McCleskey v. Kemp Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae in Support of Petitioner
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August 21, 1986

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Brief Collection, LDF Court Filings. McCleskey v. Kemp Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae in Support of Petitioner, 1986. b842366c-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/507f65a3-7f03-43fd-8437-30a30de7b445/mccleskey-v-kemp-motion-for-leave-to-file-brief-amici-curiae-and-brief-amici-curiae-in-support-of-petitioner. Accessed July 16, 2025.
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No. 84-6811 I n th e Bnpvmv tour! of tfje United States O ctober T eem , 1985 W arren M cClesk ey , — v._ Petitioner, R a l p h M. K e m p , Superintendent, Georgia Diagnostic & Classification Center. ON WRIT OP CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE AND BRIEF AMICI CUMAE FOR DR. FRANKLIN M. FISHER, DR. RICHARD O. LEMPERT, DR. PETER W. SPERLICH, DR. MARVIN E. WOLFGANG, PROFESSOR HANS ZEISEL & PROFESSOR FRANKLIN E. ZIMRING IN SUPPORT OF PETITIONER WARREN McCLESKEY M ich ael O. F in k elstein M artin F . R ic h m a n * B arrett S m it h S chapiro S im on & A rmstrong 26 Broadway New York, New York 10004 (212) 422-8180 Attorneys for Amici Curiae ^Counsel of Record TABLE OF CONTENTS TABLE OF AUTHORITIES................. a MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE..................... i BRIEF AMICI CURIAE ................... 1 SUMMARY OF ARGUMENT ............. 1 ARGUMENT ........................ 7 I. THE BALDUS STUDIES DEMONSTRATE THAT IN THE STATE OF GEORGIA, THE RACE OF THE HOMICIDE VICTIM HAS BEEN AN IMPLICIT AGGRAVATING CIRCUMSTANCE WITH A SUBSTANTIAL IMPACT ON THE RATE OF CAPITAL SENTENCING 7 II. THE BALDUS STUDIES EMPLOYED EXCELLENT, PROFESSIONAL METHODS OF EMPIRICAL RESEARCH AND PRODUCED STRONG, RELIABLE FINDINGS ON THE ROLE OF RACE IN GEORGIA'S CAPITAL SENTENCING S YSTEM..................... 18 C O N C L U S I O N ..................... 2 6 TABLE OF AUTHORITIES Cases Pages Ballew v. Georgia, 435 U.S. 223 (1972)..................... iv, vi Bazemore v. Friday, ___U.S.___, ___L.Ed. 2d___(1986)............. 26 Hazelwood School District v. United States, 433 U.S. 299 (1977). . . . 6 McCleskey v. Kemp, 753 F. 2d 877 (11th Cir. 1985) (en banc) . . .v,3,4,27 McCleskey v. Zant, 580 F. Supp. 388 (N.D. Ga. 1984)............. 9 Segar v. Smith, 738 F. 2d 1249 (D.C. Cir. 1984). 6 Teamsters v. United States, 431 U.S. 324. .................... 6 Vuyanich v. Republic National Bank, 505 F.Supp.244 (N.D. Tex. 1980), vacated on other grounds, 723 F.2d 1195 (5th Cir. 1984). 26,27 Statutes Former Ga. Code Ann. §27-2534.1(6) ) (2)........... 9n.l Other Authorities Fisher, Multiple Regression in Legal Proceedings, 80 Colum. L Rev. 702 (1980)............... iii a. vi H. Kalven & H. Zeisel, The American Jury (1966)................... R. Lempert, An Invitation to Law and Social Science: Desert, Disputes and Distribution (1986). iv b. No. 84-6811 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1985 WARREN McCLESKEY, Petitioner, - v.- RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center. On Writ of Certiorari To The United States Court of Appeals for the Eleventh Circuit MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE Dr. Franklin M. Fisher, Dr. Richard O. Lempert, Dr. Peter W. Sperlich, Dr. Marvin E. Wolfgang, Professor Hans Zeisel and Professor Franklin E. Zimring respectfully move, pursuant to Rule 36.3 of the Rules of the Court, for leave to file the attached bri®f amici curiae in support of the petitioner in this case. The consent of counsel for the petitioner has been obtained. The consent of counsel for respondent was requested but refused, necessitating this motion. This case involves one of the most carefully studied criminal justice questions ever to come before the Court. At issue is research by Professor David Baldus and his colleagues on the influence of racial factors in the capital sentencing system of the State of Georgia. The underlying constitutional and policy questions are of great national significance, and the value and significance of social science evidence has been a central issue in the case. Amici believe they could be of aid to the Court in the evaluation of; (i) the significance of the racial disparities reported in the Baldus studies and (ii) the ii essential validity and soundness of these studies. The competence of amici to address these issues stems from their distinguished professional work in the areas of econometrics, statistics, research methodology and criminal justice issues. Dr. Fisher is Professor of Economics at the Massachusetts Institute of Technology. He is one of the nation's most distinguished econometricians, having taught, written and consulted on a wide range of econometric and legal issues for over three decades. His article Multiple Regression in Legal Proceedings. 80 Colum. L. Rev. 702 (1980) has had a major influence on the judicial use of statistical methods. His research on sentencing guidelines and on the legal context of various economic issues has provided major empirical contributions to the fields of law and economics. He has served as a member of the National Academy iii of Sciences Panels on Deterrence and Incapacitation and on Sentencing Research. Dr. Lempert is Professor of Law and Sociology at the University of Michigan. He has studied and written widely on a variety of legal and criminal justice issues, including capital punishment. He has served on the editorial boards of several distinguished professional journals including the Journal of Law and Human Behavior and Evaluation Review. Dr. Lempert has recently completed a term as the editor of Law & Society Review. His most recent book is An Invitation to Law and Social Science; Desert. Disputes and Distribution (1986). His work on jury size was cited by the Court in Ballew v. Georgia. 435 U.S. 223 (1978). Dr. Sperlich is Professor of Political Science at the University of California at Berkeley. Dr. Sperlich has taught, consulted and published widely on many iv criminal justice issues, including the role of juries and the use of scientific evidence in legal settings. His writings were cited prominently by the Court of Appeals in McCleskey v. Kemp. Dr. Wolfgang is Professor of Criminology and Criminal Law and Director of the Sellin Center for Studies in Criminology and Criminal Law at the University of Pennsylvania. During his distinguished career, Dr. Wolfgang has made numerous contributions to the development of empirical research on legal issues. His pioneering study on the influence of racial factors in the imposition of death sentences for rape was the obj ect of intensive legal examination during the Maxwell v. Bishop litigation of the 1960s. He is a former president of the American Society of Criminology. Professor Hans Zeisel is Emeritus Professor of Law and Sociology and v Associate of the Center for Criminal Justice Studies at the University of Chicago. He is co-author of The American Jury, widely recognized as one of the most influential empirical studies of the legal system ever published. Professor Zeisel is a fellow of the American Statistical Association and the American Academy of Arts and Sciences. His empirical research on the functioning of juries was relied upon by this Court in Ballew v. Georgia. 435 U.S. 223 (1978). Professor Zimring is Professor of Law and Director of the Earl Warren Institute at Boalt Hall, University of California at Berkeley. He has written extensively on criminal justice issues, including juvenile crime and sentencing, the deterrent value of punishment, and the control of firearms. Professor Zimring served as Director of Research for the Task Force on Firearms of the National Commission on the Causes and vi Prevention of Violence, and has also served as consultant to many private and public organizations. In view of their long-standing professional interest in the legal use of social scientific evidence and their extraordinary professional competence to address those issues, amici curiae believe that their views might be of assistance to the Court. They therefore urge the Court to grant their motion and permit the submission of this brief amici_curiae. Dated: New York, New York August 21, 1986 Respectfully submitted, MICHAEL 0. FINKELSTEIN MARTIN F. RICHMAN *Barrett Smith Schapiro Simon & Armstrong 26 Broadway New York, N.Y. 10004 (212) 422-8180 ATTORNEYS FOR AMICI CURIAE gy • _____ ________ _______________ _ MARTIN F. RICHMAN ♦Counsel of Record vii No. 84-6811 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1985 WARREN McCLESKEY, Petitioner, - v.- RALPH M. KEMP, Superintendent, Georgia Diagnostic & Classification Center. On Writ of Certiorari To The United States Court of Appeals for the Eleventh Circuit BRIEF AMICI CURIAE OF DR. FRANKLIN M. FISHER, DR. RICHARD 0. LEMPERT, DR. PETER W. SPERLICH, DR. MARVIN E. WOLFGANG, PROFESSOR HANS ZEISEL & PROFESSOR FRANKLIN E. ZIMRING SUMMARY OF ARGUMENT The factual questions presented by this case are among those that can be tested by established social science methods. At issue was a series of decisions and actions carried out in a single state over a limited period of time. The sources of information about those decisions were, in this case, official state files containing unusually rich and detailed data. The scientific techniques for the collection and analysis of such data are well- developed and highly reliable. Furthermore, the social science professions have developed criteria for the evaluation of such research. This is, in sum, the kind of research that social scientists know how to do, and it can be critically evaluated according to well-established standards with considerable confidence. The studies at issue in this case were conducted in the State of Georgia by Professor David Baldus, George Woodworth and Charles Pulaski. The results of the Baldus studies are consistent with a solid body of previous research in this area? Georgia defendants whose victims are white, 2 especially black defendants, face death- sentencing rates many times higher than those whose victims are black. A natural question provoked by these findings is whether other legitimate sentencing factors might explain what initially appear to be racial differences. Yet these striking results did not disappear after searching statistical analysis by Baldus and his colleagues. Neither chance nor any legitimate sentencing considerations can explain the powerful influence of these racial factors. The Baldus studies were conducted in careful compliance with accepted research techniques. Their design and execution were meticulous and their analytical methods are appropriate. They are among the best empirical studies on criminal sentencing ever conducted, and their results are entitled to a high degree of confidence. 3 The lower courts nevertheless displayed a profound and unwarranted mistrust of the Baldus studies and a misunderstanding of their results. The District Court judged the Baldus data sources by unrealistic and unjustified standards. It quarreled with data collection and coding methods that are well-established and widely used. It evinced a hostility towards methods of statistical analysis — especially multiple regression analysis — that is utterly unwarranted, expressing a skepticism toward techniques of statistical modeling, especially analyses conducted with parsimonious models, that is uninformed and indefensible. Finally, it faulted Baldus1s results on a variety of minor statistical grounds that reflect, at best, a partial understanding of the deficiencies that can afflict such research and a failure to appreciate the negligible extent to which those problems were likely to affect the 4 essential findings reported by Baldus. As a result of this series of errors, the District Court inappropriately devalued a first-rate body of research that sheds significant light on the issues before it. The Court of Appeals, by contrast, purported to accept the validity of the Baldus studies and to address the legal implications of their results. Yet that court seriously underestimated the magnitude of the racial effects Baldus reported — misconceiving both the actual size of the racial disparities and their relative significance as a force in Georgia sentencing decisions. Further, even while purportedly accepting the Baldus research, the Court of Appeals demanded a level of certainty that exceeds the powers of any statistical research to achieve — a level of certainty not approached in most employment discrimination cases or in business litigation where such statistical 5 evidence is routinely received and often dispositive. The Baldus results demonstrate that racial factors — race of the defendant in white-victim cases and race of the victim throughout — played a real, substantial and persistent role in death-sentencing decisions in the State of Georgia during the period studied. The State's evidence did not contradict these strong findings, which replicate less detailed, though similar conclusions reached in other studies. Whatever the legal implications of these facts, they should be accepted as proven to scientific satisfaction. 6 ARGUMENT I THE BALDUS STUDIES DEMONSTRATE THAT IN THE STATE OF GEORGIA, THE RACE OF THE HOMICIDE VICTIM HAS BEEN AN IMPLICIT AGGRAVATING CIRCUMSTANCE WITH A SUBSTANTIAL IMPACT ON THE RATE OF CAPITAL SENTENCING The unadjusted results reported by Professor Baldus for the various combinations of race-of-defendant and race- of-victim in the State of Georgia are as follows: Defendant / Defendants Percent Victim Who Received the Death Penalty_____ black/white 50 of 223 22white/white 58 of 748 8black/black 18 of 1443 1white/black 2 of 60 3 * * * Totals bv Victim * * * * * * white victim 108 of 981 11black victim 20 of 1503 1 7 In particular, as the table shows, blacks who killed whites were sentenced to death at nearly 22 times the rate of blacks who killed blacks, and more than 7 times the rate of whites who killed blacks. The capital sentencing rate for all white- victim cases was almost 11 times the rate for all black-victim cases. Unless there is an extraordinarily perfect confounding with other factors correlated with race these very large racial disparities indicate that race is an implicit aggravating factor in the capital sentencing decision. The first step in testing whether the disparities in capital sentencing rates were due to factors confounded with race, was to make cross-tabulations, based on the most important sentencing factors that might have been confounders. The racial disparities did not disappear. For example, by analyzing all cases that were death- 8 eligible under statutory aggravating factor (b)(2)1 — murder by a defendant in the course of a contemporaneous felony, a category which included petitioner McCleskey's case — Baldus found that 38 percent (60 out of 160) of the blacks who murdered whites received the death penalty, while only 14 percent (15 out of 104) of the blacks who murdered blacks received this penalty. (See DB 87) Thus, blacks who murdered whites were sentenced to death at more than 2.5 times the rate of black- on-black cases in this category. When Professor Baldus separated out only those, like McCleskey, whose contemporary felony was armed robbery, the disparities were even more pronounced: 34 percent (42/123) of blacks who killed whites received a death sentence, while only 5 percent (3/57) of blacks who killed blacks did. (See DB 87) . These cross- former Ga. Code Ann. §27-2534.1 (b) (2). 9 tabulations tell the basic story of the magnitudes of racial effects. Felony murders with white victims produce death sentences in Georgia more than twice as often as felony murders with black victims. This finding alone is strong evidence of racial impact. Other data from these studies not only establish the fact of racial discrimination but tell us largely where it occurs. Cross-tabular results reveal noticeably different treatment of cases, by race, at various decision points from indictment forward. The following table, for example, addressing only Georgia cases in which a murder conviction had been obtained, reveals, by racial category, the rate at which Georgia prosecutors chose to advance cases to a capital sentencing hearing— where a death sentence was a possible outcome — rather than permit an automatic life sentence. 10 Defendant / Victim black / white .70 (87/124) white / white .32 (99/312) black / black .15 (38/250) white / black .19 (4/21) (DB 94) . Thus even among convicted defendants, where strength of the evidence factors presumably no longer played a major role, Georgia prosecutors advanced black defendants to a penalty trial, if their victims were white, at nearly five times the rate they advanced black defendants whose victims were black (.70 vs. 15), and over three times the rate of whites who killed blacks (.70 vs. .19). Because there were insufficient numbers of cases, Baldus could not use cross tabulations to control simultaneously for all combinations of possible confounding factors. This is a common problem in 11 social science research, and to deal with it, he resorted to multiple regression analysis, using both weighted least squares and logistic regressions. These are standard statistical methods for this type of analysis. Both forms of analysis showed substantial racial disparities in capital sentencing rates. It is important to place the regression effort accurately in the context of the larger study. The regression exercise was intended principally to check the basic finding of the cross-tabular approach against a wide variety of possible alternative explanations. Multiple regression analysis permitted Baldus to take over 230 factors simultaneously into account to see whether any combination of them might be confounded with race. His basic finding was that white-victim cases remained more than twice as likely to produce death sentences when all these 12 other factors were accounted for. Among the regression results reported are many highly statistically significant regression coefficients for the race of the victim and the race of the defendant, employing statistical models of varying sizes. (See DB 83). These results indicate that racial factors have an independent influence on death-sentencing rates after the effects of all other legitimate sentencing variables included in the models have been taken into account. In its discussion of the magnitude of the average race-of-victim effect in Georgia's capital sentencing system, the Court of Appeals focused almost exclusively on what it styled a "6%" disparity. This figure was presumably derived from the .06 least squares regression coefficient estimated for the race-of-victim variable in the 230 - variable large scale multiple regression model in the Baldus studies. 13 (DB 83) . The court, confusing percent and percentage point, interpreted this "6%" average disparity to mean that "a white victim crime is 6% more likely to result in the [death] sentence than a comparable black victim crime.H McCleskev v. Kemp, 753 F.2d 877, 896 (11th Cir. 1985) (en banc) . The assumption of the statement is that the death sentencing rate in white victim cases would on average be 6% higher than the rate for similarly situated black-victim cases. Thus, for example, if the death sentencing rate in a given class of black-victim cases were 10%, the white victim rate would be 6% higher or 10.6%. Such an interpretation is incorrect and highly misleading. The .06 race of victim regression coefficient indicates that the average death-sentencing rate in the system is 6 percentage points higher in white- victim cases than it is in similarly situated black-victim cases. The 14 percentage increase in the rate is much greater than 6 percent at almost all levels of aggravation where the death penalty is given, because the base rates are low. Having misunderstood the basic results of the Baldus studies, the lower courts, not surprisingly, also misunderstood the implications of those results for McCleskey's case. To understand these implications, one has to focus on the disparity in sentencing rates disclosed by the studies for aggravation levels comparable to those in McCleskey's case. One can do this by looking at disparities in capital sentencing rates at the average aggravation levels for all white-victim cases (of which McCleskey' s is one) or, more precisely, at the cases in the mid range of aggravation (of which McCleskey's is also one). We examine both below. The overall death-sentence rate in white-victim cases is 11%. Since the 15 weighted least squares regression model cited by the Court of Appeals tells us that the overall rate in comparably aggravated black-victim cases is six percentage points less, the rate in such cases is estimated at five percent. Thus, at the average level of aggravating circumstances represented by the white - victim cases, the rate of capital sentencing in a white - victim case is 120% greater than the rate in a black- victim case. Or to state the results differently: in six out of every 11 death penalty cases in which the victim was white, race of victim was a determining aggravating factor in the sense that the defendants would not have received the death penalty if the victims had been black. The Court of Appeals properly points out that the race-of-victim effect is concentrated at the mid-range, where it is approximately 20 percentage points. In 16 that range, the average death sentencing rates (calculated from DB 90: col. D, levels 3-7) is 14.4% for black-victim cases and 34.4% for white-victim cases, an increase of 139%. This means that out of every 34 death-penalty cases in the mid range in which the victims were white, 20 defendants would not have received a death penalty if their victims had been black. McCleskey's case is, a white-victim death penalty case that is in the mid range in terms of aggravating circumstances. Since the statistical results show that in a majority of such cases the death penalty would not have been imposed if the victim were black, it is appropriate to conclude that in McCleskey's case (as in others of the same class) it is more likely than not that the victim's race was a determining aggravating factor in the imposition of the death penalty. This cannot be called a "marginal" difference. 17 II THE BALDUS STUDIES EMPLOYED EXCELLENT, PROFESSIONAL METHODS OF EMPIRICAL RESEARCH AND PRODUCED STRONG, RELIABLE FINDINGS ON THE ROLE OF RACE IN GEORGIA'S CAPITAL SENTENCING SYSTEM The District Court, as well as the Court of Appeals, appear to have rejected the Baldus studies in large measure because of their misapprehensions about the quality of the data gathered or the statistical methods employed to analyze that data. In our opinion, these reservations are unwarranted: the design of the research followed accepted scientific practice, the research was carried out in a careful and thorough manner, the statistical methods employed were appropriate — and the results, consequently, are reliable. The District Court's opinion, in particular, raised a series of objections to empirical methods and procedures, almost none of which is well-founded. It asserts that Baldus's data base was "substantially 18 flaw[ed]," McCleskev v. Zant. 580 F. Supp. 338, 360 (N.D. Ga. 1984) (emphasis omitted), because it "could not capture every nuance of every case." Id. at 356. None of Baldus's many models, even those with over 230 variables, was deemed sufficiently inclusive in the District Court's eyes, since they "have not accounted for . . . unaccounted-for factors." Id. at 362. These objections are fundamentally misplaced. As a scientific matter, the likelihood that any omitted variable could significantly affect Baldus's robust racial findings — especially when so many legitimate variables were taken into account — is negligible. For any unaccounted for variables actually to make a difference in the Baldus findings, it would have to diminish a death sentencing rate in white-victim, felony murder cases more than double that of black-victim 19 cases. The 230 variables defined by Professor Baldus take into account every known, conceptually important legal and extra-legal factor that might affect capital sentencing. It is extremely unlikely that any factor that powerful has been overlooked in these studies. By insisting on a standard of "absolute knowledge" about every single case, the District Court implicitly rejected the value of all applied statistical analysis. The District Court also expressed general skepticism toward a range of well- established social scientific methods employed by Baldus, including multiple regression analysis, which it found "ill suited to provide the court with circumstantial evidence of the presence of discrimination." Id. at 372 (emphasis omitted). Indeed the only statistical method that the District Court did seem to approve is the simple cross-tabular 20 approach, id. at 354, even though the Court acknowledged that the inherent nature of the problem under study here makes it •'impossible to get any statistically significant results in comparing exact cases using a cross tabulation method." Id. (emphasis omitted). This preference for cross-tabular methods lacks any scientific foundation. Baldus's use of multiple regression analysis is clearly valid and appropriate to his data. In any event, Baldus and his colleagues did use cross- tabular analysis extensively, and their findings using this method, as we have seen, are fully consistent with the regression results. Finally, in evaluating Baldus's results, the District Court seized upon a somewhat confused welter of statistical issues, including Baldus's conventions for coding "unknown" data, id. at 357-59, the possible multicollinearity of his 21 variables, id. at 363-64, and the reported R2 of his model, id. at 351, 361, as reasons for its ultimate conclusion that Baldus's results cannot be relied upon. However, Baldus and his colleagues satisfactorily addressed each of these concerns and demonstrated that the racial results were not adversely affected by them. Baldus not only employed the correct method of treating "unknowns"; he also conducted alternative analyses to demonstrate that racial influences persisted irrespective of the method of treatment adopted. Multicoilinearity undoubtedly did affect some of the larger models employed by Baldus, but the District Court failed to realize that the presence of multicoilinearity would not change the estimate of the racial results reported. It would only affect the standard error of that estimate. Finally, the court's concern with the reported R2 of Baldus's 22 models is unfounded. Apart from the questionable relevance of the R2 measure for logistic models of the type he used, an R2 of .40 or higher is quite acceptable. In sum, since the District Court's opinion was flawed by basic statistical errors and misunderstandings, its evaluation of the validity of the Baldus studies is simply off-target. * * * The Court of Appeals took a different approach to Baldus's research: it announced that it would "assum[e] [the study's] validity and that it proves what it claims to prove," McCleskev v. Kemo. 753 F.2d at 886, and would base its judgment solely on the legal consequences flowing from that research. Yet the skepticism which pervaded the District Court's analysis continued to dominate the treatment of Baldus's research by the Court of Appeals. After first knitting together 23 citations from several scholarly articles that caution courts against an unreflective use of social scientific evidence, id. at 887-90, the Court announced "that generalized statistical studies are of little use in deciding whether a particular defendant has been unconstitutionally sentenced to death . . . [and] at most are probative of how much disparity is present." Id. at 893. That observation misses the point: Statistical evidence can determine with great reliability whether racial factors are playing a role in the sentencing system as a whole. Baldus's studies provide just such evidence. When the Court turns to the Baldus studies, it relies primarily upon one summary figure drawn from the entire body of results — a reported .06 disparity by race of victim in overall death- sentencing rates. As we showed above, this was but one of a number of important, 24 meaningful results indicating a consistent racial presence in the state of Georgia's capital sentencing system. More important, as also demonstrated earlier, the Court of Appeals seemed fundamentally to have misunderstood the magnitude and significance even of this single result upon which it focused: it took a pound for a penny. Although Baldus and his colleagues have been consistently conservative in evaluating and reporting their findings, the adjusted influence of racial factors on Georgia's capital sentencing system remains both clear and significant. Race, especially the race of the victim, plays a large and recognizable part in determining who among Georgia defendants convicted of murder will be sentenced to life and who among them will be sentenced to death. 25 CONCLUSION The contributions of social scientific evidence to the resolution of legal issues has increased significantly in recent decades, as statistical methods have improved and the confidence of the courts has grown. This Court has led the lower federal courts toward an appreciation of the nature of statistical evidence, and has developed legal principles — including standards of proof for parties presenting such evidence — that reflect a clear understanding of the powerful utility of valid social scientific evidence. See. e.q. . Bazemore v. Friday. ___U.S.___ , ___L.Ed.2d___,(1986); Hazelwood School District v. United States. 433 U.S. 299 (1977) ; Teamsters v. United States. 431 U.S. 324 (1977) ; see also Seqar v. Smith. 738 F.2d 1249 (D.C. Cir. 1984); Vuvanich v. Republic National Bank. 505 F. Supp. 244 (N.D. Tex. 1980), vacated on other grounds. 26 723 F.2d 1195 (5th Cir. 1984). The Court of Appeals disregarded these basic standards of proof fashioned by the Court. Its opinion in McCleskev insists upon a level of methodological purity in data quality, model design, and analyse. that can be achieved only in theory. T h e cross-tabular and regression analyses of Professor Baldus and his colleagues were the correct analytical tools for the research they undertook. Their studies were undertaken with great care. Their findings replicate the work of earlier, less thorough scholars. The magnitude of their findings is striking. This body of research renders it far more likely than not that racial factors have played a significant role in Georgia's capital sentencing system in the post-Furman era. Dated: New York, New York August 21, 1986 Respectfully submitted, 27 MICHAEL 0. FINKELSTEIN MARTIN F. RICHMAN * Barrett Smith Schapiro Simon & Armstrong 2 6 Broadway New York, N.Y. 10004 (212) 422-8180 ATTORNEYS FOR AMICI CURIAE BY:_________________________ MARTIN F. RICHMAN *Counsel of Record 28 CERTIFICATE OF SERVICE I hereby certify that I am a member of the bar of this Court, and that I served the annexed Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae on the parties by placing copies in the United States mail, first class mail, postage prepaid, addressed as follows: John Charles Boger, Inc. NAACP Legal Defense Fund 99 Hudson Street New York, New York 10013 Mary Beth Westmoreland, Esq. 132 State Judicial Building 40 Capitol Square, S.W. Atlanta, Georgia 30334 Done this ____ day of August, 1986. MARTIN F. RICHMAN 29 Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177