined Professor Baldus's cffer, 

during the hearing, to employ 

statistical procedures of the State's 

choice in order to calculate the effect 

of any factors the State might chcose to 

designate and toc see whether the racial 

effects might be eliminated. 10 

Instead, the State simply attacked 

  

10° The pistrict Court {id accep” 
Professor Baldus's invitation and 

designated a statistical model it 

believed would most accurately capture 

the forces at work in Georgia's capital 

sentencing systen. {Fed, Tr. 810; 1426; 

1475-76; 1800-03; Court's Exhibir 31), 

After analyzing this model, Professor 

Baldus reported that it did nothing to 

diminish the racial disparities. (See R. 
731-32), 

17 

 



  

the integrity of Professor Baldus's data 

sources (see Fed. Tr. 1380-1447), its 

own official records. It also presented 

one hypothesis, that the apparent racial 

disparities could be explained by the 

generally more aggravated nature cf 

white victim cases. The State's 

principal expert never tested that 

hypothesis by any accepted statistical 

techniques (id. 1760-61), although he 

admitted that such a test "would 

.[have been] desirable.” {I4. 1813). 

Professors Baldus and Wocdworth did test 

the hypothesis and testified 

conclusively on rebuttal that it could 

not explain the racial disparities. 

(Fed.Tr.1290-97; 1729-32; GW 5-8). 

C. The Decisions Below 

The Pistrict Court rejected 

petitioner's claims. T+ faulted 

petiticner's extraordinary data sources 

because they had "not captured] every 

18 

 



  

nuance of every issue.” (3.5. 138). The 

extensive Parcle Board records, the 

court complained, "present a 

retrospective view of the facts and 

circumstances ‘ x ‘ after all 

investigation is completed, after all 

pretrial preparation is made.” 

(J.A.146). Since such files, the court 

reasoned, did not reasive the precise 

quanta of information avaiable to each 

decision maker -- police, prosecutor, 

judge, jury -- at the exact moment when 

different decisions about the case were 

made, "the data base : . i is 

substantially flawed." {I&.) As a 

related matter, thé District Court 

insisted that all of Professor Baldus's 

statistical models of the Georgia system 

-—-- even those employing more than 230 

separate variables - wera 

"insufficiently predictive" since they 

did not include every conceivable 

19 

 



  

variable and could not predict every 

cise outcome. (J .3.147). 

The District Court ended its cpinion 

by rejecting the legal utility of such 

statistical methods altogether: 

[M]ultivariate analysis is ill 

suited to provide the court with 

circumstantial evidence of the 

presence of discrimination, and 

it is incapable of providing the 

court with measures of 

qualitative difference in 

treatment which are necessary to 

a finding that 2a prima facile 

case has been established \ 

To the extent that McCleskey 

contends that he was denied 

equal protection of the law, 

his methods fail to contribute 

anything of value to his cause. 

(J.A.168-63) (italics omitted). 

The majority of the Court of Appeals 

chose not to rest its decision on these 

findings by the District Court; instead 

it expressly "assum{ed] the validity of 

the research” and "that it proves what 

it claims to prova.," {T.A.246), Yar ths 

Court proceeded to announce novel 

standards of proof that foreclose any 

20 

 



  

meaningful review of racial claims like 

petitioner's. As its baseline, the 

Court held that statistical proof of 

racial disparities must be "sufficient 

to compel a conclusion that it results 

from discriminatory intent and purpose.” 

{J .A.2589) (emphasis added) . 

nis]tatistical evidence of racially 

disproportionate impact [must be] 

SO strong as to permit no inferences 

cther than that the results are the 

product of a racially discriminatory 

intent or purpcse.' '(J.A.250). The Court 

also announced that even unquestioned 

proof of racially discriminatory 

sentencing results would not suffice to 

make out an Equal Protection Clause 

viclation unless the racial disparities 

were of sufficient magnitude: "The key 

to the problem lies in the principle 

that the proof, no matter how strong, of 

some disparity is alone insufficient." 

 



  

{T.5.259). "In any discreticnary 

systen, some imprecision must oe 

tolerated,” the Court stated, and 

petitioner's proven racial disparities 

were "simply insufficient to suppcrt a 

PRling o.oo. oothat  raci’al factors are 

playing a role in the Sdtaine sufficient 

to render the system as a whole 

arbitrary and capricicus."” (J.A.268). 

Finally, the majority held that no 

Eighth Amendment challenge based upen 

race could succeed absent similar proof 

of purposeful State conduct. Although 

"cruel and unusual punishment cases do 

not normally focus on the intent of the 

government actor . ' . where racial 

discrimination is claimed . wioie TRISN 

purpose, intent and motive are a natural 

component of the proof" (J.A.287) and 

"proof of a disparate impact alone is 

insufficient .. ‘ ceslinnless TE 

compels a conclusion that . . . race is 

22 

 



  

intentionally being used as a factor in 

gsantancing.” (J.A.258). 

SUMMARY OF ARGUMENT 

The principal questions before the 

Court on certiorari involve intermediate 

issues of evidence and pracy. 

Fundamental constitutional values are 

nonetheless at the heart of this appeal. 

Our primary submission is that the lower 

Courts, by their treatment of 

petitioner's evidence, have effectively 

placed claims .of racial discrimination 

in the death penalty -- no mattsr how 

thoroughly proven -~- beyond effective 

judicial review. To appreciate the 

impact of the lower court's holding, it 

is necessary at the outset to recall the 

constitutional values at stake. 

This country has, for several 

decades, been engaged in a profound 

national struggle to rid its public lifs 

of the lingering influence of official, 

23 

 



  

state-sanctioned racial discrimination. 

The Court has been especially vigilant 

to prevent racial bias from weighing in 

the scales of criminal Justice. Sees, 

  

  

  

é.g., Batson Vv, Kentucky, Lag 90 

L.BA.24 89 (1986); Tarner vy, Muprray, 

Su.8, 480 JL.B4.24 0 27, 38. (1338); 

Vasquez Vv. Hillery, Lg.s. ., 1.88 

L.BE&.24 888 .{19886), A commitment 

against racial discrimination was among 

the concerns that Jed the Court to 

scrutinize  long-entrenched capital 

sentencing practices and to strike down 

statutes that permitted arbitrary or 

iscriminatory enforcement of the death 

penalty. See, e.g., Furman v. Georgia, 
  

408 U.S. 238.{1972). 

In 1976, reviewing Georgia's then 

new post-Furman capital statutes, the 

Court declined to assume that the 

revised sentencing procedures would 

inevitably fail in thelr purpcse to 

24 

 



  

eliminate "the arbitrariness and 

capriciousness condemned by Furman.” 

Gregg VV. Georgia, 428 U.S. 183, 195 
  

(1976) (opinion of Stewart, Powell & 

  

Svaans, J.3.). Accorg, id, at 220-28 

{opinion of White, J.); see also 
  

Godfrey wv. Georgia, 448 (.S.. 420, 42% 
  

(1980). It was appropriate at that time 

for the Court to clothe Georgia's new 

statutes with a strong presumption of 

constitutionality — to assume, 

"Talbsent facts to the contrary," Gregg 

vy, Gearaias, 428 0.8, at 225 (opinion of 
  

White, J.), that its statutes would le 

administered constitutionally: to reject 

"the naked assertion that the effort is 

pound +o fail." Td. at 222. Ysti the 

presumption extended to Georgia in 1976 

was not -- and under the Constitution 

could never have been -- an irrevocable 

license to carry out capital punishment 

arbitrarily and discriminatorily in 

25 

 



  

practice. 

Petitioner McCleskey has now 

presented congrehensiva evidences toc the 

lower courts that Georgia's post-Furman 

experiment has failed, and that its 

capital sentencing system continues to 

be haunted by widespread and substantial 

racial bias. 

faced with this overwhelming 

evidence, the Court. of Appeals took a 

wrong turn. It accorded Georgia's 

death-sentencing® statutes what amounts 

i {o an Strrebatiabls presumption of 

validity, one no capital defendant could 

ever overcome. It did so throuch a 

series of rulings that "placed on 

defendants a crippling burden of proof.” 

Batson v. Kentucky, 90 L.Ed. 248 at 83, 
  

Henceforth, a capital defendant, rather 

than proving a prima facie cases of 
  

discrimination by demonstrating the 

presence of substantial racial 

26 

 



  

disparities within a system "susceptible 

of abuse” -- thereby shifting the . 

burden of explanaticn tc the State, sae, 

e.g. Castaneda vv. Partida, 430 U.S. 
  

482, 494-495 (1977); Washingten v. 
  

Davis, 428 0.5. 229, 241 (1976); Batson 

v. Kentucky, supra -- must present proof 
  

so strong that it "permits no inference 
  

other than An racially discriminatory 

intent.” No ‘room is. left in this 

formulation for proof by ordinary fact- 

finding processes. Instead, a capital 

defendant must anticipates and exclude at 

the outset "every possible factor that 

might make a difference between crimes 

and defendants, exclusive o¢f race.” 

{3.3.28%). 

This new standard for proof of 

racial discrimination has no precsdent 

in the Court's teachings under the 

Equal Protection Clause; it is contrary 

to everything stated or implied in 

27 

 



  

Batson v. Kentucky, supra; Bazemore Vv. 
  

  

Friday, _ U.S.__, 106 S.Ct. 3000 (1986); 

Arlington Heights Y. Metropolitan 
  

Housing Development Corp., 429 U.S. 252 
  

(1877), and & host Of the Court's 

decisions expounding the principle of a 

prima facie case. 
  

Compounding the Court of Appeals’ 

new standard is the burden it imposed 

upon statistical modes of proof, which 

virtually forecloses any demonstration 

of discriminatory capital sentencing by 

maans of scientific evidence. To De 

sufficient, a statistical case nust 

address not only the recognized major 

sentencing determinants, but also a host 

of hypothetical factors, conjectured by 

the Court, whose systematic relation to 

demonstrated racial isparities is 

dubious to say the least. (See J.A.271). 

This cannot be the law, unless there 1s 

tc be a "death penalty exception" to the 

28 

 



  

Equal Protection Clause. Just last Tern, 

the Court unanimously held that such a 

restrictive judicial approach oO 

statistical evidence was unacceptable 

error. Bazemor=s v. Friday, 106 S.Ct. at 
  

13009. Sea also Texas Department of 
  

Community Affairs v. Burdine, 450 U.S. 
  

248,232 (1981). 

The Court of Appeals also concluded 

that even proven, persistent racial 

disparities in capital sentencing are 

constitutionally irrelevant unless their 

magnitude is great. This holding strays 

far from the Constitution and the 

record. The Equal Protection Clause 

protects individuals against a little 

state-sanctioned racial discrimination 

as well as a lot; the law does not 

permit a State to use the death penalty 

infrequently, or discriminate when it 

does, and defend by saying that this 

discrimination is rare. Only last Term, 

29 

 



  

in Papasan .yv. Allain, U.S. _., 106 
  

S.C%.. 29332 (1986), the Court Supress ly 

declined to apply "some sort of 

threshold level of effect . . . before 

the Equal Protection Cisnea's strictures 

become binding.” 

In any event, the Court of Appeals 

plainly misconceived the facts as much 

as the law on this issue. As we will 

show, one central £law pervading its 

decision was a serious misapprehension 

of the degree to which race played a 

part in Georgia's capital sentesncing 

system from 1973 through 18783. 

Finally, the court announced that, 

henceforth, in a capital case, precof of 

"purposeful discrimination will be a 

necessary component of any Eighth 

Amendment claim alleging racial 

discrimination.” Such a rule 

contradicts both precedent and 

principle. Under the Eighth Amendment, 

30 

 



  

this Court has held that it ls the 

State's obligation "to tailor and apply 

its laws in a manner that avoids the 

arbitrary and capricious infliction of 

  

the death penalty." Godfrey v. Georgia, 

446 U.S. 420, 428 (1980). The federal 

task in reviewing the administration of 

those laws "is not restricted to an 

effort to divine what motives impelled 

the[] death penalties," Furman VV. 
  

Gaoragia, 408 U.S. at 233 (Douglas, J., 
  

concurring), but, having ‘put fo one 

side" the issue of intentional 

discrimination, id. at 310 (Stewart, J., 

concurring), to discern whether death 

sentences are "beling] vie el ER kan Ty 

and .. . . ‘freakishly imposed.” Id. at 

312. 

Reduced to its essence, petitioner's 

submission to the Court is a simple one. 

Evidence ‘of racial discrimination that 

would amply suffice if the stakes were a 

31 

 



  

job promotion, or the selection of a 

jury, should not be disregarded when the 

stakes are life and death. Methods of 

proof and fact-finding accepted as 

necessary in every other area of law 

should not be jettisoned in this one. 

z. 

RACE IS AN INVIDIOUS AND UNCONSTITUTIONAL 

CONSIDERATION IN CAPITAL SENTENCING 

PROCEEDINGS 

A. The Equal Protection Clause Of 

The Fourteenth Amendment Forbids 

Racial Discrimination In The 

Administration Of Criminal Statutes 

In the past century, few judicial 

responsibilities have laid greater claim 

on the moral and intellectual energies 

of the Court than "the prevention of 

official conduct discriminating on the 

basis of race." Washington v. Davis, 
  

428 U.S. .at 239. The Court has striven 

to eliminate all forms of state- 

sanctioned discrimination, "whether 

accomplished ingeniously or 

ingenuously." Smith v. Texas, 311 U.S. 
  

32 

 



  

128, 132  {1940), It has forbidden 

discrimination required by statute, see, 

eid. , Brown Vv. Board of Education, 346 
  

U.S. 483 (1954); Nixon v. Herndon, 273 
  

U.S. 536 (1927), and has not hesitated 

to "look beyond the face of . . + ia] 

statute . ‘ . Where the procedures 

implementing a neutral statute operate 

JS on racial grounds.” Batson Vv. 
  

Kentucky, 80 L.Bd.28 at 82; Turner v. 
  

  

Fouch=, 398 U.S. 348 (1870); Yickk Wo v, 
  

Hopleins, 118 U.S, 388, 373-74 (1888), 

The Court has repeatedly emphasized 

that "the core of the Fourteenth 

Amendment is the prevention of 

meaningful and unjustified official 

distinctions based on race." Hunter v. 
  

Erickson, 393 U.S. 385, 381 {1969}. In 
  

the area of criminal Justics, where 

racial discrimination "strikes at the 

fundamental values of our Judicial 

system and our society as a whole," Rose 

33 

 



  

vy, Mitchell, 443 U.S. 345, 586 (187%), 
  

the Court has "consistently” articulated 

a "strong policy ‘ . of combating 

racial discrimination." Id. at 558. 

One of the most cbvious forms that 

such discrimination can take in the 

criminal law is a systematically unequal 

treatment of defendants based upon their 

  

race. See Mclaughlin v., Florida, 379 

U.S. 184, 180 n.s (1964), citing 

Strauder v. West Virginia, 100 U.S. 303, 
  

306-08 (1880); Ho Ah Kow wv. Nunan, 12 
  

Fed, Cas. 282 (No. 88483{C.C.D.0al. 

1879). Certainly, among the evils that 

ultimately prompted the enactment cf the 

Fourteenth Amendment and cognate post- 

Civil War federal legislation were state 

criminal statutes, including the 

infamous Black Codes, which prescribed 

harsher penalties for black persons than 

for whites. See General Building 
  

Contractors Ass'n., Inc. 7% 
  

34 

 



  

Pennsvlivania, 458 Us. 378, "385-87 
  

(1982) .11 In this case, Professor Baldus 

has reported that the Trace of the 

defendant ws especially when the 

defendant is black and the victim is 

white -- influences Georgia's capital 

sentencing process. The State of 

Georgia has disputed the truth of this 

claim, but has offered no constitutional 

defense if the claim is true. Georgia 

has never articulated, Qr . even 

  

11 The Court has accordingly 
insisted "that racial classifications, 

especially suspect in criminal statutes, 

be subjected to the ‘most rigid 

scrutiny! and, if they are ever to be 

upheld . ols be shown to be necessary 

to the accomplishment of some 

permissible state objective, independent 

of the racial discrimination which it 

  

  

was the object of the Fourtzenth 

Amendment to eliminate.” oying. vv. 

Virginia, 388 U.S. 1, 11 (1967). -Sg= 

also Personnel Administrator of 
  

Massachusetts vv. Feeney, 442 U.S. 256, 

293 11979); cf, Mciauchiin vy, Plorida, 

379 U.S. at 198 ("I cannot concaive of a 

valid legislative purpose under our 

Constitution for a state law which makes 

the color of a person's skin the test of 

whether his conduct is a criminal 

offense”) (Stewart, J., concurring). 

  

  

35 

 



  

suggested, any "permissible state 

interest” that would justify the 

disproportionate inglistion of capital 

punishment in a discriminatory fashion 

against black defendants. 

Nor has Georgia ~claimed any 

constituticnal warrant to exacuta 

murderers of white citizens at a greater 

rate than murderers of black citizens. 

The history of the Equal Protection 

Clause establishes that race-of-victim 

discrimination was a major concern of 

its Framers, just as Professor Baldus 

has now found that it is a major feature 

of Georgia's administration of the death 

penalty. Following the Civil War and 

immediately preceding the enactment of 

the Fourteenth Amendment, Southern 

authorities not only enacted statules 

+hat treated crimes committed against 

black victims more leniently, but 

frequently declined even to prosecute 

36 

 



  

persons Who committed criminal acts 

against blacks. When prosecutions did 

occur, authorities often acquitted or 

imposed disproportionately iight 

sentences on those guilty of crimes 

against black perscns. 12 

  

12 see, e.g., Report of the Joint 
Committee on Reconstruction, at the 

Pirst Session, Thirtv-Ninth Congress, 

Part II, at 25 (1866) (testimony of 

George Tucker, commonwealth 

attorney) (The southern people "have not 

any idea of prosecuting white men Bor 

offenses against colored people; they do 

not appreciate the idea."); id. at 20° 

(testimony of Lt. Col Dexter Clapp) ("Of 

the thousand cases of murder, robbery, 

and maltreatment of freedmen that have 

come before me, . . . . I have never yet 

known a single case in which the local 

. authorities or police or citizens made 

any attempt or exhibited any inclination 

to redress any of these wrongs or tO 

  

  

  

protect such persons."); id. at 213 

{cestimony of Lt. Col. J. Campbell) ; 

id., Part 1II1Y, at 141 (rtestinpony of 

Brevet M.J. Gen. Wagner Swayne) ("I have 

not known, after six months' residence 

ar the capital of the Stats, a single 

instance of a white man being convicted 

and hung [sic] or sent *o the 

penitentiary for crime against a negro, 

while many cases of crime warranting 

such punishment have been repcrted to 

me, R), id,, Parr 1V, at 75-26 (testimony 

of Maj. Gen. George Custer). 

37 

 



  

The congressional hearings and 

debates that led to enactment of the 

Fourteenth Amendment are replete with 

references to this pervasive race-of- 

victim discrimination; the Amendment and 

the enforcing legislation were intended, 

in substantial part, to stop it. As the 

Court recently concluded in Briscoe v. 
  

Lanne, 480 U.S. 328, 338 (1983), "[4ilt 

is clear from the legislative debates 

that, in the view of the . . . sponsors, 

the victims of Klan outrages were 

deprived of ‘'egual protection of the 

laws' if the perpetrators systematically 

went unpunished.” ee discussion in 

Petition for Ceasrtiorari, McCleskey vv. 
  

Zant, No. 84-8811, at 85.7, 
  

Even without reference +0 the 

Amendment's history, race-of-victim 

sentencing disparities violate long- 

recognized equal protection principles 

applicable to all forms of state action. 

38 

 



  

The Court has often held that wnenever 

either "fundamental rights" or "suspect 

classifications” are involved, state 

acticn "may be justified only by - a 

‘compelling state interest!’ . . .23Nng . 

.. . legislative enactments must be 

narrcwly drawn +n express only <he 

legitimate state interests at stzke.” 

Roe vv. Wade, 410 U.S. 113, 1553 {18723); 
  

see also Cleveland Board of r3vcation vv. 
  

LaFleur, 414 U.S. 632 (1974); tanlev 7. 
  

  

Tilinois, 4085 U.S. 845 (1972). 
  

k / 

Discrimination bv the race cf victim 

not only implicates a capital 

defendant's fundamental right to life, 

cf, Skinner v. Oklahoma, 3:18 7.8. 835%, 
  

541 (1942), but employs the paradigmatic 

suspect classification, that of race. rn 

  

McLaughlin v, Plorida, supra, the Courn 

examined a criminal statute which 

singled cut for separaxe presecuticn 

any black man who habitually occupied a 

39 

 



  

room at night with a white woman [or 

vice versa) without being married. The 

statute, in essence, prosecuted only 

those of one race whose cohabiting 

"victims" were of the other race. 

Finding no rational justification for 

this race-based incidence of the law, 

the Court struck down the statute. 

The discrimination proven. in the 

. present case cannot be defended arider 

any level of Fourteenth Amendment 

scrutiny. ‘Systematically treating 

killers of white victims more harshly 

than killers of black victims can have 

no constitutional justification. 13 This 

  

13 The Court identified in Gregg 
v. Georgia, 428 J.8. at 183-84 (1915), 

at least two "legitimate governmental 

cbjectives” for ‘the death penalty-- 

retribution and deterrence. The Court 

noted that the death penalty serves a 

retributive purpose as an "expression of 

society's moral outrage at particularly 

offensive conduct.” 428 "B.S. ar. 183. 

The race of the victim obviously has no 

place as a factor in society's 

expression of moral outrage. Similarly, 

if the death penalty is meant to deter 

  

40 

 



  

would set the seal of the state upon the 

proposition that the lives of white 

people are more highly valued than those 

of black people -- either an "assertion 

of [the] ik . inferiority" of blacks, 

Strauder v. West Virginia, 100 U.S. at 
  

308, or an irrational exercise of 

governmental power in its most extreme 

form. 

B. The Eighth Amendment Prohibits 

Racial Bias In Capital Sentencing 

Petitioner McCleskey has invoked the 

protection cf a second constituticnal 

9)
 

principle, drawn from the Eighth 

Amendment. One clear concern of both the 

concurring and dissenting Justices in 

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

was the possible discriminatory 

application of the death penalty at that 

time. Justice Douglas concluded that 

  

capital crime, it ought to deter such 

crime equally whether inflicted against 

black or against white citizens. 

41 

 



  

the capital statutes before him were 

"pregnant with discrimination,” 408 U.S. 

at 257, and thus ran directly counter to 

nthe desire for equality . . . reflected 

in the ban against 'cruel and unusual 

punishments' contained in" the Zighth 

Amendment." Fa. ax 255. Justice 

Stewart lamented that "if any basis can 

be discerned for the selection of these 

few sentenced to die, ‘it . Js the 

constitutionally impermissible basis of 

race."l4 These observations illuminate 

the holding of Furman, reaffirmed by the 
  

Court in Graco and subsequent cases, 

+hat the death penalty may "not be 

imposed under sentencing procedures that 

create[] a substantial risk that je 

[will] . : ’ ba inflictsd in an 

arbitrary and capricious manner." Gregg 

  

14 see id. at 364-56 (Marshall, 
J., ‘concarring); cf.o id. at 389 .n.l12 

(Burger, C.J., dissenting): id. at 4489- 

50 (Powell, Jr., dissenting). 

  

42 

 



  

7. Georgia, 428 U.S. at 188; Godfrey 7. 
  

  

Georgiz, $48 U.S. af 428: Zant: v. 
  

  

Stephens, 456 U.S. 410, 413 (1982) (per 
  

curiam). 

The Court itselr suggested 1n Zant 

v7. Stephens, 482 U.S. 852, 883% (i983), 
  

that if "Georgl attached the 

'aggravating'' label to factors that are 

constitutionally impermissible ov 

totally irrelevant to the sentencing 

process, such as . . . the race . . . of 

the defendant . . . due process of law 

would require that the jury's decision 

to impose death be set aside." This 

Eighth Amendment principle tracks the 

general constitutional rule that, where 

fundamental rights are at stake, 

"legislative enactments must be narrcwly 

drawn to express only the legitimate 

state interests at stake." Roe v. Wade, 
  

410 0.5. at 158, Legislative 

classifications that are unrelated to 

43 

 



  

any valid purpose of a statutes are 

arbitrary and viclative of the Due 

Process Clause. Cleveland Board of 
  

Education vv, LaFleur, 414 0.8. 632 
  

(1974); Stanlev vv, Illinois, 405 U.S. 
  

645 (1972). A legislative decision to 

inflict the wuniguely harsh penalty of 

death along the lines of such a 

irrational classification would be still 

more arbitrary under the heightened 

Eighth Amendment standards of Furman. 

CE, Gardner vv. Florida, 430. U.S. 349, 
  

337-83, 361 (1977) (plurality opinion); 

id. at 362-64 (opinion of White, J.). 

And nothing could be more arbitrary 

within the meaning of the Eighth 

Amendment than a reliance upon race in 

determining who should live and who 

should die. 

44 

 



  

ih 

THE COURT OF APPEALS FASHIONED 

UNPRECEDENTED STANDARDS OF PROOF WHICH 

FORECLOSE ALL MEANINGFUL REVIEW OF 

RACIAL DISCRIMINATION IN CAPITAL 

SENTENCING PROCEEDINGS 

The crucial errors of the Court of 

Appeals involve the "crippling burden of 

proof" it placed upeon petitioner and any 

future inmate who would seek the 

protections of the Federal Constitution 

against racial discrimination in capital 

sentencing. "fElqual protection tO 

all," the Court long ago observed, "must 

be given -- not merely promised." Smith 

v. Texas, 321 0.5. at 130, The opinion 
  

below was all promise, no gilve. T4 

held, in effect: You can escape being 

judged by the color of your skin, and by 

that of vour victim, if (but only if) 

you can survey and capture every 

ineffable quality of every potentially 

capital case, and if you then meet 

standards for statistical analysis that 

45 

 



  

are elsewhere not demanded and nowhere 

susceptible of attainment. 

Judged by these standards, the 

research of Professor Baldus-- 

described by Dr. Richard Berk as '"far 

and away the most complete and thorough 

analysis of sentencing that's ever been 

done" (Fed. Tr.1788) + ==. :i3 simply not 

good enough. Nor would any future 

studies be, absent evidence that 

apparently must "exclud(e] every 

possible factor that might make a 

difference between crimes and 

defendants, exclusive of race.” 

(J.2.281).: As. we shall demonstrate in 

the following subsections, these 

manifestly are not appropriate legal 

standards of proof. They depart 

radically idm the settled teachings of 

the Court. They have no justification 

in policy or legal principle, and they 

trivialize the importance of Professcr 

486 

 



  

Baldus's real and powerful racial 

findings. 

A. The Court of Appeals Ignored This 

Court's Decisions Delineating A Party's 

Prima Facie Burden Of Proof Under The 

Equal Protection Clause 
  

(i) The Controlling Precedents 

In Batson Vv. Kentucky, the Court 
  

recently outlined the appropriate order 

of proof under the Equal Protection 

Clause. "[I]ln any equal protection 

case, 'the burden is, of course,' on the 

defendant. . . 'to prove the existence 

of purposeful discrimination.' Whitus v. 

Georgia, 385 U.S, (848), at 8550 {1967} 

vat SC L.EQ. 2d at 85. "[ The 

defendant] may make out a prima facie 

case of purposeful discrimination by 

showing that the totality of relevant 

facts gives rise to an inferencs of 

discriminatory purpose." Washington v. 

Davis, [426 U.S.}] at 239-242." 

Once the defendant makes tae 

requisite showing, the burden 

shifts to the State to explain 

47 

 



  

adequately the racial exclusion. 

Alexander v. Louisiana, 405 U.S. 

[828], "at 832 [{1872})1; The 

State cannot meet this burden on 

mere general assertions that its 

officials did not discriminate 

or that they properly performed 

their duties. See Alexander v. 

Louisiana, supra, at 632; Jones 

v. Georgia, 2389 U.S. 24, 25 

(1967). Rather the State must 

demonstrate that "permissible 

racially neutral selection 

criteria and procedures have 

produced the . . . resulrc.” 

80 L.E4.2d4 85-86. 

The approach is Ta traditional 

  feature of the common law," Texas Dep't 

of Community Affairs vv. Burdine, 450 
  

U.S. at 285 n.8, which, in the context 

of discrimination litigation, requires a 

complainant to "eliminate{] the mos< 

common ncndiscriminatory reasons for the 

[observed facts]," id. at 254, and then 

places a burden on the alleged wrongdoer 

to show "a legitimate reason for" those 

facts, 14. at 258, thereby 

"progressively . . . sharpen{ing] the 

inquiry into the elusive factual 

48 

 



  

question of Sreene ithe discrimination.” 

id, at 25885 n.8.%3 

Although the initial showing of 

race-based Sits action required depends 

upon the nature —of the claim and the 

responsibilities of the state actors 

involved, Washington Vv. Davis, 426 U.S. 
  

at 253 (Stevens, J.; concurring), 

Castaneda v. Partida, 430 U.S. 482, 494- 
  

93 (1977); cf. Wayrte vv, United States, 
  

0.8, ,.. 84. "L.ER.24. B47, ‘586 n.l0 

(1988), the guiding principle is that 

courts must make "a sensitive inguiry 

into such circumstantial and direct 

  

13the roots of this approach run 

back at least as far as Neal v. 

Delawar=, 103 U.S. 370 (1881), where the 

Court refused to indulge a "violent 

presumption," offered by the State of 

Delaware to excuse the absence of black 

jurors, that "the black race in Delaware 

were utterly disqualified, by want of 

  

  

intelligence, experience or moral 

integrity to sit on juries.” 1030.8. 

at 397. Absent procf to support its 

contenticn, the State's unsupported 

assertion was held insufficient to rebut 
the prisoner's prima facie case. Id. 

  

49 

 



  

evidence of intent. as may be available.” 

Village of Arlington Heights . 
  

Metropolitan Housing Development Cormp., 
  

429 U.S. 282, 2688 (1977). Accord, 

Rogers Y. Lodge, 4583 U.S. 513, 618 
  

{1982). Among the most important 

factors identified by the Cour as 

probative have been (i) the racial 

impact of the challenged action, (ii) 

the existence of a system affording 

substantial state discretion, and (iii) 

a history of prior discrimination. 

(ii) Petitioner's Evidence 

The prima facie case presented by 
  

petitioner exceeds every standard ever 

announced by this Court for proof cof 

discrimination under the Equal 

Protection Clause. The centerpiece of 

the case, although not its only feature, 

is the work of Professor Baldus and his 

colleagues, who have examined in 

remarkable detail the workings of 

50 

 



  

Georgia's capital statutes during the 

First seven years of their 

administration, from 1973 through 1979. 

The Baldus studies are part of a body of 

scientific research conducted both 

before and after Furman that has 

consistently reported racial 

discrimination at work in Georgia's 

capital sentencing system. 16 Baldus's 

research reached the same conclusions as 

the earlier studies, but there the 

resemblance ends: his work is vastly 

more detailed and comprehensive than any 

  

18 See, Wolfgang & Riedel, Race, 

Judicial Discretion and the Death 
  

Penalty, 407 Annals 119 (1973); Wolfgang 

& Riedel, Race, Rape and the Death 
Penalty in Georgia, 45 Am. gh 

Orthopsychiat. 658 (1975); Bowers & 

Pierce, Arbitrariness and Discrimination 

Under Post-Furman Capital Statutes, 286 

  

  

  

  

  

  

Crime & Deling. 563 (1980) ; Gross & 

Mauro, Patterns of Death: An Analysis 
cf Racial Disparities in Capital 
  

Sentencing and Homicide Victimization, 

37 Stzn.. LL. "Rsv, 27 (1984); Barnett, 

Some Distribution Patterns for the 

Georgia Death Sentence, 18 U.C. Davis L. 

Rev. 1327 (1985). 

  

  

  

51 

 



  

prior sentencing study in Georgia or 

elsewhere. 

The Baldus dessarch actually 

comprised two overlapping studies: the 

first, a more limited examination of 

cases from 1973-1978 in which a murder 

conviction had been obtained at trial 

(Fad. Tr.170); the second, a wide- 

ranging study involving a sample of all 

cases from 1973 through 1979 in which 

defendants indicted for murder or 

voluntary manslaughter had veen 

convicted and sentenced to prison. (Id. 

263-65). Most of Baldus' findings in 

this case are reported from the second 

study. 

a. The Racial Disparities 

"he impact of the official action 

-- whether it 'bears more heavily on one 

race than another' . . . == provides] 

an important starting point." Arlington 
  

Heights, 429 U.S. at 268, Here, the 

52 

 



  

Baldus studies reveal substantial, 

unadjusted racial disparities: a death- 

sentencing rate nearly eleven times 
  

higher in white-victim cases than in 

black-victim cases. (Fed.Tr.730-33; S.E. 

46). Professor Baldus testified that 

these figures standing alone did not 

form the basis for his analysis, 

because they offered no control for 

potential legitimate explanations of the 

observed racial differences. (Fed. Tr. 

734). Professar Baldus thus began 

collecting data on every ncn-racial 

factor suggested as relevant by the 

literature, the case law, or acters in 

the criminal justice systen. His final 

questionnaires sought information on 

over 500 items related to each case 

studied, (Fed.Tr.278-82; S.E. 1-42). 

After collecting this vast 

storehouse of data, Professor Baldus and 

his colleagues conducted an exhaustive 

53 

 



  

series of analyses, involving the 

application of increasingly 

sophisticated statistical tools to 

scores of sentenaing models. The great 

virtue of the Baldus werk was the 

richness of his data sources and the 

extracrdinary thoroughness of his 

analysis. Throughout this research, 

Baldus and his colleagues forthrightly 

tested many alternative hypotheses and 

combinations of factors, in order to 

d6TerTine Wasther the initial observed 

racial disparities would diminish or 

disappear. (Fed.Tr.1082-83). Far from 

concealing their results from scrutiny, 

they exposed them to open and repeated 

inguiry by others, soliciting from the 

State and obtaining from the federal 

judge in this case an additional 

"sentencing model” which they then 

tested and reported. (Fed.Tr.810; 1426; 

1478-78) {(R. 731-82). 

S54 

 



  

The results of these analyses were 

uniform. 2gce~of-victin disparities not 

only persisted in analysis after 

analysis - at high levels of 

statistical significance -- but the race 

of the wvictim proved to be ancas the 

more influential determiners of capital 

sentencing in Georgia. Professors 

Baldus and Woodworth indicated that 

their most explanatory model of the 

Georgia system, which controlled - for 39 

legitimate factors, revealed that, on 

average, the murderers of white victims 

faced odds of a death sentence over 4.3 

times greater than those similarly 

situated whose victims were black. (See 

DB 82). Moreover, black defendants like 

petitioner McCleskey whose victims were 

white were especially likely to receive 

death sentences. 

b. The Opportunity for Discretion 

The strong racial disparities shown 

55 

 



  

by Professor Baldus arise -in a system 

affording state actors extremely broad 

discretion, one unusually "susceptible 

of abuse." Castaneda v. Partida, 430 
  

U.S. at 494. The existence of discretion 

is relevant because of “the opportunity 

for discrimination [it] . . . present(s] 

the State, if so minded, to discriminate 

  without ready datection.” AWRitus Vv. 

Georgia, 385 0.3. at 5852. The 

combination of strong racial disparities 

and a system characterized by jrole 

State discretion has Historically 

prompted the closest judicial scrutiny. 

Seg, @,3., Yick Wo v. Hopkins, 318 U.S. 
  

at 373-74. 

Post-Furman capital sentencing 

systems in general are characterized by 

a broad "range of discretion entrusted 

20 a Jury,” which affords "a unique 

opportunity for racial prejudice to 

operate but remain undetected.” Turner 

56 

 



  

vv. Murray, <0 L.Ed. 24 a+ 38, The 
  

Georgia system is particularly 

susceptible to such influences, since 

Georgia: (i) has only one degree of 

murder, Gregg v. Georgia, 428 10.8.7183, 
  

196 (1976); (ii) permits a prosecutor To 

accept a plea to a lesser offense, or to 

decline to submit a convicted murder 

case to a sentencing jury, even if 

statutory aggravating circumstances 

axist, id. at 1299; {iil) includes 

several statutory aggravating 

circumstances that are potentially 

vague and overbroad, id. at 200-02 (at 

least one of which has in fact been 

applied overbroadly, Godfrey v. Georgia, 
  

446 U.S. 420 (1980)); and (iv) allows a 

Georgia jury "an absolute discretion” in 

imposing sentence, unchecked by any 

facts or legal principles, once a single 

aggravating circumstance has been found. 

Zant  v. Stephens, 482 Q.S. 862, 871 
  

57 

 



  

(1983). 

" Petitioner presented specific 

evidence which strongly corroborated 

this general picture. The District 

Attorney for Fulton County, where 

petitioner was tried, acknowledged that 

capital cases in his jurisdiction were 

handled by a dozen Or more assistants. 

(Dep. 185, 45-43}. The office had no 

written or oral policies or guidelines 

to determine whether a capital case 

would be plea-bargained or brought to 

trial, or whether a case would move to a 

sentencing proceeding upon ceonvicticn. 

(Dep. 12-14, 20-22, 28, 34-38). The 

District Attorney admitted that his 

office did not always seek a sentencing 

trial even when substantial evidence of 

aggravating circumstances existed. (Dep. 

38-39). Indeed, he acknowledged that 

the process in his office for deciding 

whether to seek a death sentence was 

58 

 



  

"srobably . . . the same” as it had been 

in the pre-Furman period. (Dep. 59-81). 

These highly informal procedures are 

typical in Senge Georgia jurisdictions 

as well. See Bentele, The Death Penalty 
  

  
| in Georgia: Still Arbitrarv, 61 Wash. 

CC. L.Q. .813, 609-21 (1985) (examining 

charging and sentencing practices among 

Georgia prosecutors in the post-Furman 

period) .17 

c¢. The History of Discrimination 

Finally, "the historical background” 

of the State action under challenge "is 

  

17 This evidence is sufficient to 
overcome the constitutional presumption 

"that prosecutors will be motivated in 

their charging decisions [only by] : 

the strength of their case and the 

likelihood that a jury would impose the 
death penalty if it convicts." Gregg Vv. 

Georgia, 428 U.S, at 225, Profsssor 

Baldus performed a number of analyses on 

prosecutorial charging decisicns, both 

statewide (Fed.Tr.897-910; S.2. 3586-51), 

and in Fulton County (Fed Tr.878-81: 
S.E. 58-60), which demonstrate racial 

disparities in prosecutorial plea- 

bargaining practices. 

  

  

59 

 



  

one evidentiary source." Arlington 
  

Heights, 429 U.S. at 287. See generally 
  

  

  

Hunter v. Underwood, U.S.__, 85 L.Ed.2d 

222 (1985); Rogers vv. Lodge, 488 3.8. 

813 (1982). Petitioner supplemented 

his strong statistical case with 

references to the abundant history of 

racial discrimination that has plagued 

Georgia's past. Some of that history 

has been set forth in the petition for 

certiorari, and it will not be reviewed 

in detall in this brief. 

It suffices to note here that, for 

over a century, Georgia possessed a 

formal, dual system of crimes and 

penalties, which explicitly varied by 

the race of the defendant and that of 

the victim. (See Pet. for Certiorari, 

3-4). When de jure discrimination in 

Georgia's criminal law ended after the 

Civil War, it was quickly replacsd by a 

social system involving strict de jure 
  

60 

 



  

segregation of most areas of public 

life, with consequent rampant de facto 
  

discrimination against blacks in the 

criminal justice system.18 (Id., 8-11). 

™is Court and the lower federal courts 

have been compelled repeatedly to 

intervene in that system well into this 

century to enforce the basic 

constitutional rights of black citizens. 

(See cases cited in Pet. for Certiorari, 

in. 13. Unfortunately, the State's 

persistent racial bias has extendad to 

the administration of its capital 

statutes as well. 

*® x # *" 

In sum, petitioner presented the 

District Court with evidences of 

  

18 As a Georgia court held in 
1907: "[E]lgquality [between black and 

white citizens] does not, in Facer, 

exist, and never can. The God of nature 

made it otherwise and no human law can 

produce it and no tribunal enforce it." 

Wolfe v, Georgia Ry. & Elec, GCo., 2 Ga. 

App. 489, 88 S.E, 899, 803 (180%). 
  

61 

 



  

substantial racial discrimination in 

Ceorgints capital sentencing system, 

after controlling for hundreds of ncn- 

racial variables. He noted that this 

highly discretionary system was open to 

possible abuse, and he recited a long 

and ragic history of prior 

discrimination tainting the criminal 

justice system in general and the 

administration of capital punishment in 

particular. Nothing more should have 

been necessary to establish a prima 

facie case under this Court's settled 

precedents. 

(iii) The Opinion Below 

A Ba jority of the Court of Appeals 

found petitioner's evidentiary showing 

to be "insufficient to either require or 

szppont "a decision for petitioner." 

(J.A.248). The court in effect 

announced the abolition of the prima 

  

facie ‘standard, and required instead 

62 

 



  

that petitioner produce evidence "so 

great tat it compels a conclusion that 

the system is . . . arbitrary and 

capricious,” (7.A.253) and "so strong as 

to permit no inference other than that 

the results are the product of a 

racially discriminatory intent or 

purpose." (J.A.250). Petitioner failed 

this test, the court concluded, in part 

because his studies failed to take 

account of "‘'countless racially neutral 

variables, '" including 

looks, age, personality, 

education, profession, job, 

clothes, demeancr and remorse, 

just to name a few . . There 

are, in fact, no exact 

duplicates in capital crimes and 

capital defendants. 

{3.4.2731-2272). 

To meet the lower court's standard 

of proof, in other words, would have 

required petitioner to anticipate and 

control for factors the court frankly 

acknowledged to be "countless." Such a 

63 

 



  

standard seems squarely, irretrievably 

at odds with the whole notion of a prima 

facie case. If a petitioner's evidence 

must "compel a conclusion” of 

discriminatory intent -- if it must 

anticipate and dispel every conceivable 

nen-racial explanation --then the so- 

called "prima facie" «case is logically 
  

irrebuttable and required to be so. 

This insatiable demand for unspecified 

information is precisely what the Court 

condemned as error last Term in Bazemore 
  

  

v. Friday, 308 S.Ck. at 3009. 

(petitioner's’ evidence need nor 

include all measurable variables 

thought to have an effect on [the matter 

at issuel]"). It is no less error in this 

case. 

B. The Court of Appeals Disregarded 

This Court's Teachings On The Proper 

Role Of Statistical Evidence In 

Proving Intentional Discrimination 

(i) The Controlling Precedents 

Closely related to its repudiation 

54 

 



  

of the prima facie principle was the 
  

Cour~: of Appeals’ disparagement of 

statistical proof. Once again, the 

court's opinion clashed sharply with the 

pronouncements of this Court. B{0]ur 

cases make il unmistakably clear;” 

Justice Stewart wrote in Teamsters Vv. 
  

United States, 431 U.S, 324, '339 (1877), 
  

"that '[s]tatistical analyses have 

served and will continue to serve an 

important role' in cases in which the 

existence of discrimination is a 

disputed issue.” "Where gross 

statistical disparities can be shown, 

they alone may in a proper case 

constitute prima facie proof of a 

pattern or practice of discrimination.” 

Hazelwood School District v. United 
  

States, 433 0.8. 298, 307-08 (1977). 

See, e.g. Castaneda v. Partida, 430 U.S. 
  

482, 493-96 (1977). The statistical 

method chiefly relied upon by petitioner 

65 

 



  

McClesksy ——— multiple regression 

analysis -- was specifically discussed 

with approval by the Court in Bazemore 
  

v. Friday, 96 S.C%. at 3009, and has 
  

received wide acceptance in the lower 

courts. 19 

(ii) Petitioner's Evidence 

In the District Court, Profansors 

Baldus and Woodwerth explained in 

painstaking detail every major 

methodological issue they faced, how 

they addressed the issue, and how it 

  

19 ggg, 2.9., jlkins v. University 

of Houston, 654 F.2d 383, 402-03 (5th 

Cir. 1981), vacated and remanded on 

other grounds, 459 U.S. 809 (1882); EZ=0C 

¥. Ball corp., 881 F.2¢ 531 (8th Cir. 

1981): Coble vy. .- =a Springs Scheol 

District No. 6, 682 F.2d 721,731-32 (8th 

Cir. 1982); Eas*land .yv. 7TYA, 204 7,28 

B13 {i3=h Cir. 1983); Segar v. Smith, 

738 FP.28 at l12e3, 1278-79; Vuvanich v. 

Republic Nas!y Bank, supra. Son 

generally Finkelstein, The Judicial 

Reception of Multiple Regression Studies 

in Race and Sex Discrimination Cases, 80 

Colum. .W. Rev. 737 (1980); Fisher, 

Multiple Regression in Legal 

Proceedings, 80 Colum. L. Rev. 702 (1980). 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

66 

 



  

affected their findings. ‘See, e.qg., 
  

Fed. Tr. 883; 704-08; 713; 783;:820; 

917-18; 1222-24; 1279-82). In virtually 

every instance of significance, they 

conducted their analysis by alternative 

methods, and demonstrated that the 

choice of methods made no difference in 

the racial disparities. 

The Baldus studies drew accolades 

rom op) Richard Berk, who evaluated 

their quality and soundness in light of 

his prior comprehensive review of 

sentencing research as a member of a 

National Academy of Sciences panel: 

[Baldus' studies] halve] very 

high credibility, especially 

compared to the studies that 

{ the National Academy of 
Sciences] . . . reviewed. We 

reviewed hundreds of studies on 

sentencing . . + 83nd thera's no 

doubt that at this moment, this 

is far and away the most 

complete and thorough analysis 

of sentencing that's ever been 

dene. I mean there's nothing 
even close. 

{Fad . Tr. 1188). 

67 

 



  

Baldus and Woodworth conducted 

analyses with simple cross-tabular 

methods and with complex multivariate 

methods. {Te. 122-28; S.E. 47-49). 

They used "weighted” and "unweighted" 

data. {Fed.Tr.821~-26; S8.E. 68-69) . 

They used multiple regression models 

employing enormously large numbers of 

variables (230 or more) (Fed.Tr.802-04; 

S.E 51), and they ussd medium-sized and 

small models as well. {Fad .Pr.2773-82; 

S.E. 83). Professor Baldus selected 

variables by employing his legal and 

professional expertise sneering the 

factors most likely to influence capital 

sentencing decisions. (Tr. 808-09). Then 

he permitted a computer to refine his 

selection by. the use of "stepwise" 

regressions and other objective 

statistical means. (Fed.Tr.821-23). 

Professors Baldus and Woodworth 

conducted analyses on the variables as 

€3 

 



  

coded; then, when the State challenged 

those particular coding values, they 

recoded the variables and ran the 

analyses again,  (Fed.Tr.16877-1700). 

They employed acceptable statistical 

conventions to "impute" values in the 

small number of cases where some data 

were actually missing (Fed.Tr.1101- 

02), but they also performed "worst- 

case" analyses in which they adopted 

assumptions most contrary “a “thair 

theories and re-ran their analyses under 

such  aeumptions) {Fad .Tr,1101%1; 170%i~ 

071; 8,.E, 84-87). 

Dr. George Woodworth, petitioner's 

statistical expert, testified to the 

appropriateness of the major statistical 

conventions used in the studies. 

(Fad.Tr.12838). He also testified about 

a series of "diagnostic™ analyses he 

conducted to verify the statistical 

appropriateness of each procedure 

69 

 



  

selected. 20 (Fad. Tr.1251~658). 

Finally, indulging professional 

skepticism even as to the use of 

statistical methods, Professor Baldus 

conducted additional non-statistical, 

"qualitative" analyses in which he 

evaluated (a) all post-Furman Georgia 

cases with the Bin)i{21" or 

"contemporaneous felony” aggravating 

circumstance see DB 88);  {(b). =all 

capital cases arising in Fulton County 

(Fed.Tr.842-45; see DB 109); and {c) all 

Fulton County cases involving police 

officer victims. (Fed.Tr.1081~-55; S.E. 

81-83). He evaluated those cases 

through recognized scientific means, 

comparing the qualitative features and 

facts of each case to ascertain whether 

racial factors continued to play a 

  

20 pr. Richard Berk confirmed 

during his testimony that the methods 

employed by Baldus and Woodworth were 

statistically appropriate. {Fad, Tr. 

1788; 1734-88). 

70 

 



  

role. They. did. (Ted.Tr.864-83; +393 

1055-56). 

It is difficult *o imagine 3 more 

wide-ranging and searching series of 

statistical and non-statistical 

analyses. The results were not only 

internally consistent; they were 

essentially consistent with all other 

research that has been conducted on 

Georgia's post-Furman capital system. 

(iii) The Opinion Below 

The Court of Appeals treated 

statistical evidence as going to two 

distinct points, and ended by dismissing 

its utility for either purpose. The 

majority . first held that statistical, 

studies can never prove discrimination 

against an individual defendant.2l This 

  

21 The Court of Appeals states this 

proposition in varying forms: 

"[Gleneralized statistical studies are 

of "little use in deciding whether a 

particular defendant has been 

unconstitutionally sentenced to death.” 

(J.A.260). "No single petitioner could, 

11 

 



  

thesis appears to rest in part upon the 

uncbjectionable premise that statistics, 

dealing as they do with probabilities 

and averages, cannot purport to speak 

directly to the events in any particular 

case. Where it goes wrong is in denying 

that specific events can and often must 

be proved indirectly, by Iinfersnces 

drawn from probabilities. ?22 I% is 

unclear why the majority was unwilling 

to permit recourse to ordinary fact- 

finding procedures for proof of of 

racially discrimination in capital 

sentencing. I may be unwarranted 

skepticism regarding the probative power 

  

on the basis of these statistics alone, 

establish that he received the death 

sentence because, and only because, his 

victim was white." {J.4.287}. "The 

statistics alone are insufficient to 

show that McCleskey's sentence was 

determined by the race of his victim, or 

even that the race of his victim 

contributed to the imposition of the 

penalty in his case." (J.A.270). 

22 cf. Fed. Rule Evid. 406. 

22 

 



  

of statistics "[w]lhere intent and 

motivation must be proved." (J.A.250). 

Cf. Castaneda v,., Partids, 430 U.S. at 
  

495-97 & ®.17 (finding statistical 

evidence sufficient: to make out a prima 

facie case of intentional racial 

discrimination). Or it may reflect the 

improvident burden of prcof anncunced by 

the Court of Appeals in capital cases, 

under which a condemned inmate must 

present evidence "so strong as to permit 

no inference other than that . . . of a 

racially discriminatory intent or 

purpose" (J.A.250 }.. "Bither way, thes 

result is incorrect and reversible. For 

the proper rule, of course, is that "as 

long as the court may fairly conclude, 

in the light of all the evidencs, that 

it is more likely than not that 

impermissible discrimination exists, the 

[claimant] ; . : is entitled to 

prevail.” Bazemore Va. Friday, 10s 
  

73 

 



  

~S.Ct.at 30089. 

The Court of Appeals took a somewhat 

different tack regarding the bearing of 

statistical evidence on the second issue 

it perceived -- whether there was 

discrimination in "the system” as 

distinguished from discrimination aimed 

at "a particular defendant." (J.A.260). 

The majority tacitly concaded, as 

precedent requires, that statistical 

evidence might suffice in principle to 

compel an inference of system-wide. 

discrimination. ?23 (J.A.260-61). Yet 

the Court immediately faultad any 

  

23 nrpjiscriminatory impact 3 
may for all practical purposas 
demonstrate unconstitutionality [where] 

: the discrimination is very 

AifEiocnlr to explain on nonracial 

grounds." Washington v. Davis, 426 U.S. 

at 242. Accord: Batson Vv. Esnartucikxy, 20 

L.Ed.24 ar 28, See also Personnel 
Administrator of Massachusatts Ya 

Feeney, 442 U.S. 286, 278 (197%) {(rhiiif 

the impact of this statute could not 

plausibly be explained on a neutral 

ground, impact itself would signal that 

the real classification made by the law 

was in fact not neutral.) 

  

  

  

  

74 

 



  

systemwide statistical study that did 

not take into account "every possible 

factor," 2.g., 2sach of the "'countless 

racially neutral variables'" that 1t 

hypothesized must exist. {J .A:.261) 1% 

faulted even Professor Baldus's largest 

statistical models for this failure, and 

concluded that "[tlhe type of research 

submitted here . . . is of restricted 

use in showing what undirected factors 

control" Georgia's capital sentencing 

SYsten. {J.A.372). 

A prima facie statistical case has 
  

never been supposed to require the 

anticipatory negation of "every possible 

factor” that might explain away an 

apparent pattern of discrimination. 

Accounting for "the most common 

nendiscriminatory” factors is 

sufficient. Texas Dept't of Community 
  

Affairs v. Burdine, 480 0.8. at 254; 
  

see, e.g., Bazemore v. Friday, 106 S.Ct. 
  

75 

 



  

at 3009. Here, petitioner not only 

demonstrated substantial racial 

disparities; he then voluntarily 

assumed, and amply met, the burden of 

discounting every plausible non-racial 

explanation ever suggested. At that 

point, if not earlier, he met his prima 

facie burden.?24 

  

  

  

  

  

24 Having done so, n'{i1f there 

[was] . LT a Yysouum? ie Iwas] 0lii 4 

one which the State [had to] . . . fill, 

by moving in with sufficient evidence to 

dispel the prima facie case of 

discrimination. '" Turner v. Fouche, 396 

U.S. at 38), guoting Avery v. Georgia, 

348 00.5. 889, 342 (1983). See also 

Patton Vv. Mississippi, 332 U.S. 463, 

468-69 (1947). To do sc, the State was 

obligated to "make a 'clear and 

reasonably specific showing,' based on 

admissible evidence, that [an] alleged 

nondiscriminatory explanation in fact 

explains the disparity.” Segar Vv. 
  

Smith, 738 PFP.24 at 1288, guoting Texas 

Dep't of Community Affairs wv. Burdine, 
  

  

480 U.S. at 283-885, The State of 

Georgia never identified such a factor, 

much less made a "clear and reasonably 

specific showing” of its impact con 

Georgia's racial disparities. 

786 

 



  

C. The Court O0f ‘Appeals ZErronecusly 

Held That Even Proven Patterns Of Racial 

Discrimination Will Not Violate The 

Constitution Unless Racial Disparities 

Are Of Large Magnitude : 

The Court of Appeals committed two 

egregious errors -- one ‘legal and the 

other factual -- in its treatment of 

petitioner's racial results. First, it 

held that the Equal Protection Clause 

prohibits discriminatory state conduct 

only if such conduct is of "substantial" 

magni tude. Secondly, it found 

petitioner's racial disparities to be 

"marginal.” 

Yet the Fourteenth Amendment 

prohibits every instance of state- 

sanctioned discrimination, irrespective 

of its magnitude. And petitioner's 

racial findings are in fact guifte 

substantial in magnitude: race ranks 

among the factors, whether legitimate or 

illegitimate, that exert the largest 

influence on Georgia's capital 

fied 

 



  

sentencing system. 

(i) The Controlling Precedent 

The Equal Protection Clause does not 

admit of partial performance. A State 

engaged in discrimination on the basis 

of race must cease its unconstitutional 

conduct altogether. This principle was 

confirmed last Term in Papasan V. 
  

Allain, supra. Responding to an argument 
  

that the Equal’ Protection Clause was not 

implicated in that case because school 

funds at issue there were nian 

insignificant part of the total payments 

from all sources made to Mississippi's 

gchool districts, '" 108 S.Ct. aft 2951~- 

33, the Court expressly "decline{d] to 

append to the general requirements of an 

equal protection cause of action an 

additional threshold effects 

requirement." Id. at 2946 n.l7. 

The same principle emerges 

inferentially from Bazsmore vv. Friday, 
  

73 

 



  

which involved a dispute over a 

disparity of $331 in .the average yearly 

wages of black and white employees-- 

less than 3% of the wage for white 

workers. The lesson of Bazemore 1s 
  

piain: if blacks prove that they 

regularly receive only 95 cents on the 

dollar from a State agency, the State 

cannot defend on the ground that a 

nickel is de minimus.?23 
  

  

25 The Court's jury discrimination 
cases are no exception to this rule. 

The Court's tolerance of J ainor 

differentials in racial representation 

between the jury-eligible populations 

and the representation on grand or petit 

jury lists reflects not constitutional 

indifference toward small acts of 

discrimination, but a recognition of the 

statistical properties of random 

selection: small differences can 

sometimes be attributed to chance. See 

Castaneda v, Partids, 430 U.S. at 498 

B%.37, "The idea behind the rule of 

exclusion is not at all complex. 3% a 

disparity is sufficiently large, then it 

is unlikely that it is due solely to 

  

chance or accident , . . ." Id. at 494 

n.1i13. In this 'case that problem is 

absent. Petitioner has amply proven 

that the racial disparities found here 

are statistically significant and were 

not chance findings. 

28 

 



  

(ii) Petitioner's Evidence 

The extraordinary array of 

alternative analyses conducted by 

Professor Baldus vielded, naturally 

enough, an extraordinary array of 

statistical and nonstatistical results- 

- virtually all showing racial 

disparities. Professor Baldus testified 

that the most meaningful summary 

indicators of the magnitude of .the 

racial factors found were the "death 

odds-multipliers” that he Salciiated 

using logistic regression analysis, a 

particularly appropriate statistical 

method for the data at issue in this 

case since the overall rate of death 

sentencing is quite low. (See Fed. Tr. 

1230-34). The odds-multiplier for the 

race-of-victim factor under the best 

statistical model was 4.3, meaning that, 

on average, a Georgia defendant's odds 

of receiving a death sentence were ¢.3 

80 

 



  

. times greater if his victim was white 

than if the victim was black. As 

Professor Gross has observed: 

It might be useful . . . to put 
these numbers in perspective. 

Coronary heart disease, 1t is 

well known, is associated with 

cigarette smoking. But what is 

the magnitude of the effect? 

.[Clontrolling for age, smokers 

were 1.7 times more likely to 

die of coronary artery disease 

than nonsmokers. luisimoking 

cigarettes increases the risk of 

death from heart disease 

greatly, but by a considerably 

smaller amount than the race-of- 
victim effect that the Eleventh 

Circuit dismisses as marginal.?2S 

The Tables and Figures in the 

Supplemental Exhibits are exemplary of 

additional evidence presented in the 

District Court on the magnitude of the 

racial disparity. One of Professor 

Baldus' most important findings was that 

the impact of the racial factors varies 

  

2%Gross, Race and Death: The 

Judicial Evaluation cof Evidence of 

Discrimination in Capital Sentencing, 138 

U:2. Davis L. Rsv, 127258, 1307 (198%). 

  

  

  

81 

 



  

with the seriousness cf the cases: 

Race is a factor in the system 

only where there is room for 

discretion, that is, where the 

decision maker has a viable 

choice. In a large number of 

cases, race has no effect. 

These are the cases where the 

facts are so mitigated the death 

penalty is not even considered 

as a possible punishment. At 

the other end of the spectrum 

are the tremendously aggravated 

murder cases where the defendant 

—. will very probably recsive the 

death penalty, regardless of his 

race or the race of the victim. 

In between is the mid-range .of 

cases where there is an 

approximately 20% racial 

disparity. 

{J .2.315) (Clark, J., dissanting in 

part.) Professor Baldus prepared two 

tables, employing an "index method,” 

that demonstrate this impact among more 

than 450 of the most aggravated Georgia 

cases. (Fed.Tr.880-83). In the tables, 

cne of which appears in the Supplemental 

Exhibits at 54, the cases were arrayed 

into eight groups according to their 

level of seriousness, with the least 

aggravated cases in group 1 and the most 

82 

 



  

aggravated in group 8. The  dsath- 

sentencing rates were then calculated 

and reported for each gTouD, In the 

first two groups, no one was sentenced 

to death and consequently ne racial 

disparities appear. Once death sentences 

begin toc be imposed, however, in groups 

3 through 3, a gap quickly opens between 

the death-sentencing rates in white- 

victim cases and in black-victim cases, 

with the white-victim cases showing a 

consistently higher incidence of capital 

sentences. 27 A similar pattern of 

  

27pr, Woodworth constructed a 

number of figures %o captures this 

pattern visually. One of them, GW 8, 

appears in the Supplemental Exhibits at 

page 72. In GW 8, the horizontal axis 

moving toward the right reflects 

increasingly more aggravated groups of 

cases. The vertical line represents the 

percentage increase in the likelihood of 

a death sentence. As GW 8 makes clear, 

once cases become sufficiently 

aggravated so that juries begin imposing 

death sentences, the death-sentencing 

rate rises more sharply among white- 

victim cases than among black-victim 

cases. Thus, at any particular level of 

aggravation (until the two bands finally 

83 

 



disparities measured by race gf the 

defendant among all white-victim cases, 
  

is reflected in DB 91 (Fed.Tr.835-86). 

Professor Baldus observed: 

[Wlhen you look at the cases in 

the mid-range, where the 

facts do not call clearly for 

one choice or another, that's 

where you see there's room for 

the exercise of discretion ' 

the facts liberate the decision 

maker to have a broader freedom 

for the exercise of discretion, 

and it is in the context of 

those decisions that you see the 

effects of . va tabitrary Or 

possibly impermissible factors. 

(Fed.Tr.844). 28 

De, Woodworth testified without 

contradiction that petitioner 

McCleskey's own crime fell into the 

  

converge at the upper levels of 

aggravation), a significantly higher 

percentage of white-victim cases receive 

death sentences. 

28 These findings support the 

"liberation hypothesis” advanced by 

Professors Harry Kalven and Hans Zeisel 

in their influential work, The American 

Jury 184-87 {1068). See generally 

Ballew v. Georgia, 4383 U.S. 223, 2371-38 

{1878}, 

  

  

   



  

middle of the midrange of moderately 

aggravated cases. After reviewing the 

results of three separate statistical 

techniques, Dr. Woodworth concluded: 

[A]t Mr. McCleskey's level of 

aggravation the average white 

victim case has approximately a 

twenty [20] percentage point 

higher risk of receiving the 

death sentence than a similarly 

situated black victim case. 

(Fed.Tr.1740). 

However, Professor Baldus also 

testified concerning the average impact 
  

of the racial factors across all of the 

cases. The Court of Appeals focused 

upon one regression coefficient?® 

  

29 The regression coefficient, as 

petitioner's experts explained, measures 

the average effect of a particular 

factor on the outcome of a multiple 

regression analysis, arter controlling 

for the cumulative impact of all of the 

other factors considered. For example, 

2 coefficient of .06 for the race-of- 

victim factor in a multiple regression 

analysis measuring the death-sentencs 

cutcome means that, independently of 

every other factor considered, the race 

of the victim wculd increase the average 

likelihood of a death sentence by six 

percentage points. (Fed. Tr. 691-94). 

88 

 



  

reported in DB 83, which was derived 

from an analysis employing 8 230~ 

variable model. That coefficient, .08, 

indicates that when the race of the 

“victim was white, the probability of a 

death sentence increased by 6-1n-100. 

Petitioner offered additional 

evidence, some of it statistical and 

some non-statistical, to identify more 

precisely the likely impact of Georgia's 

pervasive racial disparities on 

petitioner McCleskey's case. Firsy, 

Baldus reported upon his analysis of 

data from Fulton County, where 

petitioner was tried. He testified that 

his performance of progressively more 

sophisticated analyses for Fulton 

  

The number in parentheses in DB 83 under 

the .06 coefficient "(.02)" reflects the 

statistical significance of the 

coefficient, It indicates that the 

likelihood that this result would have 

occurred by chance ig no racial 

disparities in fact existed is less than 

2 per cant. 

86 

 



  

County, similar to those he had employed 

statewide, "show a clear pattern of race 

cf victim disparities in death 

sentencing rates among the cases which 

our analyses suggested were death 

eligible." (Fed.Tr.983; 1043-44). 

To supplement this statistical 

picture, Baldus examined a “cohort” of 

17 Fulton County defendants arrested and 

charged, as was petitioner, with 

homicide of a police officer during the 

1973-1979 period. Only two among the 

seventeen, Baldus found, even faced a 

penalty trial. One, whose peclice victim 

was black, received a life sentence. 

({(Fed.Tr.1050-82; S.2. 61-63). 

Petitioner, whose police victim was 

white, received a death sentence. 

Although the small numbers require 

caution, "the principal conclusion that 

one is left with," Baldus testified, "is 

that . . . this death sentence that was 

87 

 



  

imposed in McCleskey's case is not 

consistent with the disposition of cases 

involving police officer victims in this 

county." (Fed.Tr.1056). 

Professor Baldus devised one 

additional measure of the magnitude of 

the influence of the racial factors. He 

first computed the regression 

coefficients for those factors and for 

other important aggravating and 

mitigating factors. Then he rank- 

ordered then. As DB 81 demonstrates 

(S.E. 50), the race of the victim in 

Georgia exerts as much influence on the 

sentence outcome as whether the 

defendant had a prior murder conviction. 

It is more important in determining life 

or death than the: fact "that the 

defendant was the prime mover in the 

homicide, or that he admitted guilt and 

asserted no defense. This measurement 

reveals the power of race at work in the 

88 

 



  

Georgia death penalty system. Quite 

simply: its effects are of the same 

magnitude as those of statutory 

aggravating factors identified by the 

Georgia legislature as "prerequisite(s] 

to the imposition of the death penalty." 

Gregg Vv. Georgia, 428 U.S. at 198. 
  

(iii) The Opinion Below 
  

The Court of Appeals centered its 

attention on two statistics drawn from 

the Baldus studies: (i) the © 

percentage point average disparity in 

death-sentencing rates between all 

white-victim and all black-victim 

homicide cases; and (ii) the 

corresponding 20 percentage point 

disparity within the subgroup of 

moderately aggravated cases that 

included petitioner McCleskey's. 

Toward the six percentage point 

figure, the court displayed equal 

measures of incomprehension, skepticism 

89 

 



  

and toleration. The court's 

incomprehension is reflected in its 

repeated : characterization of the 

significance of the figure as "marginal" 

(S.2.273) or "insufficient," (T.A.288). 

This is a serious error. As one 

commentator has noted, although 

[i]t sounds right when the court 

describes the 8% disparity’ 

found by Baldus as a 'marginal 

difference (iln fact ir is 

nothing of the sort. Although 

the court seems to have missed 

the point entirely, this 

disparity actually means that 

defendants in white-victim cases 

are several times more likely to 

receive death sentences than 

defendants in black-victim 

cases. 

Gross, supra, 283. 0.0, Davis L. Rev. at 

1298. What the court apparently did not 

appreciate is (a) that  =his  figurs 

represents an average race-of-victim 

disparity of 6 percentage points, not § 
  

percent, and (vb) that the 6 percentage 

point average disparity occurs across an. 

entire system in which overall death- 

90 

 



  

sentencing rates are only five per cent. 

(See Fed. Ty, 634; S28, 48). 

Consequently, if the death-sentencing 

rate among a given group of black-victim 

cases were 6 percent, ‘the rate for 

comparable white-victim cases would be 

12 percent, a 100% increase. However, 

since the 6 percentage point disparity 

is an average effect, it. is mora 

relevant to compare it to the average 

.01 death sentence rate among all black 

victim cases (S.E. 47), which it exceeds 

by a factor of 8 {(.06/.91),. "@& 600% 

increase over the black-victim rate. It 

is obviously gross mistake tc view 

this difference as a "marginal" one. 

Cf. Hunter v., Underwood, U.S, _,h B88 
  

L.Ed.24 2322, 228-+30Q (13288) (striking down 

a statute which disqualified blacks from 

voting at 1.7 times the rate of whites). 

The court's admixture of skepticism 

is reflected in its remarks that "[n]one 

21 

 



  

of the figures mentioned above is a 

definitive quantification of the 

victim's race in the overall likelihood 

of the death penalty in a given case” 

(J.A.266), and that this evidence proves 

shiv that "the reasons for a [racial] 

difference , , . ars not so clsar in a 

small percentage of the cases." 

{J.A.273). rn iether words, the court 

regarded the .06 figure as little more 

than a statistical aberration. However, 

this interpretation cannot be squared 

with the unrebutted evidence that the 

figure in question -- which, it bears 

repeating, means that those who kill 

white victims in Georgia are several 

times more likely to be sentenced to 

death than are similarly situated 

murderers of black victims on the 

average -- is a highly reliable figure, 

statistically significant at tne p<.02 

level after controlling for literally 

o2 

 



  

Rundreds of rival hypotheses. Te will 

not be blinked away. 

The court's toleration of whatever 

disparity does exist comprises the 

greatest portion of its opinion: 

Taking the 6% bottom line 

revealed in the Baldus figures 

as trua, this figure 11s not 

sufficient to overcome the 

presumption that the statute is 

operating in a constitutional 

manner. In any discretionary 

system, some imprecision must be 

tolerated, and the Baldus study 

is simply insufficient to 

support a ruling, dn the 

context of a statute that is 

operating much as intended, that 

racial factors are playing a 

role in the outcome sufficient 

to render the system as a whole 

arbitrary and capricious. 

{J.A.268). 

The Court bolstered its judgment by 

citing three decisions of this Court on 

applications for stays in capital 

cases. 30 I+ reasoned that since the 

  

30Wwainwright v. Ford, 467 U.S. 1220 

(12984) ; Wainwright Vv. Adams, 468 

U.S. 964 (1984); Sullivan v. Wainwright, 

484 U.S. 109 (1983). 

  

  

  

93 

 



  

t
e
 

satitloters in those cases had al 

proffered other srudise in which "{t1he 

bottom line figure [included] : ‘ . B 

ideath-odds multiplier’ of about 4.8 to 

12" (3.5.288), and since "Baldus 

obtained a death-odds multiplier of 4.3 

to 1 in Georgia," a rejection of the 

Baldus studies nis supported, and 

possibly even compelled, byt the 

disposition of these stay applications. 

"[I]t is reasonable to suppose that the 

Supreme Court locked at the bottom line 

indication of racial effect and held 

that it simply was insufficient to stata 

a claim.” (J.A.2868). 

Yet as this Court well knows, the 

Florida study involved in those three 

applicaticns’ was significantly less 

comprehensive and sophisticated than the 

Baldus studies. The Court of Appeals 

overlooks (i) that none of this Court's 

summary orders ever addressed the 

94 

 



  

magnitude of the disparities shown in 

the Florida studies; (32) that. his 

Court's orders respecting applications 

for stays of execution "may not be taken 

  

as a statement . . i  Oniehe 

merits,” Graves Vv. Barnes, 405 U.S. 

1201, 1204 (1972) (Powell, "aE in 

chambers); accord, Alabama v. Evans, 461 
  

U.S. 230, 238 n.* (1383) (Marshall, <., 

dissenting), and (iii) that under the 

constitutional principles outlined 

earlier, racial discrimination of any 

magnitude is unconstitutional. 

When the Court of Appeals turned to 

the 20 percentage point statistic-- 

representing the average racial 

disparity among cases similar in 

aggravation level to petitioner's -— the 

majority apparently became unccmfortable 

with any approach that treated such a 

figure as marginal. Instead, it felt 

compelled to dispense with its earlier 

95 

 



  

assumption (J.A.2486) that the 3aldus 

studies were valid. In a factual attack, 

the court complained that the figures 

were not adequately explained and that 

they were not-shown to be statistically 

significant. (J.A.289~70). on both 

points the court ignored the record. 

Petitioner's experts carefully explained 

the basis of their calculations 

(Fed.Tr.1738-40), the importance of the 

numbers, the rationale of the "midrange" 

categories (id. 881-8386; 1291-1300), and 

the statistical significance of each 

contributing figure. (Id. 1734-40; S.E. 

50,54,88). 

In sum, there is no constitutional 

warrant for the federal courts to 

overlook proven racial discrimination-- 

especially in capital sentencing-- 

merely because its impact is dubbed 

"marginal." Yet even if such a notion 

were permissible, petitioner has 

S98 

 



  

adequately demonstrated that powerful, 

biasing forces are at work shapin 

Georgia's death-sentencing system in a 

racially discriminatory pattern, and 

that he is among those defendants most 

severely affected by the invidious 

forces. 

PDP. The Court Of Appeals Erred in 

Demanding Proof of "Specific Intent To 

Discriminate” As A Necessary Element Of 

An Eighth Amendment Claim 

(i) The Controlling Precedents 

The primary concern oOFf the 

Court's Eighth Amendment cases has 

always been with the results cf the 

sentencing process: capital punishment 

is crual and unusual if “thers ils no 

nearing ful basis for distinguishing the 

few cases in which it is imposed from 

the many cases in which it is not.” 

Furman Vv. Georgia, 408 U.S. ak 3313 
  

(18722 ){(White, J., concurring). Justice 

Stewart resolved Furman after 

suti{cingl. . . to one side" the issue 

87 

 



  

of intentional discrimination. Id. at 

310. Justice Douglas _similarl 

disavowed that the "task . . . to divine 

what motives impelled these death 

penalties.” Id. at 253. Yo dente’ of 

the Furman majority stated or hinted 

“hat proof of invidious intent had been 

necessary to his decision. 

In its subsequent opinions, the 

Court has stressed that the ultimate aim 

of the Eighth Amendment is to "minimize 

the risk of wholly arbitrary and 

  
capricious actien.” Gregg Vv. Georgia, 

428 U.S. at 189. Such arbitrariness can 

afflict a system irrespective of 

conscious choice by specific actors, and 

it is the State which tears the 

"constitutional responsibility to tailor 

and apply its law tn a manner that 

avoids" this outcome. Godfrev vv. 
  

Georgia, 446 U.S. at 423: Eddings v. 
  

Oklahoma, 455 U.S. 104, 118 
  

98 

 



  

(12982) (Q'Connor, % gh concurring 

Gardner v. Plorida, 430 U.S. 349, 357-58 
  

(1977). These rulings in capital cases 

are consistent with +the law of the 

Eighth Amendment in other conteXxis, 

where the constitutional touchstone has 

long been effects, not intentions. on 

Rhodes +. Chapman, 482. "U.S. 337, 3564 
  

(1981) (Brennan, Tis ; concurring). See 

also id. at 345-46 (plurality opinion); 
  

  

Spain vv. Procunier, 600 F.24 189, 197 

  
(9th Cir. 1979); Rozecki v. Gaughan, 4359 

21
] 28 8, 8 {ist Cir. 1972), 

The evil identified in Furman, the 

evil which the Eighth Amendment seeks to 

prevent, is the unequal reatment of 

equals in the most extreme sentencing 

decision our society can make. Gardner 

  

7. Florida, 430 g.3., at 351. 

Considerations of race are legally 

irrelevant to that decision; their 

systematic influence produces, by 

39 

 



  

definition, a pattern of sentencing that 

is legally "arbitrary and capricious.” 

  

  

See generallv, B. Nakell & XK. Hardy, Ihe 

Arbitrariness of the Death Penalty 
  

(1986) ( forthcoming) . The task of 

identifying precisely where and how, 

consciously or unconsciously, race is 

jnfluencing the literally thousands of 

actors involved in capital Sontenzing 

prosecutors, judges, jurors who assemble 

to make a single decision in a single 

case, only to be replaced by other 

jurors in the next case, and skill 

others after them - is virtually 

impossible. Yet "[tlhe inability to 

identify the actor or the agency has 

little to do with the constitutionality 

of the system." (J.A.314) (Hatchett, os 

dissenting in part and concurring in 

part). 

(ii) Petitioner's Evidence 

Whatever disagreements may surround 

100 

 



  

the issue of intent, there ls no room 

for dispute on the question of impact. 

Georgia's gross racial disparities are 

stark: white victim cases are nearly 

eleven times more likely to result in a 

death sentence than black victim cases. 

As we have shown, even under the most 

searching statistical analyses, this 

disproportionate racial impact remains 

substantial and highly statistically 

significant. The State has never 

refuted these results. 

(iii) The Cpinion Below 

The Court of Appeals held that 

"purposeful discrimination” is an 

element of an Eighth Amendment challenge 

to the arbitrary administration of a 

capital statute, at least where the 

challenge is based in part upon proof of 

racial disparities, (J.A.258). The court 

acknowledged that "cruel and unusual 

punishment cases do not normally focus 

101 

 



  

on the intent of the government actor.” 

Id. Yet it announced that 

where racial discrimination is 

claimed, not on the basis of 

procedural faults or flaws in 

the structure of the law, but on 

the basis of the decisions made 

within that process, then 

purpose, intent and motive are a 

natural component of the proof 

that discrimination actually 

occurred. 

{J.3.287). id 

This opinien is plainly an exercise 

in ipse Gixit reasoning. IT: 
  

"discrimination" in this passage means 

"intentional discrimination of the sort 

that violates the Egual Protecticn 

Clause,” then the court fails to 

account for what the Eighth Amendment 

adds to the Fourteenth. IE 

"discrimination" is synonymous with 

"racial disparity" -- the actual basis 

of petitioner's Eighth Amendment claim- 

- then even the court's linguistic logic 

evaporates completely. In any event, 

the majority below fails to address 

102 

 



  

either the contrary holdings of this 

Court or the policies that lie behind 

the Eighth Amendment cases. t supplies 

no justification for singling out race 

bias -— alone among all arbitrary 

factors that might affect a capital 

sentencing system -- and requiring that 

petitioner trace it back to an 

individual, consciously discriminating 

actor. "Identified or unidentified, the 

result of thea unconstitutional 

ingredient of race , . . is the same.” 

(T.2.314) (Hatchett, J., Gissenting in 

part and concurring in party), And 1t 

remains the same whether the racial 

ingredient comes into play through 

wilful Dbigotvy or through mors subtls 

processes oF race-based empathies, 

apprehensions and value judgments 

operating within the framework o¢f a 

highly discretionary capital sentencing 

procedure. See Turner vv. Murray, 9C 
  

103 

 



  

L.4.24 af 35-36. However brought 

about, the result is nonetheless "a 

pattern of arbitrary and capricious 

sentencing like that found 

unconstitutional in Furman." Gregg Vv. 
  

Gecrgia, 428 U.S. ax 1883 n.46. 

THE COURT SHOULD EITHER GRANT PETITICNER 

RELIEF OR REMAND THE CASE TO THE COURT 

OF APPEALS FOR FURTHER CONSIDERATION 

UNDER APPROPRIATE LEGAL STANDARDS 

In Skipper 7, South Carolina, 
  

0.8. FL o8 L.2d,. 24 1, 13: n.2 {i888}, 

Justice Powell observed in concurrence 

that "when some defendants are able to 

avid execution based on irrelevant 

criteria, there is a far graver risk of 

injustice. in executing others,” The 

criterion of race -- that of a defendant 

or his victim -— is worse than 

"irrelevant": it is expressly forbidden 

by the Constitution. Yet petitioner's 

evidence indicates (a) that race has 

played a substantial role in determining 

104 

 



  

who will be executed and who will avoid 

execution in the State of Georgia, and 

(b) that petitioner stands among the 

group of defendants upon whom Georgia's 

burden of racial bias falls most 

heavily. 

The Court of Appeals, accepting the 

validity of petitioner's evidentiary 

submission, held that it failed to meet 

his burden of proof under the Eighth and 

Fourteenth Amendments. We have shown 

- that this hclding was error, requiring 

reversal. Since the proof f racial 

discrimination on this record is 

overwhelming and stands unrebutted 

despite its plain sufficiency tC shift 

the burden of rebuttal to the State, we 

believe that nothing more is rested to 

support a decision bv this «Cours 

upholding the merits of petitioner's 

Eighth and Fcurteenth Amendment claims. 

However, inasmuch as the Lourt of 

1058 

 



  

Appeals pretermitted a review of the 

factual findings of the District Court 

(J.5.283), this Court may prefer instead 

+o remand for further proceedings under 

appropriate constitutiecnal standards. 

See, e.g., Bazemore v. Fridav, 108 S.0%. 
  

ar 3010-1l. 

While not strictly necessary to any 

holding that directs a remand, the Court 

might wish to announce standards to 

guide the Court of Appeals in addressing 

those remedial questions presented by 

petitioner's constitutional claims. In 

our judgment, the availaple remedial 

cptions would be affected considerably 

by the Court's choice of constitutional 

theory. Although this choice lz & 

matter of little immediate moment to the 

present petitioner, “+ the consequences 

  

31 The sole remedial issue in this 

habeas corpus proceeding 1s whether a 

petitioner "is in custody in violation 

of the Constitution or laws .. . . of the 

106 

 



  

for other death-sentenced inmates in the 

State of Georgi might vary 

significantly depending upon it. 

Under the Eighth Amendment, for 

example, proof that a particular capital 

sentencing system is being administered 

in an arbitrary or capricious pattern 

would presumably require the 

invalidation of that system as a whole, 

or at least of all sentences imposed in 

[a
h 

the jurisdiction during the perio 

covered by the proof, Sse Furman v. 
  

Georgia, supra. However, under the 
  

Fourteenth Amendment, the finding of an 

Equal Protection violation 'nsed not 

inevitably require a vacatur of zll 

death sentences within the jurisdicticen. 

In Mi, Healthv City Board of Sduc. v, 
  

Dovle, 429 U.S. 274 {1877), the Court 

reasoned that although an employee could 

  

Pnited States,” 28 U.S.C. § 2241{cit3); 
thus the only relief sought or possible 

under any theory is individual relief. 

107 

 



  

not be discharged for the exercise of 

his protected First Amendment rights, an 

employer was entitled to "show{] by a 

preponderance of the evidence that it 

would have reached the same decision . . 

..avan ‘in The absence of" consideration 

of the impermissible factor. Id. at 287. 

In the «capital sentencing context, an 

analogous approach, requiring proof by 

the State beyond a reasonable doubt, see 

Chapman VV. California, 386 B.S. 13 
  

(1967) ,32 would allow a tate, even if 

  

32 Mt. Healthy expressly drew upon 

principles, develcped in the context of 

the criminal law, "distinguish{ing] 

between a result caused by a 

constitutional violation and one not so 

caused." 429 U.3. at .286, citing Lyons 

v. Oklahoma, 322:0.8. 596 (1944): Wong 

  

  

  

  

  

  

Sun Vv. United States, 871 0.8. 7 | 

(1963); Barker .yv, North Carolina, 397 

T.5.. 790 (1970) ™he Lyons line of 

cases is related to, though analytically 

distinct from, the Chapman "harmless 

error” line. The former holds that a 

constitutional violation may be 

disregarded if it did not in fact work 

any injury %to a petitioner's substantive 

rights. Chapman permits a state to 

avoid a reversal by demonstrating beyond 

a reasonable doubt that, even if an 

108 

 



  

its statute nad been applied in 

viclaticen of ths Equal Protection 

Clause, to prove that, because of the 

extreme aggravation of a particular 

homicide, a death sentence would have 

been imposed, irrespective of racial 

considerations. Although Gecrgia could 

not make such a showing against inmates 

like petitioner, whose case was in the 

"midrange" of aggravation, it aight have 

a stronger argument against those 

inmates whose crimes were highly 

aggravated, since race is less likely to 

have influenced the sentencing outcomes 

in their cases. 

Whatever constitutional or remedial 

analysis is adopted by the Court, 

petitioner warren McCleskey has 

presented evidence that fully 

  

injury to defendant's rights occurred, 

i+ was so insubstantial that it 4id not 

contribute to the defendant's conviction 

or sentence. 

ios 

 



  

of Fulton County is invalid. 

CONCLUSION 

Dated: August 21, i986 

Respectfully submitted, 

JULIUS L. CHAMBERS 

JAMES M. NABRIT, II 

*JOEN CHARLES BOGER 

DEVAL L. ZPATRICX 

VIVIAN BERGER 
99 IZudson Street 

New York, New York 10013 

{212) 218-1900 

ROBERT H. STROUP 

141 Walton Street 

Atlanta, Georgia 30303 

PIMOTHY XK. FORD 
600 Pioneer Building 

Seattle, Washington 93.04 

ANTHONY G. AMSTERDAM 
New York University 

School of Law 
40 Washington Sg. Scuth 
New York, New York 10012 

*Actorney 

of Record ATTORNEYS FOR PZTITIONER 

 



  

SUPREME COURT OF THE UNITED STATES 

Qctober Term, 1985 

  

WARREN McCLESXEY, 
Petitioner, 

EY 2d 

RALPH M. XEMP, Superintendent, 

Georgia Diagnostic & Classification 

Center. 

  

On Writ of Certicrari to the United States 

Court of Appeals for the Eleventh Circuit 

  

BRIEF FOR PETITIONER 

  

JULIUS LL. CEAMRERS 

JAMES M. NABRIT, III 

* JOEN CHARLES Sos 

DEVAL L. PATRI 

VIVIAN BERGER 

39 Hudson Street 

New York, New York 1CC13 

{212) 219-13G0 

ROBERT H. -STRO0? 
141 Walton Street 

Atlanta, Georgia 38303 

TIMOTHY X. FCRD 

500 Pioneer Buildi 

Seattle, Washingt 
ig 
on 83104 

ANTEONY G. AMSTERDAM 
New York University 

School of Law 

40 Washington Square Scuth 

New York, New York 10C12 

*Attorney of Record 
ATTORNEYS FOR PETITICNER 

 



  

QUESTIONS PRESENTED 
  

}. To make out a prima facie case 
  

under the Equal Protection Clause of the 

Fourteenth Amendment, must a condemned 

inmate alleging racial discrimination in 

a State's application of its capital 

sentencing statutes present statistical 

evidence "so strong as to permit no 

inference other than that the results 

are a product of racially discriminatory 

intent or purpose?” 

2 Is proof of intent to 

discriminate a necessary element of an 

Eighth Amendment claim that a State has 

applied its capital statutes in zn 

arbitrary, capricious and unequal 

manner? 

3. Must a condemned inmate present 

specific evidence that he was personally 

discriminated against in order to obtain 

either Eighth or Fourteenth Amendment 

relief on the grounds that he was 

i 

 



  

sentenced to die under a statute 

administered in an arbitrary or racially 

discriminatory manner? 

4. Does a proven racial disparity 

in the imposition of capital sentences, 

reflecting a systematic bias against 

black defendants and those whose victims 

are white, offend the Eighth or 

Fourteenth Amendments irrespective of 

its magnitude? 

5. Does an average 20-point racial 

disparity in death-sentencing rates 

among that class of cases in which a 

death sentence is a serious possibility 

so undermine the evenhandedness of a 

capital sentencing system as to violate 

the Eighth or Fourteenth Amendment 

rights of a death-sentenced black 

inmate? 

il 

 



  

TABLE OF CONTENTS 
  

QUESTIONS PRESENTED 

CITATIONS TO OPINIONS BELOW 

JURISDICTION 

CONSTITUTIONAL PROVISIONS INVOLVED 

STATEMENT OF THE CASE 

A. Course of Proceedings 

B. Petitioner's Evidence of 

Racial Discrimination: The 

Baldus Studies 

Cu The Decisions Below 

SUMMARY OF ARGUMENT 

I. RACE IS AN INVIDIOUS AND 

UNCONSTITUTIONAL CONSIDERATION IN 

CAPITAL SENTENCING PROCEEDINGS 

A. The Equal Protection 
Clause Of The 

Fourteenth Amendment 

Forbids Racial 

Discrimination In The 

Administration Of 

Criminal Statutes 

B. The Eighth Amendment 
Prohibits Racial Bias 

In Capital Sentencing 

IJ. THE COURT OF APPEALS 
FASHIONED UNPRECEDENTED STANDARDS 

OF PROOF WHICH FORECLOSE ALL 

MEANINGFUL REVIEW OF RACIAL 

iii 

[E
Y 

32 

 



  

DISCRIMINATION IN CAPITAL 

SENTENCING PROCEEDINGS oR A AR, Ah 

A. The Cour’ of Appeals 

Ignored This Court's 

Decisions Delineating 

A Party's Prima Facile 

Burden Of Proof Under 

The Equal Protection 

Clause . Et. 47 

  

B., The Court of Appeals 

Disregarded This 

Court's Teachings On 

The Proper Role Of 

Statistical Evidence 

In Proving Intentional 

Discrimination. ,.. 64 

C. The Court Of Appeals 

Erroneously Held That 

Even Proven 

Patterns Of Racial 

Discrimination Will 

Not Violate The 

Constitution Unless 

Racial Disparities Are 

Of Large Magnitude ... 77 

D. The Court Of Appeals 
Erred in Demanding 
Proof of "Specific 

Intent To 
Discriminate" As A 
Necessary Element Of 

An Eighth Amendment 

Claim ie waren 9 

III. THE COURT SHOULD EITHER GRANT 

PETITIONER RELIEF OR REMAND THE CASE 

TO THE COURT OF APPEALS FOR FURTHER 

CONSIDERATION UNDER APPROPRIATE LEGAL 

STANDARDS ©, 0 Wm Wat, ia ney 104 

iv 

 



  

| 
3 
A
 

O
 

CONCLUSION 

 



  

TABLE OF AUTHORITIES 
  

  

cases Pages 

Alabama v. Evans, 

461 U.S. 230 (1983) cecceensnvivns 95 

Alexander v. Louisiana, 405 U.S. 

B28 (1072) si vans rv enmisinnne vate 47,48 

Avery v. Georgia, 345 U.S. 

559 {19B3): vs tin vinivie stann swine mains 76 

Ballew v. Georgia, 

438 U.S. 223 11978) cv vnsnnsoninine 84 

Batson v. Kentucky, U.S. . 

90 L.Ed. 24 868 

(1886) hy ov wisie ini n4,26,27,33,47,74 

Bazemore v. Friday, U.S ’ 

1068. 8S.C%. 3000 

(1986) ....... 27.,29,64,73,15,78,3106 

Briscoe v. Lahue, 

460 U.S. 325 (1983) eve nissnnnainy 38 

Brown v. Board of Education, 

B45 U.S, 483 (1984) cine siwns vines 32 

Castaneda v. Partida, 

430 U.S. 482 

(1977). Vice eich 231,49,86,65,173,18 

Chapman v. California, 

386 0.5. 18 1967)... 0 diecur savin 108 

Cleveland Bcard of Education v. 

LaFleur, 414 U.S. 632 (1974)...39,44 

vi 

 



  

Coble v. Hot Springs School District 

No.8, 682 FF, 24 721 {8th 

Cir, 1082) vein vin snr vs sivis snes 66 

Eastland v. TVA, 

704 FF. 24 813 (11th Cir. 19383).. 868 

Eddings v. Oklahoma, 

45358 U.8., 104 (1982). vsvn errs 98 

EEOC v. Ball Corp... 

881 F. 24 531 (6th Cir. 1981)... 88 

Furman v. Georgia, 

408 U.S. 238 

(1972) vuinn nine sins wins 24,31,43,97,107 

Gardner v. Florida, 

430 U.S. 349 (1977) cesses ers 44,98,99 

General Building Contractors Ass'n, 

Inc. v. Pennsylvania, 458 U.S. 

B78 (1983). visite vvassrnsssrnvninse 34 

Giglio v. United States, 

4058 U.S. 180 (1972). viv ewiaia vin 4 

Godfrey v. Georgila, 

448 U.S. 420 

{1980 ) 0 vu vincniewivin vs 25,31 ,42,57,88 

Graves Vv. Barnes, 

408 U.S. a1201 {1972). ev nnnvn enn 95 

Gregg v. Georgia, 

428 U.S. 153 

(1978): cs iineinn a5 40,42,537,59,89,98 

Hazelwood School District v. United 

States, 433 U.S. 299 (1977)..... 65 

Ho Ah Kow v. Nunan, 12 Fed. Cas. 232 

{No. 8348) (C.C. D. Cal. 1879)... 34 

vii 

 



  

Hunter v. Underwood, g.s. : 

a3 'L. Ed. 28 222 

(1988 Ere sv sin sirit a einin ete os 33,60,91 

Jones Vv. Georgia, 

339° U.8% 24 (19687), v css crane nan 48 

Loving Vv. Virginia, 

288 U.S. 1 (198T) vss cosa visas vin 35 

Lyons V. Oklahoma, 

a2 U. 8. 596 {1844} ser rrr rrrian 108 

McClesky v. State, 245 Ga. 108, 263 

S.E. 28 14, csrt, denied, 449 

U.S... 891 (1980) dh weisivsnpnivraeines 5   

McCleskey v. Zant, 

ASAI .S, 1003 £1981), vis vs vans 6 

McLaughlin Vv. Florida, 

379 U.S. 184 

Mt. Healthy City Board of Educ. V. 

Doyle, 429 U.S. 274 (1977)...107,108 

(ABBY. wits + + HivsBloin va He tis as en v2 2 49 

Nixon v. Herndon, 273 0.5. 536 

EAS27 Via vinie ov vain tininelumnin v sities, e #32 33 

Papasan Vv. Allain, Uu.s. / 

106 S.Ct. 2932 (1986) «cv ov oo 29,78 

Parker v. North Carolina, 

307 0.5. 7190 (1070) ie sainv sis sion sims 108 

Patton Vv. Mississippi, 

33%. 3.8. 483 {1947} inex s sr ninn enn 76 

Personnel Administrator of 

Massachusetts v. Feeney, 

viii 

 



  

(1028) Fo vies side smn ror Snellen 35,74 

Rhodes v. Chapman, 452 U.S. 337 

(1081 err asvives sin ania cinteds wy 99 

Roe v. Wade, 410 U.S. 113 

{1973) cies 39,43 

Rogers v. Lodge, 4358 8.85. 8313 

(1982). sninswvs
 vrs vn sninsnishite nis 50,80 

Rose v. Mitchell, 443 U.S. 543 

131079). slaved divs vir vitinlos ening ain nn 23 

Rozecki v. Gaughan, 

439 F. 24 6 {1st Civ. 1972)..." 99 

Segar v. Smith, 733 PF. 24 1249 

(D.C. Cir. 1884 vas v versiones: 66,76 

Skinner v. Oklahoma, 

316 U.S. 535 (1942). cst e veers 39 

Skipper v. South Carolina, 3.8. 

en LI, Ba 24 11988). yu. 104 

Smith v. Texas, 311 U.S. 128 

(1040): shvwinvsvnsn ssn snsaans 32,45 

Spain v. Procunier, 800. ¥,- 24.18% 

(O%h Cin, 1079) sv .mtus vnesnuanina 99 

Stanley v. Illinois, 

L408 0.8. 848 11372) cn siniein van 39,44 

Strauder v. West Virginia, 

100 U.S. 303 (1880) creer non 34,41 

Sullivan v. Wainwright, 464 U.S. 109, 

(A083) citing svar etre ntlanin ess nrises 93 

Teamsters v. United States, 

431 U.S. 324 (1977) savivsiaie nnn sp 65 

ix 

 



  

Texas Dep't of Community Affairs v. 

Burdine, 450 U.S. 248 

UADBI Y vvtnnis vias Biss wittin 29,48 ,75,78 

Turner v. Murray, U.S. ; 

90 :L. Ed, 124 27 

1988) svt inven nonnsni 24,33,886,178,103 

Vasquez v. Hillery, U.S. ; 

38 L. Ed. 24 508 

[L1DB86) uu vine v sis ere via nin vies v8 » sha wie 24 

Village of Arlington Heights v. 

Metropolitan Housing Development 

Corp... 429 U.5. 2582 

Sh i 4 TIGR | Ee a Eg 28,350,832, 39 

Vuyanich v. Republic National Bank, 

505 F. Supp. 224 (N.D. Tex. 

1980) vacated on other grounds, 

732 F. 24 1198 (5th Cir.1984)...  B8 
  

Wainwright v. Adams, 466 U.S. 964 

(1884) vane nas das Vin sve usn nein 93 

Wainwright v. Ford, 467 U.S. 1220 

(1984) . ens n rv ns dassussudisinss va 93 

Washington v. Davis, 
426 0.5. 229 

(2978) ss nnlimioinis vine 27.,32,47,49,74 

Wayte v. United States, B.S. p 

B84 LL. EQ. 24 B47 (1988) us 'sle sivieisis 49 

Whitus v. Georgia, 385 U.S. 545 

L196) aivnien sins wins ain aida vidinin io wins 47,56 

 



  

Wilkins v. University of Houston, 

534 ¥., 24 383 (5th Cir. 1931), 

vacated and remanded on other 
  

  

grounds, 459 U.S5..800. {1982)Y..:+% 66 

Wolfe v. Georgia Ry. & Elec. Co., 

2 Ga. App. 499, , 88 S.F. B89 

(ESOT) vss vinnie virnininatate vu 4 debe al 61 

Wong Sun v. United States, 

371 U.S. 047% {18683 ew rnsninelinisy 108 

Yick Wo v. Hopkins, 

118 U.S. 388 (1888). ews vers vien 33,58 

Zant v. Stephens, 462 U.S. 862 

(1983) ins rnnansnrstsinvsninns ena 43,5% 

Zant v. Stephens, 456 U.S. 410 

(1982) (per curiam).......ccee.. 43 

Statutes 

28 0.8.0.8 1284 {I veers viv ovine 2 

NS U.S.C. 85: 224% (CY a3), daa nnseinn 106 

Rule 406, F. Rule Evid.....ccvv eva 32 

Former Ga. Code Ann. § 27-2534.1 

(BIL 0 viv cnsmimniasbsivies ns ans sins 5 

Former Ga. Code Ann. § 27-2534.1 

(BYLB) cvnivis vince sams rv slpinirvin veins 5 

Other Authorities 
  

D. Baldus & J. Cole, Statistical 
  

xi 

 



  

Proof of Discrimination (1980) .. 8 
  

Baldus, Pulaski & Woodworth, 

Arbitrariness and Discrimination 

in the Administration of the 

Death Penalty: A Challenge to State 

Supreme Courts, 15 Stetson L. 

Ray. 133: (1986) «ods vsssirairisnsivs 8 

  

  

  

  

Baldus, Pulaski & Woodworth, 

Comparative Review of Death 

Sentences: An Empirical Study of 

the Georgia Experience, 74 2 

Crim. Law & Criminology 661 

(2083) vinin'eieniin
ag witin vonin vines s tine 00s 8 

  

  

  

Baldus, Pulaski, Woodworth & Kyle, 

Identifving Comparatively 

Excessive Sentences of Death: A 

Quantitative Approach, 33 Stan. 

7 RAV. 1 41977) enn ste sitinie sins 8 

  

  

  

Baldus, Woodworth & Pulaski, 

Monitoring and Evaluating 

Contemporary Death Sentencing 

Systems: Lessons from Georgia, 

18 U.C. Davis L.. Rey. 1375 

  

  

  

Barnett, Some Distribution Patterns 

for the Georgia Death Sentence, 

18 U.C. Davis L. Rev, 1321 

(1088). avidin evs xr vhs sr rin aBiaein vi 51 

  

  

Bentele, The Death Penalty in Georgia: 

Still Arbitrarv, 61 Wash. U.L.Q. 

BT3 01988), vera sual sas nis ainninie 59 

  

  

Bowers & Pilerce, Arbitrariness and 

Discrimination Under Post-Furman 

Capital Statutes, 26 Crime & 

Deling. 8563 (1880) nevis srajeniun 853 

  

  

  

Finkelstein, The Judicial Reception of 
  

xii 

 



  

Multiple Regression studies in Race 

and Sex Discrimination Cases, 80 

Colum. L. Rev. 737 (1980) cave vo 66 

  

  

Fisher, Multiple Regression in Legal 

Proceedings, 80 Colum. L. Rev. 737 

EATBO0 Jasin nsstinn nd sieaassns gina gus 66 

  

  

Gross, Race and Death: The Judicial 

Evaluation of Evidence of 

Discrimination in Capital 

Sentencing, 18 J.C. Davis L. Rev. 

1378 (1988) vier» svn rr nines inna 81,90 

  

  

  

  

Gross & Mauro, Patterns of Death: 

Disparities in Capital Sentencing 

and Homicide Victimization, 37 

Stan. L. Rev. 27 (1985) ..... 51 

  

  

  

H. Kalven & H. 7aigel, The American 

Jury E1SBBY ita iv sw Wey rinse ae waa 84 
  

B. Nakell & XK. Hardy. 

The Arbitrariness of the Death 
  

Penalty, (1986) 

(forthcoming) LIE lie ee Aiea ate a eT 100 

Report of the Joint Committee on 

Reconstruction at +he First 

Session, Thirty-Ninth Congress, 

[1E6BY vo tints lin siniaisiors fais ais est 0g 37 

  

  

  

statement of Rep. Thaddeus Stevens, 

Cong. Globe, 39th Cong., lst 

Sess. 2459 (1966); Accord, 

statement of Sen. Pollard, Cong. 

Globe, 39th Cong.., 1st Sess. 

9867 (1868) cassi
s srr vrs 37 

Wolfgang & Riedel, Race, Judicial 

Discretion and the Death Penalty, 

407 Annals 119 (May 1973) 4c nin 51 

  

  

Wolfgang & Riedel, Race, Rape, and the 
  

wiii 

 



  

Death Penalty in Georgia, 45 Am. J. 

Orthopsychiat. 638 {19T8) evn ninis 5   

xiv 

 



  

No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

  

WARREN McCLESKEY, 

Petitioner, 

- 

RALPH M. KEMP, Superintendent, 

Georgia Diagnostic & 
Classification Center. 

  

On Writ of Certiorari to the 

United States Court of Appeals for 

the Eleventh Circuit 

  

BRIEF FOR PETITIONER 

  

CITATIONS TO OPINIONS BELOW 

The opinion of the United 3tztes 

Court of Appeals for the Eleventh 

Circuit is: reported at 7153 F.2d 877 

{iin Cir, 1985) (en banc). The opinion 

of the United States District Court for 

the Northern District of Georgia is 

reported at 580 ¥F. Supp. 338 (N.D. Ga. 

 



  

1984). 

JURISDICTION 

The judgment of the Court of Appeals 

was entered on January 29, 1985, A 

timely motion for rehearing was denied 

on March 26, 1985. The Court granted 

certiorari on July 2. 1986. The 

jurisdiction of this Court is invoked 

pursuant to 28 U.S.C. § 1254(1). 

CONSTITUTIONAL 
PROVISIONS INVOLVED 

This case involves the Eighth and 

the Fourteenth Amendments to the 

Constitution of the United States. 

STATEMENT OF THE CASE 

A. Course of Proceedings 

Petitioner Warren McCleskey 1s a 

young black man who was tried in the 

Superior Court of Fulton County, 

Georgia, for the murder of a white 

police officer, Frank Schlatt. The 

homicide occurred on May 13, 19878 during 

an armed robbery of the Dixie Furniture 

2 

 



  

Store in Atlanta. In a statement fo 

police, petitioner admitted that he had 

been present during the robbery, but he 

denied that he had fired the shot that 

killed Officer Schlatt. (Tr.T. 453).1 

Petitioner was tried by 2 jury 

comprised of eleven whites and one 

black. (Fed.Tr.1316). The State's case 

rested principally upon certain disputed 

forensic and other circumstantial 

evidence suggesting that petitioner may 

have fired the murder weapon, and upon 

  

1 Each reference +p. the trial 

transcript will be dndicated py the 

abbreviation HY. T and to the 

federal habeas corpus transcript, by the 

abbreviation "Fed.Tr." 

References to the Joint Appendix 

will be indicated by the abbreviation 

"J.A." and to the Supplemental Exhibits, 

by ns. EB." Petitioner's exhibits 

submitted to the District Court during 

the federal hearing were identified 

throughout the proceedings by the 

initials of the witness during whose 

testimony they were introduced, followed 

by an exhibit number. For example, the 

first exhibit introduced during the 

testimony of Professor David Baldus was 

designated "DB 1." 

 



  

purported confessions made to a co- 

defendant and to a cellmate, Offie 

Evans. 2 

  

2 The co-defendant, Ben Wright, had 

a possible personal motive to shift 

responsibility from himself to 

petitioner. Inmate Evans testified 

without any apparent self-interest that 

petitioner had boasted to him 1in the 

cell about shooting Officer Schlatt. 

However, the District Court later found 

that Evans had concealed from 

petitioner's jury a detective's promise 

of favorable treatment concerning 

pending federal charges. Holding that 

this promise was "within the scope of 

Glglioc [(v. DOnited Starses, 408 U.S. 1890 

{1872) 1," {(J.A.188), the District Court 

granted petitioner habeas corpus relief: 

"{G]liven the circumstantial nature of 

the evidence that McCleskey was the 

triggerman who killed Officer Schlatt 

  

and the damaging nature of Evans' 

testimony as to this issue and the issue 

of malice . . . the jury may reasonably 

have reached a different verdict on the 

charge of malice murder had the promise 

of favorable treatment been disclosed.” 

(J.A.190). 

The Court of Appeals reversed, 

holding that the detective's promises to 

witness Evans were insufficiently 

substantial to require full disclosure 

under Giglio, and that any errors in 

concealing the promises were harmless. 

(J.A.242-44). Five judges dissented, 

contending that Giglio had plainly been 

violated; four of the five also believed 

that the concealed promise was not 

4 

 



  

The jury convicted petitioner on all 

charges. Following the penalty phase, 

it returned a verdict finding two 

aggravating circumstances < and 

recommending a sentence of death. On 

October 12, 1973, the Superior Court 

imposed a death sentence for murder and 

life sentences for armed robbery. 

(J.5.112). After his convictions: and 

sentences had been affirmed on direct 

appeal, McClesky v. State, 245 Ga. 108, 
  

283 S.E.2@a 146, Cort. denied, 449 U.S. 
  

891 (1980), petitioner filed a petition 

for habeas - corpus in the Superior Court 

of Burts County, alleging, inter alias, 
  

  

harmless. (J.A.287-89) (Godbold, Ch.J., 

dissenting in part); id. ay. 2885; 

{Rravitch, J., concurring. 

3 The jury found that the murder 
had been committed during an armed 

robbery, former Ga. Code Ann. § 27- 
2534.1(b) (2) (current version O0.C.G.A. § 

17-10-30(b)(2)), and that it had been 

committed against a police officer. 

Former Ga. Code Ann. § 21~ 
2534.1(b) (8) (current version O0.C.G.A. § 

17-10-30(b)(8)). 

 



  

that he had been condemned pursuant to 

capital statutes which were being 

"applied arbitrarily, capriciously and 

whimsically"” in violation of the Eighth 

Amendment (State Habeas Petition, § 10), 

and in a "partsrn ... . . to discriminate 

intentionally and purposefully on 

grounds of race,” in violation of the 

Equal Protection Clause. {I&, 9. 11). 

The Superior Court denied relief on 

April 8, 1981. 

After unsuccessfully seeking review 

from the Supreme Court of Georgia and 

+his Court, see McCleskey vv. Zant, 454 
  

J.S. 1093 (1981) (denying certiorari), 

petitioner filed a federal habeas corpus 

‘petition reasserting his claims of 

systemic racial discrimination and 

arbitrariness. (Fed. Habeas Pet. qq 45- 

50; 851-53). The District Court held an 

evidentiary hearing on these claims in 

August of 1983. 

 



  

The evidence presented by petitioner 

at the federal hearing is integrally 

related to the issues now on certiorari. 

In the next section, we will summarize 

that evidence briefly; fuller discussion 

will be included with the legal 

arguments as it becomes relevant. 4 

B. Petitioner's Evidence of Racial 

Discrimination: The Baldus Studies 

Petitioner's principal witness at 

the federal habeas hearing was 

Professor David C. Baldus, one of the 

nation's leading experts on the legal 

  

4 Discussion of the research 
design of the Baldus studies appears at 
pp. 50-55 infra, Statistical. methods 

used by Professor Baldus and his 
colleagues are described at pp. 66-71. 
The principal findings are reviewed at 

Pp. 30-89. 

A more detailed description of 

the research methodology of the Baldus 
studies -- including study design, 

questionnaire construction, data 
sources, data collection methods, and 
methods of statistical analysis -- can 
be found in Appendix E to the Petition 
for Certiorari, McCleskey v. Kemp, No. 

84-6811. 
  

 



  

use of statistical evidence. 5 

Professor Baldus testified concerning 

two meticulous and comprehensive studies 

he had undertaken with Dr. George 

Woodworth 6 and Professor Charles 

  

5 professor Baldus is the coO- 

author of an authoritative text in the 

field, D.Baldus & J. Cole, Statistical 

Proof of Discrimination (1980), as well 

as a number of law review articles 

relevant to his testimony in this case. 

Baldus, Pulaski, Woodworth & Kyle, 

Identifying Comparatively Excessive 

Sentences of Death, 33 Stan. L. Rev. 601 

(1980); Baldus, Pulaski & Woodworth, 

Comparative Review of Death Sentences: 

An Empirical Study of ‘the Georgia 

  

  

  

  

  

  

  

  

  

  

Experience, 74 J. Crim. Law & 

Criminology 661 {1983 ); Baldus, 

Woodworth & Pulaski, Mcnitoring and 

Evaluating Contemporary Death Sentencing 

Svstems: Lessons From Georgia, 18 U.C. 

Davis LL. . Rev, 1374 (1985); Baldus, 

Pulaski & Woodworth, Arbitrariness and 

Discrimination in the Administration of 

the Death Penalty: A Challenge to State 

Supreme Courts, 15 Stetson L. Rev. 133 

(1986). 

  

  

  

  

® pr. Woodworth is Associate 

Professor of Statistics at the 

University of Iowa and the founder of 

Iowa's Statistical Consulting Center. 

(Fed.Tr.1203-04). He has consulted on 

statistical techniques for over eighty 

empirical studies (id. 1203-04) and has 

taught and written widely on statistical 

issues. (GW 1). 

 



  

Pulaski.’ Professor Baldus explained 

that he had undertaken the studies to 

examine Georgia's capital sentencing 

experience under its post-Furman 

statutes. The studies drew from a 

remarkable variety of official records 

on Georgia defendants convicted of 

murder and voluntary manslaughter, to 

which Professor Baldus obtained access 

through the cooperation of the Georgia 

Supreme Court, the Georgia Beard of 

  

7 professor Charles A. Pulaski, 
Jr., is Professor of Law at Arizona 

State University College of Law, 

specializing in criminal procedure. 

Professor Pulaski did not testify during 

the federal hearing. 
Petitioner also presented expert 

testimony from Dr. Richard a. Berk, 
Professor of Sociology and Director of 

the Social Process Research Institute at 
the University of California at Santa 
Barbara, and a nationally prominent 

expert on research methodology, 
especially in the area of criminal 
justice research. He was a member of 

the National Academy of Sciences’ 
Committee on Sentencing Research. py. 

Berk gave testimony evaluating the 
appropriateness of Baldus' method and 

the significance of his findings. 

8 

 



  

pardons and Paroles, and other state 

agencies. These records included not 

only trial transcripts and appellate 

briefs but also detailed parole board 

records, prison files, police reports 

and other official documents. {S.2. 43). 

Using a carefully tailored 

questionnaire, Professor Baldus gathered 

over five hundred items of information 

on each case concerning the defendant, 

the victim, the crime, the aggravating 

and mitigating circumstances, and the 

strength of the evidence. In addition, 

the Baldus questionnaire required 

researchers to prepare a narrative 

summary to capture individual features 

of each case. The full questionnaire 

appears as DB 38 in the Supplemental 

Exhibits. {S.EB. 1-42). Employing 

generally accepted data collection 

methods at each step, Professor Baldus 

cross-checked the accuracy of the data 

10 

 



  

both manually and by computer-aided 

systems. (Fed.Tr.585-616). 

Professor Baldus found that during 

the 1973-1979 period, 2484 murders and 

non-negligent manslaughters occurred in 

the State of Georgia. Approximately 

1665 of those involved black defendants; 

819 involved white defendants. Blacks 

were the victims of homicides in 

approximately 61 percent of the cases, 

whites in 39 percent. When Professor 

Baldus began to examine the State's 

subsequent charging and sentencing 

patterns, however, he found that the 

racial proportions were heavily 

inverted. Among the 128 cases in which 

a death sentence was imposed, 108 or 87% 

involved white victims. As exhibit DB 

62 demonstrates, white victim cases were 

nearly eleven times more likely to 
  

receive a sentence of death than were 

black victim cases. (S.E. 46). When the 

1l 

 



  

cases were further subdivided by race of 

defendant, Professor Baldus discovered 

that 22 percent of black defendants in 

Georgia who murdered whites were 

sentenced to death, while scarcely 3 

percent of white defendants who murdered 

blacks faced a capital sentence. (S.E. 

47). 

These unexplained racial disparities 

promotes Progseals Baldus and Woodworth 

to undertake an exhaustive statistical 

inquiry. They first defined hundreds of 

variables, each capturing a single 

feature of the cases.® Using various 

statistical models, each comprised of 

selected groups of different variables 

  

(see Fed. Te. 689-705), Baldus and 

Woodworth tested whether other 

8 For example, one variable might 

be defined to reflect whether a case was 

characterized by the presence or absence 

of a statutory aggravating circumstance, 

such as the murder of a police victim. 

(See Fed.Tr.617-22). 

12 

 



  

= 

characteris
tics of Georgia homicide 

cases might suffice tO explain the 

racial disparities
 they had observed. 

Through the use of multiple regression 

analysis. 
Baldus and Woodworth 

were able 

tp measure the jndependent 
impact of the 

racial factors 
while simultaneou

sly 

raking into account OT controlling
 for 

more than two nundred aggravating
 and 

mitigating 
factors, strength of evidence 

factors, and other legitimate 
sentencing 

considerati
ons. (See, e.9- a B..51): 

Professors 
Baldus and Woodworth 

subjected 
rhe data to & wide variety of 

statistical
 procedures. 

including 
cCross— 

tabular 
comparisons,

 weighted 
and 

unweighted 
1east-squar

es regressions.
 

logistic 
regressions,

 index methods, 

cohort studies and other appropriate 

scientific 
techniques. 

Yet regardless 

of which of these analytical 
tools 

Baldus and Woodworth 
brought tO bear, 

13 

 



  

race held firm as a prominent determiner 

of life or death. Race proved no less 

significant in determining the 

likelihood of a death sentence than 

aggravating circumstances such as 

whether the defendant had a prior murder 

conviction or whether he was the prime 

mover in the homicide. {S.2. 50). 

Indeed, Professor Baldus testified that 

his best statistical model, which 

"captured the essence of [the Georgia] 

system" (Fed.Tr.308), revealed that 

after taking into account most 

legitimate reasons for sentencing 

distinctions, the odds of receiving a 

death sentence were still more than 4.3 

times greater for those whose victims 

were white than for those whose victims 

were black. {Fed.Tr:. 818: ..' DB 82). 

Focusing directly on petitioner's case, 

Baldus and his colleagues estimated that 

for homicide cases "at Mr. McCleskey's 

14 

 



  

level of aggravation the average white 

victim case has approximately a twenty 

[20] percentage point higher risk of 

receiving a death sentence than a 

similarly situated black victim case.” 

(Id. 1740) .° Professor Baldus also 

testified that black defendants whose 

victims were white were significantly 

more likely to receive death sentences 

than were white defendants, especially 

among cases of the general nature of 

  

9 These figures represent a twenty 

percentage point, not a twenty percent, 

increase in the likelihood of death. 

Among those cases where the average 

death-sentencing rate is .24 or 24-in- 

  

100, the white-victim rate would be 

approximately .34 or 34-in-100, the 

black-victim rate, only .14, OT i4-in- 

100. This means that the sentencing rate 

in white victim cases would be over 

twice as high (.34 vs. . 14) as in black 

victim cases. Thus, on the average, 

among every 34 Georgia defendants 

sentenced to death at this level of 

aggravation for the murders of whites, 

20 would likely not have received a 

death sentence had their victims been 

black. 

  

15 

 



  

petitioner's. (Fed.Tr. 863-64). 

Professor Baldus demonstrated that 

this "dual system" of capital sentencing 

was fully at work in Fulton County where 

petitioner had been tried and sentenced 

to death. Not only’ ‘did county 

statistical patterns replicate the 

statewide trends, but several non- 

statistical comparisons of Fulton County 

cases further emphasized the importance 

of race. For example, among those 17 

defendants who had been charged with 

homicides of Fulton County polices 

officers between 1973 and 1980, only 

one defendant other than petiticner had 

even received a penalty trial. In that 

case, where the victim was black, a life 

sentence was imposed. (Fed.Tr.1050-62). 

The State of Georgia produced little 

affirmative evidence to rebut 

petitioner's case. It offered ono 

alternative model that might have 

16 

 



  

reduced or eliminated the racial 

variables. (Fed. Tr. 1809). It: 4id not 

even propose, much less test the effect 

Of. additional factors concerning 

Georgia crimes, defendants or victims, 

admitting that it did not know whether 

such factors "would have any effect or 

not.’ 1318. 1569). The State expressly 

declined Professor Baldus's offer, 

during the hearing, to employ 

statistical procedures of the State's 

choice in order to calculate the effect 

of any factors the State might choose to 

designate and to see whether the racial 

effects might be eliminated. 10 

Instead, the State simply attacked 

  

10 The District Court did accept 
Professor Baldus's invitation and 
designated a statistical model it 

believed would most accurately capture 

the forces at work in Georgia's capital 
sentencing system. (Fed, Tr. 810; 1426; 
1475-76; 1800-03; Court's Exhibit 1). 

After analyzing this model, Professor 

Baldus reported that it did nothing to 
diminish the racial disparities. (See R. 
731-52). 

17 

 



  

the integrity of Professor Baldus's data 

sources (see Fed. Tr. 1380-1447), its 

own official records. It also presented 

one hypothesis, that the apparent racial 

disparities could be explained by the 

generally more aggravated nature of 

white victim cases. The State's 

principal expert never tested that 

hypothesis by any accepted statistical 

techniques {14. 1760-61), although he 

admitted that such a test "would 

.[have been] desirable.” (Id. 1813). 

Professors Baldus and Woodworth did test 

the hypothesis and testified 

conclusively on rebuttal that it could 

not explain the racial disparities. 

(Fed.Tr.1290-97; 1729-32; GW 5-8). 

C. The Decisions Below 

The District Court rejected 

petitioner's claims. : fe faulted 

petitioner's extraordinary data sources 

because they had "not captured] every 

18 

 



  

nuance of every issue.” {J.4.138).. The 

enngneive Parole Board records, the 

court complained, "present a 

retrospective view of the facts and 

circumstances 5 . ‘ after all 

investigation is completed, after all 

pretrial preparation is made." 

(J.A.148). Since such files, the court 

reasoned, did not measure the precise 

quanta of information available to each 

decision maker -- police, prosecutor, 

judge, jury -- at the exact moment when 

different decisions about the case were 

. made, "the data base : . ; is 

substantially flawed." {Id.) As a 

related matter, the District Court 

insisted that all of Professor Baldus's 

statistical models of the Georgia system 

--— even those employing more than 230 

separate variables —— were 

"insufficiently predictive” since they 

did not include every conceivable 

19 

 



  

variable and could not predict every 

case outcome. {(J.A.147), 

The District Court ended its opinion 

by rejecting the legal utility of such 

statistical methods altogether: 

[M]ultivariate analysis is ill 
suited to provide the court with 

circumstantial evidence of the 
presence of discrimination, and 
it is incapable of providing the 

court with measures of 
qualitative difference in 
treatment which are necessary to 
a finding that a prima facie 

case has been established . . . 
To the extent that McCleskey 

contends that he was denied 
equal protection of the law, 

his methods fail to contribute 

anything of value to his cause. 

(J.A.168-69) (italics omitted). 

The majority of the Court of Appeals 

chose not to rest its decision on these 

findings by the District Court; instead 

it expressly "assum{ed] the validity of 

the research" and "that it proves what 

it claims to prove." {J.A.248). Yet the 

Court proceeded to announce novel 

standards of proof that foreclose any 

20 

 



  

meaningful review of racial claims like 

petitioner's. As its baseline, the 

Court held that statistical proof of 

racial disparities must be "sufficient 

to compel a conclusion that it results 

from discriminatory intent and purpose.’ 

{J.A.259) (emphasis added) . 

"[S]tatistical evidence of" racially 

disproportionate impact [must be] 

so strong as to permit no inference 

other than that the results are the 

product of a racially discriminatory 

intent or purpose." (J.A.250). The Court 

also announced that even unquestioned 

proof of racially discriminatory 

sentencing results would not suffice to 

make out an Equal Protection Clause 

violation unless the racial disparities 

were of sufficient magnitude: "The key 

to the problem lies in the principle 

that the proof, no matter how strong, of 

some disparity is alone insufficient.” 

21 

 



  

({T.A.259 ) In any discretionary 

system, some imprecision must be 

tolerated,” the Court stated, and 

petitioner's proven racial disparities 

were "simply insufficient to suppecrt a 

ruling. woostnmt st racial. “factors ars 

playing a role in the outcome sufficient 

to render the system as a whole 

arbitrary and capricious.” {J.A.288). 

Finally, the majority held that no 

Eighth Amendment challenge based upon 

race could succeed absent similar proof 

of purposeful State conduct. Although 

"cruel and unusual punishment cases do 

not normally focus on the intent of the 

government actor . .. . Where racial 

discrimination is claimed . Luo then 

purpose, intent and motive are a natural 

component of the proof" (J.A.257) and 

"proof of a disparate impact alone is 

insufficient . ' . ‘unless ving: x 

compels a conclusion that . . race ls 

22 

 



  

intentionally being used as a factor in 

sentencing.” (J.A.258). 

SUMMARY OF ARGUMENT 

The principal questions before the 

Court on certiorari involve intermediate 

issues of evidence and proof. 

Fundamental constitutional values are 

nonetheless at the heart of this appeal. 

Our primary submission is that the lower 

courts, by their treatment of 

petitioner's evidence, have effectively 

placed claims of racial discrimination 

in the death penalty -- no mattsr how 

thoroughly proven -—- Dbevond effective 

judicial review. To appreciate the 

impact of the lower court's holding, it 

is necessary at the outset to recall the 

constitutional values at stake. 

This country has, for several 

decades, been engaged in a profound 

national struggle to rid its public life 

of the lingering influence of official, 

23 

 



  

state-sanctioned racial discrimination. 

The Court has been especially vigilant 

to prevent racial bias from weighing in 

  

  

  

the scales of criminal justice. See, 

e.d., Batscn vv, Kentucky, ges 90 

L.BEd.24 89 (1988); ‘Turner y. Murrad. 

n.e. cane LRA. 2427, 385 (1088): 

Vasquez Y. Hillery, Lc BrS.n, 88 

L..BE&.24 5808 (1988), A commitment 

against racial discrimination was among 

the concerns that led the Court To 

scrutinize long-entrenched capital 

sentencing practices and to strike down 

statutes that permitted arbitrary or 

discriminatory enforcement of the death 

penalty. See, e.g., Furman v. Georgia, 
  

408. .U.8., 238: (1872). 

In 1976, reviewing Georgia's then 

new post-Furman capital statutes, the 

Court declined to assume that the 

revised sentencing procedures would 

inevitably £3il in’ their "purpose to 

24 

 



  

eliminate "the arbitrariness and 

capriciousness condemned by Furman.” 

Gregg V. Georgia, 428 «0.8. 183, :198 
  

(1976) (opinion of Stewart, Powell & 

Stevens, J.J.). Accord, i484. at 220-25 
  

{opinion of. White, J.); see also 
  

Godfrey vv. Georgia, 446 U.S. 420, 4238 
  

(1980). It was appropriate at that time 

for the Court To clothe Georgia's new 

statutes with a strong presumption of 

constitutionality -— to assume, 

"{a]lbsent facts to the contrary," Gregg 

v: Geoyroiz, 428 U.S. ati 228 {opinion of 
  

White, J.), that its statutes would be 

administered constitutionally: to reject 

"the naked assertion that the effort is 

Pound: ‘to. Tail Me Idi. al 222. Yet the 

presumption extended to Georgia in 1976 

was not -- and under the Constitution 

could never have been -- an irrevocable 

license to carry out capital punishment 

arbitrarily and discriminatorily in 

25 

 



  

practice. 

Petitioner McCleskey has now 

presented comprehensive evidence to the 

lower courts that Georgia's post-Furman 

experiment has failed, and that its 

capital sentencing system continues to 

be haunted by widespread and substantial 

racial bias. 

Faced with this overwhelming 

evidence, the Court of Appeals took a 

wring. ruarn. It accorded Georgia's 

death-sentencing® statutes what amounts 

to an trrebwtishle presumption of 

validity, one no capital defendant could 

ever overcome. I+ did so through a 

series of rulings that "placed on 

defendants a crippling burden of proof." 

Batson v. Kentucky, SO L.BEd.24 at 885. 
  

Henceforth, a capital defendant, rather 

than proving a prima facie case of 
  

discrimination by demonstrating the 

presence of substantial racial 

26 

 



  

disparities within a system "susceptible 

of abuse” -- thereby shifting the 

burden of explanation to the State, see, 

e.g. Castaneda v. Partida, 430 0.8. 
  

482, 494-495 (1977); Washington vv. 
  

Davis, 426 U.S, 229, 241 (1976); Batson 

v. Kentucky, supra -— must present proof 
  

so strong that it "permits no inference 
  

other than . . . racially discriminatory 

intent.” No room is left in this 

formulation for proof by ordinary fact- 

finding processes. Instead, a capital 

defendant must anticipate and exclude at 

the outset "every possible factor that 

might make a difference between crimes 

and defendants, exclusive of race.” 

{(5.A.281}). 

This new standard for proof of 

racial discrimination has no precedent 

in the Court's teachings under the 

Equal Protection Clause; it is contrary 

to everything stated or implied in 

27 

 



  

Batson v. Kentucky, supra; DBazemore Vv. 
  

Friday, U.S. , 7106. 8.0¢, 3000 (1986); 

Arlington Heights v. Metropolitan 
  

Housing Development Corp., 429 U.S. 252 
  

{1877), and a host of the Court's 

decisions expounding the principle of a 

prima facie case. 
  

Compounding the Court of Appeals’ 

new standard is the burden it imposed 

upon statistical modes of proof, which 

virtually forecloses any demonstration 

of discriminatory capital sentencing by 

means of scientific evidence. To be 

sufficient, a statistical case must 

address not only the recognized major 

sentencing determinants, but also a host 

of hypothetical factors, conjectured by 

the Court, whose systematic relation to 

demonstrated racial disparities is 

dubious to say the least. (See J.A.271). 

This cannot be the law, unless there 1s 

to be a "death penalty exception" to the 

28 

 



  

Equal Protection Clause. Just last Term, 

the Court unanimously reid that such a 

restrictive judicial approach to 

statistical evidence was unacceptable 

error. Bazemore v. Friday, 106 S.Ct. at 
  

3009. See also Texas Department of 
    

Community Affairs vv. Burdine, 450 U.S. 
  

248, 2832 (1981). 

The Court of Appeals also concluded 

that even proven, persistent racial 

disparities in capital sentencing are 

constitutionally irrelevant unless their 

magnitude is great. This holding strays 

far from the Constitution and the 

record. The Equal Protection Clause 

protects individuals against a little 

state-sanctioned racial discrimination 

as well as a lot; the law does not 

permit a State to use the death penalty 

infrequently, or discriminate when it 

does, and defend by saying that this 

discrimination is rare. Only last Term, 

29 

 



  

in Papasan Vy. Allain, U.S... ., 106 
  

S.Ct, 42932 {1%88), thes Court sruresely 

declined to apply "some sort. of 

threshold level of effect . . . before 

the Equal Protection Clause's strictures 

become binding." 

In any event, the Court of Appeals 

plainly misconceived the facts as much 

as the law on this issue. As we will 

show, one central flaw pervading its 

decision was a serious misapprehension 

of the degree to which race played a 

part in Georgia's capital sentencing 

system from 1973 through 1979. 

Finally, the court announced that, 

henceforth, in a capital case, proof of 

"purposeful discrimination will "be a 

necessary component of any Eighth 

Amendment claim alleging racial 

discrimination.” Such a rule 

contradicts both precedent and 

principle. Under the Eighth Amendment, 

30 

 



  

this’ Court. has held that it. is the 

State's obligation "to tailor and apply 

its laws in a manner that avoids the 

arbitrary and capricious infliction of 

the death penalty." Godfrey v. Georgia, 
  

445 U.S. + 420, 428 (1980). The federal 

task in reviewing the administration of 

those laws "is not restricted to an 

effort to divine what motives impelled 

the] death penalties,” Furman V. 
  

Georgia, 408 U.S. at 253 (Douglas, J., 

concurring), ‘but, having pur fo one 

side” the issue of intentional 

discrimination, id. at 310 YStawart, J., 

concurring), to discern whether death 

sentences are "bel[ing] . . . wantenly 

and . «i Ffreakishly imposed.” Id. at 

312, 

Reduced to its essence, petitioner's 

submission to the Court is a simple one. 

Evidence of racial discrimination that 

would amply suffice if the stakes were a 

31 

 



  

job promotion, or the selection of a 

jury, should not be disregarded when the 

stakes are life and death. Methods of 

proof and fact-finding accepted as 

necessary in every other area of law 

should not be jettisoned in this one. 

¥. 

RACE IS AN INVIDIOUS AND UNCONSTITUTIONAL 

CONSIDERATION IN CAPITAL SENTENCING 

PROCEEDINGS 

A. The Equal Protection Clause Of 
The Fourteenth Amendment Forbids 

Racial Discrimination In The 
Administration Of Criminal Statutes 

In the past century, few judicial 

responsibilities have laid greater claim 

on the moral and intellectual energies 

of the Court than "the prevention of 

official conduct discriminating on the 

basis of races.’ Washington v. Davis, 
  

426 U.S. at 239. The Court has striven 

to eliminate all forms of  state- 

sanctioned discrimination, "whether 

accomplished ingeniously or 

ingenuously.” Smith v. Texas, 311 U.S. 
  

32 

 



  

128, 132 .{1940). It has forbidden 

discrimination required by statute, seg, 

e.gd., Brown vv. Board of Education, 346 
  

U.S. 483 (19584); Nixon v. Herndon, 273 
  

u.s. 538 (1927), and has not Resiitatad 

to "look beyond the face of “ si pal 

statute ‘ . Where the procedures 

implementing a neutral statute operate 

. on racial grounds." Batson v. 
  

BEentuclky, 90 L.BEX.24 at. 82; Turner v. 
  

  

Fouche, 396 U.S. 346 (1970); Yiclkr Wo v. 
  

Hopizins, 118 0.8. 358, 373-74 (18886). 

The Court has repeatedly emphasized 

that "the core of the Fourteenth 

Amendment is the prevention of 

meaningful and unjustified official 

distinctions based on race." Hunter v. 
  

Frickson, 393 U.s.:388, 391 (1989). In 
  

the area of criminal justice, where 

racial discrimination "strikes at the 

fundamental values of our Judicial 

system and our society as a whole," Rose 

33 

 



  

v. Mitchell, .443°U.8. 543, 586.(137%9), 
  

the Court has "consistently" articulated 

a "strong policy. . : Qf combating 

racial discrimination.” Id. at 5358. 

One of the most obvious forms that 

such discrimination can take in the 

criminal law is a systematically unequal 

treatment of defendants based upon thelr 

  
race. See Mclaughlin v. Florida, 379 

0:8, 184, 150" “n.8 (1964), citing 

Strauder v. West Virginia, 100 U.S. 303, 
  

306-08 (1880); Ho Ah Kow v. Nunan, 12 
  

Fed. Cas. 252.0 iNo.  6848){(C.C.D.Cal, 

1879). Certainly, among the evils that 

ultimately prompted the enactment of the 

Fourteenth Amendment and cognate post- 

Civil War federal legislation were state 

criminal statutes, including the 

infamous Black Codes, which prescribed 

harsher penalties for black persons than 

for whites. See General Building 
  

Contractors Ass'n., Inc. 2. 
  

34 

 



  

Pennsvlivania, 458 G.S, 375, 386-87 
  

(1982) .11 In this case, Professor Baldus 

has reported that the race of the 

defendant ——— especially when the 

defendant is black and the victim is 

white -- influences Georgia's capital 

sentencing process. The State of 

Georgia has disputed the truth of this 

claim, but has offered no constitutional 

defense if the claim is true. Georgia 

has never articulated, or even 

  

ll The Court has accordingly 

insisted "that racial classifications, 

especially suspect in criminal statutes, 

be subjected to the "most -rigid 

scrutiny’ and, if they are ever to be 

upheld . ioe, be shown to be necessary 

to the accomplishment of some 

permissible state objective, independent 

of the racial discrimination which it 

  

  

was the object of the Fourteenth 

Amendment to eliminate.” loving v. 

Virginia, 338 U.S.-»1,°31 (1961). Sea 

also Personnel Administrator of 
  

Massachusetts vv. Feeney, 442 U.S. 256, 

299 (1979); cf, Mchaughlin ‘v, Plorida, 

379 U.S. at 198 ("I cannot conceive of a 

valid legislative purpose under our 

Constitution for a state law which makes 

the color of a person's skin the test of 

whether his conduct is a criminal 

offense") (Stewart, J., concurring). 

  

  

38 

 



  

suggested, any "permissible state 

interest” that would justify the 

disproportionate infliction of capital 

punishment in a discriminatory fashion 

against black defendants. 

Nor has Georgia claimed any 

constitutional warrant to executes 

murderers of white citizens at a greater 

rate than murderers of black citizens. 

The history of the Equal Protection 

Clause establishes that race-of-victim 

discrimination was a major concern of 

its Framers, just as Professor Baldus 

has now found that it is a major feature 

of Georgia's administration of the death 

penalty. Following the Civil War and 

immediately preceding the enactment of 

the Fourteenth Amendment, Southern 

authorities not only enacted statutes 

that treated crimes committed against 

black victims more leniently, but 

frequently declined even to prosecute 

36 

 



  

persons who committed criminal acts 

against blacks. When prosecutions did 

occur, authorities often acquitted or 

imposed disproportionately light 

sentences on those guilty of crimes 

against black persons. 12 

  

12 see, e.g., Report of the Joint 

Committee on Reconstruction, at the 

First Session, Thirtv-Ninth Congress, 

Part 11, at 25 (1866) (testimony of 

George Tucker, commonwealth 

attorney) (The southern people "have not 

any idea of prosecuting white men for 

offenses against colored people; they do 

not appreciate the idea."); id. at 209 

(testimony of Lt. Col Dexter Clapp) ("Of 

the thousand cases of murder, robberv, 

and maltreatment of freedmen that have 

come before me, . . . . I have never yet 

known a single case in which the local 

authorities or police or citizens made 

any attempt or exhibited any inclination 

to redress any of these wrongs or to 

  

  

  

protect such persons.'); id. at 213 

(testimony of Lt. Col. J. Campbell); 

id., Part. III, at 141 (Testimony of 

Brevet M.J. Gen. Wagner Swayne) ("I have 

not known, after six months' residence 

at the capital of the State, a single 

instance of a white man being convicted 

and hung [sic] or sent to the 

penitentiary for crime against a negro, 

while many cases of crime warranting 

such punishment have been reported to 

me."); id., Part IV, at 76-78 (testimony 
of Maj. Gen. George Custer). 

37 

 



  

The congressional hearings and 

debates that led to enactment of the 

Fourteenth Amendment are replete with 

references to this pervasive race-of- 

victim discrimination; the Amendment and 

the enforcing legislation were intended, 

in substantial part, to stop it. As the 

Court recently concluded in Briscoe Vv. 
  

Lahue, 460 0.5, 328, 2338 (1983), "{4i]lf 

is clear from the legislative debates 

that, in the view of the . . . sponsors, 

the victims of Klan cutrages were 

deprived of ‘equal protection of the 

laws' if the perpetrators systematically 

went unpunished.” See discussion in 

Petition for Certiorari, McCleskey v. 
  

Zant, No. 84-8811, aft 5-7. 

Even without reference to the 

Amendment's history, race-of-victim 

sentencing disparities violate long- 

recognized equal protection principles 

applicable to all forms of state action. 

38 

 



  

"The Court has often held that whenever 

either "fundamental rights" or "suspect 

classifications” are involved, state 

action "may be justified only Dy: a 

‘compelling state interest' . . . and 

legislative enactments must be 

narrowly drawn to express only the 

legitimate state interests at stake." 

Roe v. Wade, 410 U.S. 113, 158 (1973); 
  

see also Cleveland Board of Education v. 
  

Lafleur, 414 U.S. 632 (1974); Stanlisy Vv. 
  

Yilinols, 408 U.8, .8453.(1972)}., 
  

Discrimination by the race of victim 

not only implicates a capital 

defendant's fundamental right to life, 

cf. Skinner wv. Oklahoma, 31868 03.8S. 535, 
  

541 (1942), but employs the paradigmatic 

suspect classification, that of race. In 

McLaughlin v. Florida, supra, the Court 
  

examined a criminal statute which 

singled out for separate prosecution 

any black man who habitually occupied a 

39 

 



  

room at night with a white woman (or 

vice versa) without being married. The 

statute, in essence, prosecuted only 

those of one race whose cohabiting 

"yictims" were of the other race. 

Finding no rational justification for 

this race-based incidence of the law, 

the Court struck down the statute. 

The discrimination proven in the 

present case cannot be defended under 

any level of Fourteenth Amendment 

scrutiny. Systematically treating 

killers of white victims more harshly 

than killers of black victims can have 

no constitutional justification. 13 This 

  

13 The Court identified in Gregg 
v. Georgia, 428 0.8. at 183-84 (19786), 

at least two "legitimate governmental 

cbjectives” for the death penalty-- 

retribution and deterrence. The Court 

noted that the death penalty serves a 

retributive purpose as an "expression of 

society's moral outrage at particularly 

offensive conduct.” 428 U.S. . at 183. 

The race of the victim obviously has no 

place as a factor in society's 

expression of moral outrage. Similarly, 

if the death penalty is meant to deter 

  

40 

 



  

would set the seal of the state upon the 

proposition that the lives of white 

people are more highly valued than those 

of black people -- either an "assertion 

of [the] . Ey . inferiority" of blacks, 

Strauder v. West Virginia, 100 U.S. at 
  

308, or an irrational exercise of 

governmental power in its most extreme 

form. 

B. The Eighth Amendment Prohibits 

Racial Bias In Capital Sentencing 

Petitioner McCleskey has invoked the 

protection of a second constitutional 

principle, drawn from the Bighth 

Amendment. One clear concern of both the 

concurring and dissenting Justices in 

Furman Vv. Georgia, 408 U.S, 238 (1972), 
  

was the possible discriminatory 

application of the death penalty at that 

time. Justice Douglas concluded that 

  

capital crime, it. ought to deter such 

crime equally whether inflicted against 

black or against white citizens. 

41 

 



  

the capital statutes before him were 

"pregnant with discrimination,” 408 B.S. 

at 257, and thus ran directly counter to 

"the desire for equality . . . reflected 

in the ban against ‘'cruel and unusual 

punishments' contained in the Eighth 

Amendment." I8. Trav 285. Justice 

Stewart lamented that "if any basis can 

be discerned for the selection of these 

few sentenced to die, it 3s The 

constitutionally impermissible basis of 

race."1l4 These observations illuminate 

the holding of Furman, reaffirmed by the 

Court: in Gr=adgd and subsequent cases, 

that the death penalty may "not be 

imposed under sentencing procedures that 

create{] a substantial risk that it 

[will] 4 . ; be inflicted in. an 

arbitrary and capricious manner." Gredg 

  

14 see id. at 364-66 (Marshall, 

J. , concurring); cf. id, at” 389 n.12 

(Burger, C.J., dissenting); jd. at 449- 

50 (Powell, Jr., dissenting). 

  

42 

 



  

v. Georgia, 428 U.S. at 183; Godfrey v. 
  

  

Georgia, 446 U.S. at 4283: Zant vv. 
  

Stephens, 456 U.S. 410, 413 (1982) (per 
  

curiam). 

The Court itself suggested 1n Zant 

i tephens, 482 U.S. 8362, 885 (1983), 
  

that if "Georgia attached the 

'aggravating'' label to factors that are 

constitutionally impermissible or 

totally irrelevant to the sentencing 

process, such as . . . the race . . . of 

the defendant . . . due process of law 

would require that the jury's decision 

to impose death be set aside." This 

Eighth Amendment principle tracks the 

general constitutional rule that, where 

fundamental rights are at stake, 

"legislative enactments must be narrowly 

drawn to express only the legitimate 

state interests at stake." Roe v. Wade, 
  

410 g.3. at 158, Legislative 

classifications that are unrelated to 

43 

 



  

any valid purpose of a statute are 

arbitrary and violative of the Due 

Process Clause. Cleveland Board of 
  

Education Vv. LaFleur, 414 0.8. 832 
  

(1974); Stanley v. Iliinois, 405 Jus. 
  

645 (1972). A legislative decision to 

inflict the uniquely harsh penalty of 

death along the lines of such ‘an 

irrational classification would be still 

more arbitrary under the heightened 

Eighth Amendment standards of Furman. 

Cf. Gardner v. Florida, 430... 0.8... 349, 
  

357-58, 361 (1977) (plurality opinion); 

id. at 362-64 (opinion of  Pnits, J.) 

And nothing could be more arbitrary 

within the meaning Of the Eighth 

Amendment than a reliance upon race in 

determining who should live and who 

should die. 

A 

 



  

IX. 

THE COURT OF APPEALS FASHIONED 

UNPRECEDENTED STANDARDS OF PROOF WHICH 

FORECLOSE ALL MEANINGFUL REVIEW OF 

RACIAL DISCRIMINATION IN CAPITAL 

SENTENCING PROCEEDINGS 

The crucial errors of the Court of 

Appeals involve the "crippling burden of 

proof" it placed upon petitioner and any 

future inmate who would seek the 

protections of the Federal Constitution 

against racial discrimination in capital 

sentencing. "[E]qual protection to 

all," the Court long ago observed, "must 

be given -- not merely promised." Smith 

v., Texas, 311 U.S. at 130. The opinion 
  

below was all promise, no give. It 

held, in effect: You can escape being 

judged by the color of your skin, and by 

that of your victim, if (but only if) 

you can survey and capture every 

ineffable quality of every potentially 

capital case, and if you then meet 

standards for statistical analysis that 

45 

 



  

are elsewhere not demanded and nowhere 

susceptible of attainment. 

Judged by these standards, the 

research = of Professor Baldus-- 

described by Dr. Richard Berk as "far 

and away the most complete and thorough 

analysis of sentencing that's ever been 

done" (Fed. Tr. 1188) == ils simply not 

good enough. Nor would any future 

studies be, absent evidence that 

apparently must "exclud(e] avery 

possible factor that might make a 

difference between crimes and 

defendants, exclusive of race." 

(Y.A.261).,. As we shall demonstrate in 

the following subsections, these 

manifestly are not appropriate legal 

standards of proce. They depart 

radically from the settled teachings of 

the Court. They have no justification 

in policy or legal principle, and they 

trivialize the importance of Professor 

46 

 



  

Baldus's real and powerful racial 

findings. 

A. The Court of Appeals Ignored This 
Court's Decisions Delineating A Party's 
Prima Facie Burden Of Proof Under The 

Equal Protection Clause 
  

(i) The Controlling Precedents 

In Batson VV. Kentucky, the Court 
  

recently outlined the appropriate order 

of proof under the Equal Protection 

Clause. "iijn any equal protection 

case, 'the burden is, of course,' on the 

defendant. . . 'to prove the existence 

of purposeful discrimination.' Whitus v. 

Georgia, 335 U.S. {548), at 550 [1967] 

hy 20 L.E&. 2d at 85, "[The 

defendant] may make out a prima facie 

case of purposeful discrimination by 

showing that the totality of rsievant 

facts gives rise to an inference of 

discriminatory purpose." Washington v. 

Davis, [426 U.S.) at 239-242." 

Once the defendant makes the 
requisite showing, the burden 

shifts to the State to explain 

47 

 



  

adequately the racial exclusion. 

Alexander v. Louisiana, 405 U.S. 

[825], at 832 "{{(1972)}. The 

State cannot meet this burden on 

mere general assertions that its 

officials. did not discriminate 

or that they properly performed 

their duties. See Alexander Vv. 

Louisiana, supra, at 632; Jones 

v. Georgia, . 388 U.S. .24, 25 

{1987}. Rather the State must 

demonstrate that "permissible 

racially neutral selection 

criteria and procedures have 

produced the .  . . result.” 

90 L.Ed.2d 85-86. 

The approach is "ag fraditional 

feature of the common law," Texas Dep't 
  

of Community Affairs v. Burdine, 450 
  

0.8. at 253 n.8, "which, in the context 

of discrimination litigation, requires a 

complainant to "eliminate{] the most 

common nondiscriminatory reasons for the 

[observed facts]," id. at 254, and then 

places a burden on the alleged wrongdoer 

to show "a legitimate reason for" those 

facts, ia. at 255, thereby 

"progressively . ; . sharpen[ing] the 

inguiry into the elusive factual 

48 

 



  

question of intentional discrimination.” 

Id. at 255 n.8.1% 

Although the initial showing of 

race-based state action required depends 

upon the nature of the claim and the 

responsibilities of the state actors 

involved, Washington vv. Davis, 426 U.S. 
  

at 253 (Stevens, J, concurring), 

Castaneda v. Partida,6 430 U.S. 482, 4%4- 
  

95 (1977); cf. Wavte v. United States, 
  

Ss u.s,. ," Bs L.BE.24 B47, 556 n.lo 

(1985), the guiding principle is that 

courts must make "a sensitive inquiry 

into such circumstantial and direct 

  

15The roots of this approach run 
back at least as far as Neal vw. 

Delaware, 103 U.S. 370 (1881), where the 

Court refused to indulge a "violent 

presumption," offered by the State of 
Delaware to excuse the absence of black 

jurors, that "the black race in Delaware 
were utterly disqualified, by want of 

  

  

intelligence, experience or moral 
integrity to sit on juries." 103 U.S. 

at «391. Absent proof to support its 
contention, the State's unsupported 
assertion was held insufficient to rebut 

the prisoner's prima facie case. Id. 
  

49 

 



  

evidence of intent as may be available.” 

Village of Arlington Heights Vv. 
  

Metropolitan Housing Development Corp., 
  

420% U.S. 282,268" (1971). Accord, 

Rogers Vv. Lodge, 488  0.S. 5313, 618 
  

{1982). Among the most important 

factors identified by the Court ‘as 

probative have been (i) the racial 

impact of the challenged action, (11) 

the existence of a system affording 

substantial state discretion, and (iii) 

a history of prior discrimination. 

(ii) Petitioner's Evidence 

The prima facie case presented by 
  

petitioner exceeds every standard ever 

announced by this Court for proof of 

discrimination under the Equal 

Protection Clause. The centerpiece of 

the case, although not its only feature, 

is the work of Professor Baldus and his 

colleagues, who have examined in 

remarkable detail the workings of 

50 

 



  

Georgia's capital statutes during the 

first seven years of their 

administration, from 1973 through 1979. 

The Baldus studies are part of a body of 

scientific research conducted both 

before and after Furman that has 

consistently reported racial 

discrimination at work in Georgia's 

capital sentencing system.l® Baldus's 

research reached the same conclusions as 

the earlier studies, but there the 

resemblance ends: his work is vastly 

more detailed and comprehensive than any 

  

16 see, Wolfgang & Riedel, Race, 
Judicial Discretion and the Death 

Penalty, 407 Annals 119 (1973); Wolfgang 
& Riedel, Race, Rape and the Death 

Penalty in Georgia, 45 Am. J 

Orthopsychiat. 658 (1975); Bowers & 
Pierce, Arbitrariness and Discrimination 

Under Post-Furman Capital Statutes, 26 

Crime & Deling. 563 .{1980); Gross & 
Mauro, Patterns of Death: An Analysis 

of Racial Disparities in Capital 

Sentencing and Homicide Victimization, 

37 Stan. L. ‘Ray... 27 (1984); Barnett, 

Some Distribution Patterns for the 

Georgia Death Sentence, 18 U.C. Davis L. 

Rev, 1327 (1985). 

  

  

  

  

  

  

  

  

  

  

  

51 

 



  

prior sentencing study in Georgia or 

elsewhere. 

The Baldus research actually 

comprised two overlapping studies: the 

first, a more limited examination of 

cases from 1973-1978 in which a murder 

conviction had been obtained at trial 

{Fed.Tr.3170); the second, a wide- 

ranging study involving a sample of all 

cases from 1973 through 1979 in which 

defendants indicted for murder or 

voluntary manslaughter had been 

convicted and sentenced to prison. (Id. 

263-65). Most of Baldus' findings in 

this case are reported from the second 

study. 

a. The Racial Disparities 

"The impact of the official action 

-- whether it 'bears more heavily on one 

race than another' . . . == provide[s] 

an important starting point." Arlington 
  

Heights, 429 U.S. at 266. Here, the 

52 

 



  

Baldus studies reveal substantial, 

unadjusted racial disparities: a death- 

sentencing rate nearly eleven times 
  

higher in white-victim cases than in 

black-victim cases. (Fed.Tr.730-33; S.E. 

46). Professor Baldus testified that 

these figures standing alone did not 

form the basis for his analysis, 

because they offered no control for 

potential legitimate explanations of the 

observed racial differences. (Fed. Tr. 

734), Professor Baldus thus began 

collecting data on every non-racial 

factor suggested as relevant by the 

literature, the case law, or actors in 

the criminal justice system. His final 

questionnaires sought information on 

over 500 items related to each case 

studied, (Fed.Tr.278-92; S.F. 1-42). 

After collecting this vast 

storehouse of data, Professor Baldus and 

his colleagues conducted an exhaustive 

53 

 



  

series of analyses, involving the 

application of increasingly 

sophisticated statistical tools to 

scores of sentencing models. The great 

virtue of the Baldus work was the 

richness of his data sources and the 

extraordinary thoroughness of his 

analysis. Throughout this research, 

Baldus and his colleagues forthrightly 

tested many alternative hypotheses and 

combinations of factors, in order to 

determine whether the initial observed 

racial disparities would diminish or 

disappear. (Fed.Tr.1082-83). Far from 

concealing their results from scrutiny, 

they exposed them to open and repeated 

inquiry by others, soliciting from the 

State and obtaining from the federal 

judge in this case an additional 

"sentencing model" which they then 

tested and reported. (Fed.Tr.810; 1426; 

1475-76) (R. 731-52). 

54 

 



  

The results of these analyses were 

uniform. Race-of-victim disparities not 

only persisted in analysis after 

analysis om at. high levels of 

statistical significance -- but the race 

of the victim proved to be among the 

more influential determiners of capital 

sentencing in Georgia. Professors 

Baldus and Woodworth indicated that 

their most explanatory model of the 

Georgia system, which controlled * for 39 

legitimate factors, revealed that, on 

average, the murderers of white victims 

faced odds of a death sentence over 4.3 

times greater than those similarly 

situated whose victims were black. (See 

DB 82). Moreover, black defendants like 

petitioner McCleskey whose victims were 

white were especially likely to receive 

death sentences. 

b. The Opportunity for Discretion 

The strong racial disparities shown 

55 

 



  

by Professor Baldus arise in a system 

affording state actors extremely broad 

discretion, one unusually "susceptible 

of abuse.” Castaneda v. Partida, 430 
  

U.S. at 494. The existence of discretion 

is relevant because of "the opportunity 

for discrimination [it] . . . present([s] 

the State, if so minded, to discriminate 

  without ready detection." Whitus Vv. 

Gecrgia, 385 0.3. at 552. The 

combination of strong racial disparities 

and a system characterized by ample 

State discretion has historically 

prompted the closest judicial scrutiny. 

Ses, &,.0., Yick Wo v. Hoplting, 115 D.S. 
  

at 373~74. 

Post-Furman capital sentencing 

systems in general are characterized bv 

a broad "range of discretion entrusted 

to... .a jury,” which affords "a unigue 

opportunity for racial prejudice to 

cperate but remain undetected.” Turner 

56 

 



  

Vv, Murray, 90 L.Ed. 24 at 35. The 
  

Georgia system is particularly 

susceptible to such influences, since 

Georgia: (i) has only one degree of 

murder, Gregg v. Georgia, 428°0.8¢3:183, 
  

196 (1976); (ii) permits a prosecutor to 

accept a plea to a lesser offense, or to 

decline to submit a convicted murder 

case to a sentencing Jury, even if 

statutory aggravating circumstances 

@xisly, sid. arf 199; {i1id) includes 

several statutory aggravating 

circumstances that are potentially 

vague and overbroad, id. at 200-02 (at 

least one of which has in fact been 

applied overbroadly, Godfrey v. Georgia, 
  

446 U.S. 420 (1980)); and (iv) allows a 

Georgia jury "an absolute discretion” in 

imposing sentence, unchecked by any 

facts or legal principles, once a single 

aggravating circumstance has been found. 

ant v. Stephens, 462 U.S. 862, ‘811 
  

57 

 



  

(1983). 

Petitioner presented specific 

evidence which strongly corroborated 

this general picture. The District 

Attorney for Fulton County, where 

petitioner was tried, acknowledged that 

capital cases in his jurisdiction were 

handled by a dozen or more assistants. 

(Dep. 18, 45-438). The office had no 

written or oral policies or guidelines 

to determine whether a capital case 

would be plea-bargained or rought to 

trial, or whether a case would move to a 

sentencing proceeding upon conviction. 

(Dep. 12-14, 20=22 28, 34-38). The 

District Attorney admitted that his 

office did not always seek a sentencing 

trial even when substantial evidence of 

aggravating circumstances existed. (Dep. 

38-39). Indeed, he acknowledged that 

the process in his office for deciding 

whether to seek a death sentence was 

58 

 



  

"probably . . . the same" as it had been 

in the pre-Furman period. (Dep. 59-61). 

These highly informal procedures are 

typical in other Georgia jurisdictions 

as well. See Bentele, The Death Penalty 
  

in Georgia: Still Arbitrary, 61 Wash. 
  

U. L.Q. 573, 609-21 (1985) (examining 

charging and sentencing practices among 

Georgia prosecutors in the post-Furman 

period) .17 

c. The History of Discrimination 

Finally, "the historical background” 

of the State action under challenge "is 

  

17 This evidence is sufficient to 
overcome the constitutional presumption 
"that prosecutors will be motivated in 

their charging decisions [only by] 
the strength of their case and the 

likelihood that a jury would impose the 
death penalty if it convicts." Gregg Vv. 
Georgia, 428 U.S. at 225. Professor 

Baldus performed a number of analyses on 
prosecutorial charging decisions, both 

statewide (Fed.Tr.897-910; S.E. 56-57), 

and in Fulton -County (Fed. .Tr.978-8)1; 
S.E. 59-60), which demonstrate racial 
disparities in prosecutorial plea- 

bargaining practices. 

  

  

59 

 



  

one evidentiary source." Arlington 
  

Heights, 429 U.S. at 267. See generally 
  

Hunter v. Underwood, _U.S.__, 85 L.Ed.2d 
  

222 (1985); Rogers v. Lodge, 458 U.S. 
  

813 (1982). Petitioner supplemented 

his strong statistical case with 

references to the abundant history of 

racial discrimination that has plagued 

Georgia's past. Some of that history 

has been set forth in the petition for 

certiorari, and it will not be reviewed 

in detail in this brief. 

It suffices to note here that, for 

over a century, Georgia possessed a 

formal, dual system of crimes and 

penalties, which explicitly varied by 

the race of the defendant and that of 

the victim. (See Pet. for Certiorari, 

3-4). When de jure discrimination in 

Georgia's criminal law ended after the 

Civil War, it was quickly replaced by a 

social system involving strict de jure 

60 

 



  

segregation of most areas of public 

life, with consequent rampant de facto 
  

discrimination against blacks in the 

criminal justice system.l18 (Id., 8-11). 

This Court and the lower federal courts 

have been compelled repeatedly to 

intervene in that system well into this 

century to enforce the basic 

constitutional rights of black citizens. 

(See cases cited in Pet. for Certiorari, 

ion. 18. Unfortunately, the State's 

persistent racial bias has extended to 

the administration of its capital 

statutes as well. 

# * # * 

In sum, petitioner presented the 

District Court with evidence of 

  

18 As a Georgia court held in 
1907: "[E]quality [between black and 
white citizens] does not, in fact, 
exist, and never can. The God of nature 
made it otherwise and no human law can 

produce it and no tribunal enforce it." 
Wolfe v. Georgia Ry. & Elec. Co., 2 Ga. 
App. 499, 58 S.E. 899, 903 (1907). 
  

61 

 



  

substantial racial discrimination in 

Georgia's capital sentencing systen, 

after controlling for hundreds of non- 

racial variables. He noted that this 

highly discretionary system was open to 

possible abuse, and he recited a long 

and tragic history of prior 

discrimination tainting the criminal 

justice system in general and the 

administration of capital punishment in 

particular. Nothing more should have 

been necessary to establish a prima 

facie case under this Court's settled 

precedents. 

(iii) The Opinion Below 

A majority of the Court of Appeals 

found petitioner's evidentiary showing 

to be "insufficient to either require or 

support a decision for petitioner.” 

{J .A.248). The court in effect 

announced the abolition of the prima 

facie standard, and required instead 

62 

 



  

that petitioner produce evidence "so 

great that it compels a conclusion that 

the system is . ‘ . arbitrary and 

capricious," (J.A.258) and "so strong as 

to permit no inference other than that 

the results are the product: of a 

racially discriminatory intent or 

purpose." (J.A.250). Petitioner failed 

this test, the court concluded, in part 

because his studies failed to take 

account of "'countless racially neutral 

variables, '" including 

looks, age, personality, 
education, profession, job, 

clothes, demeanor and remorse, 
just to name a few . . There 

are, in fact, no exact 
duplicates in capital crimes and 

capital defendants. 

{2.A.2721-212). 

To meet the lower court's standard 

of proof, in other words, would have 

required petitioner to anticipate and 

control for factors the court frankly 

acknowledged to be "countless." Such a 

63 

 



  

standard seems squarely, irretrievably 

at odds with the whole notion of a prima 

facie case. If a petitioner's evidence 

must "compel a conclusion” of 

discriminatory intent -- if it must 

anticipate and dispel every conceivable 

non-racial explanation --then the so- 

called "prima facie" case is logically 
  

irrebuttable and required to be so. 

This insatiable demand for unspecified 

information is precisely what the Court 

condemned as error last Term in Bazemore 
  

  

Vv, Friday, 108. S.CT. at 3009. 

(petitioner's’ evidence need "not 

include ‘all measurable variables 

thought to have an effect on [the matter 

at issuel]"). It is no less error in this 

case. 

B. The Court of Appeals Disregarded 

This Court's Teachings On The Proper 

Role Of Statistical Evidence In 

Proving Intentional Discrimination 

(i) The Controlling Precedents 

Closely related to its repudiation 

64 

 



  

of the prima facie principle was the 
  

Court of Appeals’ disparagement of 

statistical proof. Once again, the 

court's opinion clashed sharply with the 

pronouncements of this Court. "[O]ur 

cases make gn unmistakably clear,” 

Justice Stewart wrote in Teamsters Vv. 
  

United States, 431 U.S. 324, 339 (1977), 
  

that '[s]tatistical analyses have 

served and will continue to serve an 

important role' in cases in which the 

existence of discrimination is = 

disputed issue.” "Where gross 

statistical disparities can be shown, 

they alone may in a proper case 

constitute prima facie proof of a 

pattern or practice of discrimination.” 

Hazelwood School District v. United 
  

States, 433 U.S. 299, 307-038. 11977). 

See, e.g. Castaneda v. Partida, 430 U.S. 
  

482, 493-96 (1977). The statistical 

method chiefly relied upon by petitioner 

65 

 



  

McCleskey —— multiple regression 

analysis -- was specifically discussed 

with approval by the Court in Bazemore 
  

v. Friday, 96 S.Ct. at 300%, and has 
  

received wide acceptance in the lower 

courts. 198 

(ii) Petitioner's Evidence 

In the District Court, Professors 

Baldus and Woodworth explained in 

painstaking detail every major 

methodological issue they faced, how 

they addressed the issue, and how it 

  

19 See, e.gd., Wilkins v, University 

of Houston, 654 F.2d 388, 402-03 (5th 
    

  

  

  

Cir. 1981), vacated and remanded on 

other grounds, 459 U.S. 809 (1982); EEOC 

Vv, Ball Corp., 681 F.2d 831 (6th Cir. 
  

1981); ‘Coble vy. Hot Springs School 

District No. 6, 682 F.2d 721,731-32 (8th 

cir. 1982); Eastland v. TVA, 704 7.24 

813 (iith Cir. 1983); Segar v. Smith, 

7383 F.28 ‘at 1281, 1278-79; Vuyanich v. 

  

  

  

  

  

  
Republic Nat'l Bank, supra. See 

generally Finkelstein, The Judicial 
  

  

Reception of Multiple Regression Studies 

in Race and Sex Discrimination Cases, 80 

Colum. L. Rev, 1737 (1980); Fisher, 

Multiple Regression in Legal 

Proceedings, 80 Colum. L. Rev. 702 (1980). 

  

  

  

  

66 

 



  

affected their findings. See, e.g., 
  

Fed. Tr. 883; 204-05; 713; 1783; 820; 

917-18; 1222-24; 1279-82). In virtually 

every instance of significance, they 

conducted their analysis by alternative 

methods, and demonstrated that the 

choice of methods made no difference in 

the racial disparities. 

The Baldus studies drew accolades 

from Dr. Richard Berk, who evaluated 

their quality and soundness in light of 

his prior comprehensive review of 

entanotg research as a member of a 

National Academy of Sciences panel: 

[Baldus' studies] have] very 

high credibility, especially 
compared to the studies that 
[ the National Academy of 

Sciences] . . . reviewed. We 
reviewed hundreds of studies on 
sentencing . . . and there's no 

doubt that at this moment, this 
is far and away the most 

complete and thorough analysis 
of sentencing that's ever been 
done. I mean there's nothing 

even close. 

(Fed.Tr.1766). 

67 

 



  

Baldus and Woodworth conducted 

analyses with simple cross-tabular 

methods and with complex multivariate 

methods. (Tr. 122-28; S.F. 47-49). 

They used "weighted" and "unweighted" 

data. {Fed.Tr.621-26; S.E. 68-69) . 

They used multiple regression models 

employing enormously large numbers of 

variables (230 or more) (Fed.Tr.802-04; 

S.E 51), and they used medium-sized and 

small models as well. (Fed.Tr.273-92; 

S.2. 88). Professor Baldus selected 

variables by employing his legal and 

professional expertise concerning the 

factors most likely to influence capital 

sentencing decisions. (Tr. 808-09). Then 

he permitted a computer to refine his 

selection by the use of "stepwise" 

regressions and other objective 

statistical means. (Fed.Tr.821-23). 

Professors Baldus and Woodworth 

conducted analyses on the variables as 

68 

 



  

coded; then, when the State challenged 

those particular coding values, they 

recoded the variables and ran the 

analyses again. (Fed.Tr.1677-1700). 

They employed acceptable statistical 

conventions to "impute" values in the 

small number of cases where some data 

were actually missing {Fad Tr». 1101~ 

02), but they also performed "worst- 

case" analyses in which they adopted 

assumptions most contrary +o their 

theories and re-ran their analyses under 

such } aeatnpt ions, {Fad.Tr.1101: 170% 

07;. 8.2. 84-617). 

Dr. George Woodworth, petitioner's 

statistical expert, testified to the 

appropriateness of the major statistical 

conventions used in the studies. 

(Fed.Tr.1265). He also testified about 

a series of "diagnostic" analyses he 

conducted to verify the statistical 

appropriateness of each procedure 

69 

 



  

selected. 20 (Fed.Tr.1251-65). 

Finally, indulging professional 

skepticism even as to the use of 

statistical methods, Professor Baldus 

conducted additional non-statistical, 

"qualitative" analyses in which he 

evaluated (a) all post-Furman Georgia 

cases with the H{nh){2)" or 

"contemporaneous felony" aggravating 

circumstance (see PB 88); (bY "all 

capital cases arising in Fulton County 

(Fed.Tr.842-45; see DB 109); and {c)y all 

Fulton County cases involving police 

officer victims. (Fed.Tr.1051-55; S.E. 

61-63). He evaluated those cases 

through recognized scientific means, 

comparing the qualitative features and 

facts of each case to ascertain whether 

racial factors continued to play a 

  

20 pr, Richard Berk confirmed 

during his testimony that the methods 

employed by Baldus and Woodworth were 

statistically appropriate. {Fed To. 

1766; 1784-86). 

70 

 



  

role. They did. (Fed.Tr.864-65; 993; 

1055-56). 

It is difficult to imagine a more 

wide-ranging and searching series of 

statistical and non-statistical 

analyses. The results were not only 

internally consistent; they were 

essentially consistent with all other 

research that has been conducted on 

Georgia's post-Furman capital system. 

(iii) The Opinion Below 

The Court of Appeals treated 

statistical evidence as going to two 

distinct points, and ended by dismissing 

its utility for either purpose. The 

majority . first held that statistical 

studies can never prove discrimination 

against an individual defendant.2l This 
  

21 The Court of Appeals states this 
proposition in varying forms: 
"[G]leneralized statistical studies are 

of little use in deciding whether a 
particular defendant has been 

unconstitutionally sentenced to death.” 
(J.A.260). "No single petitioner could, 

t 

 



  

thesis appears to rest in part upon the 

unobjectionable premise that statistics, 

dealing as they do with probabilities 

and averages, cannot purport to speak 

directly to the events in any particular 

case. Where it goes wrong is in denying 

that specific events can and often must 

be proved indirectly, by inferences 

drawn from probabilities.?22 It is 

unclear why the majority was unwilling 

to permit recourse to ordinary fact- 

finding procedures for proof of of 

racially discrimination in capital 

sentencing. bo may be unwarranted 

skepticism regarding the probative power 

  

on the basis of these statistics alone, 

establish that he received the death 

sentence because, and only because, his 

victim was white.” (J.A.287). "The 

statistics alone are insufficient to 

show that McCleskey's sentence was 

determined by the race of his victim, or 

even that the race of .his victin 

contributed to the imposition of the 

penalty in his case." (J.A.270). 

22 cf. Fed. Rule Evid. 406. 

272 

 



  

of statistics "[w]lhere intent and 

motivation must be proved." (J.A.250). 

Cf. Castaneda Vv. Partida, 430 U.S. at 
  

495-97 & R.17 (finding statistical 

evidence sufficient to make out a prima 

facie case of intentional racial 

discrimination). Or it may reflect the 

improvident burden of proof announced by 

the Court of Appeals in capital cases, 

under which a condemned inmate must 

present evidence "so strong as to permit 

no inference other than that . . . of a 

racially discriminatory intent or 

purpose" (J.A.250 ). Either way, the 

result is incorrect and reversible. For 

the proper rule, of course, is that "as 

long as the court may fairly conclude, 

in the light of all the evidence, that 

It is more likely than not that 

impermissible discrimination exists, the 

[claimant] o ; ." is entitled to 

prevail." Bazemore Vv. Friday, 106 
  

73 

 



  

S.Ct.at 30089. 

The Court of Appeals took a somewhat 

different tack regarding the bearing of 

statistical evidence on the second issue 

it perceived’ -- whether there was 

discrimination in "the system” as 

distinguished from discrimination aimed 

at "a particular defendant." (J.A.260). 

The majority tacitly conceded, as 

precedent requires, that statistical 

evidence might suffice in principle to 

compel an inference of system-wide 

  

discrimination. 23 (J.A.260-61). Yet 

the Court immediately faulted any 

23 nrn[pliscriminatory impact 
may For all practical purposes 
demonstrate unconstitutionality [where] 

: ‘ the discrimination is very 
difficult to explain on nonracial 

  

  

  

  

grounds." Washington v. Davis, 426 U.S. 
at 242. Accord: Batson vv. Kentucky, 90 

L.BEd.24 at “ 858, See also Personnel 

Administrator of Massachusetts 7 

Feeney, 442 U.S. 256, 275 (1979) aut 10 Tb 
the impact of this statute could not 
plausibly be explained on a neutral 
ground, impact itself would signal that 
the real classification made by the law 

was in fact not neutral.”) 

74 

 



  

systemwide statistical study that did 

not take into account "every possible 

factor," e.g,, each. of the "'countless 

racially neutral variables'" that it 

hypothesized must exist. {ToA.261). IL 

faulted even Professor Baldus's largest 

statistical models for this failure, and 

concluded that "[t]lhe type of research 

submitted here . . . is of restricted 

use in showing what undirected factors 

control” Georgia's capital sentencing 

system. (J.A.272). 

A prima facie statistical case has 
  

never been supposed to require the 

anticipatory negation of "every possible 

factor" that might explain away an 

apparent pattern of discrimination. 

Accounting for "the most common 

nondiscriminatory” factors is 

sufficient. Texas Dept't of Community 
  

Affairs vv, Burdine, 480 U.S. at 254; 
  

see, e.g., Bazemore v. Friday, 106 S.Ct. 
  

75 

 



  

at 3009. Here, petitioner not only 

demonstrated substantial racial 

disparities; he then voluntarily 

assumed, and amply met, the burden of 

discounting every plausible non-racial 

explanation ever suggested. At that 

point, if not earlier, he met his prima 

facie burden. 24 

  

  

  

  

  

24 Having done so, Y"'[i]f there 

[was] . vii, "me Syaewmumt i140 [was] “ivy 

one which the State [had to] . . . fill, 

by moving in with sufficient evidence to 

dispel the prima facie case of 

discrimination.'" Turner: v. Fouche, 396 

U.S. at 361, quoting Avery Vv. Georgia, 

345 UB.3. 889, 58562 (1953). See also 

Patton v. Mississippi, 332 U.S. 463, 

468-69 (1947). To do so, the State was 

obligated to "make a 'clear and 

reasonably specific showing,' based on 

admissible evidence, that [an] alleged 

nondiscriminatory explanation in fact 

explains the disparity.” Segar Vv. 

Smith, 738 F.24 at 1268, quoting Texas 

Dep't of Community Affairs wv. Burdine, 

450 U.S. at 2853-58. The State of 

Georgia never identified such a factor, 

much less made a "clear and reasonably 

specific showing” of its impact on 

Georgia's racial disparities. 

  

  

76 

 



  

C. The Court Of Appeals Erroneously 

Held That Even Proven Patterns Of Racial 

Discrimination Will Not Violate The 

Constitution Unless Racial Disparities 

Are Of Large Magnitude 

The Court of Appeals committed two 

egregious errors -- one legal and the 

other factual -- in its treatment of 

petitioner's racial results. First, it 

held that the Equal Protection Clause 

prohibits discriminatory state conduct 

only if such conduct is of "substantial® 

magnitude. Secondly, it found 

petitioner's racial disparities to be 

"marginal." 

Yet the Fourteenth Amendment 

prohibits every instance cof state- 

sanctioned discrimination, irrespective 

of its magnitude. And petitioner's 

racial findings are in fact quite 

substantial in magnitude: race ranks 

among the factors, whether legitimate or 

illegitimate, that exert the largest 

influence on Georgia's capital 

17 

 



  

sentencing systen. 

(4) The Controlling Precedent 

The Equal Protection Clause does not 

admit of partial performance. A State 

engaged in discrimination on the basis 

of race must cease its unconstitutional 

conduct altogether. This principle was 

confirmed last Term in Papasan V. 
  

Allain, supra. Responding to an argument 

that the Equal Protection Clause was not 

implicated in that case because school 

funds at issue there were ran 

insignificant part of the total payments 

from all sources made to Mississippi's 

school districts,'"™ 106 5.Ct. at 2951- 

53, the Court expressly "decline{d] to 

append to the general requirements of an 

equal protection cause of action an 

additional threshold effects 

requirement.” Id. at 2946 n.1l7. 

The same principle emerges 

inferentially from Bazemore v. Friday, 
  

78 

 



  

which involved a dispute over a 

disparity of $331 in the average yearly 

wages of black and white employees-- 

less than 3% of the wage for white 

workers. The lesson of Bazemore is 
  

plain: if blacks prove that they 

regularly receive only 95 cents on the 

dollar from a State agency, the State 

cannot defend on the ground that a 

nickel is de minimus.?25 
  

  

25 The Court's jury discrimination 
cases are no exception to this rule. 

The Court's tolerance of minor 

differentials in racial representation 

between the jury-eligible populations 

and the representation on grand or petit 

jury lists reflects not constitutional 

indifference toward small acts of 
discrimination, but a recognition of the 
statistical properties of random 
selection: small differences can 

sometimes be attributed to chance. See 
Castaneda v. Partida, 430 U.S. at 496 

Nels "The idea behind the rule of 
exclusion is not at all complex. If a 

disparity is sufficiently large, then it 
is unlikely that it is due solely to 

  

chance or accident , . . ." Id. at 494 
n.13. In this case that problem lis 
absent. Petitioner has amply proven 
that the racial disparities found here 

are statistically .significant and were 

not chance findings. 

79 

 



  

(ii) Petitioner's Evidence 

The extraordinary array of 

alternative analyses conducted by 

Professor Baldus yielded, naturally 

enough, an extraordinary array of 

statistical and nonstatistical results- 

- virtually all showing racial 

disparities. Professor Baldus testified 

that the most meaningful summary 

indicators of the magnitude of the 

racial factors found were the "death 

odds-multipliers" that he calculated 

using logistic regression analysis, a 

particularly appropriate statistical 

method for the data at issue in this 

case since the overall rate of death 

sentencing is quite low. (See Fed. Tr. 

1230-34). The odds-multiplier for the 

race-of-victim factor under the best 

statistical model was 4.3, meaning that, 

on average, a Georgia defendant's odds 

of receiving a death sentence were 4.3 

80 

 



  

times greater if his victim was white 

than if the victim was black. As 

Professor Gross has observed: 

It might be useful . . . to put 
these numbers in perspective. 
Coronary heart disease, it is 

well known, is associated with 
cigarette smoking. But what is 

the magnitude of the effect? 
.[Clontrolling for age, smokers 

were 1.7 times more likely to 
die of coronary artery disease 

than nonsmokers. . oo +isimoking 
cigarettes increases the risk of 
death from heart disease 
greatly, but by a considerably 

smaller amount than the race-of- 
victim effect that the Eleventh 
Circuit dismisses as marginal.?2% 

The Tables and Figures in the 

Supplemental Exhibits are exemplary of 

additional evidence presented in the 

District Court on the magnitude of the 

racial disparity. One of Professor 

 Baldus' most important findings was that 

the impact of the racial factors varies 

  

26Gross, Race and Death: The 

Judicial Evaluation of Evidence of 
Discrimination in Capital Sentencing, 18 
U.C.. Davis L., Rav. 1275, 1307 (19885). 

  

  

  

81 

 



  

with the seriousness of the cases: 

Race is a factor in the system 

only where there is room for 

discretion, that is, where the 

decision maker has a viable 

choice. In a large number of 

cases, race has no effect. 

These are the cases where the 

facts are so mitigated the death 

penalty is not even considered 

as a possible punishment. At 

the other end of the spectrum 

are the tremendously aggravated 

murder cases where the defendant 

will very probably receive the 

death penalty, regardless of his 

race or the race of the victim. 

In between is the mid-range of 

cases where there is an 

approximately 20% racial 

disparity. 

{7.X.315) (Clark, J., dissenting in 

pare.) Professor Baldus prepared two 

tables, employing an "index method," 

that demonstrate this impact among more 

than 450 of the most aggravated Georgia 

cases. (Fed.Tr.880-83). In the tables, 

cne of which appears in the Supplemental 

Exhibits at 54, the cases were arrayed 

into eight groups according to their 

level of seriousness, with the least 

aggravated cases in group 1 and the most 

82 

 



  

aggravated in group 8. The dJdeath- 

sentencing rates were then calculated 

and reported for each group. In the 

first two groups, no one was sentenced 

to death and condequentiy no racial 

disparities appear. Once death sentences 

begin to be imposed, however, in groups . 

3 through 8, a gap quickly opens between 

the death-sentencing rates in white- 

victim cases and in black-victim cases, 

with the white-victim cases showing a 

consistently higher incidence of capital 

  

sentences. 27 A similar pattern of 

27pr. Woodworth constructed a 
number of figures to capture this 
pattern visually. One of them, GW 8, 

appears in the Supplemental Exhibits at 

page 72. In GW 8, the horizontal axis 
moving toward the right reflects 
increasingly more aggravated groups of 

cases. The vertical line represents the 
percentage increase in the likelihood of 

a death sentence. As GW 8 makes clear, 
once cases become sufficiently 
aggravated so that juries begin imposing 
death sentences, the death-sentencing 
rate rises more sharply among white- 

victim cases than among black-victim 
cases. Thus, at any particular level of 
aggravation (until the two bands finally 

83 

 



  

disparities - measured by race of the 

defendant among all white-victim cases, 

is reflected in DB 91 (Fed.Tr.885-86). 

Professor Baldus observed: 

[Wlhen you look at the cases in 
the mid-range, where the 

facts do not call clearly for 
one choice or another, that's 
where you see there's room for 

the exercise of discretion 
the facts liberate the decision 
maker to have a broader freedom 
for the exercise of discretion, 
and it is in the context of 

those decisions that you see the 
@ffects of . . + avhitrary or 
possibly impermissible factors. 

(Fed.Tr.844). 28 

Dr. Woodworth testified without 

contradiction that petitioner 

McCleskey's own crime fell into the 

  

converge at the upper levels of 

aggravation), a significantly higher 

percentage of white-victim cases receive 

death sentences. 

28 These findings support the 
"liberation hypothesis” advanced by 

Professors Harry Kalven and Hans Zeisel 

in their influential work, The American 

Jury 154-87 (1968). See generally 
Ballew v. Georgia, 435 U.S. 223, 237-38 
(1978). 

  

  

  

84 

 



  

middle of the midrange of moderately 

aggravated cases. After reviewing the 

results of three separate statistical 

techniques, Dr. Woodworth concluded: 

[A]t Mr. McCleskey's level of 

aggravation the average white 

victim case has approximately a 

twenty [20] percentage point 

higher risk of receiving the 

death sentence than a similarly 

situated black victim case. 

(Fed.Tr.1740). 

However, Professor Baldus also 

testified concerning the average impact 

of the racial factors across all of the 

cases. The Court of Appeals focused 

upon one regression coefficient?® 

  

29 The regression coefficient, as 

petitioner's experts explained, measures 

the average effect of a particular 

factor on the outcome of a multiple 

regression analysis, arter controlling 

for the cumulative impact of all of the 
other factors considered. For example, 

a coefficient of .06 for the race-of- 

victim factor in a multiple regression 

analysis measuring the death-sentence 

outcome means that, independently of 
every other factor considered, the race 

of the victim would increase the average 

likelihood of a death sentence by six 
percentage points. (Fed. Tr. 691-94). 

85 

 



  

reported in DB 83, which was derived 

from an analysis employing a 230~ 

variable model. That coefficient, .06, 

indicates that when the race of the 

victim was ‘white, the probability of a 

death sentence increased by 6-in-100. 

Petitioner offered additional 

evidence, some of it statistical and 

some non-statistical, to identify more 

precisely the likely impact of Georgia's 

pervasive racial disparities on 

petitioner McCleskey's case. First, 

Baldus reported upon his analysis of 

data from Fulton County, where 

petitioner was tried. He testified that 

his performance of progressively more 

sophisticated analyses for Fulton 

  

The number in parentheses in DB 83 under 

the .06 coefficient "(.02)" reflects the 

statistical significance of the 

coefficient. It indicates that the 

likelihood that this result would have 

occurred by chance if no racial 

disparities in fact existed is less than 

2 per cent. : 

86 

 



  

County, similar to those he had employed 

statewide, "show a clear pattern of race 

of victim disparities in death 

sentencing rates among the cases which 

our analyses suggested were death 

eligible." (Fed.Tr.983; 1043-44). 

To supplement this statistical 

picture, Baldus examined a "cohort" of 

17 Fulton County defendants arrested and 

charged, as was petitioner, with 

homicide of a police officer during the 

1973-1979 period. Only two among the 

seventeen, Baldus found, even faced a 

penalty trial. One, whose police victim 

was black, received a life sentence. 

(Fed.Tr.1050-62; S.B. 61-63). 

Petitioner, whose police wvictim was 

white, received BH death sentence. 

Although the small numbers require 

caution, "the principal conclusion that 

one is left with," Baldus testified, "is 

that . . . this death sentence that was 

87 

 



  

imposed in McCleskey's case 1s not 

consistent with the disposition of cases 

involving police officer victims in this 

county." (Fed.Tr.1056). 

Professor Baldus devised one 

additional measure of the magnitude of 

the influence of the racial factors. He 

First computed | the regression 

coefficients for those factors and for 

other important aggravating and 

mitigating factors. Then he rank- 

ordered them. As DB 81 demonstrates 

(S.E. 50), the race of the victim in 

Georgia exerts as much influence on the 

sentence outcome as whether the 

defendant had a prior murder conviction. 

It is more important in determining life 

or death = than the fact that the 

defendant was the prime mover in the 

homicide, or that he admitted guilt and 

asserted no defense. This measurement 

reveals the power of race at work in the 

88 

 



  

Georgia death penalty system. Quite 

simply: its effects are of the same 

magnitude as those of statutory 

aggravating factors identified by the 

Georgia legislature as "prerequisite(s] 

to the imposition of the death penalty.” 

Gregg v. Georgia, 428 U.S. at 198. 
  

(iii) The Opinion Below 
  

The Court of Appeals centered its 

attention on two statistics drawn from 

the Baldus studies: ) the 6 

percentage point average disparity in 

death-sentencing rates between all 

white-victim and all black-victim 

homicide cases; and (41) the 

corresponding 20 percentage point 

disparity within the subgroup of 

moderately aggravated cases that 

included petitioner McCleskey's. 

Toward the six percentage point 

figure, the court displayed equal 

measures of incomprehension, skepticism 

89 

 



  

and toleration. The court's 

incomprehension is reflected in its 

repeated characterization of the 

significance of the figure as "marginal” 

(J.A.273) or "insufficient." (J.A.268). 

This is a serious error. As one 

commentator has noted, although 

[i]t sounds right when the court 

describes the '6% disparity’ 
found by Baldus as a 'marginal 
difference ([iln fact it is 
nothing of the sort. Although 
the court seems to have missed 
the point entirely, this 

disparity actually means that 
defendants in white-victim cases 
are several times more likely to 
receive death sentences than 
defendants in black-victim 

cases. 

Gross, supra, 18 U.C. Davis L. Rev. at 

1298. What the court apparently did not 

appreciate is {a}: that this figure 

represents an average race-of-victim 

disparity of 6 percentage points, not 6 
  

percent, and (b) that the 6 percentage 

point average disparity occurs across an 

entire system in which overall death- 

90 

 



  

sentencing rates are only five per cent. 

(See Fed. Tr. 634; Ss... ©. 48). 

Consequently, if the death-sentencing 

rate among a given group of black-victim 

cases were 6 percent, the rate for 

comparable white-victim cases would be 

12 percent, a 100% increase. However, 

since the 6 percentage point disparity 

is an average effect, it is nore 

relevant to compare it to the average 

.01 death sentence rate among all black 

victim cases (S.E. 47), which it exceeds 

by: a factor of 8 {.08/.01), & 600% 

increase over the black-victim rate. It 

is obviously a gross mistake to view 

this difference as a "marginal" one. 

c#,. Bunter vv.  Undewwood, U.S, _, 885 
  

L.Ed.2d 222, 228-30 (1985) (striking down 

a statute which disqualified blacks from 

voting at 1.7 times the rate of whites). 

The court's admixture of skepticism 

is reflected in its remarks that "[n]one 

* 3) 

 



  

of the figures mentioned above is a 

definitive quatelitiestion of the 

victim's race in the overall likelihood 

of the death penalty in a given case” 

(J.A.266), and that this evidence proves 

only that "the reasons for a [racial] 

difference . . . are not so clear in a 

small percentage of the cases." 

{T.X2.273). In other words, the court 

regarded the .06 figure as little more 

than a statistical aberration. However, 

this interpretation cannot be squared 

with the unrebutted evidence that the 

figure in question -- which, it bears 

repeating, means that those who kill 

white victims in Georgia are several 

times more likely to be sentenced to 

death than are similarly situated 

murderers of black victims on the 

average -- is a highly reliable figure, 

statistically significant at the p<.02 

level after controlling for literally 

92 

 



  

hundreds of rival hypotheses. t will 

not be blinked away. 

The court's toleration of whatever 

disparity does exist comprises the 

greatest portion of its opinion: 

Taking the 6% bottom line 

revealed in the Baldus figures 

as true, this figure is not 

sufficient to overcome the 

presumption that the statute is 

operating in a constitutional 

manner. In any discretionary 

system, some imprecision must be 
tolerated, and the Baldus study 

is simply insufficient to 
support = ruiing, in the 

context of a statute that is 
operating much as intended, that 

racial factors are playing a 

role in the outcome sufficient 

to render the system as a whole 

arbitrary and capricious. 

(J.5.268). 

The Court bolstered its judgment by 

citing three decisions of this Court on 

applications for stays in capital 

cases. 30 It reasoned that since the 

  

30Wainwright v. Ford, 467 U.S. 1220 
(1984) ; Wainwright YY; Adams, 466 
U.S. 964 (1984); Sullivan v. Wainwright, 

464 U.85., 109 (1983). 

  

  

  

93 

 



  

petitioners in those cases had all 

proffered other studies in which "[t]lhe 

bottom line figure [included] ‘ ; . a 

- 'death-odds multiplier' of about 4.8 to 

bid {J.X.288}, and since "Baldus 

obtained a death-odds multiplier of 4.3 

to 1 in Georgia," a rejection of the 

Baldus studies "is supported, and 

possibly even compelled, by" the 

disposition of these stay applications. 

"[I]t is reasonable to suppose that the 

Supreme Court looked at the bottom line 

indication of racial effect and held 

that it simply was insufficient to state 

a claim. (J.5.289), 

Yet as this Court well knows, the 

Florida study involved in those three 

applications was significantly less 

comprehensive and sophisticated than the 

Baldus studies. The Court of Appeals 

overlooks (i) +hat none of this Court's 

summary orders ever addressed the 

94 

 



  

magnitude of the disparities shown in 

the Florida studies; {ii) that this 

Court's orders respecting applications 

for stays of execution "may not be taken 

  

. . . as a statement . “ ie ON the 

merits," Graves V. Barnes, 408 1.8. 

3201, 1204 (1972) (Powell, Ty in 

chambers); accord, Alabama v. Evans, 461 
  

U.S. 230, 236 n.¥* (1983) (Marshall, J., 

dissenting), and (iii) that under the 

constitutional principles outlined 

earlier, racial discrimination of any 

magnitude is unconstitutional. 

When the Court of Appeals turned to 

the 20 percentage point statistic-- 

representing the average racial 

disparity among cases similar in 

aggravation level to petitioner's -- the 

majority apparently became uncomfortable 

with any approach that treated such a 

figure as marginal. Instead, it felt 

compelled to dispense with its earlier 

95 

 



  

assumption (J.A.246) that the Baldus 

studies were valid. In a factual attack, 

the court complained that the figures 

were not adequately explained and that 

they were not shown to be statistically 

significant. (J.A.269-70). On both 

points the court ignored the record. 

Petitioner's experts carefully explained 

the basis of their calculations 

(Fed.Tr.1738-40), the importance of the 

numbers, the rationale of the "midrange" 

categories (id. 881-86; 1291-1300), and 

the statistical significance of each 

contributing figure. (Id. 1734-40; S.E. 

50,54,68). 

In sum, there is no constitutional 

warrant for the federal courts to 

overlook proven racial discrimination-- 

especially in capital sentencing-- 

merely because its impact is dubbed 

"marginal." Yet even if such a notion 

were permissible, petitioner has 

96 

 



  

adequately demonstrated that powerful, 

biasing forces are at work shaping 

Georgia's death-sentencing system in a 

racially disorininatonry pattern, and 

that he is among those defendants most 

severely affected by the invidious 

forces. 

D.. The Court Of Appeals Erred in 

Demanding Proof of "Specific Intent To 

Discriminate" As A Necessary Element Of 

An Eighth Amendment Claim 

(i) The Controlling Precedents 

The primary concern of the 

Court's Eighth Amendment cases has 

always been with the results of the 

sentencing process: capital punishment 

is cruel and unusual if "there 1is no 

meaningful basis for distinguishing the 

few cases in which it is imposed from 

the many cases in which it is not." 

Furman Vv. Georgia, 408 U.S. at 313 
  

{1972) (White, J., concurring). Justice 

Stewart resolved Furman after 

puti{tingl. . . to one side" the issue 

97 

 



  

of intentional discrimination. Id. at 

310. Justice Douglas similarly 

disavowed that the "task . . . to divine 

what motives impelled these death 

penalties.” Id. at 253. No member of 

the Furman majority stated or hinted 

that proof of invidious intent had been 

necessary to his decision. 

In its subsequent opinions, the 

Court has stressed that the ultimate aim 

of the Eighth Amendment is to "minimize 

the risk of wholly arbitrary and 

capricious action.” Gregg Vv. Georgia, 
  

428 U.S. at 189. Such arbitrariness can 

afflict a system irrespective of 

conscious choice by specific actors, and 

ir ‘ls the State which bears the 

"constitutional responsibility to tailor 

and apply its law in a manner that 

avoids™ this outcome. Godfrey Vv. 
  

Georgia, 446 U.S. at 428; Eddings v. 
  

Oklahoma, 455 U.s. 104, 118 
  

98 

 



  

(1982) (O'Connor, hh concurring); 

Gardner v. Florida, 430 U.S. 349, 357-588 
  

(1977). These rulings in capital cases 

are consistent with the law of the 

Eighth Amendment in other contexts, 

where the constitutional touchstone has 

long been effects, not intentions. See 

Rhodes v. Chapman, 482 "13.5. 337, 384 
  

(1981) (Brennan, Jer Conourringl).. Ses 

also id. at 345-46 (plurality opinion); 

Spain Vv. Procunier, 800 F.24 189, 197 
  

  

(9th Cir. 1979); Rozecki v. Gaughan, 459 

7.24 6, 8 (lst Cir. 1972). | 

The evil identified in Furman, the 

evil which the Eighth Amendment seeks to 

prevent, is the unequal treatment of 

equals in the most extreme sentencing 

decision our society can make. Gardner 

v. Florida, 430 U.S. at 361. 
  

Considerations of race are legally 

irrelevant to that decision; their 

systematic influence produces, by 

99 

 



  

definition, a pattern of sentencing that 

is legally "arbitrary and capricious.” 

See generally, B. Nakell & K. Hardy, The 

Arbitrariness of the Death Penalty 
  

(1986) (forthcoming) . The task of 

identifying precisely where and how, 

consciously or unconsciously, race is 

influencing the literally thousands of 

actors involved in capital sentencing-- 

prosecutors, judges, jurors who assemble 

to make 4 single decision in a single 

case, only to be replaced by other 

jurors in the next case, and still 

others after them - is virtually 

impossible. Yet "[tlhe inability to 

identify the actor or the agency has 

little to do with the constitutionality 

of the system.” (J.A.314) {Hatchett, J., 

dissenting in part and concurring in 

part). 

(ii) Petitioner's Evidence 

Whatever disagreements may surround 

100 

 



  

the issue of intent, there is no room 

for dispute on the question of impact. 

Georgia's (gross racial disparities are 

stark: white victim cases are nearly 

eleven times more likely to result in a 

death sentence than black victim cases. 

As we have shown, even under the most 

searching statistical analyses, this 

disproportionate racial impact remains 

substantial and highly statistically 

significant. The State has never 

refuted these results. 

(iii) The Cpinion Below 

The Court of Appeals held that 

"purposeful discrimination” is an 

element of an Eighth Amendment challenge 

to the arbitrary administration of a 

capital statute, at least where the 

challenge is based in part upon proof of 

racial disparities. (J.A.258). The court 

acknowledged that "cruel and unusual 

punishment cases do not normally focus 

101 

 



  

on the intent of the government actor.” 

Id. Yet it announced that 

where racial discrimination is 
claimed, not on the basis of 
procedural faults or flaws in 

the structure of the law, but on 

the basis of the decisions made 

within that process, then 

purpose, intent and motive are a 
natural component of the proof 
that discrimination actually 

occurred. 

{(3.5.257). 

This opinion is plainly an exercise 

in ipse dixit reasoning. Is 
  

"discrimination" in this passage means 

"intentional discrimination of the sort 

that violates the Equal Protection 

Clause," then the court Fails to 

account for what the Eighth Amendment 

adds to the Fourteenth. If 

"discrimination" is synonymous with 

"racial disparity" -- the actual basis 

of petitioner's Eighth Amendment claim- 

- then even the court's linguistic logic 

evaporates completely. In any event, 

the majority below fails to address 

102 

 



  

either the contrary holdings of this 

Court or the policies that lie behind 

the Eighth Amendment cases. It supplies 

no justification for singling out race 

bias —— alone among all arbitrary 

factors that might affect a capital 

sentencing system -- and requiring that 

petitioner trace it back to an 

individual, consciously discriminating 

actor. "Identified or unidentified, the 

result of the unconstitutional 

ingredient of race . . . is the same.” 

(J.A.314) (Hatchett, J., dissenting in 

part and concurring in part). And it 

remains the same whether the racial 

ingredient comes into play through 

wilful  Dbigotrv "or through more subtle 

processes of race-based empathies, 

apprehensions and value judgments 

operating within the framework of a 

highly discretionary capital sentencing 

procedure. See Turner vv. Murray, 90 
  

103 

 



  

L.Ed. 24 af 35-36. However brought 

about, the result is nonetheless "a 

pattern of arbitrary and capricious 

sentencing like that found 

unconstitutional in Furman." Gregg Vv. 
  

Georgia, 428 U.S. at 195 n.46. 

Tyr. 

THE COURT SHOULD EITHER GRANT PETITIONER 

RELIEF OR REMAND THE CASE TO THE COURT 

OF APPEALS FOR FURTHER CONSIDERATION 

UNDER APPROPRIATE LEGAL STANDARDS 

In Skipper VY. South Carolina, 
  

ues, 90 L 24, 24 1, 18" n.2 (1086), 

Justice Powell observed in concurrence 

that "when some defendants are able to 

avoid execution based on irrelevant 

criteria, there is a far graver risk of 

injustice in executing others.” The 

criterion of race -- that of a defendant 

or his victim —— is worse than 

"irrelevant: it is expressly forbidden 

by the Constitution. Yet petitioner's 

evidence indicates (a) that race has 

played a substantial role in determining 

104 

 



  

who will be executed and who will avoid 

execution in the State of Georgia, and 

(b) that petitioner stands among the 

group of defendants upon whom Georgia's 

burden of racial bias falls most 

heavily. 

The Court of Appeals, accepting the 

validity of petitioner's evidentiary 

submission, held that it failed to meet 

his burden of proof under the Eighth and 

Fourteenth Amendments. We have shown 

that this holding was error, requiring 

reversal. Since tne proof of racial 

discrimination on this record is 

overwhelming and stands unrebutted 

despite its plain sufficiency to shift 

the burden of rebuttal to the State, we 

believe that nothing more is needed to 

support a decision by this Court 

upholding the merits of petitioner's 

Eighth and Fourteenth Amendment claims. 

However, inasmuch as the Court of 

105 

 



  

Appeals pretermitted a review of the 

factual findings of the District Court 

(J.A.263), this Court may prefer instead 

to remand for further proceedings under 

appropriate constitutional standards. 

See, e.g., Bazemore Vv. Friday, 106 S.Ct. 
  

  

ar 3010-11. 

While not strictly necessary to any 

holding that directs a remand, the Court 

might wish to announce standards to 

guide the Court of Appeals in addressing 

those remedial questions presented by 

petitioner's constitutional claims. In 

our judgment, the available remedial 

options would be affected considerably 

by the Court's choice of constitutional 

theory. Although this choice is a 

matter of little immediate moment to the 

present petitioner, 31 the consequences 

  

31 The sole remedial issue in this 
habeas corpus proceeding is whether a 

petitioner "is in custody in violation 

of the Constitution or laws . . . Of the 

106 

 



  

for other death-sentenced inmates in the 

State of Georgia might vary 

significantly depending upon it. 

Under the Eighth Amendment, for 

example, proof that a particular capital 

sentencing system is being administered 

in an arbitrary or capricious pattern 

would presumably require the 

invalidation of that system as a whole, 

or at least of all sentences imposed in 

‘the jurisdiction during the period 

  

  

covered by the proof. See Furman Vv. 

Georgia, supra. However, under the 

Fourteenth Amendment, the finding of an 

Equal Protection violation need not 

inevitably require a vacatur of all 

death sentences within the jurisdiction. 

In Mt. Healthy (City Board of Féuc. v. 
  

Dovle, 429 U.S. 274. 2419727), the Court 

reasoned that although an employee could 

  

United States,” 28 .U.8.C..  § 2241{(c){(3); 
thus the only relief sought or possible 

under any theory is individual relief. 

107 

 



  

not be discharged for the exercise of 

his protected First Amendment rights, an 

employer was entitled to "show(] by a 

preponderance of the evidence that it 

would have reached the same decision 

even in the absence of" consideration 

of the impermissible factor. Id. at 287. 

In the capital sentencing context, an 

analogous approach, requiring proof by 

the State beyond a reasonable doubt, see 

Chapman Vv. California, 386 3.5. 18 
  

(1967) ,32 would allow a State, even if 

  

32 Mt. Healthy expressly drew upon 
principles, developed in the context of 

the criminal law, "distinguish[ing] 

between a result caused by a 

constitutional violation and one not so 

caused." 429 U.S. at 286, citing Lvons 

v. Oklahoma, 322 11.8. 596 (1944); Wong 

Sun VV. United Sratass, 371 0.8. 47] 

(1963); Parker wv. North Carolina, 397 

g.8.7-790: {1970}, The Lyons line of 

cases is related to, though analytically 

distinct from, the Chapman "harmless 

error" line. The former holds that a 

constitutional violation may be 

disregarded if it did not in fact work 

any injury to a petitioner's substantive 

rights. Chapman permits a state to 

avoid a reversal by demonstrating beyond 

a reasonable doubt that, even if an 

  

  

  

  

  

108 

 



  

its statute had been applied in 

violation of the Equal Protection 

Clause, to prove that, because of the 

extreme aggravation of a particular 

homicide, a death sentence would have 

been imposed, irrespective of racial 

considerations. Although Georgia could 

not make such a showing against inmates 

like petitioner, whose case was in the 

"midrange" of aggravation, it might have 

a stronger argument against those 

inmates whose crimes were highly 

aggravated, since race is less likely to 

have influenced the sentencing outcomes 

in their cases. 

Whatever constitutional or remedial 

analysis is adopted by the Court, 

petitioner Warren McCleskey has 

presented evidence that fully 

  

injury to defendant's rights occurred, 
it was so insubstantial that it did not 

contribute to the defendant's conviction 

or sentence. 

109 

 



  

establishes the merit of his claims. The 

sentence of death imposed upon him on 

October 12, 1978 by the Superior Court 

of Fulton County is invalid. 

CONCLUSION 

The judgment of the Court of Appeals 

should be reversed. 

Dated: August 21, 1986 

Respectfully submitted, 

JULIUS L. CHAMBERS 
JAMES M. NABRIT, III 

*JOEN CHARLES BOGER 
DEVAL L. PATRICX 
VIVIAN BERGER 

99 Hudson Street 

New York, New York 10013 

{212} 219-1800 

ROBERT H. STROUP 
141 Walton Street 
Atlanta, Georgia 30303 

TIMOTHY RK. FORD 
600 Pioneer Building 
Seattle, Washington 98104 

ANTHONY G. AMSTERDAM 
New York University 

School of Law 
40 Washington Sg. South 
New York, New York 10012 

*Attorney 

of Record ATTORNEYS FOR PETITIONER 

110