Correspondence - General Vol. 5 of 6 (Redacted)

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EE BE CONCERNED BLACK CLERGY OF : 

METRO ATLANTA,INCORPORATED ® P.O.BOX 115381 ATLANTA,GA. 3810 
  

L] 

AN ECUMENICAL CONSORTIUM OF BLACK CONGREGATIONS RESPONDING TO MUMAN NEEDS IN crisis 

Capital punishment is characterized by a racial bias that 
operates most egregiously against black defendants accused of 
crimes against white victims. A recent study conclusively proves 
that those who kill white people in the State of Georgia are 
nearly eleven times more likely to receive a death sentence than 
those who kill blacks. Among all persons indicted for white 
victim murder, black suspects receive a verdict of death nearly 
three times as often as do white defendants, 

We oppose capital punishment as contrary to the concept of 
Christian love and believe that the life of an individual is of 
infinite worth in the eyes of God. We further believe that.the 
taking of such a human life falls within the providence of God 
and not within the right of humankind. 

Christians can no longer justifiably support the practice of 
capital punishment. It has become increasingly clear that the 
majority of those on Death Row are poor, powerless and 

educationally deprived. Statistics point out that of the 3,92% 
people executed since 1930, 54% have been black or members of 

other minority groups. These statistics reflect the broad 
inequalities within our society and the inequity with which 
death, the ultimate punishment is applied. Persons of wealth, 
status and education are favored by our legal system. They enjoy 
the benefits of able counsel and rarely suffer severe penalties. 
The death penalty has been found to discriminate on the basis of 
color and economic condition. This alone, we feel, is sufficient 

reason for opposing it as immoral and unjust. : 

As people of religious and ethical conscience, we seek the 
restoration and renewal of wrong-doers, not their deaths. The 
death penalty eliminates forever the healing possibilities of 
human love and respect. The death penalty is cruel, unjust and 
incompatible with the dignity and self respect of humankind. 

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In closing, we pray in the spirit of Jesus Christ who calle 

us to share his ministry of reconciliation, that our society will 1 
turn away from the use of capital punishment | 4 i 

SERVING THE PRESENT AGE 

 



  

  

  

222 East Lake Drive, Decatur, GA 30030. (404) 377-6516 

orm i The Board of Directors of Atlanta Clergy And Laity Concerned is 
a i extremely disappointed that the United States Supreme Court has 

binge” refused to acknowledge that Georgia's death penalty statute is 
Grove UM. C. racially biased. 
  

Evenson Sapte Cites” As the comprehensive national study conducted by Dr. David Baldus 
hr) Sovigs Chin Churdly clearly shows, killers of whites in Georgia are 11 times more likely 
(Jina 32. Cera House of Represeniaves £9 receive a death sentence than killers of blacks; blacks who kill 
a Camas whites are 3 times more likely to receive a death sentence that 
Candie Sno of Trotogy whites who kill blacks. 

Adsota Religious Socsry of Friends Since the Supreme Court has failed to grant relief from this racial 
hou A 3. Sho : injustice, Atlanta CALC, through its Racial Justice Task Force, will 
MxlmSwser be observing even more closely Georgia's trials and appeals and the 
Alaoea’ hs actions of the state Pardons and Paroles Board for evidence of racial 
Jia. Zion S4cand Bop Carel: vias. We will work with others concerned in Georgia to bring such . 

SS Mite Hh Consens racial injustice to .the attention of the public and the press. 

  

  

We join other Georgians in prostesting the irresponsibility of the 

  

The Advisory Committee «\ sreme Court. We call on people concerned with justice to make our 
Delememcek Corer wenn LOCAL, state, and federal criminal justice systems more accountable 
Sr for the racial injustice they are currently perpetuating. 
De Noel Erskine 

Sy ao henley We appeal to the press to observe our system carefully and to let the 
Ta Comat truth of racism be revealed more widely to the American public. 

Program, 
Amerncan Frnends Service Commutiee 

ee al a Finally, we call on the state Board of Pardons and Paroles to commute 
  Theology 

De the sentence of Warren McClesky to life imprisonment, recognizing 
Souther Chan Lesdarsmup Congress that the imposition of the death penalty was inappropriately influ- 

Sox Titowy MeDowld enced by his race. We ask that the Board carefully and conscien- 
how Suphen k Momgomery oe DiOUSly review all further appeals to ensure that Georgia's citizens 
De. oneph Rateve are no longer put to death on the basis of the color of their skin. Ebenezer Bapust Church 
Senden Roberson 

Georgia Citizens Coshitson on Hunger 
Se. Kathieen Tomlin 

Justice Mwusines. 

Chrisuan Council of Meiro Atlanta 
Rev. C. T Vivien 

Center for Democratic Renewal 
Leslie Withers 
SEEDS/ Chrisnans Concerned About Hunger 

  

  

Ceorgia-Cull Regional Representative 

 



  

   
House of Representatives 

"ABLE" MABLE THOMAS Atlas, Georgia COMMITTEES: 
Representative, District 31 EDUCATION 

Post Office Box 573 INDUSTRIAL RELATIONS 
Atianta, Georgia 30301 SPECIAL JUDICIARY 
Telephone: 404-525-7251 Office 

April 22, 1987 

PRESS RELEASE 
  

I am deeply saddened and appalled by the Supreme 

Court ruling that there is no racial intent tg discriminate 

in the application of the death penalty. I know that 

this must surely stand as the biggest lie of a year 

in which the competition has been formidable. Not 

only 1s there racial discrimination in the application 

of the death penalty, there are overt, across-the-board 

disparities in the entire sentencing procedure. 

We have been trying for years to raise this issue 

in the Georgia General Assembly, yet there has been 

no sensitivity toward investigating this crucial matter 

in the execution of justice. The Georgia legislature 

"has a moral and legal responsibility to address both 

the issue of sentencing disparities and that of the 

elimination of the death penalty. 

We understand that the nature of the application 

of the death penalty is not merely a racial issue, 

but also raises class-related questions. It is ironic 

  
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Rep. Mable Thomas 
Press Release 
April 22, 1987 

that this, the year of the 200th anniversary of our 

Constitution, is commemorated by a decision that 

undermines the democratic principles on which this 

great nation was founded. We must not sit idly by 

while justice is executed. 

I therefore submit to you that we at the grassroots 

level, the community level, students, and those in 

the legal profession must speak loudly and act swiftly 

to educate the public as to the insidious nature of 

this societal ill. We must recommit our love, our 

strength, our energy, and our sense of fairness toward 

the goal of a proper celebration of the Constitution 

- the establishment of justice for all. 

Thank you. 

       



    

AMERICAN CIVIL. LIBERTIES UNION FOUNDATION 
of Georgia. Inc. 

88 WALTON STREET, NW. ® SECOND FLOOR ¢ TELEPHONE 404/523-6398 ¢ ATLANTA, GEORGA 30303 

PRESS RELEASE 
  

By the slimmest majority, the United States Supreme Court 

today rejected death row inmate Warren McCleskey's argument that 

his sentence of death should be vacated because the Georgia 

capital sentencing scheme is tainted fatally with racial 

discrimination. McCleskey v. Kemp. 
  

For years, the Supreme Court has acted repeatedly to vacate 

sentences of death where a capital defendant showed that an act 

or ommision by the state created a risk that the sentence was 

imposed arbitrarily. Today, the rafority of the Court ignores 

this sensible standard of review and faults McCleskey because he 

failed to show that racial considerations, in fact, tainted his 

sentencing decision. 

A thoughtful reading of both the majority and dissenting 

opinions in this case is a sobering experience for Georgians who, 

regardless of their views on capital punishment, expect their 

system of justice to operate fairly and free of racism. All the 

justices of the Supreme Court accepted the fundamental premise of 

N 

the evidence presented by Warren McCleskey -- that persons: who 

are charged and convicted of killing white citizens are four 

 



  

times more likely to be sentenced to death than person charged 

and convicted of killing blacks. The majority believe that this 

staggering disparity is not sufficient to set aside Mr. 

McCleskeys' sentence of death; the dissents strongly assert that 

the Constitution requires a new sentencing hearing. | 

The question which this case settles is rather small 

compared to the ones that remain in its wake. The Georgia 

criminal justice system is hardly given a clean bill of health. 

The evidence in this case shows that racism clings tenaciously to 

the fabric of our society and institutions. All that is reaolved 

in . this case ‘is ‘that federal courts will not strike down a 

sentence of death on the sole basis of systematic studies but 

will require a showing that race placed an intolerable role in 

an individual case. 

it is tragic that the majority did not condemn the 

lingering presence of racism which most surely remains in the 

application of capital punishment in Georgia. Warren McCleskey's 

case will not De the last time that it will confront this 

question. 

 



  

Jan Douglass 

Studies on the death penalty in Georgia show that the race of the 
victim is a chief determinant of death sentences. If a Black person 
kills a white in Georgia he is eleven times more likely to receive a 
death sentence than those who kill Blacks. I take issue with the 
morality of the death penalty and this biased application of the law 
makes the Warren McClesky case even more important. 

Racism is present when you can prove a dual standard whether 
direct or indirect. Capital punishment, like other practices in this 
country, has a history of this racism in Georgia and in the country. 

I am writing to express my very deep concern. People of 
conscience must take a witness not only on the mcClesky case but 
against the death penalty. The majority of cases on death row are 
poor people without financial recourse for help. Crimes must be 
punished; however restitution must take another form as opposed to 
taking lives and taking lives based on the race of the victim and 
offender. 

#1 

108 Ozone Street S.W. Atiznta, Georgia 30314 

 



  

Episcopal Charities Foundation 

EPISCOPAL DIOCESE OF ATLANTA Department of Community Ministries 

  

April 22, 1937 

I, the Rt, Rev, Charles J, Child, Jr., Bishop of the 

Episcopal Diocese of Atlanta, am dismayed by the Supreme 

Court ruling in the Warren McCleskey case. Not only am 

I opposed to the death penalty in general but I am alarmed 

at the implicit racism in the imposition of the death 

penalty in Georgia in particular. 

Surely, I do not condone crimes of violence. They are 

abhorant. But I am also sure that the reconciling spirit 

of the Christian gospel is not served by the further 

violence of capitol punishment. Nowhere in the words of 

Jesus or in my experience is violence solved by violence. 

Let us stop the bloodshed. 

645 Spring Street, N.W. Atlanta, Georgia 30308 404/874-8722 

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A. REGINALD EAVES 

BOARD OF COMMISSIONERS OF FULTON COUNTY 
COUNTY ADMINISTRATION BUILDING 

ATLANTA, GEORGIA 30303 

TELEPHONE 572-2458 
| AREA CODE 404 

COMMISSIONER li [i L = 

[ Ll 

April 13, 1987 

Clearinghouse ; 
P.O. Box 437 
Atlanta, GA 30301 

To Whom It May Concern: 

I am surprised &nd disappointed that the U.S. 
Supreme Court has seen fit to ignore the clear 
statistical evidence of racial bias in the 
application of Georgia's death penalty. 

A comprehensive stucy by Professor David Baldus of 
the University of Iowa shows that killers of whites 
are 11 times more likely to receive the death 
penalty in Georgia than killers of blacks, and that 
blacks who kill whites are three times nore likely 
to receive the death penalty than whites who kill 
blacks. 

I urge the citizens of Georgia to join me in 
appealing to the state Board of Pardons and Paroles 
to commute Warren McCleskey's sentence to like 
inprj ent and to protest the unfairness of a 
system which puts our citizens to death on the basis 

f the color of their skin. 
   

Yours for more 
efficient ounty government, 

A. hy Eaves 

ARE:kh 

 



Georgia 
Committee 
Against the 
Death Penalty   

The Georgia Committee Against the Death Penalty is shocked 
that the U.S. Supreme Court Has found it possible to ignore the 
clearly documented evidence of racism in the Georgia capital 

sentencing system. 

Even though the court has turned its back on the issue, the 
evidence of racial discrimination is not going away. In fact, 
the evidence is growing, both in Georgia and in other death penalty 
states, that death sentencing is racially biased. 

The fact that the death penalty is applied unfairly 

according to the color of one's skin and that the nation's highest 
court cannot or will not grant relief is reason enough to abolish 
the death penalty in America. 

And finally, because of the role racism has played in the 
death sentencing of Warren McCleskey, we urge the state Board of 
Pardons and Paroles to commute Mr. McCleskey's sentence to 
life imprisonment. 

88 Walton Street, NW. Atlanta, Georgia 30303¢(404) 522-4971 

 



OF BLACK 
LAWYERS ATLANTA CHAPTER 

970 MARTIN LUTHER KING. JR. DRIVE 
SUITE 202 

ATLANTA, GEORGIA 30314 
404 - 522-6964 

N’@ NATIONAL 
A CONFERENCE 
& 

  

PRESS RELEASE 
  

We the members of National Conference of Black Lawyers are 
outraged that our nation's highest Court has refused to address 
the clear statistical evidence of racial bias in the application 
of Georgia's death penalty. 

As the comprehensive study by University of Iowa Professor 
David Baldus clearly shows, killers of whites in Georgia are 11 
times more likely to get the death penalty than killers of 
blacks, and blacks who kill whites are three times more likely to 
get the death penalty than whites who kill blacks. 

Since the Supreme Court has failed to grant relief from this 
egregious injustice, we as members of the National Conference of 
Black Lawyers will be observing even more closely Georgia's 
trials and appeals and the actions of the State Pardons and 
Paroles Board for evidence of racial bias --- and we will call 
any observed biases to the attention of the public and the press. 

We call on our fellow Georgians to join us in protesting the 
irresponsibility of the high Court and to hold our State criminal 
justice system accountable for correcting the wrongs. 

We hope the American public and press will also observe our 
system carefully and help ensure that racism is eliminated from 
our State's trial, appeals and clemency procedures. 

Finally, we call on the State Board of Pardons and Paroles 
to commute the sentence of Warren McCleskey to life imprisonment, 
recognizing that the imposition of the death penalty was 
inappropriately influenced by his race. We ask that the Board 
carefully and conscientiously review all further appeals to 

National Office: 126 West 119th Street, New York, New York 10026 

 



    

  

- 

N@ MATIONAL 
AN @ conrerence 
® OF BLACK 
BIW Lawvers RT 

ATLANTA. GEORGIA 30314 
404 - 522-6964 

  

March 30, 1937 
Page Two 

  

ensure that Georgia's citizens are no longer put to death on the 
basis of the color of their skin. 

Charles S. Thornton 
Co-Chairman, Atlanta Chapter 

CST/1lrh 

National Office: 126 West 119th Street, New York, New York 10026 

 



  

T. Delaney Bell 
Legal Investigator 

Corporate & Criminal Investigations 

May 1, 1987 

Mr. John Charles Boger 
Attorney at Law 

NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 

99 Hudson Street 
New York, New York 10013 

re: Warren McCleskey v. State of Georgia 
  

Dear Mr. Boger: 

Pursuant to the referenced case, please note below the total 
amount due regarding investigative services provided: 

  
  

  

INVOICE 

Date of Service Type of Service Total Amount Due 

April 30 & : 
May 1, 1987 Location of 8 Jurors $800.00 

Total payment due within 30 days. 
If any questions, please call. 

Sincerely, 

FO fen Sy 
T. Delaney Bell 

TDB/ct 

P.O. Box 52626 

Atlanta, Georgia 

3-0 3 5:5 

Phone 

(404) 662-4005 

 



T. DeLaney Bell 
Legal Investigator 

  

Corporate & Criminal Investigations 

May 1, 1987 

Mr. John Charles Boger 
Attorney at Law 

NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 

99 Hudson Street 
New York, New York 10013 

re: Warren McCleskey v. State of Georgia 
  

Dear Mr. Boger: 

Pursuant to your request for my services regarding the current 
location of eight (8) jurors who sat during the trial of Warren 
McCleskey, please find enclosed the results of my completed investi- 
gation. 

All eight (8) jurors have been located and their residences 
have been confirmed by at least three different sources. The only 
exception (as of this letter date) is Mr. Donald G. Gosden. How- 
ever, his residence will be confirmed by May 5th. 

Pursuant to our mutual agreement, please also find enclosed my 
invoice in the amount of $800.00 for the above investigative services. 

Jack, I was glad to be of service to you and wish you the best 
in litigation. Always feel free to call. 

Sincerely, 

FCF ZN 
C—. I a —.. 

  

T. Delaney Bell 

TDB/ct 

P.O. Box 52626 

Atlanta, Georgia Phone 

3.0 3 5.5 (404) 662-4005 

 



  

Warden's Office in Waycross, Ware Correctional Institution 
(down there, they seem to call it the State Prison) 

(912) 285-6095 

fo see an inmate: call a day in advance 

to ascertain that he will see us when we come: call, ask to 
speak with his counselor (or a counselor), who will act as 
an intermediary. 

Warden's secretary confirmed that, as of 4/24/87, Evans was 
still there. 

 



  

emi Derm 

 



d
s
 

WI
 

   
~~ NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99Hudson Street, New York, N.Y. 10013 ® (212) 219-1900 

  

egal 

  

April 8, 1987 

Mr. Ophie Evans EF-193230 
Ware Correctional Institution 
Waycross, Georgia 31501 

Dear Mr. Evans: 

I am one of the attorneys for Warren McCleskey, in whose 
trial, you may remember, you gave testimony in 1978. Warren's 
case is now pending in the United States Supreme Court on an 
issue of racial discrimination. We expect to hear from the Court 
in late April or early May of this year. If we lose, Warren 
faces imminent electrocution. 

My co-counsel and I are now reviewing the case to see if we 
can identify any constitutional issues that may help us save 
Warren's life. In that connection, I would be very grateful for 
the opportunity to speak with you about the trial. I would be 
willing to come to Waycross at your convenience if you will agree 
to see me. My purpose in seeing you, of course, would not be to 
put you under pressure but simply to learn more about what 
happened at the ‘trial. You are an important witness to those 
events, and what you tell us could be very valuable. 

Thank you for considering this request. Enclosed is a 
stamped, self-addressed envelope to assist you in replying to 
this letter. 

Best regards. 

Sincerely, 

n Charles Boger 

JCB/sr 

Enc. 

Contributions are deductible for U.S. income tax purposes 

The NAACP Legal Defense & Educational Fund, inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

TO: Jack Boger 
NAACP Legal Defense Fund 
99 Hudson Street 

New York, New York 10013 

FROM: Ophie Evans 

I would 

would not 

be willing to speak with you if you came to Ware Correction 

Institution. 

  

Ophie Evans 

April +: 1087 

 



  

  

Death penalty ruling rests 
on problematical premises 

ns, rE 

    
  

By Tiecy Thompson . : TR 
sagen Staff Writer va g a Lent Tye 

. : Is death really different? WE a 
+ That question, facetious as it sounds, lies at the 
heart of the US. Supreme Court's recent decision 
upholding the constitutionality of Georgia's death 
penalty law. : 

In McCleskey vs. Kemp, five justices of the 
- court were unpersuaded by a bulky statistical study 

2 indicating sentencing disparities which, in the 
- court's words, “[appear] to correlate with race” but 

which also reflect “an inevitable [feature] of our 
justice system.” 

Buried in a footnote on Page 31 of Associate 
Justice Lewis Powell's majority opinion was an ex- 
planation of why the latter is true. Sentencing 
guidelines, like the limitations set by Georgia's 
death penalty law, Powell wrote, “further an essen- 
tial part of the Anglo-American criminal justice 
system — to balance the desirability of a high de- 
gree of uniformity against the necessity for the ex- 
ercise of discretion.” 

But this difficult balancing act can exact a 

  

  

3 rtant death penalty ruling, intended to give le- 
~!: - gal scholars guidance for years to come, is based on 

two questionable premises. 5 : 
~~ The first is the implicit assumption that death is | 
pot different. In fact, the majority opinion said, the 

.~ death penalty Is so indistinguishable from other sen- 
{ences that a ruling in McCleskey’s favor could con- 

© - front the court with a harrowing prospect: “His 
=~ - claim easily could be extended to apply to other 
"types of penalties and to claims based on unex- 
plained discrepancies correlating to membership in 

other minority groups and even to gender.” A crimi- 
- nal justice system trying to treat all burglars alike 

is, everyone agrees, a system in terminal gridlock. 
  

  

v= See DEATH rn ERE re 
  

~— and in McCleskey, the price is steep. This | 

       
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Death” he ds eh a! : ROM e discretion of local county offl- | . 
FROM IC i yment discrimination is 

Unfortunately for the sake of ° outlawed federal, not state, law, | 
consistency, there is a long list of In CONTI the death penalty io- | { 
rulitgs in which the court has volves elected state officials enfore- : 

adopted the opposite premise — et state laws and the secrecy of -| 3 
that~death is indeed different. It did ik deliberations — both areas in | ; 
$0 even when ft reinstated the death Which. the Supreme Court ks relye. |: 

nélty In: 1976, after a four-year -tant to Interfere, and with good. : is 
att “There is no question that zTeason, : > 

death as a  istratos unique in * But (hls combination of fudiclal,, | 
its severity and irrevocability,” restraint in one area of the law And 
wrole a three-judge plurality in. judicial’ activisth In another pro-- 
Grégg vs. Georgia. ~. duces: 3angess results. Federal 

Between 1976 ‘and 1986, the judges an, It seems, freely inter: | 
court used the “death is different” yond i Sis Bi bd ; 

ratfonale to Impose unprecedented « “made by emp or et el 
limitations on the applicability x. barring race discrimination, Yet the = 
the death penalty 2p the way ." dedisions of elected prosecutors on 
which it is ay shield ~ am .1ssue- of public Importance are 
in relings that overturned some largely -shlelded from jediclay: 
deal” sentences and affirmed oth. ~8crutiny:.. 
ers, Today, when It comes to trying ~~ It 1 welts RN see : 3 3 Ba a or um 
on ing 3 Lath ie iy e259 jr MeCleskey does not provide It. 

“:Consider: Death penalty trials, It 18 a ruling based less on logic 
unflke ordinary trials, are split into than on the lack of an attractive al- 
twd proceedings, one to consider ternative and on fear of what might | | 
guilt and one to consider punish. bappen if the plaintiff won, Perhaps |, 
ment. The rules of evidence that ap- that is why It evoked such blistering | J | ply to ordinary criminal cases are $corm from the four justices who i 
relaxed so that the jury can consid- ~ Were outvoted. bh i | 
er any mitigating tin it wants," “The ways In which we choose _ 
and-to use it as a reason for not im- those 58 wae ind Agni i, 3 

i Ld ; di i 
De oo hs es majority's; Wving's Assoclaté Justice William f1 oo... = : i ieCleskey that “it is * Broatn wile lo Oi wlINTY | 
nob4he responsibility — or evén the ~ his 28-page dissent. | H 
right — of this court to determine’* * ~ Rt-1¥ a ‘tellln ‘remark. “At bot. 
the ‘Eppropriate punishment for par . - tom, McCleskey abdicates legal re 

i ticifla? crimes,” the court has struck sonlrg ‘In: deference tothe 
! down the use of the death’ penalty '‘anothe? majority = those pink 

forrape (1977) and murders vague. - - tans who ‘say the} want the death’ " 
ly=dalined as “wantonly vile” penalty. Theirs is essentially a ‘mor- 
(1930). Te-- al not & legal; choice. So 5 the Su--1 
These limits oh: the ‘use of the .- Beas Court's. {That fact Mae 

d penalty have been dwarfed by so clear. 
ountain of rulings from the So. A, ; he Se 

oh Court in the past decade on 
P cedural. peied that a. 

se only In death 1ty cases. 
Dépie language in McCleskey 

indicates that a prosecutor, 
“g Gi not be required to explain : 

is decisions,” an important 1986 
ig does just that — by making 

it unconstitutional for a prosecutor 
to'strike prospective jurors Just be- 
capsethey are black. . 

» Other rulings have curtailed the 
of defendants, either b 

stlicting their access to federal 
courts or by speeding resolution of 
their cases once they are there. The 
faét that the Supreme Court was re-- 
quired to consider these issues at all 
Is testimony to the number and heft 
ofpdeath penalty appeals clogging 
st{te and federal courts, most of 

  

  
        

      

      
        

          

       

      
      
        

     
    
    
    
    
    
    
     

       

         

    
       
       
        

        
      

     
     

        

     

  

       

       
    
    
    
    
    
     
    

    

   

  

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  o ch were not frivolous. 
Columa Conn ub on 

next 24e’])



In an effort to prove racial dis- 
cr@gnination in the death sentencing 
prpcess, McCleskey's attorneys in... 
trgduced as evidence a five. ear:4 
st@y that analyzed more ‘than 2 000. 
Geprgia homicides’ and, subjected: ] 
thgm -to a 230-variable analysis_.] 
Thy did“not” succeed Their, failures 
highlights the second questlfnable:.}. 
primise in McCleskey: the “eotirt’s™ 
dogble standard for proving, racial 
digrimination, : 

Statistics much’ less sophisticat- 
ed than the study conducted on 
M@Cleskey's behalf by University of 
Ioga law Professor David Baldus 

used today to prove race dis- 
ination In the areas of employ-. 

t discrimination and jury selec. 
. But statistics cannot, thanks to 
leskey, be used to prove race 
rimination in the use of the 

th penalty. The result: Today's 
ntiff finds it easier to prove 
s discriminated against him in 
ying him a promotion than to 
ve he was sentenced to die be 

e of his race. Jia 
¥¥¥hy? Because “the nature of 

capital sentencing decision, and 
relationship of the statistics to | 
decision, are fundamentally dif- . | 

from the corresponding ele. |i 
in the [jury] selection ory: 

pnoyment discrimination) “case,” ; |. 
iCe Powell wrote in McCleskey. | 

ell does not specify how} 
are different, but some differ |: 
are clear, Jury selection pro=|     

  
 



Ne 
\ 3 

5 Defense Fund) for $25, $50, $75, $100, $250, $500 -- whatever you can spare. 
J Ly 

: Help the Legal Defense Fund to protect Warren McCleskey and thousands(\ 

3 of others from the brutal racism that still exists in this country. 

S Sincerely yours, 

Ne — Jk) ) 

ph od Dnt, NS MN Goan Xx Zi] 

) Paul Moore, Jr. Ng 3 rN 

3 Chairman 0 : 

P. S. A man's lifei is at stake. \ Please take a moment to fill out the 

so Memorandum for Color-Blind Justice and send it with your tax- 

deductible check in the enclosed reply envelope. Thank you. 
  

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Diahann Carroll 

  

IN SUPPORT OF 
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any. New York 12231, orto 

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— nf 

-- Warren McCleskey, Death Row \ 

Jackson Djagndstic and Clagsification 
ener, Jhexson, Georgia. ) 

PAUL MOORE,    May-June 1987 

Dear Friend: 

We urgently need your help. A black man's life is hanging in the 
balance and, in the words of Supreme Court Justice Brennan, "We ignore 
him at our peril, for we remain imprisoned by the past as long as we 
deny its influence in the present." 

Warren McCleskey and three other men robbed an Atlanta furniture 
store in 1978. A police officer was shot and killed. Warren claims he 
didn't pull the trigger, but a jury -- deprived of crucial evidence 
withheld from them by the State of Georgia -- decided otherwise, and 
sentenced him to death. While in prison, he has become a religious man 
and accepts the justice of his life sentence for armed robbery, But he 
continues to insist that he did not shoot the police officer. 

  

When McCleskey's case reached the appeal stage, LDF (the NAACP 
LEGAL DEFENSE FUND) took his case and commissioned an exhaustive study 
which turned up overwhelming evidence that race plays a role in deciding 
who gets death in Georgia. 

Despite this evidence, on April 22, 1987, the Supreme Court 
refused to grant relief. Justice Powell, writing for the five-member 

majority, concedes that discrepancies in death sentencing in Georgia 

 



  

correlate closely with race, but says such discrepancies "are an 

inevitable part of cur criminal justice system." 

Julius L. Chambers, head of LDF, 

in infamy with Dred Scott -- 

condemned the ruling as ranking 

WA | 
—— 

  

No one claims that Warren McCleskey is innocent: he participated 

with others in an armed robbery. But we don't believe he deserves to 

die as the victim of Georgia's racial roulette: Out of 16 Atlanta 

holdups in a seven-year period where a policeman was killed, McCleskey 

is the only man condemned to die. 

  

  

Statistics indicate that, if he had been white -- or if the 

victim had been black -- Warren McCleskey would almost certainly have 

faced a long prison sentence, not death in the electric chair. 

You don't have to be a lawyer or a statistics expert to know that 

there's something wrong in Georgia: An authoritative study documents 

that killers of whites in that State are four times more likely to get 

the death sentence than killers of blacks. Not “only that, but blacks 
charged with killing whites are sentenced to death at seven times the 

rate of whites charged with killing blacks. 

To the NAACP Legal Defense Fund, this study proves that the 

death sentence was imposed on Warren McCleskey in a highly capricious 

x application of Georgia law. 

  

  

  

Jot” 
N) Cruel and unusual punishment? Certainly. 

As the enclosed New York i 7 

they voted "Yes" to "Discrimination in n Death. > 

Yet the Court's response was chilling. 

\\\ Times editorial puts it, 

The decision is nothing less than frightening. Maybe it suits the 

mood of this country right now. But I hope you don't endorse it. In 

the words of Monsignor Daniel F. Hoye, General Secretary of the U.S. 

Catholic Conference, "The evidence submitted in the McCleskey case 
strengthens our conviction that the death penalty is frequently applied 

in an irrational and discriminatory fashion....We believe that capital 

  
  

~ 

punishment under these conditions is surely 'cruel and unusual punish- 
ment!" 

I hope you'll help the Legal Defense Fund attempt to save Warren 

McCleskey's life despite the Supreme Court decision. 

By signing the enclosed Memorandum for Color- =Blind Justice, you'll 
send a clear message to Georgia's State Board of Pardons and Paroles, 

the officials who still have the power to grant clemency to Warren. 

You'll tell them that as long as there is a strong possibility that race 

played a role in his sentencing, basic human decency demands that his 

life be spared. 

  

If you sign the Memorandum and put it in the enclosed envelope, 

I1'11 see to it that it is delivered to the State Board, along with the 

memos of other Americans who steadfastly oppose blatant injustice. 

  

As Justice Brennan put it in his memorable dissent: "The way in 

which we choose those who will die reveals the depth of moral commitment 

  among the living.” ——— i) 

Won't you proclaim your own commitment by signing the Memorandum? 

And, of equal importance, won't you help the NAACP Legal Defense Fund 

continue the struggle against the lingering -- but deadly -- racial 

prejudice that put Warren on death row? 

  

We're defending dozens of death row inmates whose sentences are 

tainted by racism. When you enlist in LDF's battle in the courts for 

McCleskey and others, surely you will help save lives. 

And we hope to redeem the blacks who are at the bottom of 
American society from the hopelessness and cynicism which can lead to 
a life like Warren's. That is why so much of the Legal Defense Fund 

program concentrates on opening channels for equal education, decent 

housing, and employment and upgrading on the job. 

But we're a non-profit organization, and we can't do this vital 

work without the help of concerned citizens like you. 

Won't you take two steps towards creating a society in which all 

people are treated soually’ Please sign the Memorandum for Color-Blind 
  

% 

   



Wayne Snow, Director. Gearoia State Board of Pardons and Paroles 

Floyd Vet 

2 Martin | . < 
Atlanta, GC § £ 

The Warren McCleskey case 

I understand that you and your fellow Board Members will soon decide 

whether or not to spare Warren McCleskey’s life. 

I urge you to grant clemency. And | ask you to share this Memorandum 

with all the members of your Board. 

As you know, a comprehensive study introduced in Mr. McCleskey’s 

case presented strong evidence that racial discrimination plays a role in 

capital sentencing in Georgia. But Georgia does not stand alone. 

In every region of this nation, traces of racial prejudice from the past 

affect our judgments. But that will not always be so. 

Saving Mr. McCleskey’s life today is something all of us can be proud of 

in the future. 

%222/  



Wayne Snow, Director, Georgia State Board of Pardons and Paroles 

Floyd Veterans Memorial Building 
2 Martin Luther King, Jr. Drive, S.E. 

Atlanta, GA 30334 

Name   

Address   

  

The Warren McCleskey case 

I understand that_you and your fellow Board Members will soon decide 

whether or not to spare Warren McCleskey’s life. 

I urge you to grant clemency. And | ask you to share this Memorandum 

with all the members of your Board. 

As you know, a comprehensive study introduced in Mr. McCleskey’s 

case presented strong evidence that racial discrimination plays a role in 

capital sentencing in Georgia. But Georgia does not stand alone. 

In every region of this nation, traces of racial prejudice from the past 

affect our judgments. But that will not always be so. 

Saving Mr. McCleskey’s life today is something all of us can be proud of 

in the future. 

32224  



  

SUPREME COURT OF THE UNITED STATES 

OFFICE OF THE CLERK 

WASHINGTON, D. C. 20543 

AREA CODE 202 JOSEPH F. SPANIOL, JR., 479-3011 
CLERK OF THE COURT 

May 19, 1987 

Miguel Cortez, Clerk 
US Court of Appeals for the Eleventh Circuit 
50 Spring Street, SW 
Atlanta, Georgia 30301 

RE: Warren McCleskey v. Kemp, Supt. 
No. 84-6811 

( Your No. 84-8176 ) 
  

Dear Mr. Cortez: 

I am writing to inform you that a petition for rehearing was 
filed in the above-entitled capital case on May 18, 1987. 

Very truly yours, 

JOSEPH PF. SPANIOL, JR., Clerk 

by 

Christopher W. Vasil 
Deputy Clerk 

CWV/cmc 

cc: John Charle Boger 
99 Hudson Street 

New York, NY 10013 

Mary Beth Westmoreland 
Assistant Attorney General 
132 State Judicial Building 
Atlanta, Georgia 30334 

 



  

May 16, 1987 

Hon. Joseph PF. Spaniol, Jr. 
Clerk 
Supreme Court of the United States 
One First Street, N.E. 

Washington, D.C. 20543 

Warren McCleskey v. Ralph M. Kemp, 
No. 84-6811 
  

Dear Mr. Spaniol: 

Enclosed are an original and nine copies of a 

timely petition for rehearing to be filed pursuant to 

Rule 51 in the above-captioned case, together with a 

certificate of service. 

Thank you very much. 

0 thas 

(PREIIN 

hn Charles Boger 

cc: Mary Beth Westmoreland, Esq. 

Postscript: Because of mechanical difficulties with the 
photo-reproduction equipment in our law 
offices this weekend, I am enclosing only 
an original and one copy with this letter. 
Additional copies will be forwarded to the 
Court on Monday, May 18th. 

  

NINETY NINE HUDSON STREET, 16th FLOOR ° (212) 219-1900 NEW YORK, N.Y. 10013 

 



  

BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAW 

405 VAN ANTWERP BUILDING 

P. O. BOX 1051 

MOBILE, ALABAMA 36633-1051 

JAMES U. BLACKSHER TELEPHONE 

LARRY T. MENEFEE May 4, 19087 (205) 433-2000 

GREGORY B. STEIN 
WANDA J. COCHRAN 

Mr. Ronald I.. Ellis 

Legal Defense Fund 
16th Floor 

99 Hudson Street 
New York, New York 10013 

Dear Ron: 

I read your letter of April 21, 1987, asking for suggestions 
about LDF's employment litigation program, the same day I read 
the black pogrom decision, McCleskey v. Kemp, 55 U.S.L.W. 4537 
(Apr. 22, 1987). The initial reaction one gets from McCleskey is 
disgust, and it was with that attitude that I considered the 
prospect of asking the federal judiciary again to help blacks 
gain equality in the workplace. Speaking as a member of the LDF 
"family," I know we are supposed to be the foundation-funded 
professionals charged with making liberal democracy work for 
all. But this is a bad day to think about how to use the system 
for the Advancement of Colored People. So, with or without your 
indulgence, I am using the format of a reply to your letter to 
argue how McCleskey profoundly changes the way we should approach 
all areas of civil rights, not just death penalty litigation. 

The revolutionary thing about McCleskey is that, arguably for the 
first time ever, it repudiates the ideology of Guardian 
Democracy. The Carolene Products Era is over. (With the Kingston 
Trio, we sing: "Hang down your head, John ... Ely, hang down your 
head and die.") Justice Brennan's opinion presents the familiar 
arguments for reaching the right result in a manner consistent 
with existing liberal doctrine. Had he prevailed, McCleskey 
probably would have knocked out the death penalty and 
resoundingly reaffirmed, for the time being, the institutional 
role of the Supreme Court as the bulwark of minority expectations 
in an otherwise viciously competitive and racist society. 

But the fact remains that the Court has pointedly broken faith 
with the liberal vision by announcing unequivocally the limits of 
its Guardian role in the face of unacceptable threats to (1) the 
political will of the overwhelming majority and (2) the system of 
justice through procedural rules itself. McCleskey answers the 

 



  

Mr. Ronald L. Ellis 
May 4, 198% 
Page Two 

question, Which is more important on the scale of American 
values, preventing systematic discrimination against blacks by 
the machinery of criminal justice or clinging to the 
Anglo-American faith in procedural safeguards as sufficient by 
themselves to satisfy our notions of justice? Even though this 
is the Reagan Era, I am a little surprised that the Court would 
confess so openly that the dignity of cherished Anglo 
institutions outweighs the dignity of another people. Justice 
Powell reminds us "that the imposition of the death penalty for 
the crime of murder ‘has a long history of acceptance both in the 
United States and in England.’'" 55 U.S.L.W. at 4543, quoting 
Gregg v. Georgia. He tells blacks that the American Court has 
gone to the limits of its ingenuity (and ingenuousness?) setting 
up procedures and standards "to minimize the risk that the death 
penalty would be imposed on a capriciously selected group...." 
55 U.S.L.W. at 4544. But, Powell says, that's it--that’'s as far 
as Anglo government is willing to go. 

In light of the safeguards designed to minimize racial 
bias in the process, the fundamental value of jury 
trial in our criminal justice system, and the benefits 
that discretion provides to criminal defendants, we 
hold that the Baldus study does not demonstrate a 
constitutionally significant risk of racial bias 
affecting the Georgia capital-sentencing process. 

Id. at 4546 (footnote omitted). You see, white folks are people 
too, and we're proud of our traditions too. Frankly, we're sick 
and tired of you blacks trying to shoot down with proof of racial 
disadvantage every bloody good idea we've ever had to justify on 
the grounds of procedural fairness the (white) rule of law. You 
show us our Big Idears aren't working, and we'll show you who 
still got the power around here. Go cry on the legislature's 
shoulder. Id. at 4548. 

Now that it has played its undisguisable political trump card 

against black people, only a proper political response by blacks 

can answer the challenge. Blacks must tell the Court that they 

will continue to accept as legitimate the Anglo-American, liberal 

rule of law only if they too are permitted to trump those 

political choices that threaten their life, dignity and 

peoplehood. 

 



  

Mr. Ronald I. Fllis 

May 4, 198% 
Page Three 

How can this be done? One suggestion: Amended Section 2 of the 
Voting Rights Act guarantees blacks not only an equal opportunity 
to elect candidates of their choice, but (first and foremost?) 
an equal opportunity to participate in the political process. 
Ordinarily, we think of equal participation for blacks in terms 
of their having a proportionate but minority voice in political 
decisionmaking. In other words, blacks have accepted the liberal 

Of majority rule. But the liberal ideal of 
constitutional government in this country includes important 
limits on the exercise of unfettered choice by the political 
ma jority. The Supreme Court has been given the role of Guardian 
of the uncompromisable interests of racial minorities. 

In McCleskey, the Court said the price for guarding blacks 
against systematic racial injustice with regard to the death 
penalty was too high, in terms of the countervailing ma jority 
will and in terms of the institutional limits of the judiciary. 

The McCleskey holding leaves blacks with some fundamental and 
difficult choices to make. Their Guardian has announced in no 
uncertain terms that it has bailed out. Blacks are remitted to 

their political remedies. 

But what political remedies? The legislatures? They are the 
very vehicles of the current majority mania for vigorous use of 
the death penalty; they are the instruments of the white majority 
that is acting out its historical, cultural vigilance against 
blacks, whom it views (consciously or not) as the ever-present 
and ever-threatening Other. In American government, legislatures 
don’t think they are supposed to guarantee the vital interests of 
ethnic minorities; that's the Court's job. The legislatures? 
For blacks, there's no hidin’ place down there. 

Well, maybe that's an overstatement. Blacks are gaining 
political know-how and influence. Maybe McCleskey opens a new 
ball game in the official political arena of the legislature, and 
there, arguably, is where black leadership ought to be focusing 
its main energies. Go for it hard, I say. 

But, I also say, we can't afford to let the constitutional rule 
of law off so easily. How can it ever be trusted again? It has 
hit the wall. The Constitution protects racial and ethnic 
minorities against systematic discrimination only up to a point, 

 



  

Mr. Ronald L. Ellis 
May 4, 1987 
Page Five 

namely, at the point where law takes off its mask and appears as 
raw politics! 

That brings me, at last, back to the Voting Rights Act. It is the 
law that supposedly protects blacks in the political process. It 
may be the only meaningful law left for blacks when, as in 
McCleskey, they have been counted out of the constitutional 
process. 

However, it should be obvious that when it comes to the basic, 
life-or-death issues (you know, the ones we used to think were 
covered by the Bill of Rights and the Civil War Amendments), 
simple majority rule does not afford a minority people an equal 
opportunity to protect their interests in the political process. 
In these sovereign areas of human worth, only decisionmaking by 
political consensus distinguishes equal participation from brute 
subjugation. 

I think black people should tell the Court that they will 
acknowledge the lawfulness of the death penalty in Georgia (or 
anywhere else in the U.S.) only if blacks as a people consent to 
it through their representatives in the state legislature. In 
light of McCleskey, if the death penalty statute remains in force 
over the objections of the black caucus, it should be held to 
violate Section 2 of the Voting Rights Act. Blacks should make it 
clear that, for them, deciding whether to have a racially 
disadvantageous death penalty statute ain't the same as voting on 
the seat-belt law. They should tell whites: "We sure as hell 
have noticed how many you are, but don’t try to count us out on 
this one." If the opinion polls showing support for the death 
penalty by blacks translate into affirmative political agreement 
with the statute by black representatives, the black-white 
political issue will have been resolved. Then and only then can 
we legitimately continue debating the death penalty on the 
bleedin’ heart level. 

On the other hand, if black caucuses veto the death penalty and 
are ignored by both the legislative and judicial majorities, at 
least black people will know that other political options must be 
considered. 

And I would carry this reasoning into other areas of civil 

rights. As of this year, affirmative action is permissable but 

 



  

Mr. Ronald L. Ellis 

May 4, 19087 
Page Six 

not mandatory--not even for the U.S. government. The same kind 
of individualistic legal ideology, the racially oppressive nature 
of which is displayed embarrassingly in Justice Powell's 

opinion, is being used to deny black people economic 
equality. Who the hell made the racially neutral standards used 
to label the white individual more "qualified" than the black 
individual anyway? And who says those standards are any damn 
good, even by Anglo lights? We have spent a lot of time and 
money demonstrating that standardized and unstandardized, 
pastuerizied and unpastuerized tests are bullshit. But what 
about all the other "objective" selection criteria that prop up 
our alleged meritocracy? Which is more important: experience on 
the job, potential to do the job, educational credentials, or 
supervisory evaluations of actual job performance? We all know 
the answer for 99% of the job decisions in America: whichever one 
picks the right, white, male applicant. The most important 
employment criterion remains the same today as it always has 
been, namely, who gets to decide. 

We can change the rules and the tests and the objective criteria 
and put all kinds of weighted scales in them and even lay on some 
quotas, but until blacks have an equal opportunity to participate 
in the political process of deciding who gets the job, there 
won't be real equal employment opportunity. Having blacks 
participating effectively at all management levels in government 
employment--or even in private employment (I'm sick of all these 
claimed public/private distinctions we have erected in the law) 
is a legitimate political objective for blacks. Why can’t we 
argue that this too is covered by a law requiring equal 
participation in the political process? And, if it’s not covered 
now, why not write another law that does so? 

And what about all those work rules the Man lays down? When will 
it be time for an open, intercultural debate about what kind of 
environment we want in our workplace? I am tired of getting 
calls, like the one last week, from some black person who got 
fired because he was twenty minutes late for work. For this he 
has to file a federal case? 

To summarize my meandering argument: LDF should start making more 
aggressive political arguments--in the courts of law. 

 



  

Mr. Ronald 1.. Ellis 
May 4, 1987 
Page Seven 

Best regards, 

    
James U. Blacksher 

ceC Ms. Lani Guinier 

 



COLLEGE OF LIBERAL ARTS 

THE UNIVERSITY OF TEXAS AT AUSTIN 

  

  

Department of Government * Burdine Hall 536 * Austin, Texas 78712-1087 +(512)471-5121 

January 9, 1987 

Mr. John Ckarles Boger 
99 Hudson St. 
New York, NY 10013 

Dear Mr. Boger: 

I would be most grateful if you would send me a copy of 
your brief for Warren McCleskey, together with any other materials 
available, that would be useful in a thorough examination of the 
issues in McCleskey v. Kemp. 
  

Thank you very much. 

Lh yours 

Ly ttl A 
di L. Hardgrave 
Professor 

 



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STANFORD LAW SCHOOL 

December 9, 1986 

John C. Boger 
NAACP Legal Defense & Educational Fund 
99 Hudson Street 
New York, New York 10013 

Dear Jack: 

I'm afraid that the transcript of the argument in McCleskey 
sat on my desk for some time, but I finally read it last weekend. 
Good job! I wish I had been there in person, but even this gives 
me some sense of the occasion. It's hard to be optimistic about 
the outcome, but the performance was certaily a credit to our 
side. 

  

Best regards, 

Very yours, 

  

Samuel R. Gross 

SRG/mmek 

Crown Quadrangle Stanford University Stanford California 94305 

 



  

MBE. M0 R & ND UM 

TO: TONY AMSTERDAM 
VJACK BOGER 
MICHAEL MILLMAN 
BRYAN STEVENSON 

  

FROM: DAVID BRUCK 

RE: SOUTH AFRICAN VIEW OF McCLESKEY 

DATE: DECEMBER 5, 1986 

I just received this editorial clipping from the Argus, a 

pro-Government Cape Town daily newspaper, and thought you might 

find it interesting. 

 



  

  

  

   
   
   
   

    
   
        

  

    

   

   
    

     

    

    

   

      
    

Weekend Argus Foreign Service 
NEW YORK. — Americans, who are 
proud of their efforts to exorcise rac- 
ism from their midst, are being con- 
fronted once more by the fact that 
this most-pernicious of human sins is 
not easily overcome. 

The reminder has come in two 
cases before the US Supreme Court, in 
which well-briefed lawyers are argu- 
ing that a convicted murderer in 
America, black or white, is 11 times 
more likely to be sentenced to death 
if the victim is white than if the vic- 
tim is black. 

Civil rights lawyers are claiming 
the issue, which arises from appeals 
for clemency by two black Georgia 
men convicted of killing white vic- 
tims, is an indication of insidious rac- 
ism — reflecting a return to pre-Civil 
War laws that implicitly made the 
killing of a black slave a lesser crime 
than the killing of a white. 

Some damning statistics have been 
placed before the Supreme Court, now 
presided over by new Chief Justice 
William Rehnquist. 

Of the 1644 black and white in- 
mates on Death Row, for instance, the 
death sentence was applied on behalf 
of only 327 black victims while the su- 
preme penalty was applied on behalf 
of 1813 white victims. 

Racism still 

alive in US 

  

One of the defendants, Warren 
McCleskey, was convicted of robbery 
and of murdering a police officer who 
interrupted it. He was sentenced to 
death by a jury of 11 whites’and one 
black. 

His argument that his sentence was 
tainted by racial discrimination is 
based on a study of 2 484 murder and 
manslaughter cases in the southern 
state of Georgia from 1973 to 1979. 

The Supreme Court is simulta- 
neously hearing an appeal by a second 
convicted murderer, James Hitch- 
cock, who is white. 

His appeal is based on the presump- 
tion that Hitchcock, who is on Flori- 
da’s death row awaiting execution, 
would have received a lighter penalty 
if his victim, a 13-year-old white girl, 
had been black. 

There are, of course, no simple an- 
swers to these contentions. 

Nonetheless, court lawyers and Civ- 
il Rights experts have presented a 
substantial challenge not only to the 
jury system, long regarded as imper- 
fect, but also to American society as a 
whole. 

That means only one thing: Ameri- 
can blacks are being sentenced to 
death in disproportionate numbers be- 
cause they are black and their victims 
white. 

  

  

   

 









  

November 13, 1986 

To: James J. Heckman 

From: Sam Gross 

Subject: Comments on Studies of Racial Discrimination 
in Capital Sentencing 

I found your comments interesting, and I was, of course, 
flattered by your praise of the quality of my work as well as 
that of the other researchers in the area. Unfortunately, I 
think you have made a number of serious mistakes in your 
description of the findings of this body of research and its 
implications. Some of them seem to be due to a relative lack of 
familiarity with the context -- the criminal justice system -- 
and some of them, I am afraid, reflect insufficient attention to 
the studies that are the subject of your comments. Let me be 
specific. I will discuss the points raised in your draft in 
sequence. 

On pages 1 and 2 you state five factual conclusions which, 
as you understand it, emerge clearly from this set of studies. 
Unfortunately this list includes major errors: 

(1) You say that "when a black kills a white, the defendant 
is much more likely to receive a death sentence than if a black 
kills a black or a white kills a white." This is not true. In 
my own study with Robert Mauro we found (after controlling for 
the variables at our disposal) that a black who kills a white is 
not measurably more likely to receive a death sentence than a 
white who kills a white. The Baldus et al. study in Georgia 
shows approximately the same thing: (1) all defendants charged 
with killing whites are much more likely to receive death 
sentences than those charged with killing blacks; and (ii) within 
the subset of those who kill whites there is a much weaker and 
less consistent tendency for black defendants to be more severely 
treated than white defendants. An accurate view of the studies 
on the whole is that there are two separate questions under 
consideration: (i) Does the race of the victim affect the 
likelihood of a death sentence? And (ii) does the race of the 
defendant affect the likelihood of a death sentence? The answer 
to the first question, in every study, is yes, and the effect is 
robust, stable and large. The answer to the second question is 
that there is a smaller and less consistent separate race of 
victim effect in Georgia as shown by the Baldus study alone. 
(This second finding is consistent with our findings in Georgia 
-- I'll explain that in greater detail if you're interested -- 
although we ourselves did not detect any such separate race of 
defendant pattern). By focusing on blacks who kill whites you 
are both ignoring the major finding of this body of research, and 
(unintentionally) misrepresenting the data since blacks who kill 
whites are not "much more likely" to be sentenced to death than 
whites who kill whites. 

 



  

(2) It is true, as you say, that interracial killings 
almost invariably involve black defendants and white victims. It 
might be worth noting one of the major explanations for this 
asymmetry, although it is orthogonal to the focus of your 
comments. In a segregated society, interracial homicides are 
almost inevitably homicides between strangers. Other things 
being equal, a white who goes outside his circle of acquaintances 
to commit a homicide is unlikely, on purely statistical grounds, 
to hit a black victim, or any other minority victim. By 
contrast, a black who goes outside his circle of immediate 
acquaintances to commit a homicide will more quickly run into 
white victims. If we assume that in all homicides of strangers 
the victims are chosen at random, the vast majority of 
interracial homicides would involve white victims. 

(3) It is true, as you observe, that black-kills-white 
homicides are on the whole more aggravated than the other 
categories of killings; your steady focus on this single 
category, however, is puzzling. It is also true, although you do 
not note it, that white-victim homicides in general are more 
aggravated than black-victim homicides -- at least as the 
criminal justice system keeps track of such things. Needless to 
say, the main goal of our studies is to control for these 
differences in levels of aggravation. 

(4) You state that "the differential capital sentencing of 
blacks who kill whites is most pronounced in rural areas. The 
race of victim effect is much weaker in urban areas." The 
connection between these two sentences is unclear. You seem to 
be implying that the "differential sentencing" of blacks who kill 
whites is the only race of victim effect. This is not true, as 
I've explained. It is also not true that the race-of-victim 
effect is much weaker in urban areas. In our own study we 
checked for this in one set of the many regression analyses that 
we conducted, and found that controlling for the urban or rural 
location of the homicides made approximately no difference to our 
race-of-victim findings (Gross & Mauro, p. 82). Baldus, 
Woodworth and Pulaski had similar findings in Georgia =-- after 
controlling for any number of other variables in any number of 
different ways, the race-of-victim disparties that they observed 
were essentially unaffected by the location of the homicides. 
They did find that the smaller and weaker separate race-of- 
defendant effect that they detected was primarily restricted to 
rural counties. Apparently this is what you have in mind, but it 
is a very different point from the one you make. 

  

  

  

(5) You say that the studies do not have "adequate data" on 
community responses to murders, the prevalance of different types 
of murders in the communities at issue, and the community status 
of the victims. I am puzzled by these statements. Each of the 
studies has detailed information on the patterns of different 
types of homicides within the units in which these homicides are 
considered. Thus, for example, Robert Mauro and I have 
information on the number of felony circumstance homicides, 

 



  

multiple homicides, etc., in each county in each of the states 
that we studied, and data on the number of death sentences and 
their circumstances from each county in each state. Baldus, 
Woodworth and Pulaski have vastly more detailed information on 
the various types of homicides that occurred in the Georgia 
counties that they examined. Moreover, this research has been 
conducted and is reported against a background of decades of 
criminological research on homicide patterns in the United 
States. I am not sure that I understand your point on this 
issue, but I can assure you that there is nothing remarkable 
about the distribution of homicides or their characteristics in 
the jurisdictions covered by these studies. If you are 
interested, I would be happy to refer you to several major works 
in the extensive literature on the subject. 

Following your summary of the factual conclusions that you 
draw from these studies, you state that few implications if any 
can be drawn from these facts about "discrimination." Here, I am 
afraid, you are wading into heavy legal waters. You argue that 
we can say little about racial discrimination "without a clear 
understanding of how the law is supposed to operate if it is 
nondiscriminatory." This statement has no clear meaning unless 
it is better specified. For example, the precise legal question 
in McCleskey v. Kemp is whether death sentences in Georgia were 
determined in part on the basis of illegitimate criteria, 
specifically racial factors. The only essential description of 
"how the law is supposed to operate" is that it is supposed to 
ignore race. Other descriptions of how a nondiscriminatory death 
sentencing scheme ought to work may or may not be useful in 
establishing this point, but as a legal matter they are 
unnecessary. In some contexts it may be true that without an 
affirmative model of how the system ought to operate it will be 
impossible to know whether race is a causal factor that 
influences a set of decisions. In other situations, however, the 
patterns are strong enough to clearly indicate that a racial 
variable has a causal relationship to the outcomes given any of 
the entire set of possible models for the proper operation of the 
system. In addition, as I will try to explain, the meaning of 
causality for the purpose of legal liability may be different 
than the one you would use in other contexts. 

  

You say that these studies assume that "the jury system 
should act uniformly across jurisdictions within or across 
states." Not so. In our own study Robert Mauro and I examined 
each state separately; the uniform presence of a race-of-victim 
effect in each state emerged from the data. We also did our best 
to control for geography within states; David Baldus and his 
colleagues did much better at that in Georgia. You go on to say 
that "nothing in the law requires this" jurisdictional 
uniformity. This assertion is in part debatable and in part 
false. Several of the states that we examined -- conspicuously, 
Georgia and Florida -- have state-wide systems of 
"proportionality review." One of the purposes of each such 
system is to enable an appellate court with "state-wide 
jurisdiction" to ensure even-handed application of death penalty 

  

 



  

statutes across the entire state. (There is a very brief 
description of these procedures in Gross & Mauro at pp. 83-85.) 
Moreover, even in the absence of these explicit provisions, there 
is a strong argument that other provisions of state and federal 
law may require at least some types of geographic uniformity in 
the application of all penal statutes, and especially death 
penalty laws. Finally, the evidence does not support your 
speculation that "a heinous crime in one location may be an 
ordinary event in another," at least as when the crime is a 
homicide. What is considered a heinous homicide in one location 
may be considered a somewhat less heinous homicide in another 
location, but that is all. One of the major lessons of the 
research reveiwed here, and of a large and longstanding body of 
research apart from these studies, is that on the whole people 
across all jurisdictions react in similar ways to the factors 
that determine their grading of the severity of homicides. Their 
responses, needless to say, are not identical -- far from it -- 
but the relative uniformity in the grading of homicides is both 
well established empirically, and a predictable consequence of 
our common culture and common humanity. 

As far as I can tell, your point here is two-fold: First, 
that these studies have omitted a "legitimate variable" -- the 
community reaction to homicides. Second, that this omission is 
particularly problematic because such reactions are likely to 
differ between urban and rural communities, and because (you 
state) the racial effects that are detected in these studies are 
restricted to rural communities. The second point requires no 
further discussion; one of the factual premises is false. The 
first point, however, deserves more attention. 

Ultimately, what you are discussing here is a potential 
problem of omitted variables. As you know, some variables are 
necessarily omitted from any study of this sort. Therefore, 
simply pointing to the omission is uninformitive; a useful 
discussion of the consequence of even a conspicuous omission 
requires a description of the context. In many cases it is 
apparent from the data at hand or from the literature in the 
field that the omission is not significant; this is such a case. 
Your argument depends on the claim that there is some important 
and variable "community reaction" to homicides that is 
substantially independent of the objective measures of the 
severity of homicides which are considered in these studies. The 
literature in the field does not support this claim. In 
addition, even in a situation where a causal variable of some 
significance has been omitted, it is often possible to put bounds 
on the magnitude of the distortion. In these studies we found 
large race-of-victim effects after controlling for many important 
nonracial variables. I see no value in speculating about an ill- 
defined "community reaction" variable that might somehow be both 
sufficiently correlated with capital sentencing and race of 
victim, and sufficiently independent of the other variables that 
we controlled for, to erase this large effect -- at least it 
seems pointless in the absence of any concrete support for the 
speculation. 

 



  

Part of the problem seems to be that you apparently believe 
that "discrimination" means conscious and deliberate bigotry. 
You don't actually say so in so many words, but that seems to be 
the drift of your comments -- especially your statement that a 
consistent finding of similar race-of-victim effects in northern 
as well as southern states would undercut the claim that this 
effect reflects "discrimination." (Incidentally, our study finds 
race-of-victim discrimination in Oklahoma as well as Illinois; 
Oklahoma may not be "northern" but neither is it "southern.") 
The only possible interpretation of this statement is that you 
assume that racism is less pronounced in the north than in the 
south. Quite aside from the fact that this assumption is 
debatable -- I've heard articulate blacks say the opposite -- 
"discrimination" as a legal wrong is not by any means restricted 
to conscious racism or bigotry. I do not claim to be the final 
authority on what "discrimination" does mean in the legal system, 
but nobody has ever given it that restrictive a definition. In 
many contexts it is absolutely clear that conduct can constitute 
"racial discrimination" when the racial distinctions that are 
made are entirely unconscious, and where the racial consequences 
are completely unintended. 

  

Essentially, to simplify an extraordinarily complex topic, 
proof of discrimination in common legal contexts requires two 
elements: (i) Proof that some racial factor has a substantial 
impact on a set of decisions. And (ii) a finding that this 
impact cannot be explained by the neutral operation of legitimate 
considerations. It is not necessary to show how the decisions 
are made (although that may make the picture more clear), and it 
is not necessary (or helpful) to show that this pattern could be 
explained by some other illegitimate factors. Because the issue 
we addressed was this legal question, this is the mode of 
analysis that Robert Mauro and I followed in our study. I can 
only speak directly for our own work, but, as I read the other 
studies in this area, the other researchers seem to have done 
likewise. This formulation of the question may seem artificial 
to somebody in a different field, but it is useful in resolving 
legal disputes, and in any event it's what we have been given to 
work with. One particular implication of this structure is 
important for the claim that you make here: "community reaction" 
is only available to explain away racial disparities if this 
variable, whatever it is, is a legally permissible sentencing 
consideration. 

  

  

I would be curious to hear if you have a more specific 
theory as to how "community reaction" might have this explanatory 
impact on race-of-victim discrimination. You don't go into it in 
this paper, but when you discussed that possibility in Chicago 
you suggested that it could be that there is discrimination 
against killers of white victims because white victims often tend 
to be richer, better established, more powerful members of the 
community than black victims. If that (or something similar) is 
what you have in mind then you face three problems: First, the 
best available evidence (from the Baldus, Woodworth and Pulaski 

 



  

study) shows not only that other facts about the victim are not 
nearly as predictive of capital sentencing as the victim's race, 
but also that controlling for such facts does almost nothing to 
the race-of-victim effect. Second, it seems peculiar to assume 
that racial effects on sentencing are not likely to be common 
across the United States but that some other undefined status 
effect is likely to be uniform; if anything, I would have thought 
the opposite. Third, it is hard to see how this variable could 
be a legitimate sentencing consideration. To put it in somewhat 
simplistic terms, if somebody attempted to claim in a court that 
what appears to be discrimination against blacks in the 
administration of a criminal statute is in fact discrimination 
against poor people the answer would be unequivocable: that is 
no defense. This is not to say that the distinction is 
uninteresting or unimportant. In a purely scholarly context, it 
may be very important to know whether some pattern of decisions 
-- however much or little we like them -- is based on poverty or 
on race. But a court would not be interested in this 
distinction. For one thing, courts would correctly perceive that 
it is hard to separate causal variables of that nature. More 
important, if there is a sizable racial impact that can at best 
be explained by some other impermissible criterion then the 
responsible party is liable in any event. 

  

I think my comments so far cover the major problems that I 
see with your discussion. There are several other issues as 
well, but I will only mention a few of the bigger ones, and only 
briefly at that. 

On page 3 you discuss the absence of a "benchmark" for 
measuring fairness in capital sentencing, and pose a series of 
questions. This is an enormously complex area of law. Again, if 
you are interested, I can refer you to a small library on it. 
Starting with available material, however, you might look at 
pages 31-34, and 110-126 of my article with Robert Mauro, and at 
my later article in the University of California at Davis Law 
Review (which I've enclosed). Briefly, as the Supreme Court now 
interprets the issue, the major desiratum that we are concerned 
with is that the death penalty not be imposed in part on the 
basis of an impermissible criterion: race. I've already 
discussed how the legal system attempts to determine the answer 
to such a question. Also, it is true as you say that mandatory 
death penalties have been held to be unconstitutional, but that 
is in part because the Supreme Court recognized (correctly) that 
mandatory statutes would only produce the appearance of 
objectivity and predictability, and would in some ways be even 
less predictable than the troubled system that the Court chose 
instead. 

You state that the relevance of these studies to the 
McCleskey case is "less than obvious because the crime that 
  

initiated the case occurred in urban Fulton county Georgia." 
Apparently you are restating your mistaken assertion that race- 
of-victim effects occur only in rural counties. In this case, 
however, the error is more specific. Baldus and his colleagues 

 



  

conducted a separate analysis of the Fulton county subset of 
their data (which was used in the McCleskey hearing), and they 
found the expected and nearly universal patterns of racial 
discrimination. I'm sure David would be happy to supply you with 
the details if you don't already have them in the version of the 
Baldus, Woodworth and Pulaski study that you have been using. 

  

On pages 3 and 4 you talk about the potential sample 
selection bias problems of these data. However, you neglect to 
mention (i) that in evaluating this potential problem one ought 
to be greatly reassured by the fact that our study and that by 
Baldus et al. reached similar conclusions despite our different 
data bases and methodologies; and (ii) that our data set is (for 
these purposes) uncommonly complete, a fact that can be 
determined by comparing our homicide figures with the numbers of 
reported homicides that are kept by state bureaus of vital 
statistics. (These issues are discussed in the "Data and 
Methods" section of our paper, in our discussion of our findings 
relative to other studies (pp. 102-105), and in Appendix 1.) 

On page 4, toward the bottom of the page, you say that 
"evidence of no jurisdictional effects would bolster the 
conclusions of these studies." I'm not sure what you mean. In 
fact, we have found no jurisdictional effects. See discussion 
above. 

Finally, on page 5, you say that you are troubled by claims 
that there is some "best" way to build a statistical model. You 
also say that "the conclusions of these studies would be much 
more plausible if nonparametric methods were used . . . ." At 
least in our own work, we made no claim as to the "best" way to 
build statistical models. Indeed, as a careful review of our 
study will show, we tried many different forms of analysis. (The 
only statistical use of the word "best" in our article is in the 
context of "best fitting," hardly a normative term.) Not only 
did we try numerous different regression models =-- including many 
interaction variables -- but we used other methods of analysis as 
well. Some but not all of these analyses are reported in the 
article. (There is a limit to how much we could impose on the 
indulgence of the readers.) Moreover, some of these methods of 
analysis are nonparemetric. I refer you, for example, to the 
crosstabular analyses on pages 73 and 74, and their associated p- 
values, and to the "cell by cell" analysis that is presented in 
Appendix 3, pages 150-153. (Appendix 3 also includes a 
description of the methods for calculating the p-values for the 
cross tables.) All of our analyses, whatever their form, find 
comparable race-of-victim effects. This is not unique to our 
study. Baldus, Woodworth and Pulaski have been through their 
data at least as many times as we've been through ours; Richard 
Berke has conducted a separate set of analyses on the Baldus et 
al. data, and an equally intensive analysis of data he himself 
gathered in Mississippi. In every case, every researcher has 
found that no matter how you analyze the data the race-of-victim 
effect remains. This is as robust a finding as we are likely to 
see: it cannot be made to go away. 

 



  

Comments on The Baldus, Woodworth and Pulaski, Gross and Mauro and 

Paternoster Studies on Disparity in Capital Sentencing By Race of Victim 

James J. Heckman 

University of Chicago 

October, 1986 

These papers represent excellent applications of conventional statisti- 

cal methods to the analysis of an important social problem. Without doubt, 

these studies establish the existence of an important race of victim 

statistical regularity in capital sentencing rates. The thoroughness of 

these studies and their candor set a high standard for research in legal 

statistics. 

While I have no serious quarrels with the main facts presented, I have 

some difficulty with the interpretation to be placed on them and their value 

in any specific case, especially McClesky vs. Zant. Before presenting my 

reservations, I will summarize the five features of the data that clearly 

emerge from these studies. 

(1) When a black kills a white, the defendant is much more likely to 

receive a death sentence than if a black kills a black or a white kills a 

white. (2)The event "white kills black" is a very rare event. Interracial 

murder is almost invariably "black kills white". (3) When a black kills a 

white, there are more aggravating circumstances than in other types of 

murders (see Table 22 of Gross and Mauro). "Black kills white" murders are 

rarely domestic violence murders. (4) The differential capital sentencing of 

blacks who kill whites is most pronounced in rural areas. The race of 
  

 



  

victim effect is much weaker in urban areas. (Baldus, Woodworth and 
  

Pulaski). (5) None of the studies has adequate data on community response to 

the murders, the rarity or prevalence of murder of any kind in the community 

and the relative (to the community) status of the victims. 

What inferences about discrimination can be drawn from these facts, or 

for that matter, from any competent statistical study? Very few, if any, 

without a clear understanding of how the law is supposed to operate if it is 

nondiscriminatory. Implicit in these studies that do not control for 

community perception effects of crimes is the view that the jury system 

should act uniformly across jurisdictions within or across states. Perhaps 

the jury system should act in such a fashion but nothing in the law requires 

this. A heinous crime in one location may be an ordinary event in another. 

Differential responses to identical facts is almost guaranteed by the peer 

jury system. Since no study has quantified the relative impact of the 

crimes on the community, none controls for a legitimate variable. (Point 5). 

The fact that disproportion in sentencing is found most strongly in 

disparate rural areas where murder rates are low and the crime of murder is 

a very unusual event (Point 4) reinforces this point. Disparity as 

measured may not mean discrimination according to the law. Evidence of 

consistent patterns of disparity across states of the sort presented by 

Gross and Mauro may merely indicate that the same sorts of community 

relative status variables have been left out of all of the studies. (Is it 

the same type of overt discrimination is operating in Georgia as in Illinois 

or the same sort of omitted community variables?) 

It is unfortunate that most of these studies focus on Southern states. 

 



  

If there were comparable studies on Northern states (or states with 

populations less likely to discriminate against blacks) that displayed the 

same type of race of victim effect, the discrimination interpretation of 

the evidence would be less plausible unless, of course, it is assumed (with 

no evidence at all) that discrimination is identical in all regions of the 

U.s. 

Putting aside the issue of uniform treatment, all of these studies can 

be subject to the obvious criticism that some variables relevant to the case 

and known to the judge and jury are omitted from the statistical analysis. 

The fact that this is such an obvious objection does not render it invalid. 

In light of point (3) above, there is considerable reason to doubt that all 

of the aggravating nuances in these cases have been recorded. 

Also missing from all of these studies is a suitable benchmark for 

measuring fairness. Granting for the moment that all of the relevant 

community variables are properly measured, what is a fair capital sentencing 

system? It is one with no predictability? Would that be a capricious or a 

fair system? Is it one with perfect predictability? An automatic 

"objective" rule would surely violate the law as recent decisions on North 

Carolina laws make clear. 

In view of point (4), the relevance of these studies to McCleskey vs. 

Zant is less than obvious because the crime that initated that case occurred 

in urban Fulton County Georgia. 

  

Some Methodological Points 

(1) The Baldus-Woodworth-Pulaski study is for a sample of people who 

are arrested and convicted. By conditioning on an outcome of the criminal 

 



  

justice system, perverse findings may be produced. Suppose that courts are 

bending over backward to avoid prosecuting blacks who kill whites. Then 

only heinous cases will show up in convicted samples. With some unobserved 

(by the statistician but not by the actors in the legal system) character- 

istics relevant to the case, the data may still show discrimination against 

blacks by race of victim solely as a consequence of selecting a sample on 

the basis of an outcome (arrest and conviction). The Gross and Mauro study 

is much less vulnerable to this criticism because the primary unit of 

analysis is a documented homicide. Nevertheless, even this study is not 

entirely clean if local law enforcement efforts are devoted to documenting 

"heinous" crimes (as percieved by the community), such crimes overrepresent 

blacks killing whites, and not all of the data relevant to the case is known 

to the legal statistician. 

(2) All of the studies ignore the correlation across observations due 

to common judges and origins of juries. This uncorrected correlation biases 

the reported test statistics. There is a modest presumption that it biases 

reported statistical significance levels upwards (and therefore in favor of 

finding racial disparity). In addition, none of the studies accounts for 

variation in outcomes by jurisdiction despite the fact that a technology for 

doing so exists (random coefficient models). Evidence of no jurisdictional 

effects would bolster the conclusions of these studies. In view of fact 

(4), I doubt that such a conclusion can be drawn. 

(3) The very interesting interactions detected by the simple but robust 

cross classification analysis reported at the end of the Baldus-Woodworth- 

Pulaski study is very enlightening. It revealed to me the important role of 

 



  

rural location in generating the race of victim finding. Such evidence 

casts doubt on the validity of conventional multivariate analyses widely 

used in legal statistics that ignore such interactions entirely or impose 

strong restrictions on the nature of admissible interactions. 

(4) Following up on remark (3), I am troubled by legal scholars who 

make frequent appeals to a nonexistent statistical authority about how to 

build a statistical model. The fact of the matter is that there is no 

objective "best" way to build a statistical model up from a set of data. 

Despite claims to the contrary in elementary statistics and econometrics 

books, there is much current controvery over this topic in the professional 

literature. Conventional pre-test procedures used by many of the authors 

(i.e include a variable if its associated coefficient has a "big enough" "t" 

ratio) have no formal justification. The conclusions of these studies would 

be much more plausible if nonparametric methods were used such as those 

developed by Breiman, Friedman, Morgan, Olshen, Sondquist, Stone and others. 

(See, e.g. Breiman et.al, Regression and Classification Trees, Wadsworth, 
  

1983). It will be valuable to see if the race of victim effect holds under 

more general types of analyses and to find out what configurations of the 

data give rise to the race of victim effect. 

 



  

Papers Cited 
  

Baldus, Woodworth and Pulaski, "Charging and Sentencing Study For Georgia", 

unpublished manuscript, University of Iowa, 1983 (7/29/83). 
) 

Gross, S. and R. Mauro, "Patterns of Death: An Analysis of Racial 

Disparities in Capital Sentencing and Homicide Victimization", unpublished, 

October, 1983, Stanford Law School. 

Paternoster, R. "Race of Victim and Location of Crime", Journal of Criminal 
  

Law and Criminology, Vol. 74, 1983.   

 



  

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Stephen 
Chapman 
    

      

[J @ Affirmative Action? 

store, Warren McCleskey killed a police of- 

was convicted of murder and sentenced to die. 

RE CL . $-.- i hi 

Post- Digpatel af 2fe 

Does Death Row Need 

CHICAGO 
DD: the robbery of an Atlanta furniture 

ficer with two gunshots, one fired at close 
range into the victim’s head. Five months later, he 

But the Supreme Court may spare him. In a 
potentially historic case, his lawyers argue that 

~ McCleskey is the victim of racial discrimination 
‘that invalidates his sentence. If the court rules in 
his favor, the death penalty may disappear. 

That is a desirable result, but this is the wrong 
vehicle. The decision whether to abolish the death 
penalty, which is explicitly sanctioned by the Con- 
stitution, belongs with state legislatures. And even 
if the Supreme Court thinks capital punishment is 
fundamentally at odds with the constitutional ban 
on “cruel and unusual punishment,” it couldn’t find 

~ a worse occasion to invoke that standard. 
The most striking fact about this supposed epi- 

sode of discrimination is that McCleskey, whois 
black, doesn’t claim he was selected to die because 
of his race. The argument is that he was selected to 
die because of the race of his victim, who was 
white. His lawyers claim that due to the persis- 
‘tence of racism in Georgia, killers of whites are 11 
times more likely to get the death penalty than 
killers of blacks. : 
—That is the sort of statistic that gets attention. It 

is also badly misleading. According to the study 
cited by McCleskey’s lawyers, most of the racial 
(disparity is readily explainable by “legitimate rea- 
sons.” Blacks are more likely to be killed in family 

~ disputes and barroom brawls, while whites are 
more prone io die in robberies. The latter cases, 
for reasons having nothing to do with race, tend to 
be treated more severely." : 

The study found that for crimes roughly compa- 
rable to McCleskey’s, the likelihood of a death 
sentence is just 20 percent greater when the victim 
is white than when the victim is black. Worse, the 
study did not — could not — measure a host of 
intangible elements that might explain the dispari- 
ty, from the credibility of witnesses to the quality 
of police work. As an explanation of why McCles- 
key was sentenced to die, the study is useless. 

If the statistics are adequate to strike down 
Georgia's death penalty, then no criminal law is 
safe. Blacks are greatly overrepresented in the 
nation’s prisons. This is not because the laws are 
drawn with an eye to penalizing blacks, but be- 
cause blacks as a group are more prone to crime 
than whites. But the reasoning used by McCleskey’s 
lawyers makes the intent of the laws irrelevant. 

Does this mean that some black criminals are 
entitled to ga free to compensztz for this “dispa- 
rate impact”? Are the nation’s courts supposed to 

~ abide by racial quotas in meting out criminal pun- 
ishment — quotas reflecting not merely the race of 
the criminals but that of their victims? 

Of course the argument that killers of whites get 
rougher treatment than Killers of blacks offers a 
simple remedy: Execute more of the latter. That 
would be an odd sort of affirmative action plan, 
which would force the states to execute more 
blacks, who after all commit most of the murders 
of blacks. Black inmates on death row might just as 
soon do without the faver.. ie Fes 

 



  

c
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S
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CRIMINAL LAW: 

CASES AND MATERIALS 

SECOND EDITION 

By 

PETER W. LOW 

Hardy Cross Dillard Professor of Law, 

University of Virginia 

JOHN CALVIN JEFFRIES, JR. 

Professor of Law, University of Virginia 

and 

RICHARD J. BONNIE 

Professor of Law, University of Virginia 

Mineola, New York 

THE FOUNDATION PRESS, INC. 

1986 

  

 



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A
 
L
R
 

H
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Ja
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S
S
L
 

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Y
 

  

876 CAPITAL HOMICIDE Ch. 6 

bly affect the magnitude of the effects yielded by the regression analy- 
sis, they insist that there is little likelihood that the omitted variables 

would “substantially explain[ ]” the racial disparities. “In sum,” they 
conclude, “we are aware of no plausible alternative hypothesis that 

might explain the observed racial patterns in capital sentencing in 

legitimate, nondiscriminatory terms.” © 

3. The Baldus, Pulaski, and Woodworth Study. Professor 

Baldus and his colleagues examined capital sentencing in Georgia, both 

before and after Furman.! One part of the study concerned approxi- 

mately 2500 defendants arrested for homicides committed from 1973 to 
1979 and subsequently convicted of murder or voluntary manslaughter. 

The study was based on a random stratified sample of 1066 of the 2500 
cases, from which data were compiled on more than 400 variables, 

including details about the charges, plea bargaining, outcome, the 
defendant’s characteristics and prior record, circumstances of the of- 

fense and any contemporaneous offenses, various aggravating and miti- 
gating factors, the involvement of any co-defendant, and the strength of 
the prosecution’s evidence of guilt. 

The unadjusted figures show that death sentences were imposed in 
‘11 per cent of the death-eligible cases involving white victims, but only 
in one per cent of the death-eligible cases involving black victims. 

When race of the defendant and the victim were simultaneously con- 

trolled, the figures showed that death sentences were imposed in 22 per 
cent of the black defendant/white victim cases, eight per cent of the 

white defendant/white victim cases, three per cent of the white defen- 
dant/black victim cases, and one per cent of the black defendant/black 

victim cases. 

e The analysis leading to this conclusion 
is illustrated by their assessment of the 
possible significance of the suspect’s prior 
record: 

“[T]he criminal record of the suspect 
undoubtedly has an effect on the chances 
of a death sentence. Moreover, we know 

that black defendants in general are 
more likely to have serious criminal 
records than white defendants, and we 
can safely assume that this general rela- 
tionship applies to the homicide suspects 
in our study. This association, however, 
explains very little. After controlling 
for level of aggravation, the race of the 
suspect is not a significant predictive va- 
riable, and the principal racial pattern 
that we did find—discrimination by race 
of victim—persisted when we controlled 
for the race of the suspect. Indeed, we 

were careful to make sure that the effect 
of the race of the victim could be deter- 
mined separately from any possible race- 

of-suspect effect. To assert that the 
criminal records of the suspects might 
account for discrimination by the race of 

the victim one would have to suppose 
that, controlling for the nature of the 

homicide and for their relationship to 
the victims, the killers of whites, regard- 

less of their own race, were more likely 
to have serious criminal records than the 
killers of blacks. We know of no empiri- 
cal or logical basis for such a supposition, 
and it seems unlikely that any unfore- 
seen effect of this type could be large 
enough and consistent enough to have 
the power to explain the racial patterns 

that we have reported.” 

f The findings from this study are report- 
ed in Discrimination and Arbitrariness in 
Georgia’s Capital Charging and Sentencing 
System: A Preliminary Report, an unpub- 
lished document filed by the petitioner in 
McCleskey v. Zant, 580 F.Supp. 338 (N.D. 
Ga.1984). Some of the data have been 
published in Baldus, Woodworth & Pulas- 
ki, Monitoring and Evaluating Contempo- 
rary Death Sentencing Systems: Lessons 
From Georgia, 18 U.C. Davis L.Rev. 1375 
(1985), and Baldus, Pulaski & Woodworth, 
Comparative Review of Death Sentences: 
An Empirical Study of the Georgia Experi- 
ence, 24 J.Crim.L. and Criminology 661 
(1983). 

A
g
 

O
R
S
 

  
  

  

 



  

  
  

  

Sec. 1 RACE & THE DEATH PENALTY 877     
Professor Baldus and his colleagues used a variety of multiple 

regression techniques to control simultaneously for all the variables 
that could explain the disparity. Using one type of regression analysis 

(“weighted least squares”) and controlling simultaneously for 230 fac- 
tors, they found a .06 partial regression coefficient for race of victim, 
indicating that a white-victim crime was six percentage points more 

likely to result in a death sentence than a comparable black-victim 
crime. Using another type of regression analysis (“logistic”), which 

controlled simultaneously for the nine most significant non-racial vari- 
ables, they found that the odds of receiving a death sentence were three 
times higher if the victim was white than if the victim was black.® 

Both types of regression analysis were also conducted while control- 

ling for the 20 legitimate variables most strongly associated with death 

sentences (e.g., prior record for serious felony, stranger-victim, multiple 

victims). In the weighted least squares analysis, the partial regression 

coefficient for race-of-victim was .09—an effect comparable in magni- 
tude to that associated with occurrence of a contemporaneous felony. 
In the logistic analysis, the odds of receiving a death sentence were 4.3 
times higher if the victim was white than if the victim was black. 

Baldus and his colleagues concluded that in each analysis “the race of 
victim coefficient suggests an effect which is stronger or comparable to 

a number of important aggravating and mitigating factors.” 

The data also showed that the racial disparity was particularly 
pronounced in cases involving the two statutory aggravating factors 

that establish the predicate(s) for a death sentence in most cases— 
contemporaneous felony and vileness.? Whereas the race-of-victim 
coefficient was .06 for all cases (when controlling for 230 variables in a 

weighted least squares analysis), it was .10 for the (b)(2) and (b)7) cases. 
When a logistic analysis was used (controlling for 14 statistically 
significant non-racial factors), the average defendant’s odds of receiving 
a death sentence were enhanced by a factor of 4.6 if the victim was 
white than if the victim was black in (b)X2) and (bX7) cases.! In 
contrast, race-of-victim effects were not strongly apparent in analyses 
conducted separately for cases with the following statutory aggravating 

circumstances: murder for hire, killing to avoid arrest, risk of death to 

two or more in public, defendant a prisoner or escapee, and police- 
officer victim. 

One other aspect of the analysis should be mentioned. The re- 
searchers used a multiple regression analysis to identify the 15 legiti- 
mate non-racial variables that best predicted the cases in which death 
sentences would be imposed. They then used these variables (and their 
respective regression coefficients) to rank the cases according to the 

g Although the weighted least squares The study refers to these two statutory 

regression analysis also indicated that a aggravating circumstances by their statu- 
black defendant was four percentage points tory labels in Georgia—paragraphs (b)X2) 
more likely to receive a death sentence and (bX7) respectively. 

than a comparable white defendant, the 
race-of-defendant effect was only weakly i i 1 “ 
evident in the logistic analysis. Again, the weighted least squares anal 

ysis also showed a statistically significant 
h One or both of these factors was pres- race-of-defendant effect (.10), but the logis- 

ent in 89% of the death-sentenced cases. tic analysis did not. 

  

    
   
   

      

    
      

    
     

   

    

     

   

    

   

        

  

    

   

                        

    

     

  

   
   

  

    



                                                                              

    
    
    
    
    
      

    
    

  

     

    

  
  

878 CAPITAL HOMICIDE Ch. 6 

estimated likelihood of a death sentence, and divided the cases into 

eight roughly equal groups in which the death sentencing rate ranged 

from zero to .39. For each of these eight subgroups, they calculated the 

racial disparities. Because the eighth subgroup accounted for 86 per 

cent of all death sentences, the racial disparities were most evident in 

these cases (the race-of-victim coefficient was .27). The researchers 

then selected the slice of cases (20 per cent) with the highest predicted 

likelihood of receiving a death sentence and subdivided them into eight 
subgroups in which the death sentencing rate ranged from zero to .88. 

The data showed that the race-of-victim effect was least significant 

in the least aggravated and most aggravated cases, and was most 

significant in cases involving “intermediate” levels of aggravation. In 
general, white victim crimes at intermediate levels of aggravation were 

20 percentage points more likely to receive the death penalty than 
equally aggravated black victim crimes. Baldus and his colleagues 
summarized their conclusions as follows: * 

“[R]acial factors appear to play their largest role in cases the 
circumstances of which neither preclude a death sentence nor 
compel it. At the lowest levels of aggravation and sentencing 
risk there are virtually no death sentences imposed, and no 
racial disparities occur. Conversely, in the most aggravated 
cases, for which a death sentence is a virtual certainty, juries and 
prosecutors respond punitively to the circumstances of the case 

regardless of racial factors. In the intermediate groups of cases, 

however, the sentencing outcome is not clear; the facts allow the 

maximum exercise of discretionary judgment. Here is where one 
finds racial factors exerting the greatest impact. 

“These circumstances support what is sometimes called the 

‘liberation hypothesis.” . . . The ambiguity of the situation in 
terms of the legitimate criteria ‘liberate[s]’ the decision-makers 

to consider other, possibly less appropriate factors. The [data] 

suggest that when the circumstances of capital cases included in 

our studies generate this ‘liberating’ effect, racial considerations 

have been a major influence. 

“[The data] also demonstrate a classic interaction effect. 

[Among black defendant cases, death sentencing rates rise faster 

in the face of increasing levels of aggravation in white victim 

cases than they do in black victim cases. [A]mong white victim 

cases, death sentencing rates respond more sharply to increasing 

levels of aggravation in black defendant cases than in white 
defendant cases. These differing responses support the hypothe- 

sis that Georgia operates a dual system for processing homicide 

cases, one which tolerates higher levels of aggravation in black 

victim than in white victim cases before a death sentence is 

sought or imposed. And when processing white victim cases it is 

a system which tolerates more aggravation when the defendant 
is white.” 

* The excerpts below are reproduced 
with the permission of the authors. 

  

  

| 
{ 

i 
| 

4 
J 

  

 



Sec. 1 RACE & THE DEATH PENALTY 879 

4. McCleskey v. Zant. Extensive evidence based on the Baldus 
study was presented at an evidentiary hearing in McCleskey v. Zant, 
580 F.Supp. 338 (N.D.Ga.1984), in support of the claim that Georgia’s 
capital sentencing law is being administered in an unconstitutionally 

discriminatory manner. The district court rejected the claim. That 
ruling was affirmed, 9-3, in McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 

1985) (en banc). The majority of the Court of Appeals was willing to 
assume that the study was valid (i.e., that it accurately measured what 
it purported to measure), but held that the proven racial disparities 
were not substantial enough to establish a constitutional violation: 

“The Baldus study revealed an essentially rational system in 
which high aggravation cases were more likely to result in the 
death sentence than low aggravation cases. As one would expect 

in a rational system, factors such as torture and multiple victims 
greatly increased the likelihood of receiving the penalty. 
Although no single factor, or combination of factors, will irrefuta- 

bly lead to the death sentence in every case, the system in 

operation follows the pattern the legislature intended, which the 
Supreme Court found constitutional in Gregg, and sorts out cases 
according to levels of aggravation, as gauged by legitimate fac- 

tors. 

“Taking the six per cent 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 a 
ruling, 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 capri- 
cious. 

“McCleskey’s argument about the heightened influence of the 
race-of-victim factor in the mid-range of cases requires a some- 
what different analysis. . . . [Baldus’] testimony leaves this 
court unpersuaded that there is a rationally classified, well- 
defined class of cases in which it can be demonstrated that a 

race-of-the-victim effect is operating with a magnitude approxi- 

mating 20 per cent. 

“Assuming arguendo, however, that the 20 per cent disparity 

is an accurate figure, it is apparent that such a disparity only in 
the mid-range cases, and not in the system as a whole, cannot 
provide the basis for a systemwide challenge. As previously 
discussed, the system as a whole is operating in a rational 

manner, and not in a manner that can fairly be labeled arbitrary 

or capricious. A valid system challenge cannot be made only 
against the mid-range cases. Baldus did not purport to define 

the mid-range of cases; nor is such a definition possible. It is 

simply not satisfactory to say that the racial effect operates in 
‘close cases’ and therefore that the death penalty will be set aside 
in ‘close cases.’   

 



880 CAPITAL HOMICIDE Ch. 6 

“Viewed broadly, it would seem that the statistical evidence 

presented here, assuming its validity, confirms rather than con- 
demns the system. In a state where past discrimination is well 
documented, the study showed no discrimination as to the race of 

the defendant. The marginal disparity based on the race of the 
victim tends to support the state’s contention that the system is 

working far differently from the one which Furman condemned. 
In pre-Furman days, there was no rhyme or reason as to who got 
the death penalty and who did not. But now, in the vast 
majority of cases, the reasons for a difference are well document- 
ed. That they are not so clear in a small percentage of the cases 
is no reason to declare the entire system unconstitutional.” 

Three judges dissented. Judge Johnson explained why he regarded 
the Baldus findings as constitutionally significant: 

“[Tlhe majority takes comfort in the fact that the level of 
aggravation powerfully influences the sentencing decision in 

Georgia.' Yet this fact alone does not reveal a ‘rational’ system 
at work. The statistics not only show that the number of 
aggravating factors is a significant influence; they also point to 
the race of the victim as a factor of considerable influence. 
Where racial discrimination contributes to an official decision, 

the decision is unconstitutional even though discrimination was 
not the primary motive. 

“Neither can the racial impact be explained away by the need 
for discretion in the administration of the death penalty or by 

any ‘presumption that the statute is operating in a constitutional 

manner.” The discretion necessary to the administration of the 
death penalty does not include the discretion to consider race: 
the jury may consider any proper aggravating factors, but it may 

not consider the race of the victim as an aggravating factor. 

And a statute deserves a presumption of constitutionality only 
where there is real uncertainty as to whether race influences its 
application. Evidence such as the Baldus study, showing that 

the pattern of sentences can only be explained by assuming a 
significant racial influence, overcomes whatever presumption 

exists. 

“. . . In support of his contention that juries were more 
inclined to rely on race when other factors did not militate 
toward one outcome or another, Dr. Baldus noted that a more 

pronounced racial influence appeared in cases of medium aggra- 
vation (20 percent) than in all cases combined (six per cent). The 
majority states that racial impact in a subset of cases cannot 

provide the basis for a systemwide challenge. However, there is 

absolutely no justification for such a claim. The fact that a 
system mishandles a sizeable subset of cases is persuasive evi- 
dence that the entire system operates improperly. A system can 
be applied arbitrarily and capriciously even if it resolves the 

obvious cases in a rational manner. Admittedly, the lack of a 
precise definition of medium aggravation cases could lead to 

  

     



Sec. 1 RACE & THE DEATH PENALTY 881 

either an overstatement or understatement of the racial influ- 

ence. Accepting, however, that the racial factor is accentuated 

to some degree in the middle range of cases, the evidence of 

racial impact must be taken all the more seriously. 

“Thus, the Baldus study offers a convincing explanation of the 
disproportionate effects of Georgia’s death penalty system. It 

shows a clear pattern of sentencing that can only be explained in 

terms of race, and it does so in a context where direct evidence of 

intent is practically impossible to obtain. It strains the imagina- 
tion to believe that the significant influence on sentencing left 

unexplained by 230 alternative factors is random rather than 
racial, especially in a state with an established history of racial 

discrimination. gi 

In another dissenting opinion, Judge Clark noted the Supreme 

Court’s observation, in Rose v. Mitchell, 443 U.S. 545 (1979), that 

“[d]iscrimination on the basis of race, odious in all aspects, is especially 

pernicious in the administration of justice.” He continued: 

“If discrimination is especially pernicious in the administra- 

tion of justice, it is nowhere more sinister and abhorrent than 
when it plays a part in the decision to impose society’s ultimate 
sanction, the penalty of death. It is also a tragic fact that this 

discrimination is very much a part of the country’s experience 
with the death penalty. [As] the majority points out, the new 
post-Furman statutes have improved the situation but the Baldus 
study shows that race is still a very real factor in capital cases in 

Georgia. Some of this is conscious discrimination, some of it 
unconscious, but it is nonetheless real and it is important that we 
at least admit that discrimination is present. 

“Finally, the state of Georgia also has no compelling interest 
to justify a death penalty system that discriminates on the basis 
of race. Hypothetically, if a racial bias reflected itself randomly 
in 20 per cent of the convictions, one would not abolish the 
criminal justice system. Ways of ridding the system of bias 
would be sought but absent a showing of bias in a given case, 
little else could be done. The societal imperative of maintaining 

a criminal justice system to apprehend, punish, and confine 

perpetrators of serious violations of the law would outweigh the 
mandate that race or other prejudice not infiltrate the legal 

process. In other words, we would have to accept that we are 
doing the best that can be done in a system that must be 
administered by people, with all their conscious and unconscious 
biases. 

“However, such reasoning cannot sensibly be invoked and 

bias cannot be tolerated when considering the death penalty, a 
punishment that is unique in its finality. The evidence in this 

case makes a prima facie case that the death penalty in Georgia 

is being applied disproportionately because of race. The percent- 

age differentials are not de minimis. To allow the death penalty 

under such circumstances is to approve a racial preference in the  



  

882 HOMICIDE Ch. 6 

most serious decision our criminal justice system must make. 

This is a result our Constitution cannot tolerate.” 

A case like McCleskey will eventually make its way to the Supreme 
Court. What should the Court do? 

SECTION 2: GRADING OF NON-CAPITAL 
HOMICIDES 

SUBSECTION A: INTENTIONAL HOMICIDE 

FREDDO v. STATE 

Supreme Court of Tennessee, 19183. 
127 Tenn. 376, 155 S.W. 170. 

WILLIAMS, J. The plaintiff in error, Raymond Freddo, was indicted 

. for the crime of murder in the first degree. . . and was found 
by the jury guilty of murder in the second degree; his punishment 
being fixed at 10 years imprisonment. [IJtis. . .urged. . . that 
the facts adduced did not warrant a verdict of guilty of a crime of 
degree greater than voluntary manslaughter, if guilt of any crime be 

shown. 

(IIn the roundhouse department of the shops of the Nashville & 

Chattanooga Railway Company from 50 to 60 men were employed, 
among them being . . . Freddo and the deceased, Higginbotham. 

Freddo was at the time about 19 years of age; he had been from the age 
of four years an orphan; he had been reared thereafter in an orphan- 

age, and yet later in the family of a Nashville lady, with result that he 
had been morally well trained. The proof shows him to have been a 
quiet, peaceable, high-minded young man of a somewhat retiring dispo- 

sition. Due, perhaps, to the loss of his mother in his infancy, and to his 

gratitude to his foster mother, he respected womanhood beyond the 

average young man, and had a decided antipathy to language of 

obscene trend or that reflected on womanhood. 

Deceased, Higginbotham, was about six years older than Freddo, 
[was taller than Freddo and outweighed him by about 30 pounds,] and 

was one of a coterie of the roundhouse employees, . . . given to the 
use . . . of the expression “son of a bitch”—meant to be taken as an 
expression of good fellowship or of slight deprecation. Deceased, prior 

to the date of the difficulty, had applied this epithet to. . . Freddo 
without meaning offense, but was requested by the latter to discontinue 
it, as it was not appreciated, but resented. It was not discontinued, but 
repeated, and Freddo so chafed under it that he again warned deceased 
not to repeat it; and the fact of Freddo’s sensitiveness being noted by 

the mechanic, J.J. Lynch, under whom Freddo served as helper, Lynch 

sought out deceased in Freddo’s behalf and warned him to desist. On   
 



  

Wome from 
Elaine R. Jones 

* 
3 

Dctober 30, 19B5 

TO: Julius Chambers 

Jack Boger 
Tanya Coke 
James Nabrit 

RE: McCleskey 

LDF is mentioned in the attached Op-Ed 
piece which appeared in the Norfolk, VA 
newspaper, The Virginian Pilot. 
  

 



  

THE VIRGINIAN PILOT/LEDGER STAR 
  

August 4, 1986 

  

The two-tier death penalty 
BOSTON 

Be a law -that read: ‘‘The 

  

punishment for anyone who mur- 
ders a white person is death; the 

punishment for anyone who mur- 
ders a black person is life impriso 

“ment.” : 

There were laws like that on the 
books in the days of slavery, except 
that the punishment for killing a 
black slave was far less than life 
imprisonment. But no civilized state 
would now enact a law that explicit- 
ly placed a higher value on a white 
life than on a black life. 

Yet, throughout America, we see 
the implicit devaluation of black 
Jife. Medical and police services 

~ better in white neighborhoods than 
* in black ones. Fewer dollars are de- 

voted to finding cures for diseases 
that strike primarily blacks. The 
media is more likely to play up the 
murder of a white victim — as, for 
example, in the front-page coverage 
devoted to a young white woman re- 
cently killed in New York’s Central 
Park. This happened in an area 

  

   

  

  killed; their stories were relegat 
to the back pages. 

Some of this difference may re- 
_ flect social and economic class, 
rather than race alone, but it would 

- be difficult to deny that race plays 
some role. 

This double standard is also re- 
flected in the process by which soci- 
ety determines who is to be execut- 
ed and who spared. Despite the fact 
that we no longer have statutes ex- 
plicitly punishing the murderers of 
whites more harshly than those of 
blacks, some of our states still have 
criminal-justice systems under 
which the race of the victim has a 
considerable — if unstated — im- 

where several blacks have been 

2 

  

    

  

? 
¥ 

¢ 

| 74 

ALAN DERSHOWI 

  

  

pact on whether the murderer is 
sentenced to death. 

~ Recently, the explosive issues of 
race, life and death were argued be- 
fore the U.S. Supreme Court.. The 
case involves a black man named 
Warren McCleskey who was sen- 
tenced to die for killing a white po- 
liceman during an armed robbery 
in Georgia. His lawyers presented 
the high court with the results of 
the most thorough statistical analy- 
sis ever conducted on the role of the 
victim’s race in death sentences. 

To understand the significance of 
this study, done under the auspices 
of the AACR ezabRelcgsebund, 
some background is essential. First, 
the vast majority of murderers do 
not receive a sentence of death. In 
Georgia, for example, where the 
study was conducted, fewer than 10 
percent of those convicted of delib- 
erate homicide receive the death 

penalty. St 
This is because there is consider- 

able discretion in the way a killing 
is treated — first by the police, then 
by the prosecutor and eventually by 
the judge and jury. Each of these 
institutions is supposed to exercise 
its discretion in a non-racial man- 
ner, by considering aspects such as 
aggravating factors of the killing 
and the likelihood that the murderer 

- next. argued 
mean nothing in a particular case, 

. and that for McCleskey to prevail, 
* he would have to show his own sen- 

may be reformed. But racial consid- 
erations seem to creep in. 

The study found that killers in 
cases involving white victims were 
nearly 11 times more likely to re- 
ceive a sentence of death than those 
in cases involving black victims. 
Now, this. alone does not prove that 
the only reason for the enormous 

- disparity is race. It may be that 
cases with whité victims also in- 
volve non-racial factors that explain 
and justify the difference, though 
this would require incredible 
coincidences. 

In order to test for that possibili- 
ty, those who conducted the study 
considered hundreds of other fac- 
tors that could account for the dif- 
ference, including the killer’s prior 
record, his motivation, particularly 
vicious aspects of the murder and 
whether it was committed along 
with other crimes. They still con- 
-cluded that “race held as a predom- 
inate determiner of life or death.” 

The state of Georgia disagrees. I 
appeared with Georgia's attorney 
general, Michael Bowers, on ABC's 
“Nightline’’ the day after the Su- 
preme Court argument, and Ted 
Koppel asked Bowers how he could 
explain these disparities on non-ra- 
cial grounds. Bowers opined that 
the murders of white victims were, 
as a rule, more “aggravated’’ than 
the murders of black victims. 

I pointed out that this sort of 
characterization by itself may im- 
plicitly reflect some racial percep- 
tions: Many white jurors — who 
identify with white victims — may 
view the very act of killing a white 
person as more aggravated than the 
killing of a black, evenif the objec- 
tive factors are similar. 

The Georgia attorney general 
that statistics alone 

tence of death was racially motivat- 
“ed. But since our legal system 

- prohibits monitoring of jury deliber- 
‘ations, it will never be possible to 
“discover what motivated a particu- 

_ lar jury. Racism can be proved only 
_ through patterns of discrimination, 
- established by careful statistical 
studies. 

Whichever way the Supreme 
Court decides the case, the Ameri- 
can public must still face up to th 
reality that Georgia and other 
‘states operate a two-tier system of 
imposing the death penalty: one for 
those who kill whites and another 
or those who kill blacks. 

 



    

45 igh cope? 
A 

    

  

AMERICAN CIVIL LIBERTIES UNION 

  

  

Press Ss Vs fh FEE BE PRTC Fee Sr 

CAPITAL PUNISHMENT PROJECT y Bo West 4 Svest 

: (212) 944 9800 
Henry Schwarzschild 
DIRECTOR 

: Norman Dorsen 

October 23 ys 1086 PRESIDENT 

Ira Glasser 
EXECUTIVE DIRECTOR 

MEMORANDUM 

To : Amsterdam, ke Kendall, Millman, 

Rebholz : 

From t Schwarzschild 

Subject : A State Attorney ‘General as potential amicus curiae 
  

  

I had a call earlier this week from the Deputy 
Attorney General of West Virginia, who enquired on behalf 
of the A.G. about the status of McCleskey and whether it 
was still timely to file amicus on our side. 

  

It developed in the conversation that the liberal 
Democratic state attorney general passionately opposes the 
death penalty and is eager to appear amicus in appropriate 
cases. He is independently elected and evidently does not 
mind offending a very conservative Republican governor. 
As you know, West Virginia does not have a death penalty. 

I have written to both the A.G. and the Deputy, 
proposing that we would approach them in suitable Supreme 
Court cases. Please let me have your recommendations from 
time to time. It is, of course, possible that he may be 
able to bring other state attorneys general along with him. 

HS 

 



Wemo from 
Phyllis P. McClure 

JACK BOGER: 

Here are some of your press notices. 
I regret that I missed the argument 
fabout which I got good reports), but 
I get so frustrated standing in line 
for the peanut gallery seats and then 
not getting in. There is enough 
frustration in life without asking for 
more. Besides I am going full steam 
developing the "reform the reform" 
education laws project. Since we 
talked last, I've got a burning issue 
in Mississipoi. Tt could turn-out to 
be a practical way to demonstrate 
that litigation can be done on under- 
Class issues. To find out what it is, 
call me. I'm sure you need a period of 
relaxation after the intense concentra- 
tion on McCleskey. 
  

Also an article by Nicholas Lemann 
that I have been saving for you. 

Regards. 

—TH 

 



  

 



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ROBERT H. STROUP 

ATTORNEY AT LAW 

141 WALTON STREET, N.W. 

ATLANTA, GEORGIA 30303 

(404) 522-8500 

October 17, 1986 

John Charles Boger, Esq. 
NAACP Legal Defense Fund, Inc. 
99 Hudson St. 
New York, New York 10013 

Re: McCleskey v. Kemp 
  

Dear Jack: 

Upon reflection, I think your argument on Wednesday was even 
better than 1 initially thought. So, ler me tell vou, I 
thought it went very well for us. Whether there's a fifth 
vote, however, . . . 

  

Here are my (not Rachel's) plane fare invoices and hotel 
room charges. If you think appropriate, could you pass 
these on for reimbursement? 

At some point in the not-too-distant future, we need to look 
again at the post-Supreme-Court-decision era, to see what we 
can do about a successor habeas at this point in time. Give 
me a call when you've got a moment. 

Very truly yours, 

Tove Xd € 
Robert HJ Stroup 

RHS/1 

 





  

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October 7, 1986 

TO: Jack Boger 

FROM: Tanva Coke 

RE: Stays of Execution obtained where McCleskevy raised 

Messer v. Kemp (GA), 106. S. Ct. 3342, 

- Granted, USDC 07-08-86 

Wingo v. Blackburn, No. A-75, 39 CrL 4140, 55 C.S.L..A. 3127 

- Granted, USSC 08-05-86 

— White def, white victim 

Benjamin Berry v. Phelps (LA), 39 CrL 4132, U.5.L.W. 3114 

- Granted, USSC 08-06-1986. (6th Cir denies certificate of 

probable cause 07-30-86). 

—- McCleskey only raised on successor habeas. (1st petition 

included Grisby and ineffective assistance) 

— White def, white victim 

Watson v. Blackburn (LA), S.Ct. 

- Granted, USSC 05-04-86 on successor habeas (5th Cir. denies 

cpc on 09-02-86.) 

—- McCleskey only raised 

-— Black def, white victim 

Glass v. Blackburn (LA), No. A-87, ¥.S5.n..W. 

- Granted, USSC 09-11-86 (5th Cir. denies cpc) 

—- McCleskey raised vaguely in habeas petition along with ther 
issues, McCleskey, Hitchcock raised in stay application 

- White def, white victim 

Brogdon v. Blackburn (LA), No. A-1886, CrL 

- Granted, USSC 09-11-86 

- McCleskey among other issues raised 

- White def, white victim 

Moore v. Blackburn (LA), No. A-130, U.S. L.W. 

- Granted, USSC 09-11-86 on third habeas petition 

- McCleskey + ineffectiveness raised 

— Black def, white victim 

 



  

[ 

    

  

  

  

  
  

  

  

  

  

  

  

  

  

  

  

  

Donald Franklin v. Texas, CrL 

- Granted, USCA 5th Cir. 09-12-86 

- McCleskey among 10 other issues 

- white def, white victim 

Celestine v. Blackburn, CrL 

- Granted, USDC 09-15-86 on third habeas petition 
- McCleskey sole issue 

— Black def, white victim 

- ae -~T 

Raymond Riles v. TX, CrL 

- Granted, USDC 09-16-86 

- bth Cir and USSC deny state's application to vacate, cit 

McCleskey 

Rault v. Biackburn, No. A-201, V.3.L..W. 

- Granted, USSC 09-17-86 (5th Cir. denies stay and cpc 08-1 
oe. 3 = oo 1 : - McCleskey sole issue 

- White def, white victim 

Buxton v. Texas, CrL 

- Granted, USDC 05-29-86 

- McCleskey + ineffectiveness raised 

— White def, white victim 

Other cases: 

Hardwick v. Wainwright and Davis v. Wainwright, v.8.L..H. 

—- Stays granted, USSC 09-23-86 on Hitchcock 

- White defs, white victims 

Wicker v. McCotter (TX), U.S.5:..%. (August 26, 1986) 

—- USSC denies stay 08-25-86 (vote 5-4) 

- bth Cir. denies stay and cpc 08-23-86) 
1 pr I -- 3 - -— por | — I Ay TO TE Su 

—- McCleskey + ineff raised on successor habeas 

- white def, white victim 

 



  

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LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

SUITE 400 ® 1400 EYE STREET, NORTHWEST ® WASHINGTON, D.C. 20005 ® PHONE (202) 371-1212 

CABLE ADDRESS: LAWCIV, WASHINGTON, D.C. 

August 26, 1986 

Grover Hankins, Esquire 
General Counsel 
NAACP Special Contributions Fund 
Room 501 
4805 Mt. Hope Drive 
Baltimore, Maryland 21215-3297 

Re: McCleskey v. Kemp 
  

Dear Grover: 

Enclosed please find two copies of the amicus brief 

which we filed in the Supreme Court of the United States 

on last Thursday. I am very pleased with the quality of 

the brief and, upon reviewing it, I am sure you will also 

conclude that it is a high quality effort. 

Again, 1 want to thank you for joining us on this 

brief. The case is of exceptional importance and it is 
appropriate for the NAACP to lend the weight of its prestige 
to the attempt to eliminate racial discrimination from im- 

position of the death penalty. 

Sincerely, 
— 

By 
William L. Robinson 

Director 

WLR:Vvp] 

Enclosures 

bec: James Nabrit, IIT. Fsqg, 

Timothy Ford, Esq. 
  

 



~ 2. 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

99 Hudson Street, New York, N.Y. 10013 e (212) 219-1900 

  

   und 

  

August 6, 1986 

Dear Folks: 

Enclosed is an unproofed first draft of the Brief for 
Petitioner in McCleskey v. Kemp. As you will quickly see, the 
work at present is more stone than sculpture: rough-hewn, 
oversized and almost totally without polish. That's where you 

all come in. Suggestions, please. 

  

The introductory section, in particular, is about 10 pages 
too long. Edits will be cheerfully accepted; new ideas, 
applauded; major rearrangements tolerated from wellwishers; keep 

sighs to yourselves. 

There are some minor (I hope) deviations from the outline 

that at the time seemed compelled by the structure as it was 
emerging. Finally, there are a lot of minor changes in 
paragraphing, wording, phrasing, etc. that I know should be 

changed. 

Present plans are to begin collation of your suggestions on 
Monday, August 11th or Tuesday, August 12th, since we'll need to 
get the brief to a printer by Thursday or Friday, if possible. 

Thanks in advance for your help. (If your ideas are so 
wide-ranging that they won't wait, I'll be in the LDF's New York 
office on Friday, August 9th and probably over the weekend as 
well. If not, my home number is (201) 746-8645. 

Best regards. 

Sincerely, 
} 

\_. J Zc <_ 

John Charles Boger 
: v 

JCB:agf 

signed in JCB's absence 

Contributions are deductible for U.S. income tax purposes 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

31 July 1986 

Dr Peter Greenwood 

Dear Peter: 

Enclosed Is a copy of the amicus brief in the McCleskey case 
that appealed for a hearing before the U.S. Supreme Court. 

Please try to mobilize the Public Affairs Policy Committee as 
soon as possible, Who are they? Maybe | can help to contact them. 
My phones are: office = 215-898-7411; home - 215-222-4075. 

As ever, 

Marvin E. Wolfgang 
Professor of Criminology 

and of Law 

P.S. Let us send copies to one another during this crisis. 
ec! Jack Boger, Legal Defense Fund, 99 Hudson Street, New York City 10013 

 





  

BARRETT SMITH ScHAPIRO SIMON & 

ROBERT F. AMBROSE 26 BROADWAY 
MICHAEL F. ARMSTRONG 
JOHN J. BARRETT 
DAVID D. BROWN IIT 
WILLIAM C. CLARKE 
WARREN H.COLODNER 
KEVIN J. CURLEY 
MICHAEL O. FINKELSTEIN 
MAHLON M, FRANKHAUSER * 
MORTON E.GROSZ “ 
RANDALL D. HOLMES 

August 29, 1986 

NEW YORK, N.Y. [0004 

  

(212) 422-8180 CABLE: ROOTBAR 

WUI TELEX: 66420 

CHARLES E. HORD III 
RICHARD M. LEDER 
THOMAS C. MERIAM 
LAWRENCE NIRENSTEIN 
GERALD A. NOVACK 
ALFRED T. OGDEN II 
WILLIAM O. PURCELL 
MARTIN F. RICHMAN * 
CARL F. ROGGE, JR. 
JACK B. SALWEN 
DONALD SCHAPIRO 
EDMUND R.SCHROEDER* 
DAVID SIMON 
ARTHUR D.SPORN 
JOANNE W. YOUNG * 

MEMBERS OF THE N.Y. BAR 

* ALSO MEMBER OF THE D.C.BAR 

Clerk of the Supreme Court 
of the United States 

l] Pirst Street, N.E. 
Washington, D.C. 20002 

Re: McCleskey v. Kemp, No. 

ARMSTRONG 

1201 PENNSYLVANIA AVENUE, N. W. 

WASHINGTON, D.C.20004 

(202) 393-5024 

CABLE: ROOTBAR WASHINGTONDC 

OREN ROOT 

V. HENRY ROTHSCHILD 2ND 

W.MASON SMITH 

COUNSEL 

ROBERT C. MACEK 

JAMES D.TUSSING * 

SENIOR ATTORNEYS 

84-6811 
  

Dear Sir: 

In accordance with the conversation on Wednesday 
between my partner Michael O. Finkelstein and your office, 
enclosed are 40 corrected copies of the Motion and Brief 
Amici Curiae which we filed by mail on August 21. 
  

Corrected 

copies are also being delivered to counsel by copy of this 
letter. 

Sincerely yours, 

Vind, 9. lille 
Martin F. Richman 

cc: John Charles Boger, Esq. 
Mary Beth Westmoreland, Esq. 

 



  

Anthony 6G. Amsterdam 

  

   

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Take care. T you tomight or 

  

TW 

     





  

STANFORD LAW SCHOOL 

August 12, 1986 

John C. Boger, Esq. 
NAACP Legal Defense & 

Education Fund 
99 Hudson Street 
New York, New York 10013 

Re: McCleskey v. Kemp 
  

Jack: 

Here are some comments and some notes on a portion of 
the draft. I hope it's helpful, and that you can decipher 
the handwriting. It's depressing, but the tank keeps 
running out of gas. . .. 

Talk to you soon. 

very tr 1y yours, 

  

Samuel R. Gross 

SRG/mmek 

Crown Quadrangle Stanford University Stanford California 94305 

 



  

    egal 

via Federal Express 
  

August 12, 1986 

Dr. Richard A. Berk 

c/o Westin Hotel 

2401 M Street N.W. 

Washington, D.C. 20037 

Dear Dick: 

It was great to catch up on developments with you today; 
perennial apologies for my delay in returning your telephone call 
of last month. Your California project sounds very interesting. 
I'd be grateful for the chance to get a full update at some point 
when we both have longer than ten minutes to talk. Your use of 
the $1000 in the Clark LDF capital punishment account to defray 
your out-of-pocket expenses in that research pending payment from 
the State of California is fine. Just let me know when the 
transfer is made back to the LDF account. 

I'm enclosing copies of the petitioner's brief in Hitchcock 
v. Wainwright for your information, together with the Supreme 
Court's surprisingly positive opinion in Bazemore v. Friday. I 
have also enclosed my unproofed first draft of the McCleskey 
brief; it's almost totally unedited for style, for relative 
length of various sections, and for redundancy, but it reflects 
our current thinking on content fairly faithfully. I'd be 
grateful for any comments you might have by Friday or Saturday, 
if possible. - 

  

  

  

  

Thanks for the tip about the American Statistical 
Journal articles. I'll see you in October in D.C. if not before. 
Until then, best regards. 

S po 

hn Charles Boger 

JCB;agf 
enclosures 

Contributions are deductible for U.S. income tax purposes 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
efense und 99Hudson Street, New York, N.Y. 10013 ® (212) 219-1900 

| 

 



  

via Federal Express 
  

August 11, 1986 

Hon. Joseph F. Spaniol, Jr., Clerk 
Supreme Court of the United States 
One First Street, N.E. 
Washington, D. C. 20543 

Attn: Mrs. Sandy Nelson 
  

Warren McCleskey v. Ralph M. Kemp, 
No. 84-6811 
  

Dear Mr. Spaniol: 

Enclosed for printing are copies of the documents to be 
included in the Joint Appendix in the above-captioned case. 
Please have the printer telephone me directly if any questions 
arise about format or other matters. Thank you very much. 

Yom Chas &~ 
John Charles Boger 

JCB:agf 
encs. 

  

NINETY NINE HUDSON STREET, 16th FLOOR . (212) 219-1800 ° NEW YORK, N.Y. 10013 

 



  

Anthony 6G. Amsterdam 

Vi 327 

New York University Law School 

4 Washington Sguare South 

New York, New York 1aiz 

(212) 598-2638 / 2639 

August 11, 1986 

John Charles Booger, Esag. 

NARCE Lepal Defense Fund 

99 Hudson Htreet, 16th Floor 

New York, New York 1@213 

Dear Jack: 

Here are my notes on which passages in the first 

of the MeCleskey draft seem to me to be prime candidates 

gxcision in the interest of brevity and punch up front. 

you again tonight. 

Take care. 

Rs aver, 

  

17 panes 

Fore