Motions to File Amicus Briefs in Support of Petitioner Warren McCleskey

    No. 84-6811 
  
  

IN THE 

Supreme Court of the United Staten 
OctoBer Term, 1985 

  

WarreN MoCLESKEY, 
Petitioner, 

—_—V 

Razr 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 

AND BRIEF AMICI CURIAE 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 

  
  

MicHAEL O. FINKELSTEIN 

Martin KF. Ricaman® 

BagrrETT SMITH SCHAPIRO 

SiMoN & ARMSTRONG 

26 Broadway 

New York, New York 10004 

(212) 422-8180 

Attorneys for Amici Curiae 

*(Counsel of Record 

  

   





TABLE OF AUTHORITIES 
  

Cases Pages 

Ballew v. Georgia, 435 U.S. 
223 (1972). [J LJ [2 @ [J] [J LJ [] ° +iv,vi 

Bazemore v. Friday, eS. ’ 
L.E4d.2d (19 6). [J [J [J] LJ] [J [J 26 

Hazelwood School District v. United 
States, 433 U.S. 299 (15977). « +... 6 

McCleskey v. Kemp, 753 F. 24d 877 
{11th Cir. 1988)(en banc). . .v;3,4,27 

McCleskey v. Zant, 580 F. Supp. 
388 (NuD. C84: 1984) .0o..0i io coin 9 

Segar v. Smith, 
738 F. 24 1249 (D.C. Cir. 1934). 6 

Teamsters v. United States, 
431 U.S. 324. ° [J] [J] LJ LJ LJ LJ ® LJ LJ 6 

Vuyanich v. Republic National 
Bank, 505 F.Supp.244 (N.D. Tex. 
1980), vacated on other grounds, 
723 F.2d 1195 (5th Civ. 1984). 26,27 

Statutes   

Former Ga. Code Ann. 

§27-2534.1(6)) (2). ° ° ° ° ° 9n.1l 

Other Authorities 
  

Fisher, Multiple Regression 
in Legal Proceedings, 80 Colum. 
L.EBeV. 702 (1980) wim. ninon sie H-

 
-
 

-
 

a.  



  

H. Kalven & H. Zeisel, The American 
JUTrY (1966). . . + . outdid: Vi 

R. Lempert, An Invitation to Law 
and Social Science: Desert, 
Disputes and Distribution (1986). iv 

  

 



No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

  

WARREN McCLESKEY, 

Petitioner, 

“gy. 

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 0. 

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  



  

  

  

brief 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 

31



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. 
  

Le4 Revs: 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 

Fa  



  

  

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 Vv. 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 object 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 

   



| 

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 Vv. 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 O. FINKELSTEIN 
MARTIN F. RICHMAN * 

Barrett Smith Schapiro 
Simon & Armstrong 

26 Broadway 
New York, N.¥. 10004 
(212) 422-8180 

ATTORNEYS FOR AMICI CURIAE 

BY: 
MARTIN F. RICHMAN 

*Counsel of Record 

  

vii 

   



   



No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

  

WARREN McCLESKEY, 

Petitioner, 

“nr, 

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 O. LEMPERT, 
DR. PETER W. SPERLICH, DR. MARVIN 
E. WOLFGANG, PROFESSOR HANS ZEISEL 
& PROFESSOR FRANKLIN E. ZIMRING 

  

  

S RY 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, 

   



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. 

 



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 Baldus's 

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 

 



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 

   



  

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. 

 



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 22 
white/white 58 of 748 8 
black/black 18 of 1443 1 
white/black 2 of 60 3 

* x 0% * x x * *x % 
Totals by 
Victim 

white victim 108 of 981 1 
black victim 20 of 1503 l  



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- 

 



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- 
  

lFormer 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 +315::(38/250) 

white / black 19 (4/21) 

(DB 94). Thus even among convicted black 

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 

1} 

 



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." McCleskey v. Kemp, 753 
  

F.24 877, 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 

5 

 



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 1s, a white-victim 

death penalty case that is in the mnid- 

range in terns 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 

 



IX 

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]," McCleskey 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 1s 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 
  

Re ‘of his model, id. at 35%, 736), 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. Multicollinearity 

undoubtedly did affect some of the larger 

models employed by Baldus, but the District 

Court failed to realize that the presence 

of multicollinearity 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 R? 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: ic 

announced that it would "assum[e] [the 

study's] validity and that it proves what 

it claims to prove," McCleskey v. Kemp, 

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.9.,: Bazemore .-v.. Friday, --.U.8. 

L.E4d.24 , (1986) ; Hazelwood School 

District v. United States, 433 U.S. 299 

  

  

(1977): Teamsters v. United States, 431 
  

U.S. 324 (1977); see also Segar Vv. Smith, 
  

738 F.24.1249. (D.C... Cir. 1984): VYuvanich v. 
  

Republic National Bank, 505 F. Supp. 244 
  

(N.D. Tex. 1980), vacated on other grounds, 
  

26 

 



723 P.24 1195 (5th Cir. 1984). 

The Court of Appeals disregarded these 

basic standards of proof fashioned by the 

Court. Its opinion in McCleskey insists 
  

upon a level of methodological purity in 

data quality, model design, and analyse. 

that can be achieved only in theory. The 

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 O. FINKELSTEIN 
MARTIN F. RICHMAN * 

Barrett Smith Schapiro 
Simon & Armstrong 

26 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  



No. 84-6811 
  

  

IN THE 

Supreme Cunt of the Wnited States 
October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

against 

RALPH M. KEMP, Superintendent, Georgia Diagnostic & 

Classification Center, 

Respondent. 

  

On Petition for Writ of Certiorari to the United States Court 

of Appeals for the Eleventh Circuit 

  

  

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE 

AND BRIEF AMICI CURIAE FOR DR. PETER W. 

SPERLICH, DR. MARVIN E. WOLFGANG, PROFESSOR 

HANS ZEISEL & PROFESSOR FRANKLIN E. ZIMRING 

IN SUPPORT OF THE PETITION FOR WRIT OF 

CERTIORARI 

  

  

MicuAEL O. FINKELSTEIN 

Martin F. RicamaN*® 

BagrreTT SMITH SCHAPIRO 

Simon & ARMSTRONG 

26 Broadway 

New York, New York 10004 

(212) 422-8180 

Attorneys for Amici Curiae 

* Attorney of Record 

  

   





TABLE OF CONTENTS 
  

  

Page 

TABLE OF AUTHORITIES vss vsss0cceeie ii 

MOTION FOR LEAVE TO FILE 
BRIEF BMICI CURIAE .sccevcscsvnas iii 

SUMMARY OF ARGUMENT cecovsvensvccsnnee 1 

ARGUMENT ® © © © © © © 0 6 oo © 6 0 0 @ © 0 ® © ¢ © oo © oo oo 2 3 

I. The Lower Courts Have 
Seriously Undervalued 
Both The Validity Of 
The Baldus Studies And 
The Significance Of 
Thelr Findings. ices nv iss 3 

A. The Baldus Studies . 5 

Be. The Opinion of the 
District Court. «..-. 8 

Ch The Opinion of the 
Court. of Appeals. ... 13 

11. The Striking Reluctance 
Of The Court of Appeals 
To Accept Reliable Social 
Scientific Methods And 
Findings Warrants Review 
By This Court ® 6 6 © & © © 0 O° 0 0 20 

‘CONCLUSION ® 6 © © 0 © © © © Oo O° 0 © Oo © Oo Oo © 0 0 ® ©® oo 0 19 

 



    

 



Page 

- 11 w= 

TABLE OF AUTHORITIES 
  

Cases: 

Ballew v. Georgia, 435 U.S. 233 
(1978) sivsnsnsssrisnanevsdoonne vi, 4 

Castaneda v. Partida, 430 U.S. 482 
(1977) rs vaiinnsien seve ssivaniny nie 4 

Hazelwood School District v. United 

States , 453: 0.8.:299:(1977) 304 .. 18 

International Brotherhood of Teamsters 

v. United States, 431 U.S. 324 

{1977) © © 060 0 0 0 0 0 0 0 0 00 00 eo 00 0 0 00 4,18 

McCleskey v. Kemp, 753 F.2d 877 

{11th Cir. 1985) (en 

DANG) cecocecinn cesesen Vyl,33,15,19 

McCleskey v. Zant, 580 F. Supp. 338 
{N.D. Ga. 1984) ceveeo sass 8:9,10,11 

Segar v. Smith, 738 F.248 1249 (D.C. 

Ga. JO984) covicvnn Saree wie we ele 19 

Vuyanich v. Republic Nat'l Bank, 
505 PF. Supp. 244 (N.D. 
Tex, 1980) .uvvssscnsscensanes 19 

 



  

  

 



- iii - 

Other Authorities 
  

Finkelstein, The Judicial Reception 
of Multiple Regression Studies 
In Race and Sex Discrimination 
Cases, 80 Colum. L. Rev. 737 

(ROBO) Fiiiitie vioie sities soe iivinis do bie 

Fisher, Multiple Regression in 
Legal Proceedings, 80 Colum. 

Le Rev, 702 (1980) ..uinvnw winiv sire 

H. Kalven & H. Zeisel, The American 

JUry (1966) v.os» tio ne nese hr 

Page 

 



   



- iti 

No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

-against- 

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

Respondent. 

  

On Petition For Writ Of Certiorari 

To The United States Court Of Appeals 
For The Eleventh Circuit 

  

MOTION FOR LEAVE TO 
FILE BRIEF AMICI CURIAE 
  

  

Dr. Peter W. Sperlich, Dr. Marvin E. 

Wolfgang, Professor Hans Zeisel and 

Professor Franklin E. Zimring respectfully 

move, pursuant to Rule 36.1 of the Rules  





if 

of the Court, ¥for leave to. file the 

  

attached brief amici curiae in support of 

the petition for serutoravi filed 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. 

The ‘interest ‘of ‘amici “in this case 

stems from their work as social scientists 

whose professional contributions have 

significantly advanced the legal use of 

empirical data. Dr. Sperlich is Professor 

of Political Science at the University of 

California at Berkeley. Dr. Sperlich has 

taught, consulted and published widely on 

many criminal justice issues, including 

the role of juries and the use of scienti- 

fic evidence in legal settings. His 

writings were cited prominently by the  





NS 

Court of Appeals in McCleskey v. Kemp. Dr. 
  

Wolfgang is Professor of Criminology and 

Criminal Law and Director of theCenter 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 object of intensive legal examination 

during the Maxwell v. Bishop litigation of 
  

the 1960s, Professor Hans Zeisel is 

Emeritus Professor of Law and Sociology 

and Associate of the Center for Criminal 

Justice Studies at the University of 

Chicago. Professor Zeisel is co-author of 

The American Jury, widely recognized as 
  

one of the most influential empirical  





- i 

studies of the legal system ever pub- 

lished. Professor Zeisel's empirical 

research on the functioning of juries was 

relied upon: by this Court in Ballew v.   

Georgla,  435:.0.5.-:233 £1978). -Profes~ 

SOY :Zimring: is Professor of. Law and 

Director of the Earl Warren Institute at 

Boalt: Hall, University: of California at 

Berkeley. Professor Zimring has written 

extensively on criminal Justice issues, 

including juvenile crime and sentencing, 

the deterent 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 Prevention of 

Violence, and has also served as consul- 

tant to many private and public organiza-  





- yii ~- 

tions concerned with the application of 

social scientific perspectives to legal 

issues. 

The present case focuses on two 

unusually sophisticated and comprehensive 

social scientific studies that address on 

an-< important.’ public issue: racial 

disparities in a State's capital sentenc- 

ing system. In amici's judgment, the 

courts below have not appreciated either 

the remarkable soundness of that research 

or the i“significance jof its findings. 

Amici's professional interest is not in 

the ultimate resolution of the legal 

issues presented, which involve constitu- 

tional considerations upon which amici 

would not presume to advise the Court. 

However, amici do wish to provide the 

Court with an dnformed appraisal of (i) 

the record facts, specifically, the two 

 





- vidi - 

empiricail sbuates that comprise the basis 

for petitioner McCieskey's constitutional 

claims of arbitiaviness and racial 

discrimination; and (ii) the lower courts’ 

evaluation of those studies. Amici hope 

that their views might assist the Court's 

resolution of this important matter. 

Amici's special interest 1s prompted 

by the skepticism and implicit hostility 

toward statistical evidence that animate 

the opinions of the lower courts. Ironi- 

cally, both the strengthsiand the limits 

of social scientific research have been 

misunderstood by the Court of Appeals. 

The broad sweep Of the court's 

language, moreover, threatens not only to 

end further legal use of empirical 

evidence in determining whether our 

nation's capital punishment statutes are 

being applied in a racially discriminatory 

 





- iw - 

manner, but to discourage, as a practical 

matter, the use of statistical evidence in 

other areas of the law -- an outcome that 

would constitute a regrettable development 

in the relationship between the dis- 

ciplines of law and social science. 

Dated: New York, New York 

June 27, 1985 

Respectfully submitted, 

MICHAEL O. FINKELSTEIN 

*MARTIN F. RICHMAN 

Barrett Smith Schapiro 
Simon & Armstrong 

26 Broadway 
New York, New York 10004 

(212) 422-8180 

ATTORNEYS FOR AMICI CURIAE 
  

BY: 
  

MARTIN F. RICHMAN 

*Attorney of Record 

 





No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

-against- 

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

Respondent. 

  

On Petition For Writ Of Certiorari 

To The United States Court Of Appeals 
For The Eleventh Circuit 

  

BRIEF AMICI CURIAE OF 
DR. PETER W. SPERLICH, DR. MARVIN 
E. WOLFGANG, PROFESSOR HANS ZEISEL 
AND PROFESSOR FRANKLIN E. ZIMRING 

  

  

SUMMARY OF ARGUMENT 
  

The Baldus studies presented by the 

petitioner in McCleskey v. Kemp are the 
  

most sophisticated and comprehensive 

 





empirical studies on criminal sentencing 

ever submitted to any court. They have 

been meticulously conducted and are 

distinguished by state-of-the-art proce- 

dures. The analytical methods employed 

are appropriate, and the results -- 

demonstrating racial disparities in 

capital sentencing at a highly statis- 

tically significant level -- are sound and 

valid. 

The: District Court and the: Court of 

Appeals display profound misunderstanding 

of the statistical evidence itself and of 

the significance of that evidence. Many of 

their technical criticisms are misinformed 

Or erroneous, and their reservations about 

the reliability of the research are 

inappropriate. Most importantly, the 

Court of Appeals has failed to recognize 

the significance of the racial disparities 

reported by Professor Baldus; his findings 

 





demonstrate in fact that race continues to 

have an important impact in death-sentenc- 

ing decisions in the State of Georgia. 

The opinion of the Couns of Appeals 

also expresses a general skepticism toward 

social scientific methods and results that 

is unwarranted and possibly injurious to 

the continued ability of courts to make 

use of statistically reliable evidence -- 

in. many: contexts: other than capital 

sentencing -- within the Eleventh Circuit. 

ARGUMENT 
  

1. 

THE LOWER COURTS HAVE 

SERIOUSLY UNDERVALUED BOTH 

THE VALIDITY OF THE BALDUS 

STUDIES AND THE SIGNIFI- 

CANCE OF THEIR FINDINGS 

To be of significant value to the 

courts, social scientific research, like 

any other evidence, plainly must be 

reliable. If research lacks "internal 

 





validity" -- if its methods are inappro- 

priate, or 1f its execution is careless 

and slipshod -- it does not deserve the 

serious attention of the courts. 

On the other hand, when research has 

been meticulously conducted, when analyses 

are searching and exhaustive, social 

scientific studies, as the Court has often 

acknowledged, can be of great value in 

resolving legal disputes. See, e.g., 
  

Ballew yv, Georgla, 435 U.S. 233 (1978); 
  

International Brotherhood of Teamsters v. 
  

United States, 431 U.85..324, 339 (1977); 
  

tastaneda v, Partida, 430 U.S. 482 (1977). 
  

Some of the most valuable contribu- 

tions by social science to the resolution 

of legal issues have been made in the area 

Oof racial discrimination.’ Through ‘the use 

of statistical techniques such as multiple 

regression analysis, social scientists and 

statisticians have regularly assisted 

courts in discerning the influence of race  





on complex decisionmaking processes that 

may involve dozens of independent con- 

  

siderations. See generally Finkeistein, 

The Judlcial Reception of Multiple 
  

Regression Studies in. Race and Sex 
  

Discrimination Cases, 80 Colum. L. Rev. 
  

737 (1980); Fisher, Multiple Regression in 
  

Legal Proceedings, 80 Colum. L. Rev. 702 
  

{1980}. 

A. The Baldus Studies 
  

In our judgment as social scientists, 

the two studies of Georgia's capital 

punishment system conducted by Professor 

Baldus and his colleagues are examples of 

excellent professional empirical studies. 

The researchers had full access to 

official State files on each homicide 

case, permitting them to assemble data 

distinguished by its unusual richness and 

high quality. The design of the studies is 

sophisticated, and the number of relevant  



   



sentencing factors considered exceeds that 

of any major study ever conducted in this 

field. The researchers have followed 

elaborate, staterotethoath procedures in 

data collection and entry. 

Professor Baldus' analytical methods, 

moreover, illustrate the unique contribu- 

tion social science can make to legal 

problems. The unadjusted racial disparity 

in capital sentencing in the State of 

Georgia are striking: one whose victim is 
  

white is eleven times more likely to 
  

receive a death sentence than one whose 
  

victim is black. Professor Baldus, 
  

however, did not rest his conclusions on 

these unadjusted racial disparities. 

Instead, he used an array of increasingly 

more complex statistical methods to test 

dozens of alternative hypotheses that 

might have disproven or eliminated the 

effects of race. He turned social science 

methods, in other words, against his own 

 





unadjusted findings, subjecting his data 

to rigorous scientific scrutiny designed 

to determine whether the apparent racial 

effects would persist when other factors 

were Laken into: account. 

Although Baldus has been conservative 

in his findings, the adjusted influence of 

racial factors: on Georgia's capital 

sentencing system remains Clear and 

significant. Race, especially the race of 

the homicide victim, plays a large and 

recognizable part in determining who among 

convicted Georgia defendants will De 

sentenced to life and who will be sen- 

tenced: to ‘death. Baldus reports, for 

example, that the odds of receiving a 

death sentence are increased by 4.3 times 

if "the: victim ‘is white, even when ihe 

controls for dozens of other legitimate 

variables.  





Why, in view of the soundness and 

importance of these findings, have the 

Baldus studies been rejected by the lower 

courts? If the answer costhis important 

question were solely a matter of constitu- 

tional law, we of course would have no 

role as amici before this Court. The 

opinions of the lower courts, however, 

reflect a profound misunderstanding of 

Baldus' research or, at best, an unwar- 

ranted mistrust of the significance of his 

results. 

B. The Opinion of the District Court 
  

The: District Court's “opinion, iin 

particular, recites a Luddite's list of 

grievances against empirical methods and 

procedures, almost none of which are 

well-founded. It" asserts that Baldus' 

data base was "substantially flawed" 

because it "could not capture every nuance 

of every case," McCleskey v. Zant, 580 F. 
  

   



     



supp. 338, 356 (N.D, Ga. 1984). ' None of 

Baldus' many models, even those with over 

230 variables, are deemed sufficient in 

the District Court's eyes, ‘sincer they 

"have {not} accounted for i.. unaccounte@- 

for factors.” 1d. iat 362. 

These objections are fundamentally 

misplaced. One essential quality of 

statistical analysis is its power to tell 

us many things about a phenomenon with 

great reliability, without the necessity 

of knowing everything about that phenome- 

non. As a scientific matter, the like- 

lihood that any omitted variable could 

significantly affect Baldus' robust racial 

findings -- especially when so many 

legitimate variables have been taken into 

account -- is truly negligible. By 

insisting on a standard of: "absolute 

knowledge" about every case, however, the 

District Court implicitly: rejects the 

value of all applied statistical analysis, 

   



   



- 10 - 

which has brought us much of what we know 

in medicine, genetics, agronomy and other 

areas of science. 

The: District Court also expresses 

general skepticism toward a range of 

well-established social scientific methods 

employed by Baldus, including multiple 

regression analysis, which it finds "ill 

suited to provide the Court with circum- 

stantial evidence of the presence of 

discrimination.” 14. at 372 (emphasis 

omitted). Indeed the only statistical 

method the District Court does seem to 

approve is the simple <cross-tabular 

approach, id. at 354, even though the 

Court acknowledges that the inherent 

nature of the problem under study here 

makes it "impossible to get any statis- 

tically. .significant resulys in comparing 

exact: cases: using a Cross tabulation 

method." Id. at 354. This preference for 

 



   



“ 1] - 

cross—-tabular methods lacks any scientific 

foundation. Baldus' methods are clearly 

valid and appropriate to his data. 

Finally, in evaluating Baldus' 

results, the District Court seizes upon a 

somewhat confused welter of statistical 

issues, including Baldus' conventions for 

coding "unknown" data, id. at 357-59, the 

possible multicollinearity of Baldus' 

variables, id. at 363-64, and the reported 

R® of his model, id. at 351, 361, as 

reasons for its ultimate conclusion that 

Baldus' results cannot be relied upon. 

However, Baldus and his colleagues 

satisfactorily addressed each of these 

issues and demonstrated that the racial 

results were not adversely affected by 

such concerns. Baldus not only employed 

the correct method of treating "unknowns"; 

he conducted alternative analysis to 

demonstrate that racial influences 

persisted irrespective of the method of 
   



   



- 12 - 

treatment adopted. Multicollinearity 

undoubtedly affected some of the larger 

‘models employed by Baldus; however, the 

District:Court failed to realize that the 

presence of of multicollinearity would not 

affect the estimate of the racial results 

reported. 1t.. would only affect: the 

standard error of that estimate. Finally, 

the Court's concern with the reported ns 

of Baldus' models is unfounded. Apart 

from the questionable relevance of the ° 

measure for logistic models of the type 

used by Baldus, an 22 of .40 or higher is 

quite acceptable. 

In sum, the District Court opinions 

is a compendium of basic statistical 

errors and misunderstandings. Its 

evaluation of the validity of the Baldus 

studies is off-target.  



   



- 13 = 

Ce The Opinion of the Court of 
Appeals 
  

The Court of Appeals purports to take 

a different approach to Baldug’ research: 

it announces that it will "assum[e] [the 

study's] validity and that it proves what 

it claims to prove," McCleskey v. Kemp, 
  

753. p.24 877, 886 (11th Ciy. 1985): den 

banc), and will base its judgment solely 

on the legal consequences which flow from 

that research. Yet even a quick reading 

of the Court's opinion persuades us that 

the skepticism which pervaded the District 

Court's analysis continues to dominate the 

treatment of Baldus' research by the Court 

of Appeals. After first knitting together 

citations from several scholarly articles 

that caution courts against an unreflec- 
  

tive use of social scientific evidence, 

id.~at 887-90, the Court announces "that 

generalized statistical studies are of 

little use in deciding whether a particu-  





- }8 - 

lar defendant has been unconstitutionally 

sentenced to death ... [and] are at most 

probative ©f how: much: disparity -is 

present." Id. at 894. That observation 

misses the point: although statistics 

cannot determine with absolute certainty 

whether any one defendant may have been 

sentenced to death because of race, 

gtatistical evidence gan determine with 

great reliability whether racial factors 

are playing a role in the sentencing 

system as a whole. Baldus' studies 

provide just such evidence. 

When the Court turns. to Baldus' 

studies, it relies almost entirely upon 

one summary figure drawn from the entire 

body of Baldus' results -- a reported .06 

disparity by race of victim in overall 

death-sentencing rates. As we view Baldus' 

research, this is but one of a number of 

important, meaningful results indicating a 

consistent racial presence in Georgia 

 





- 15 - 

sentence patterns. Seen as such, this 

figure is important, though obviously by 

no means the sole basis for Baldus's 

conclusions. | 

The Court OF Appeals, however, 

misunderstands even the significance of 

this one figure, repeatedly describing it 

as a six percent ‘disparity, see, ce.,qg., 
  

McCleskey v, Kemp, supra, 753 F.28 at 
  

896, 899, rather than a six percentage   

point disparity. The distinctioniis by no 

means technical. The overall death- 

sentencing rate in the State of Georgia is 

quite small, only .,05, or 5-in-100. ‘Thus 

a six pecentage point increase, for 

example, raises the death-sentencing rate 

from .05 to .11, a percentage increase of 
  

120%. Baldus in fact reports a death-odds 

multipler effect of 4.3: that is, the 

odds of receiving a death sentence are 4.3 

times greater if one's victim is white. 

 



   



- 36 ~ 

Such: an: impact; larger: than that of :a 

number of Georgia's statutory aggravation 

circumstances, scarcely seems "marginal." 

Moreover, when the Court of Appeals 

examines Baldus' well-documented finding 

of a 20-point racial disparity in the 

"midrange" of cases, it indulges a quick 

succession of disparaging observations 

--none of which is defensible. The expert 

testimony at trial strongly substantiates 

the existence of a meaningful, statisti- 

cally significant "midrange" of Georgia 

cases. Warren McCleskey, in fact, falls 

squarely within that midrange. 

In sum, the Court of Appeals, like 

the District Court, fundamentally mis- 

trusts Baldus' findings and undervalues 

thelr significance as proof of racial 

disparities in Georgia's capital sentenc- 

ing system. From our perspective as 

social scientists, that mistrust is 

unwarranted. The Baldus studies are 

 





- 47 - 

sound; they are consistent with prior 

research; and their basic conclusions are 

entitled to the confidence of the scienti- 

fic and the legal communities. 

II. 

THE COURT OF APPEALS' RE- 

LUCTANCE TO ACCEPT RE- 
LIABLE SOCIAL SCIENTIFIC 
METHODS AND FINDINGS WAR- 
RANTS REVIEW BY THIS COURT 

It is possible that the extraodinary 

reluctance of the Court of Appeals +o 

place reliance upon Baldus' research 

reflects no more than an unwillingness, 

despite the evidence, to invalidate 

post-Furman capital statutes. The 

opinion, however, does not expressly 

limit its holding to death penalty cases. 

Instead, it articulates a standard of 

proof that seems applicable to other Equal  



   



- 18 - 

  

Protection Clause challenges, see, e.g., 

14. at 837-90, and perhaps to Title Vii 

disparate treatment cases as well. 

1f so, the opinion valses important 

issues about the usefulness of social 

scientific evidence that transcend the 

McCleskey case itself. 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 

such evidence, and has developed legal 

principles, including standards of proof 

for parties presenting statistical 

evidence, that reflect a clear understand- 

ing: of the powerful utility of reliable 

social scientific evidence. See, e.g., 
  

Hazelwood School District Vs United 
  

States, 433 U.S. 298 (1977); Teamsters v. 
  

 





- 19 = 

United States, 431 U.S. 324 (1977); see 
  

4l50 Segar v. Smith, 738 PrP.284 1249 (D.C. 
  

Cir. 1984); Vuyanich v. Republic Nat'l 
  

Bank, 505 Fr. Supp. 244 (N.D. Tex. 1980), 

vacated on other grounds, 723 F.24 1195 
  

{5th Clr. 1084), 

The Court of Appeals has disregarded 

these basic standards of proof that have 

been fashioned by the Court. Its opinion 

in McClesky insists upon a level of 
  

methodological purity in data quality, 

model design, and analysis that can be 

achieved only in theory. If left unre- 

viewed, the opinion of the ‘Court of 

Appeals will erect formidable barriers 

against the use of reliable statistical 

evidence that ‘can, and amici. ‘believe, 

properly should be used by the courts to 

resolve complex legal issues that regular- 

ly come before them for decision.  



   



- 20 = 

CONCLUSION 
  

For the reasons set forth above, 

amici curiae respectfully urge the Court 
  

to grant certiorari in the McCleskey v. 
  

Kemp case and engage in a full considera- 

tion . of the important questions it 

presents for review. 

Dated: New York, New York 

June 27, 1985 

Respectfully submitted, 

MICHAEL O. FINKELSTEIN 

*MARTIN F. RICHMAN 

Barrett Smith Schapiro 
Simon & Armstrong 

26 Broadway 
New York, New York 10004 

(212) 422-8180 

ATTORNEYS FOR AMICI CURIAE 
  

BY: 
  

MARTIN F. RICHMAN 

* Attorney of Record  



 
 

  
 



CERTIFICATE OF SERVICE 
  

I hereby certify that I am a member 

of the bar of this Court, and that 1 

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 Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

Hon. John Conyers, Jr. 
2313 Rayburn House Office Bldg. 
Washington, D.C. 20515, 

Ralph G. Steinhardt, Esq. 
Patton, Boggs & Blow 
2550 M Street, N.W. 

Washington, D.C. 20037 

 



 
 

  
 



All parties required to be served 

have been served. Done this 27th day of 

June, 1985. 

Bys 
  

MARTIN F. RICHMAN 

Attorney of Record 
for Amici Curiae 
  

  
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(2994) 
   



No. 84-6811 
  
  

IN THE 

Supreme Court of the United States 
OctoBer Term, 1985 

  

Warren MoCLESKEY, 
Petitioner, 

—_—Ve— 

Rarer M. Kemup, 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 

AND BRIEF AMICI CURIAE 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 

  
  

MicuHAEL 'O. FINKELSTEIN 

Martin KF. Ricamax* 

BARRETT SMITH SCHAPIRO 

SiMmoN & ARMSTRONG 

26 Broadway 

New York, New York 10004 

(212) 422-8180 

Attorneys for Amici Curiae 

*Counsel of Record 

  
   





TABLE OF CONTENTS 

TABLE OF AUTHORITIES + & 2 4s 5s 44 os 

MOTION FOR LEAVE TO FILE BRIEF AMICI 
  

CURIAR. © vo vo ¢ ¢ v6 0 3 00 4 is 

BRIEF AMICI CURIAPL «vs "v's 4 ¢o 5 2 

SUMMARY ‘OF ARCUMENT + & 4 & o's 

ARGUMENT. + & 4 « 0.0 5.5 3s us 

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 

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 . + ¢ ¢ 4 ov 5 so a 4 

CONCLUS h ON Ld [J [J [J [] LJ ° [J LJ LJ LJ 

 





TABLE OF AUTHORITIES 

Cases Pages 

Ballew v. Georgia, 435 U.S. 
223 (1972). LJ LJ ® LJ] LJ] ° [J] [J] [J wiv,vi 

U.S. ’ 
L.E4d.2d (1986). ® [J LJ LJ [J [J 26 

Bazemore v. Friday, 
  

States, 433 U.S. 299 (1977). . . . 6 

| 

i . . | 
Hazelwood School District v. United 

McCleskey v. Kemp, 753 F. 2d 877 | 
{11th Cir. 1988)(enbanc). . .v,3,4,27 

McCleskey v. Zant, 580 F. Supp. 
388 ANeD'.CAY 19848) a vo. ini in: ova in 9 

Segar v. Smith, 
738 F. 24 1249 (D.C. C.r. 1984). 6 

Teamsters v. United States, 
83) UB. 328. on. vere snenio winsint uB 

Vuyanich v. Republic National 
Bank, 505 F.Supp.244 (N.D. Tex. 
1980), vacated on other grounds, 
723 F.24 1195 (5th Cir. 1984), 26,27 

Statutes 
  

Former Ga. Code Ann. 

§27=2534.1(6)) (2) + + + + » 9n.1l 

Other Authorities 
  

Fisher, Multiple Regression 
in Legal Proceedings, 80 Colum. 
L Rev... 702 {10803 . wie ime seis aii -
 

-
 

-
 

a. 

 



H. Kalven & H. Zeisel, The American 
Jury (1966) [J LJ LJ LJ ® LJ ® LJ ® LJ LJ Ni 

R. Lempert, An Invitation to Law 
and Social Science: Desert, 
Disputes and Distribution (1986). iv 

 



No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

  

WARREN McCLESKEY, 

Petitioner, 

“Yow 

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 0. 

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  



brief . 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 

un@erlying 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 

ii  



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 TLaw 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 Vv. 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. 
  

Pr. 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 object 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  



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 Vv. Georgia, 

435. U.8.. 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 O. FINKELSTEIN 

MARTIN F. RICHMAN * 

Barrett Smith Schapiro 
Simon & Armstrong 

26 Broadway 
New York, N.Y. 10004 
(212) 422-8180 

ATTORNEYS FOR AMICI CURIAE 

BY: 
MARTIN F. RICHMAN 

*Counsel of Record 

  

vii  





No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

  

WARREN McCLESKEY, 

Petitioner, 

- yy, 

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 O. 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 vell<estanlished 

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, 

 



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. 

 



  

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 Baldus's 

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 

 



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 

 



  

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. 

 



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 80 of 223 22 
white/white 58 of 748 8 
black/black 18 of 1443 i 3 
white/black 2 of 60 3 

* Kk ok * Kx 0% * kk 

Totals by 
Victim 

white victim 108 of 981 y 
black victim 20 of 1503 j |  



  

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- 

 



eligible under statutory aggravating factor 

(b) (2)! =-- 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- 

  

lFormer Ga. Code Ann. §27-2534.1(b) (2), 

8  



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 black 

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. .1l9). 

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 

1X  



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." McCleskey v. Kemp, 753 
  

F.2d 877, 896 (llth 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 1s 11%. Since the 

i5  



weighted least squares regression wodel 

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 i DBT90: 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 mnmid- 

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]," McCleskey 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 

   



Rl 

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 
  

RZ 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. Multicollinearity 

undoubtedly did affect some of the larger 

models employed by Baldus, but the District 

Court failed to realize that the presence 

of multicollinearity 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 R? 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," McCleskey Vv. Kemp, 
  

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.d., Bazemore V. Friday, U.S. y 
  

L.Ed.24 » (1986) ; Hazelwood School 

District .v. United States. 433 U.S8.:299 

(1977): Teamsters v. United States, 431 

  

U.S. 324 (1977); see also Segar v. Smith, 

738 F.24.1249 (D.C. Cir. 1984): VYuvanich vs 

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 McCleskey insists 
  

upon a level of methodological purity in 

data quality, model design, and analyse. 

that can be achieved only in theory. The 

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 

   



  

I 

MICHAEL O. FINKELSTEIN 

MARTIN F. RICHMAN * 

Barrett Smith Schapiro 
Simon & Armstrong 

26 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, Esd. 
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  



No. 84-6811 
  

  

  

Eaton SE Sure @ourt of { Hnited Bates 
Saat sak October Term, 1984 

  

  
  

i WARREN McCLESKEY, 
E : Petitioner, 

; against : 

RALPH M. KEMP, Superintendent, Georgia Diagnostic & i 

Sed | Classification Center, SRE 

- Ea = Respondent. ak 

On Petition for Writ of Certiorari to the United States Court i 

  

of Appeals for the Eleventh Circuit 1s 

i 
  

- MOTION FOR LEAVE TO FILE BRIEF AMICI! CURIAE 

~ AND BRIEF AMICI CURIAE FOR DR. PETER W. 

  
  

SPERLICH, DR. MARVIN E. WOLFGANG, PROFESSOR | 
HANS ZEISEL & PROFESSOR FRANKLIN E. ZIMRING | 
IN SUPPORT OF THE PETITION FOR WRIT OF 53 
CERTIORARI He 

Micearn O. FINRELSTEIN 
Marry F. Ricemax* 

BarreTT SMITE SCHAPIRO 
Sion & ARMSTRONG 

26 Broadway 
New York, New York 10004 

(212) 422-8180 

Attorneys for Amici Curiae 

* Attorney of Record 

  

  

 



  

  

  

  

  

} 
| 

) 

? 
) TABLE OF CONTENTS 
) 

Page 

: TABLE OF AUTHORITIES “c1uvntvsiensven ii 

H MOTION FOR LEAVE TO FILE 
; BRIEF AMICI CURIAE tvs vtsecrcess iii 

H 
b SUMMARY OF ARGUMENT .ervsenssessnes 1 

) BROUMENT uo onvvniesnnssnnsesinss sone se 3 

4 i The Lower Courts Have 

| Seriously Undervalued 
: Both The Validity Of 

) The Baldus Studies And 
' The Significance Of 
i Their Findings ® ® 9 0 0 00 0 0 3 

> 
| A. The Baldus Studies . 5 

y B. The Opinion of the 
A District Court ..... 8 
| 
3 Cc. The Opinion of the 
| Court of Appeals ... 13 

) Il. The Striking Reluctance 
3 Of The Court of Appeals 
h To Accept Reliable Social 
: Scientific Methods And 
| Findings Warrants Review 
) BY This COUZE .eensinersa 20 

} CONCLUSION ® & ° 9 8 9 5 6 4 4 9 0 0 0 O° 8s » v0.0 00 19 

) 

: 

3 

) 

  

 



  
os — he iat A Tam nwa Nita nA aT mri 8 oan tm © an nl rt ane © anes ba © i hs trim om Se” AE Kn ts” we es 

  

Page 

TABLE OF AUTHORITIES 
  

Cases: 

Ballew v. Georgia, 435 U.S. 233 
(1978) ® 0 0 8 8 0 0 0 0 0 ¢ 5 0 0 92 0 0 85 0 0° 0 00 vi,é 

Castaneda v. Partida, 430 U.S. 482 
E1077) cde nevrinn vio vee acah on: Rv 4 

Hazelwood School District v. United 
States, 453 (0.5. 289 (1977) .... 18 

International Brotherhood of Teamsters 

v. United States, 431 U.S. 324% 
LIB 77) cee vv vous 2 SE I 4,18 

McCleskey v. Kemp, 753 F.2d 877 
{ileh Clr, 1985) {en 

| DERC) evs nevond wes vans Ved ,13,15,.19 

McCleskey v. Zant, 530 F. Supp. 338 
(ND. Ga. 1984) caisvivve . 8,9,10,11 

Segar v. Smith, 738 F.24 1249 (D.C. 
BR. 1984) cus vv einconvvnnas ‘ve 19 

Vuyanich v. Republic Nat'l Bank, 
505 FPF. Supp. 244 (N.D. 
TeX. 1T3B0) sonra EP ER I, 19 

    

 



  

Ea - [ ———— Pw rp =~ aL = 
  

- iil = 

Other Authorities 
  

  

Finkelstein, The Judicial Reception 

of Multiple Regression Studies 
In Race and Sex Discrimination 

cases, 80 Colum. L. Rew, 737 
{1980) ces cvec vei ane runene ie ue 

Fisher, Multiple Regression in 
Legal Proceedings, 80 Colum. 
L.. Rev, 702 1980) ves sss oan 

H. Kalven & H. Zeisel, The American 
JULY (1966) ev vecrsnnisnrssves 

  = v EWR" a a mm v—— Rr th mL e. | pT ————, - = opr 

 



  

  
  

  

- 311i ~- 

No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

-against- 

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

Respondent. 

  

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

For The Eleventh Circuit 

  

MOTION FOR LEAVE TO 
FILE BRIEF AMICI CURIAE 
  

  

Dr. Peter W. Sperlich, Dr. Marvin E. 

wolfgang, Professor Hans Zeisel and 

Professor Franklin E. Zimring respectfully 

move, pursuant to Rule 36.7 of the Rules 

    

 



baud a a2 il ar ? eas IPE NL - ; — PS She ie 
  

  

  

-1v =- 

of the Court, for leave to file the 

attached brief amici curiae in support of 
  

the petition for certiorari filed 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. 

The interest of amici in this case 

stems from their work as social scientists 

whose professional contributions have 

significantly advanced the legal use of 

empirical data. Dr. Sperlich is Professor 

of Political Science at the University of 

California at Berkeley. Dr. Sperlich has 

taught, consulted and published widely on 

many criminal Justice issues, including 

the role of juries and the use of scienti- 

fic evidence in legal settings. His 

writings were cited prominently by the 

    

fr i on As an TR tl 

 



  

  
  

- oN 

Court of Appeals in McCleskey v. Kemp. Dr. 
  

Wolfgang is Professor of Criminology and 

Criminal Law and Director of theCenter for 

Studies in Criminology and Criminal Law at 

the University of Pennsylvania. During 

his distinguished career, Dr. Wolfgang has 

made numerous contributions ne! 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 object of intensive legal examination 

during the Maxwell v. Bishop litigation of 
  

the 1960s. Professor Hans Zeisel is 

Emeritus Professor of Law and Sociology 

and Associate of the Center for Criminal 

Justice Studies at the University of 

Chicago. Professor Zeisel is co-author of 

The American Jury, widely recognized as 
  

one of the most influential empirical 

  

in EW is a et a Fer hn a BB. HG Ml te ri th rn eT ls nn + ER oR 

 



San 
  

  

ro A——— A a Ade Hl Ae a nh ptt +B ltt “faa 

wih = 

studies of the legal system ever pub- 

lished. Professor 7Zeisel's empirical 

research on the functioning of juries was 

relied upon by this Court in Ballew v, 
  

Georgia, 435 U.S. 233 (1978). Profes- 

sor 2Zimring is Professor of Law and 

Director of the Earl Warren Institute at 

Boalt Hall, University of California at 

Berkeley. Professor Zimring has written 

extensively on criminal Justice issues, 

including juvenile crime and sentencing, 

the deterent 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 Prevention of 

Violence, and has also served as consul- 

tant to many private and public organiza- 

    

ch et Cn tn im ee 

 



  
le © i ol + + et me mms ln rt 0 ®t i ln SM on Slt. et eB tin] Tad an iE mlb © ——— A rin 0 

  

- vii ~- 

tions concerned with the application of 

social scientific perspectives to legal 

issues. 

The present case focuses on two 

unusually sophisticated and comprehensive 

social scientific studies that address on 

an important public issue: racial 

disparities in a State's capital sentenc- 

ing system. In amici's judgment, the 

courts below have not appreciated either 

the remarkable soundness of that research 

or the significance of its findings. 

Amici's professional interest is not in 

the ultimate resolution of the legal 

issues presented, which involve constitu- 

tidnal considerations upon which amici 

would not presume to advise. the Court. 

However, amici do wish to provide the 

Court with an informed appraisal of (i) 

the record facts, specifically, the two 

    Ad Cog Pa TL 

 



AAT FRR UEOn, [EA PP 1 SEN — Ret. A eral al Set A +m = = 0 A nt rn Cena. 4   

  

- gilli =» 

empirical studies that comprise the basis 

for petitioner maCieskey's constitutional 

claims of arbitrariness and racial 

discrimination; and (ii) the lower courts’ 

evaluation of those studies. Amici hope 

that their views might assist the Court's 

resolution of this important matter. 

Amici's special interest is prompted 

by the skepticism and. implicit hostility 

toward statistical evidence that animate 

the opinions Of the lower courts. Ironi- 

cally, both the strengths and the limits 

of social scientific research have been 

misunderstood by the Court of Appeals. 

The  brdad sweep Of the court's 

language, moreover, threatens not only to 

end further legal use of empirical 

evidence in determining whether our 

nation's capital punishment statutes are 

being applied in a racially discriminatory 

    

Li Ber i 

a AT — ap RAT 

 



    

  

- ix - 

manner, but to discourage, as a practical 

matter, the use of statistical evidence in 

other areas of the law -- an outcome that 

would constitute a regrettable development 

in the relationship between the dis- 

ciplines of law and social science. 

Dated: New York, New York 
June 27, 1985 

Respectfully submitted, 

MICHAEL O. FINKELSTEIN 
*MARTIN F. RICHMAN 

Barrett Smith Schapiro 
Simon & Armstrong 

26 Broadway 
New York, New York 10004 

(212) 422-8180 3 

  

ATTORNEYS FOR AMICI CURIAE 

BY: 
  

MARTIN F. RICHMAN 

*Attorney of Record 

  3 mn mre my 4 pm = 

 



  
Rie aM : - © AI et hth A“ A. Fn ai     

No. 84-6811 

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

-against- 

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

Respondent. 

  

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

’ For The Eleventh Circuit 

  

BRIEF AMICI CURIAE OF 
DR. PETER W. SPERLICH, DR. MARVIN 
E. WOLFGANG, PROFESSOR HANS ZEISEL 
AND PROFESSOR FRANKLIN E. ZIMRING 

  

  

SUMMARY OF ARGUMENT 
  

The Baldus studies presented by the 

petitioner in McCleskey v. Kemp are the 
  

most sophisticated and comprehensive 

  Am rtp cg 1, ma Sp Ph wy, 4 wm, © 

 



  

  
  

empirical studies on criminal sentencing 

ever submitted to any court. They have 

been meticulously «conducted and are 

distinguished by state-of-the-art proce- 

dures. The analytical methods employed 

are appropriate, and the results -- 

demonstrating racial disparities in 

capital sentencing at a highly statis- 

tically significant level -- are sound and 

valid. 

"he District Court and the Cour: of 

‘Appeals display profound misunderstanding 

of the statistical evidence itself and of 

the significance of that evidence. Many of 

their technical criticisms are misinformed 

or erroneous, and their reservations about 

the reliability of the - research are 

lnappropriate. Most importantly, the 

Court of Appeals has failed to recognize 

the significance of the racial disparities 

reported by Professor Baldus; his findings 

  

 



  

  

  

  

  

demonstrate in fact that race continues to 

have an important impact in death-sentenc- 

ing decisions in the State of Georgia. 

The opinion of the Cours of Appeals 

also expresses a general skepticism toward 

social scientific methods and results that 

is unwarranted and possibly injurious to 

rhe continued ability of courts to make 

use of statistically reliable evidence -- 

in many contexts other than capital 

sentencing -- within the Eleventh Circuit. 

ARGUMENT 
  

I. 

THE LOWER COURTS HAVE 

SERIOUSLY UNDERVALUED BOTH 

THE VALIDITY OF THE BALDUS 

STUDIES AND THE SIGNIFI- 

CANCE OF THEIR FINDINGS 

To be of significant value to the 

courts, social scientific research, like 

any other evidence, plainly must be 

reliable. If research lacks "internal 

  rer ~ . seen v = fr — er rn or d= A a co ———  



  

  
  

  

validity" =-- if its methods are inappro- 

priate, or if its execution is careless 

and slipshod =-- it does not deserve the 

serious attention of the courts. 

On the other hand, when research has 

been meticulously conducted, when analyses 

are searching and exhaustive, social 

scientific studies, as the Court has often 

acknowledged, can be of great value in 

resolving legal disputes. See, e.4g., 
  

Ballew v., Georgia, 435 U.S. 233 (1978): 
  

International Brotherhood of Teamsters v. 
  

United States, 431 U.85.. 324, 339 (1977); 
  

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

Some of the most valuable contribu- 

tions by social science to the resolution 

of legal issues have been made in the area 

Of racial discrimination. Through the use 

of statistical technigues such as multiple 

regression analysis, social scientists and 

statisticians have regularly assisted 

courts in discerning the influence of race 

  EE | a ad TT 

 



  
  

  

on complex decisionmaking processes that 

may involve dozens of independent con- 

  

siderations. See generally Finkelstein, 

The Judicial Reception of Multiple 
  

Regression Studies in Race and Sex 
  

Discrimination Cases, 80 Colum. L. Rev. 
  

737 (1980); Fisher, Multiple Regression in 
  

Legal Proceedings, 80 Colum. L. Rev. 702 
  

(1980). 

A. The Baldus Studies 
  

In our judgment as social scientists, 

the two studies of Georgia's capital 

punishment system conducted by Professor 

Baldus and his colleagues are examples of 

excellent professional empirical studies. 

The researchers had full access to 

Cfficial State files on each homicide 

case, permitting them to assemble data 

distinguished by its unusual richness and 

high quality. The design of the studies is 

sophisticated, and the number of relevant 

    
    Af rn ot = Ga ep pt CO 

 



  

  
  

  

sentencing factors considered exceeds that 

of any major study ever conducted in this 

field. The researchers have followed 

elaborate, $tate~of=the-akt procedures in 

data collection and entry. 

Professor Baldus' analytical methods, 

moreover, illustrate the unique contribu- 

tion social science can make to legal 

problems. The unadjusted racial disparity 

in capital sentenoling in the State of 

Georgia are striking: one whose victim is 
  

white is eleven times more likely to 
  

receive a death sentence than one whose 
  

victim is black. Professor Baldus, 
  

however, did not rest his conclusions on 

these unadjusted racial disparities. 

Instead, he used an array of increasingly 

more complex statistical methods to test 

dozens of alternative hypotheses that 

might have disproven or eliminated the 

effects of race. He turned social science 

methods, in other words, against his own 

  — wy . rawny TR TT TPT Por SW PT i TT ST Te Yr +L 8 Sm As wi me pay ne : mas 2 ha HT ies 

   



  
  

  

  

unadjusted findings, subjecting his data 

to rigorous scientific scrutiny designed 

to determine whether the apparent racial 

effects would persist when other factors 

were taken into account. 

Although Baldus has been conservative 

in his findings, the adjusted influence of 

racial factors on Georgia's capital 

sentencing system remains clear and 

significant. Race, especially the race of 

the homicide victim, plays a large and 

recognizable part in determining who among 

convicted Georgia defendants will be ’ 

sentenced tc life and who will be sen- 

tenced to death. Baldus reports, for 

example, that the odds of receiving a 

death sentence are increased by 4.3 times 

if he victim is white, even when he 

controls for dozens o©f other legitimate 

variables. 

  

 



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: he fai x F : Pa POT WL EAR TR a da iia Samm. : a : *. ate i Ta em at. + - meh + Mm te Srl Match. 

Why, in view of the soundness and 

importance of these findings, have the 

Baldus studies been rejected by the lower   
courts? If the answer Eocunis important 

question were solely a matter of gonstite= 

tional law, we of course would have no 

role as amici before this Court. The 

opinions of the lower courts, however, 

reflect a profound alsunderstanding of 

Baldus' research or, at best, an unwar- 

ranted mistrust of the significance of his 

results. 

’ B. The Opinion of the District Court: 
  

The District Court's opinion, in 

particular, recites a Luddite's list of 

grievances against empirical methods and 

procedures, almost none of which are 

well-founded. It asserts that Baldus' 

data base was "substantially flawed" 

because it "could not capture every nuance 

of every case," McCleskey v. Zant, 580 F. 
  

  

 



Zena. nr] et el. 
  

  
Supp. 338, 356 (N.D. Ga. 1984). None of 

Baldus' many models, even those with over 

230 variables, are deemed sufficient in 

the District Court's Ye E; since they 

"have [not] accounted for ... unaccounted- 

for factors." Id. at 362. 

These objections are fundamentally 

misplaced. One essential quality of 

statistical analysis is its power to tell 

us many things about a phenomenon with 

great reliability, without the necessity 

of knowing everything about that phenome- 

non. As a scientific matter, the like- 

lihood that any omitted variable could 

significantly affect Baldus' robust racial 

findings ~-- especially when so many 

legitimate variables have been taken into 

account =-- 1s ruly negligible. By 

insisting on a standard of Tabsolure 

knowledge" about every case, however, the 

District Court implicitly rejects the 

value of all applied statistical analysis, 

  
  

 



  

  
  

10 

which has brought us much of what we know 

in medicine, genetics, agronomy and other 

areas of science. 

The District Court 21sec expresses 

general skepticism toward a range of 

well-established social scientific methods 

employed by Baldus, including multiple 

regression analysis, which it finds "ill 

suited to provide the Court with circum- 

stantial evidence of the presence of 

discrimination.” 1d. at 372 (emphasis 

omitted). Indeed the only statistical 

method the District Court does seem to 

approve is the simple <cross-tabular 

approach, 1d. at 354, even though the 

Court acknowledges that the inherent 

nature of the problem under study here 

makes 1t "impossible to get any statis- 

tically significant results in comparing 

exact cases using a cross tabulation 

method.” Id. at 354. This preference for 

  

 



  

wf] 

  

cross-tabular methods lacks any scientific 

foundation. Baldus' methods are clearly 

valid and appropriate to his data. 

Finally, in evaluating Baldus' 

results, the District Court seizes upon a 

somewhat confused welter of statistical 

issues, including Baldus' conventions for 

coding "unknown" data, id. at 357-33, the 

possible multicollinearity of Baldus' 

variables, id. at 363-64, and the reported 

rR? of his model, id. at 331, 361, as 

reasons for its ultimate conclusion that 

. Baldus' results cannot be relied upon. 

However, Baldus and his colleagues 

satisfactorily addressed each of these 

issues and Jenonstrated that the racial 

results were not adversely affected by 

such concerns. Baldus not only employed 

the correct method of treating "unknowns"; 

he conducted alternative analysis to 

demonstrate that racial influences 

persisted irrespective of the method of 
  

    

 



  

- 13 - 

treatment adopted. Multicollinearity 

undoubtedly affected some of the larger 3 

= models employed by Baldus; however, the : 

District Court falled to realize that the 

presence of of multicollinearity would not   
affect the estimate of the racial results 

reported. It would "only affect ithe 

standard error of that estimate. Finally, 

the Court's concern with the reported Rr? 

of Baldus' models is unfounded. Apart 

2 
from the questionable relevance of the R 

measure for logistic models of the type 

2 of .40 or higher is used by Baldus, an R 

quite acceptable. 

In sum, the District Court opinions 

is a compendium of basic statistical 

errors and misunderstandings. its. 

evaluation of the validity of the Baldus 

studies 1s off-target. 

    reg . a. my 
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- 13 = 

C. The Opinion of the court of 
Appeals 
  

The Court of Appeals purports to take 

a different approach to Baldus’ research: 

it announces that it will "assum{e] [the 

study's] validity and that it proves what 

it claims to prove," Mc(Cleskey v. Kemp, 

  

  

783 P.24 877, 886 (11th Cir. 1985) (en 

banc), and will base its judgment solely 

on the legal consequences which flow from 

that research. Yet even a quick reading 

of the Court's opinion persuades us that 

the skepticism which pervaded the District 

Court's analysis continues to dominate the 

treatment of Baldus' research by the Court 

of Appeals. After first knitting together 

citations from several scholarly articles 

that caution courts against an unreflec- 
  

tive use of social scientific evidence, 

id. at 887-90, the Court announces wthat 

generalized statistical studies are of 

little use in deciding whether a particu- 

    
  

 



  

  
  

  

- {4 =- 

lar defendant has been unconstitutionally 

sentenced to death ... [and] are at most 

probative of how much disparity is 

present." Id. at 894, That observation 

misses. the point: although statistics 

cannot determine with absolute certainty 

whether any one defendant may have been 

sentenced to death because of race, 

statistical evidence can determine with 

great reliability whether racial factors 

are playing a role in the sentencing 

system as a whole. Baldus' studies 

provide just such evidence. 

When the Court turns to Baldus' 

studies, it relies almost entirely upon 

one summary figure drawn from the entire 

body of Baldus' results -- a reported .06 

disparity by race of victim in overall 

death-sentencing rates. As we view Baldus' 

research, this is but one 0f a number of 

important, meaningful results indicating a 

consistent racial presence in Georgia 

  

 



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“ 15 - 

. sentence patterns. Seen as such, this 

figure is important, though obviously by   no means the sole basis for Baldus's 

conclusions. 

The Court of Appeals, HOWSVer 

misunderstands even the significance of 

this one figure, repeatedly describing it 

as a six percent disparity, see, 2.9., 
  

McCleskey v. Remp, supra, 753 F.2d at 
  

896, 3899, rather than a six percentage 
  

point disparity. The distinction is by no 

means technical. The overall death- 

sentencing rate in the State of: Georgia is 

quite small, only .05, or 5-in-100. Thus 

a six pecentage point increase, for 

example, raises the death-sentencing rate 

from .05 to .11, a percentage increase of 
  

120%. Baldus in fact reports a death-odds 

multipler effect of 4.3: that is, the 

odds of receiving a death sentence are 4.3 

times greater if one's victim 1s white.   
  

 



ST eY Sak a G A Ea a > Sovak a eek 3 nt 

  

  
  

    

--15 = 

Such an impact, larger than that of a 

number of Georgia's statutory aggravation 

circumstances, scarcely seems "marginal." 

Moreover, when the Court of Appeals 

examines Baldus' well-documented finding 

of a 20-point racial disparity in the 

"midrange" of cases, it indulges a quick 

succession of disparaging observations 

--none of which is defensible. The expert 

testimony at trial strongly substantiates 

the existence of a meaningful, statisti- 

cally significant "midrange" of Georgia 

cases. Warren McCleskey, in fact, falls 

squarely within that midrange. 

In sum, the Court of Appeals, like 

the District Court, fundamentally mis- 

trusts Baldus' findings and undervalues 

their significance as proof of racial 

disparities in Georgia's capital sentenc- 

ing system. From our perspective as 

social scientists, that nistrust is 

unwarranted. The Baldus studies are 

  

   



  

Poy a RR . x: asl ir VOTRE SC YORE T CAIs VHP Tn. 70, TD oe) LT ATI de Cabin ne FOP a 5 2 dh Fan? An Abn nite 

  

- 17 =- 

sound; they are consistent with prior 

research; and their basic conclusions are 

entitled to the confidence of the scienti- 

fic and the legal communities. 

II. 

THE COURT OF APPEALS' RE- 

LUCTANCE TO ACCEPT RE~- 

LIABLE SOCIAL SCIENTIFIC 

METHODS AND FINDINGS WAR- 

RANTS REVIEW BY THIS COURT 

It is possible that the extraodinary 

reluctance of the Court of Appeals to 

place reliance upon Baldus' research 
’ 

reflects no more than an unwillingness,   
despite the evidence, to invalidate 

post-Furman capital statutes. The 

opinion, however, does not expressly 

limit its holding to death penalty cases. 

Instead, it articulates a standard of 

proof that seems applicable to other Equal   
   



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wi 1S - 

Protection Clause challenges, see, e.g., 
  

id. at 8387-90, and perhaps to Title VII 

disparate treatment cases as well. 

If so, the. opinion raises important 

issues about the usefulness of social 

scientific evidence that transcend the 

McCleskey case itself. 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 

such evidence, and has developed legal 

principles, including standards of proof 

for parties presenting statistical 

evidence, that reflect a clear understand- 

ing of the powerful utility of reliable 

social scientific evidence. See, e.qg., 
  

Hazelwood School District v. United 
  

States, 433 U.S. 299 (1977); Teamsters v. 
    

Tr ppp— pr — -—  —— 
  

  

 



  

    

  

  

EN et iat ar Btn treo A 

“19 - 

United States, 431 U.S. 324 (1977); see 
  

also Segar Vv. Smith, 738 P.2d4 1249 (D.C. 
  

  
Cir. 1984); Vuyanich v. Republic Nat'l 

Bank, 505 FP. Supp. 244 (N.D. Tex. 1980), 

vacated on other grounds, 723 F.2d 1185 
  

(5th Cir. 1984). 

The Court of Appeals has disregarded 

these basic standards of proof that have 

been fashioned by the Court. Its opinion 

in McClesky insists upon a level of 
  

methodological purity in data quality, 

~ model design, and analysis that can be 

achieved only in theory. If left unre- 

viewed, the opinion of the Court of 

Appeals will erect formidable barriers 

against the use of reliable statistical 

evidence that can, and amici believe, 

properly should be used Dy the courts to 

resolve complex legal issues that regular- 

ly come before them for decision. 

a   
  

  

 



  

  

  
  

“20 = 

CONCLUSION 
  

For the reasons set forth above, 

amici curiae respectfully -urge the Court 
  

  

to grant certiorari in the McCleskev v, 

Kemp case and engage in a full considera- 

tion. of the important questions it 

presents for review. 

Dated: New York, New York 
June 27, 1985 

Respectfully submitted, 

MICHAEL O. FINKELSTEIN 
*MARTIN F. RICHMAN 

Barrett Smith Schapiro 
Simon & Armstrong 

26 Broadway 
New York, New York 10004 
(212) 422-8180 

ATTORNEYS FOR AMICI CURIAE 
  

BY: : 
MARTIN F. RICHMAN 
  

* Attorney of Record 

  ve were: —-———" > AV ETN. Ap 8 © FA r— 1 Ay. nn + mm oe] 

 



  

  
  

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 

G9 Hudson Street 
New York, New York 10013 

Mary Beth Westmoreland, Esq. 
132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

Hon. John Conyers, Jr. 
2313 Rayburn House Office Bldg. 
washington, D.C. 20515. 

Ralph G. Steinhardt, Esq. 
Patton, Boggs & Blow 
2550 M Street, N.W. 
Washington, D.C. 20037 

    
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