General - Working Files, Vivian Berger's Vol. 3 of 4

    Post-McCleskey Legislation 
  

Since the Supreme Court’s decision in McCleskev v. Kemp in 
  

April, abolitionists and the civil rights community have been 

working to formulate a response to the Court’s ruling, which 

invited Mr. McCleskey to take his claims to the legislatures. 

With the urging of Senator Edward Kennedy (D-MA) and Congressman 

John Conyers (D-MI), a bill has now been drafted (attached) to 

provide a Congressional response to the McCleskey decision. 
  

The bill does several things: 
-     

  a er 
  

  

   being administered in a discriminatory pattern; 
Makes a Congressional finding that the death penalty is 

* Establishes that Congress has the authority under Section 5 
of the Fourteenth Amendment, to take wide measures against 
practices which entail a risk of discrimination; 

* It establishes the level of proof needed to make a claim of 
discrimination and outlines the procedure which must be 
followed in the face of such a claim; 

* It requires the State to maintain data on the charging, 
disposition and sentencing patterns for all cases of death- 
eligible crimes; and 

* It extends the right to make this claim to all death row 

before. fey. whats Wh, VV 2? 
  inmates, regardless of whether they have raised the EE 

  

The bill is currently being studied by the staffs of various 
  

senators and congresspeople. Targets for support and co- 

sponsorship are not only abolitionist members, but also those 

Congressmen who support the death penalty but have 

convictions against discriminatory practices. 

strong 

 



      

A BILL 

TO FORBID RACIALLY DISPROPORTIONATE 
CAPITAL SENTENCING 

PREAMBLE 

WHEREAS Section 5 of the Fourteenth Amendment calls upon 

Congress to deliver on the Constitution's promise of equality 

under law; and 

WHEREAS equality under law is tested most profoundly by 

whether a legal system is racially just in its determination of 
  

whether and when to administer the ultimate penalty of death; and 

WHEREAS the United States Supreme Court has acknowledged, 

and the United States Congress hereby finds, that fhe death 
    

  

    

penalty is being administered in a pattern that evidences a 

significant risk that the race of the defendant, or the race of 

the victim against whom the crime was committed, influences the 

likelihood that the defendant will be sentenced to death; (and 

the Constitution's guarantee of equal justice, both 
  

  

for criminal defendants and for those they victimize, is 

jeopardized when the death penalty is imposed in a pattern in 

which the likelihood of a death sentence is affected by the race 

of the perpetrator and of the victim; and : 

WHEREAS the United States Supreme Court has concluded that 

the (federal judiciary is institutionally unablénto eliminate this 

jeopardy to equal justice in the absence of proof that a 

  
    

  

legislature, prosecutor, judge or jury acted with racially 

invidious and discriminatory motives in the case of a particular 

defendant; and 

WHEREAS the harms of racism may be caused not only by 

 



government actions that are motivated by racial bias, but also by 

  

government rules, policies or practices that perennially 

reinforce the subordinate status of minority races in our 

society; and 
  

     

   
WHEREAS the institutional need of courts to ide 

invidiously motivated perpetrators is not shared by Congress, 
  

  

  

which is empowered by Section 5 of the Fourteenth Amendment to 

take system-wide, preventive measures not only to eliminate 
  

adjudicated instances of official racism but also to eradicate 
  

‘wide-scale patterns and practices that entail an intolerable 
LL —————   

  

danger of racially disproportionate outcomes; and 
smm——   

WHEREAS the racial problems pervading the implementation of 

the death penalty in many parts of this nation present the 

Government of the United States not only with the need to 

counteract the lingering effects of racial oppression and 

prejudice, but also with the opportunity affirmatively to 
  

implement a vision of the just society that we would become, 
  

  

/ 

Be it ENACTED by the Senate and House of Representatives of the 

United States of America in Congress assembled: 

Section 1. It is unlawful to_impose or execute sentences 
of death under color of state or federal 1aw in a racially 

| disproportionate pattern. — 

Section 2. No person shall be put to death in the Bus d pL 
execution of a sentence imposed pursuant to any law which is No Lote 
gdministered in a racially disproportionate pattern. 

    

  

  

    

    

  

{ ad Turk : 

Section 3. For purposes of sections 1 and 2 of this act, w/w 
racial. i tionate pattern" is one in which sentences , wi? 

  

of death are imposed more frequently 
Or €ceikar) 

AY ne LFF 

why 2] 

 



(a) upon convicted persons of one race than upon 
Convicted persons of another race, or : 
  

  

(b) as punishment for crimes against persons of one 
race than as punishment for crimes against persons 

another race, 

    

and the greater frequency is not explained by pertinent non- 
racial circumstances. 

  
    

  

Section 4. To establish that a racially disproportionate 
pattern exists for purposes of section 1 or 2 of this act, 

  

(a) ordinary methods of statistical proof shall 
suffice, and 

(b) it shall not be necessary to show discriminatory 
motive, intent, or purpose on the part of any 
GP VRE ny oy Li Rp 1 PRS 

Section 5. (a) To establish acPrima facie showing OF a 
racially disproportionate pattern for purposes of section 1 or 2 
of this act, it shall suffice that death sentences are being 
imposed or executed: 

  

  

  

  

  

(1) upon persons of one race with a frequency that is 
disproportioned to their representation among the 
numbers of persons arrested for, charged with, or 
convicted of, death-eligible crimes, or 

(ii) as punishment for crimes against persons of one 
race witha frequency that is disproportioned to 
thelr representation among the numbers of persons 
against whom death-eligible crimes have been the 
subject of arrests, charges, or convictions. 

Stash 

: (b) To gebuP a prima facie showing of a racially 
disproportionate pattern, a state or federal entity must 

> w+? {establish by gqlear—and convincing evidencé~that identifiable and 
~ = pertinent non-racial factors—persuasively explain the observable 

racial disparities comprising the disproportion. 

  

  

     

  
  

Section 6. (a) Any state or federal entity that 

    

  

  

(b) The central agency so designated shall 
devise and distribute to every local official or agency 
responsible for the investigation or prosecution of death- 
eligible crimes a standard form to collect pertinent data. 

  

(c) Each local official responsible for the 
investigation or prosecution of death-eligible crimes shall 

  

  r a — 

 



  

complete a standard form on every case of death-eligible crime 
and shall transmit it to the central agency no later than 3 
months after the disposition of each such case -- whether that 
disposition is by dismissal of charges, reduction of charges, 
acceptance of a plea of guilty to the death-eligible crime or to 
another crime, acquittal, conviction, or any decision not to 
proceed with prosecution. : 

    

(d) In addition to the standard form, the 
local official or agency shall transmit to the central agency one 
copy of all police and investigative reports made in connection — 
with each case of death-eligible crime.   

(e) The central agency shall affirmatively 
monitor compliance with this statute by local officials and 
agencies. It shall maintain all standard forms, compile and 
index all information contained in the forms, and make both the 
forms and the compiled information publicly available. The 
compiled information shall be made ble in _machine . 
readable form. The central agency shall also maintain a 
cent¥alized, alphabetically indexed file of all police and 
ifivestigative reports transmitted to it by local officials or 
agencies in every case of death-eligible crime. It ghall allow 
access to its file of police and investigative reports to.counsel 
of record for any person charged with any death-eligible crime or 
sentence ade, or intends to make, a claim 
under section 1 or 2 of this act; and it may also allow access to 
this file to other persons. 

  

  
  

  

  

  

  

(£) The "pértinent data” to be collected in 
the standard form shall be designated by the central agency but 
shall include, at a minimum, the following information: 

(1) pertinent demographic information on all persons 
charged with the crime and all victims (including 
race, sex, age and national origin); 
  

  

(ii) information on the principal features of the crime; 
  

  

(iii)information on the aggravating and mitigating 
factors of the crime, and om the background and 
character of every person charged with-the crime; 

  

  

  

(iv) a narrative summary of the crime. 
  

  ——— 

Section 7. (a) In any action brought in a court of the 
United States within the jurisdiction conferred by sections 2241, 
2254 or 2255 of Title 28, United States Code, in which any person 
raises a claim under section 1 or 2 of this act: 

  

(1) the court shall appoint counsel for any such 
person who is financially unable to retain counsel, and 

  

  

(ii) the court shall furnish investigative, expert or 
other services necessary for the adequate development of the 

  

  
  

    

LJ 

 



  

     

claim to any such person who is financially unable to cbtain such 
SeriTes. : 

MA mera 1 ar] Fp lly shi 
(b) Notwithstanding section S54 CI e 28, (nN 

United States Code, no-determination on the merits of a factual Lr = 

issue made by a State court pertinent to any -claim—under section 
or 2 of this act shall be presumed to be correct-unless: hr 

L? 

  
  

  

  
  

  

(i) the State is in compliance with section 6 of this 
act; and 

  

(ii) the deteraination was made in a proceeding in a 
State court in which the person asserting the 
claim was afforded rights to the appointment of 

counsel and_to the furnishing of investigative, 
expert and other services necessary for the 
adequate development of the claim which were 
"Substantially equivalent to those provided by 
subsection (a) of this section; and 

(iii)the determination is one which is otherwise 
entitled to be presumed to be correct under the 
criteria specified in section 2254. 

  

  

  

  

  

   

    

    

  

  
    

"Bact ion 8. No person shall be barred from raising any claim 
under section 1 or 2 of this act on the ground of having failed 
to raise or to prosecute the same or a similar claim prior to 
enactment of the act, nor by reason of any adjudication rendered 

ts enactment er Tay we Xe 

Section 9. For purposes of this act: FA rh) 
1 =F for 

(a) A crime is. Mg gible" if death is a 
punishment that is authorized by Iaw to be imposed under any Si 
circumstances upon a conviction of that crime. ad 

~~ (b) A "case of death-eligible crimé™\is one in 
which the complaint, indictment;,—information, or other 
initial or subsequent charging paper charges any person with a 
death-eligible crime. : 

(c) A faite) OX ®iske entity™is any State, the 
District of Columbia, the Un tates, any Territory thereof, 
and any subdivision or authority of any of these entities that is 
SEpowsted to provide by law that death be imposed as punishment 
for crime. 

   

    
  

  

  

  

billcap.dp 
$6 drt 
6-12-87 

 



  

Columbia University in the City of New York New York, N.Y. 10027 

SCHOOL OF LAW 435 West 116th Street 

Dctober 5, 1987 

Ms. Tanya Coke 

NAACP Legal Defense Fund 
16th Floor 

99 Hudson Street 
New York, NY 10013 

Dear Tanya; 

I received a cc of the September 15th "Dear Friend” letter re our 
efforts to pass a "McCleskey bill” in Congress. The letter states that you 
are enclosing a copy of the bill and analysis. 

My letter didn't contain that material. If you have extras and they're 
not voluminous, might I have copies of them, please? 

Thanks a lot. (I'm crossing my fingers that today, "first Monday,” is 
not too bad. I'm not even sure what we are particularly watching, if 
anything. 

Regards, 

Ai 
Viv 

 



   
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

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

oy LS 

September 15, 1987 sg 

   egal 

se | 

cy 
\ 

A 
Dear Friend: 

We write to invite you to an important meeting of grassroots 
organizers to discuss upcoming strategies in our work to abolish 
the death penalty. 

In April, the U.S. Supreme Court ruled that racial discrimination 
in the imposition of death sentences does not violate the 
Constitution, and that racism in our criminal justice system is 
"tolerable." This fall, legislation will be introduced in the 
U.S. Congress in an effort to overturn that decision in McCleskey 
Vv. Kemp. Constitutional scholars have worked with the Legal   

Defense Fund and ACLU to draft a bill, that forbids racial 
discrimination in capital sentencing. We have enclosed a copy of 
the bill and a short analysis. 

Support of civil rights activists for the proposed legislation is 
essential. A working meeting to discuss lobbying strategies will 
take place at the historic Dexter Avenue Baptist Church in 
Montgomery, Alabama on the 5th and 6th of October, 1987. This 
will be a good opportunity for us to expand our network and to 
develop ideas for continuing our work for racial justice. 

  

  
  

Your attendance is important. We hope that you can bring others 
with you who would be interested in this issue. Enclosed is a 
copy of the working agenda for your consideration. 

Tanya E// Coke 
NAACP al Defense Fund 

Magdaleno Rose-Avila 
Amnesty International 

il Jd ret a 
American Civil Liberties Union National Coalition to Abolish 

the Death Penalty 

Earl Ridrpoister Mme D 
NAACP, Atlanta Chapter Rev. Timothy McDonald 

So. Christian Leadership Conf. 

Sincerely, 

    

      

Contributions are deductible for U.S. income tax purposes. 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although 
LDF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 30 years a separate Board, program, staff, office and budget. 

 



  

Monday, 

RACE AND DEATH PENALTY TRAINING SEMINAR 
October 5 - 6, 1987 

Dexter Ave. King Memorial Baptist Church 
4554 Dexter Avenue 

Montgomery, AL 

PROGRAM 

October 5 (4:00 p.m. - 9:00 p.m.)   

I. 

IX. 

III. 

IV. 

Tuesday, 

Welcome and Introduction (Magdaleno Rose-Avila, AI-USA) 

Race Discrimination in Capital Punishment: An Overview 
(Tanya Coke, LDF) 

- Evidences of discrimination in the southern states 
= McCleskey v. Kemp: legal and political implications 

for abolition and for fighting racism in criminal 
justice generally 

  

Remedying Discrimination through Federal Legislation 
(Diann Rust-Tierney, ACLU) 

- How the proposed bill works: congressional 
precedents under the Equal Protection Clause 

- Moving the bill in the U.S. House and Senate 
- Lobbying Timetables 

The Challenge: Expanding Abolition to the Community of 
Color (Rev. Timothy McDonald, SCLC) 

  

I. 

II. 

October 6 (9:00 a.m. - 5:00 p.m.) 

Opportunities and Obstacles to Organizing around the 
Death Penalty: Selling Abolition as a civil Rights 
Issue 

Building a Lobbying Strategy 

= Approaching Churches (20 mins) 
= Approaching Members and Caucuses (20 mins) 
- Utilizing the Media (20 mins) 
- Organizing College Students (20 mins) 
- Direct Action/Civil Disobedience (20 mins) 

(Lunch and Informal Discussions) 

*% MORE *%* 

 



  

111. Using the Individual Case Study in Lobbying 

IV. Networking, Recruiting and National Resources 

Vv. Planning a National Action: Lobbying Days, Marches 
and Upcoming Conventions 

Transportation and Accomodations: 

Vans will be provided for group travel from certain areas. If 
you would like to attend but need help to travel to Montgomery, 
please call Len Rose-Avila at (212) 807-8400 or Keith Jennings at 
(404) 876-5661. 

Low-cost and/or free housing will also be provided for all those 
who request it. Please make your housing needs known to Len 
Rose-Avila or Keith Jennings at the numbers above. 

 



  

The Sponsoring Committee 

Jeffrey O. Bramlett 
Margie Pitts Hames 

Maynard Holbrook Jackson 
Eric G. Kocher 

Mary Ann Oakley and Alice D. Bonner 

Lewis S. Sinclair 
Edward D. Tolley 

and 

The American Civil Liberties Union of Georgia 

Invite you to 

McCleskey vs. Kemp: 
The Supreme Court Reviews Race and the Death Penalty 

Remarks by 

Jack Boger 
Bobby Lee Cook 
Edward Garland 

Honorable Mayor Andrew Young 
and 

Concerned Black Clergy 

Cocktail Reception Immediately Following 

Wednesday, October 15 

Georgia-Pacific Auditorium 

133 Peachtree Street NE 

5:30-7:30 p.m. 

 



  

eon oe : 
by Ira: Reiner, 

‘of Rp 

 



 



TABLE OF CONTENTS 

Page 
INTEREST OF AMICI CURIAE 1 

SUMMARY OF ARGUMENT 10 

ARGUMENT 13 

I 

THE NATURE OF THE DECISION-MAKING 

PROCESS IN A CONSTITUTIONAL CAPITAL 

SENTENCING SYSTEM JUSTIFIES REQUIRING 
MORE THAN THE LEVEL OF DISPARATE 

IMPACT PROFFERED BY PETITIONER TO 

ESTABLISH A PRIMA FACIE CASE OF 

PURPOSEFUL INVIDIOUS DISCRIMINATION 

IN THE IMPOSITION OF THE DEAT! 

PENALTY 12 

A. The Strict Procedural 
Safeguards Built Into 
the Capital Sentencing 
Process Justify Applying 
the General Rule That 
Disparate Impact Alone 
Is Insufficient to 
Support a Claim of 
Discrimination l8 

B. The Number, Complexity 
and Subjectivity of 
Factors Considered in 
Capital Sentencing Make 
Evidence of Disparate 
Impact Alone Insufficient 23 

C. Petitioner's Showing 28   
i. 

 



  

TABLE OF CONTENTS 

(Continued) 

Page 

11 

EACH CAPITAL CASE IS UNIQUE AND 

THE COMPARISON OF ONE CASE WITH 

ANOTHER, THROUGH THE USE OF 

STATISTICAL ANALYSIS, CANNOT 
REASONABLY BE EXPECTED TO YIELD 

VALID RESULTS 31 

A. Use of Generalized 
Statistical Studies of 

Capital Sentencing 
Decisions Has Been 

Uniformly Rejected by 
Lower Courts 34 

B. Capital Sentencing 
Decisions Are Different 

From Decisions In Other 
Contexts 35 

C. Critical Factors in 
Capital Sentencing 
Decisions Cannot Be 
Accurately and Reliably 
Measured 30 

D. A Generalized Statistical 
Analysis of Capital 
Sentencing Decisions in 
Georgia Cannot Explain 
the Reasons Why Petitioner 
Was Sentenced to Death 43 

E. Conclusion 44 

ii. 

   



TABLE OF CONTENTS 

(Continued) 
Page 

111 

PETITIONER'S STATISTICAL ARGUMENT 

UNDERMINES THE RIGHT TO TRIAL BY 

JURY AND SUBSTITUTES IN. ITS PLACE 

TRIAL BY STATISTICAL ANALYSIS 46 

50 CONCLUSION 

Jil. 

 



  

TABLE OF AUTHORITIES 

Abney v. United States, 

431 U.S, 651 (1917) 

Adams v. Wainwright, 
709 F.2d 1443 

{11th Cir. 

Alexander v. Louisiana, 

405 U.5. 625 (1972) 

Arlington Heights v. 
Metropolitan Housing Corp., 
429 0.8. 252 (1971) 

Page 

47 

34 

38,39 

185,16,17,28,33 

Batson v. Kentucky, 

90 L.Ed.2d 69 16,17, 20 

Partida, 
482 (1977) 

Castaneda v. 

430 U.S. 24,33,38 

Dothard v. 

433 U.S. 

Rawlinson, 

321 (19717) 

Duncan v. Louisiana, 
391 U.S. 145 (1968) 

Eddings v. Oklahoma, 
455 U.S. 104 (1982) 

Gomillion v. Lightfoot, 
364 U.5. 339 (1960) 

40 

46,47 

25-26 

15,31,33 

Gregg v. Georgia, 
153 (1976) 428 U.S. 19,49-50   
   



TABLE OF AUTHORITIES 
(Continued) 

Cases 
Page 

Hernandez v. Texas, 
347 U.S. 475 (1954) 27 

Keely v. Westinghouse 
Electric Corp., 
404 F.Supp. 573 
(E.D.MO. 19175) 50-51 

Lockett v. Ohio, 
438 U.8. 586 (1978) 25 

Lockhart v. McCree, 

u.s. 
90 L.Ed.2d 137 (1986) 39-40 

McCleskey v. Kemp, 
753. r.,24 817 
{11th Cir. 1985) 21; 27 

McCleskey v. Zant, 
580 F.Supp. 338 
(N.D. Ga. 1984) 27 

McCorquodale v. State, 
211 8.8.24 5717 (Ga. 1974) 37 

People v. Frierson, 
= 25 Cal.3d 142 (1979) 4 

People v. Harris, ; 

28 Cal.34 935 (1981) 41 

People v. Jackson, 

28 Cal.3d 264 (1980) 4,42 

 



    

TABLE OF AUTHORITIES 

(Continued) 

Cases 
Page 

Pulley v. Harris, 
465 U.S. 37 (1984) 4,22,4] 

Shotwell Mfg. Co. v. 
United States, : 
371. u.8., 341 (1963) 47 

.Smith v. Balkcom, 
660 F.2d 573, as mod. 

671 F.2d 858 (5th Cir. 1982) 34,35 

Spaziano v. Florida, 
468 U.S. 447 (1984) 19 

Spinkellink v. Wainwright, 
578. F.2d 582 
(5th Cir. 1978) 34 

Stephens v. Kemp, 

464 1.8. 1027 (1983) 34-35 

Taylor v. Louisiana, 
419 y.8. 522 (191715) 47 

Teamsters v. United States, 
431 U.S. 324 (19177) 33-34,44-45 

Turner v., Murray, 

U.S. ’ 

90 L.Ed.2d 27 (1986) 20 

Washington v. Davis, 
426 0.8, 229 (1976) 16,17,24~-25,33 

   



TABLE OF AUTHORITIES 
(Continued) 

Cases 
Page 

Wayte v. United States, 

Bn. TY (1985) 16 

Yick Wo v. Hopkins, 
118 U.S. 356 (1886) 15,31,32 

Constitution 

United States Constitution: 

Eighth Amendment 5,13,17 

Fourteenth Amendment 5,13,15,17 

Sixth Amendment 46 

Statutes 

Cal, pen, Code: 

§ 190 3 

Cal, Stats.: 

1977, ch. 316 3 

Rules 

U.S. Supreme Court Rule 36.4 1 

vii, 

 



    

TABLE OF AUTHORITIES 

(Continued) 

Miscellaneous 

Kleck, Life Support for Ailing 
Hypotheses: Modes of 
Summarizing the Evidence for 
Racial Discrimination in 

‘ Sentencing, 9 Law and Human 
Behavior, at 271 (1985) 

  

  

  

  

  

Baldus and Cole, Statistical 

Proof of Discrimination, 

at 5 (1980) 

  

  

Walker & Walker, The English 
Legal System, at 229 (1980) 

  

  

< pe
 

fo
ie
 

pe
 

. 

Page 

12 

44 

46 

   



Amici curiae, the State of California 

by John K. Van de Kamp, Attorney General, 

and the County of Los Angeles (a political 

subdivision of the State of California), 

by Ira Reiner, District Attorney, submit 

this brief in support of respondent pur- 

suant to Rule 36.4 of the Rules of the 

Supreme Court of the United States. 

INTEREST OF AMICI CURIAE 

John K. Van De Kamp, Attorney General 

for the State of California and Ira 

Reiner, District Attorney for the County 

of Los Angeles, State of California, 

jointly represent the People of the State 

of California in the case of In re Earl 
  

Lloyd Jackson, Crim. 22165, pending before 
  

the California Supreme Court on petition 

for writ of habeas corpus. Said case is 

pending before a referee appointed by the 

California Supreme Court to take evidence 

on three issues, one of which is highly 

1. 

 



      

pertinent to the instant case: Whether 

"death sentences in California have been 

discriminatorily imposed on the basis of 

(1) the race of the victim; (2) the 1208 

of the defendant; and/or (3) the gender of 

the de fendant."1/ Amici curiae have been 

litigating just the discovery aspect of 

this case for over two years. This order 

for a reference hearing was granted on 

the basis of a statistical analysis of 

limited data on death and 1life-without- 

possibility-of-parole cases. It is the 

theory of the defense in Jackson that a 

statistical analysis of death and 1life- 

without-possibility-of parole cases will 

show that persons who kill white victims, 

  

1. All of the factual representations 
made in this brief are based upon matters 
set forth in the record as well as the 
personal experiences of the government 
attorneys who have litigated, before the 
California Supreme Court and its appointed 
referee, the petition for writ of habeas 
corpus in the Jackson case. 

2. 

 



and male, black defendants are more likely 

to be charged with and to receive the 

death penalty because of these unconstitu- 

tional racial/gender factors than are 

persons in other racial/gender categories. 

Defendant Jackson, who is black, was 

charged with murdering two elderly white 

women in two separate burglaries of their 

residences in August and September 1977.2 

These charges made him eligible for the 

death penalty pursuant to California Penal 

3/ Code section 190 et seq.=~" After a jury 
  

2. The race of defendant Jackson as well 

as the race of his two victims are not 

alleged or referred to in the Information. 

3. The law under which Jackson was con- 
victed and sentenced (Stats. 1977, Ch. 
316), enacted August 11, 1977, requires 
that one or more "special circumstances” 
be alleged and found true by the trier of 
fact before capital punishment may be 
imposed. This law was repealed, and 

essentially reenacted as modified, by the 
"Briggs Initiative", passed by the voters 
and effective November 7, 1978, princi- 
pally to expand the number of special cir- 
cumstances making a person eligible for 
capital punishment. 

3. 

 



    
  

verdict finding him guilty as charged and 

imposing the death penalty, a judgment 

was rendered in March 1979, sentencing him 

to death. On his automatic appeal to ths 

California Supreme Court, the judgment was 

affirmed and a cohutrrent petition for 

writ of habeas corpus was denied. Pecpls 

v. Jackson, 28 Cal.3d 264 (1980). The law 

under which defendant Jackson was sen- 

tenced has been held constitutional on its 

face by this Court and the California 

Supreme Court. Pulley v. Harris, 465 U.S. 

37 (1984); people v. Frierson, 25 Cal.3d 
  

142, 172-105::{1970). 

Defendant Jackson filed a subsequent 

petition for writ of habeas corpus, which 

.is the basis for the reference hearing 

ordered by the California Supreme Court. 

That court first ordered the reference 

hearing to address two unrelated issues. 

 



Defendant Jackson then moved to 

expand the reference hearing on the theory 

that a statistical analysis of capital 

case data showed evidence of race and 

gender discrimination in violation of the 

Eighth and Fourteenth Amendments to the 

Federal Constitution. 

In support of his application, he 

offered inter alia the declaration of 

Dr. James Cole, Ph.D., a statistician, who 

analyzed race and gender homicide data 

published annually by the Bureau of 

Criminal Statistics, a division of the 

State Attorney General's Office, and data 

supplied by the State Public Defender's 

Office. Using a total of three variables 

(victim race, defendant race, defendant 

sex) for all state-wide homicides, all 

state-wide robbery murders, and all 

robbery-murders in Los Angeles County, in 

various combinations of what is princi- 

5. 

 



      

  

pally a cross tabulation analysis, 

Dr. Cole concluded, without reference to 

‘other circumstances of any cases, that 

killers of white victims are five times 

more likely to receive the death penalty 

than killers of non-white victims. 

Similar proportions were found for black 

de fendants when compared to other groups. 

On this basis, the reference hearing 

was ordered expanded to address the issue 

of whether death sentences in California 

have been discriminatorily imposed on the 

basis of race of victim, race of defen- 

dant, or gender of defendant. 

Subsequently, defendant Jackson moved 

for discovery of a virtual mountain of 

statewide homicide data. Jackson 

requested and was granted an order com- 

pelling the District Attorney of Los 

Angeles County to provide this data, even 

though most of the data is a matter of 

6. 

 



  

public record, located outside the juris- 

diction of Los Angeles county. Y 

To comply with this order, amici sub- 

poenaed homicide data from all of the 

Superior Court Clerks in the 58 counties 

throughout the State as well as other 

entities such as the Administrative Office 

of the Court. Because of the complex 

nature of the task of obtaining even 

limited data from the Clerks, and because 

not one single Clerk's Office maintains 

such data on computers, the process of 

obtaining the data was time-consuming and 

expensive. Clerks' records in literally 

thousands of cases had to be individually 

identified, categorized and reviewed to 

  

4. For a more detailed exposition of the 
order and what followed, the Court is 
respectfully referred to Argument I of the 
Brief of Amici Curiae, State of California 
and County of Los Angeles, filed in the 
case of Hitchcock v. Wainwright, 
No. 85-6756, now pending before this Court 
on Writ of Certiorari. 

  
  

of 

 



      

obtain the required data. When, after six 

months, this effort by several lawyers and 

numerous Court Clerks and their staffs was 

completed, the product of this effort was 

found to be highly questionable in terms 

of its quality. For example, some cate- 

gories of data by the Los Angeles County 

Clerk's Office are subject to a 50% plus 

error rate and there is reason to believe 

that data submitted by other Clerks from 

throughout the State may also be subject 

to error. : 

The discovery process itself heigh- 

tens the interest of amici in the instant 

case. Data gathering must take place 

before a statistical challenge to the 

death penalty can be mounted. The fact 

that the data gathering process may differ 

from one Jurisdiction to another and the 

fact that it may occur in the absence of a 

court order, as in the instant case, are 

8. 

 



not significant. Regardless of who 

gathers the data, it will be a time- 

consuming, expensive process. This, in 

turn, causes inordinate delay in the 

judicial process. The quality of the 

product of discovery (the data) may be 

highly questionable. It may, as in 

Jackson, be subject to significant error. 

More importantly, as we set forth in 

Argument II, infra, a capital case cannot 

be reduced to statistical data which 

accurately reflects how and why the jury 

reached its decision. 

Since the issues presented in the 

instant case are so closely related to 

those of the Jackson case, amici curiae 

have concluded that the outcome of the 

instant case will have a substantial 

impact upon the administration of criminal 

justice, and the death penalty law in 

particular, throughout California. 

9. 

 



      

  

Amici's experience in the Jackson case has 

made us familiar with the nature of the 

discrimination issues and the arguments 

offered by petitioner in this case. 

SUMMARY OF ARGUMENT 

When a state imposes its death 

penalty under a constitutional system 

which by its very design minimizes any 

risk of arbitrariness, generalized claims 

of arbitrariness in the imposition of that 

state's death penalty should be fore- 

closed. Only a particularized and 

factually supported claim of purposeful 

invidious discrimination in the imposition 

of petitioner's own death sentence should 

have entitled petitioner to a hearing. 

The nature of the decision-making 

process in a constitutionally valid 

capital-sentencing system justifies 

requiring more than the evidence of dis- 

parate impact proffered by petitioner to 

10. 

 



  

establish a prima facie case of purposeful 

invidious race discrimination. This 

decision-making process is distinctly 

di fferent from other decision-making 

contexts in that it is more complex and it 

contains many more safeguards against 

purpose ful discrimination. Thus, only 

evidence of a stark pattern could ever 

suffice to demonstrate a prima facie case 

of discrimination in the imposition of the 

death penalty. 

~ Moreover, such a stark pattern of 

race discrimination can never be demon- 

strated through the use of a statistical 

analysis, no matter how sophisticated the 

methodology. Each case is unique, 

involving its own quantum of variables, 

which are not comparable to any other set 

of variables. The factors found in the 

evidence which move a jury to impose 

capital punishment, even when identified, 

11.  



    

  

are impossible to measure accurately. 

Thus, no statistical analysis of capital 

eligible cases will yield a valid result. 

Finally, petitioner's argument, when 

reduced to its essence, is an assault upon 

the judicial system itself, for it postu- 

lates that no jury's decision can ever be 

trusted unless it passes the litmus test 

of a statistical analysis. This proposi- 

tion is unacceptable as a matter of 

5/ 
constitutional law.= 

  

5. Petitioner cites many articles from 
law reviews and other treatises to demon- 
strate that study after study has found 
evidence of race discrimination in the 
imposition of the death penalty speci fi- 
cally, and in sentencing generally, in 
Georgia and other states in the South. 
Neither time nor space permits us the 
luxury of answering the contentions made 
in these many articles. However, a 
recent, objective review of some of these 
studies and their conclusion may be found 
in Kleck, Life Support for Ailing 
Hypotheses: Modes of Summarizing the 
Evidence for Racial Discrimination in 
Sentencing, 9 Law and Human Behavior, at 
271 (1985). 

  

  

  

  

12. 

 



  

ARGUMENT 

I 

THE NATURE OF THE DECISION- 
MAKING PROCESS IN A CONSTI- 
TUTIONAL CAPITAL SENTENCING 
SYSTEM JUSTIFIES REQUIRING 
MORE THAN THE LEVEL OF 
DISPARATE IMPACT PROFFERED 
BY PETITIONER TO ESTABLISH 
A PRIMA FACIE CASE OF PUR- 
POSEFUL INVIDIOUS DISCRIMI- 

NATION IN THE IMPOSITION OF 
THE DEATH PENALTY 

Petitioner contends that he presented 

a prima facie case of discrimination in 

the imposition of the death penalty in 

Georgia, that his proof was unrebutted and 

that it was sufficient to support a 

finding that Georgia's entire capital 

sentencing system has been unconstitu- 

tionally applied in violation of the 

Eighth and Fourteenth Amendments on the 

basis of the race of the victim. Amici 

curiae urge that petitioner's proof 

consisted, at most, of little more than a 

relatively small pattern of disparate 

13.  



      

  

impact which was legally insufficient to 

constitute a prima facie case of discrimi- 

nation, much less to support a finding 

that Georgia's entire facially constitu- 

tional capital sentencing system has been 

applied unconstitutionally. 

The essence of petitioner's submis- 

sion is that the minimal standards 

required to prove racial discrimination in 

the context of job promotion or selection 

of a jury should apply in the context of 

capital sentencing. Brief for Petitioner 

at 31-32. Amici curiae urge that such 

minimal standards should not apply to 

proof of racial discrimination in the 

capital sentencing context. As we shall 

demonstrate, given the nature of the 

decision-making process in a constitu- 

tional capital sentencing system, the 

general rule should be followed that, 

when proof of disparate impact alone is 

14. 

 



offered, only "a pattern as stark as that 

6/ 1/ 
in Gomillion — or Yick Wo"—" will be 
  

determinative on the issue of purposeful 

invidious discrimination. Arlington 
  

Heights v. Metropolitan Housing Corp., 429 
  

u.8. 252, 266 and fn. 13 (1977). 

Whenever governmental action is 

claimed to be racially discriminatory in 

violation of the Equal Protection Clause 

of the Fourteenth Amendment, the 

"invidious quality" of that action "must 

ultimately be traced to a racially 

  

6. In Gomillion v. Lightfoot, 364 U.S. 
339 (1960), a state redefined a city's 
boundaries in such a manner that the 
formerly square-shaped city became a 
28-sided city with the result that all but 
four or five of 400 black voters were 

disenfranchised while no white voters 
were, 

    

7. In Yick Wo v. Hopkins, 118 U.S. 356 
(1886), a city administered an ordinance 
in such a manner that permission to 
operate a laundry was denied to all 200 
Chinese who sought permission during the 
same time period that such permission was 
granted to 80 non-Chinese. 

15.  



  

  

  

discriminatory purpose." Washington v. 

Davis, 426 u.s. 229, 240 (1976). The 

burden of proof is on the lai nant and the 

showing required of the claimant to 

establish a prima facie case of purposeful 

invidious discrimination depends on the 

context in which the claim arose. See 

Batson v. Kentucky, U.S. ’ + 90 
  

  

L.Ed.2d 69, 85-87 (1986); Wayte v. United 

States, U.s. : 84 L.Ed.24 547, 
  

  

556-557 and fn. 10 (1985); Washington v. 
  

Davis; supra, 426 U.S. at 253 (Stevens, J. 
  

concurring). 

The general rule is that unless there 

is a "pattern as stark as that in 

Gomillion or Yick Wo, impact alone is not 
  

determinative." Arlington Heights v. 
  

Metropolitan Housing Corp., supra, 429 
  

U.S. at 266. In some exceptional con- 

texts, proof of a less than stark pattern 

of disparate impact may demonstrate 

16. 

 



purposeful racial discrimination because 

the very nature of the disputed decision- 

making task itself makes a racially 

disparate impact unexplainable except on 

racial grounds. For example, "[plroof of 

systematic exclusion from the venire 

raises an inference of purposeful discri- 

mination because the ‘result bespeaks 

discrimination.' |[Citations.]" Batson v. 

Kentucky, supra, 90 L.Ed.2d at 86; see   

also Washington v. Davis, supra, 426 U.S. 
    

at 238-245. "But such cases are rare" 

(Arlington Heights v. Metropolitan Housing 
    

Corp., supra, 429 U.S. at 266), and   

important distinction may be drawn to 

separate them from those in which the 

8/ general rule applies.— 

  

8. Whether petitioner's claim is 
presented in terms of an Eighth Amendment 
cruel and unusual punishment concern or in 
terms of a Fourteenth Amendment equal 
protection concern, the basic thrust of 
his claim is the same: governmental action 

17.  



  

  

A. The Strict Procedural Safeguards 

Built Into the Capital Sentencing 
Process Justify Applying the 
General Rule That Disparate Impact 
Alone Is Insufficient to Support 
a Claim of Discrimination 

  

  

  

  

  

  

The decision-making process in the 

imposition of the death penalty is unique. 

Unlike any other decision-making process 

(such as in selecting the venire, or 

hiring or promoting employees or selling 

or renting a home, or drawing city voting 

boundaries, or issuing permits for 

laundries), the decision-making process 

involved in the imposition of the death 

penalty is replete with built-in proce- 

dural safeguards against purposeful 

invidious discrimination on the part of 

the decision makers. First, a 

constitutional capital sentencing system 

  

has impacted in an invidiously discrimina- 
tory manner on a group of which he is a : 
member. Thus, no matter how his claim is 
clothed, petitioner should be required to 
prove purposeful invidious discrimination. 
  

18. 

   



jtself is "suitably directed and limited 

so as to minimize the risk of wholly 

arbitrary and capricious action." Gregg 

v. Georgia, 428 U.S. 153, 179 (1976). A 

constitutional capital sentencing system 

"can rationally distinguish between those 

individuals for whom death is an appropri- 

ate sanction and those for whom it is 

not." Spaziano v. Florida, 468 U.S. 447, 
  

460 (1984). Additionally, as a criminal 

defendant, the capital defendant is 

entitled to insist that both the venire, 

from which the decision-making petit jury 

will be drawn, and the decision-making 

petit jury itself are selected pursuant to 

non-discriminatory criteria. Even the 

historically unfettered exercise of the 

peremptory challenge is restricted (for 

the prosecution at least), and the defen- 

dant may question at trial the peremptory 

exclusion of veniremen from the petit jury 

19.  



  
  

  

  

on account of their race. Batson v. 

Kentucky, supra, eS, at : 90 
    

L.Ed.2d at 87. As an added precaution 

against purposeful invidious racial 

discrimination on the part of the decision 

makers, a capital defendant is entitled to 

have prospective jurors questioned on the 

issue of racial bias if there is a risk of 

racial prejudice infecting the sentencing 

proceeding. Turner v. Murray, U.S.   

’ $ 90 L.E4.2d 27, 37 (1986). These 
  

are but a sampling of the panoply of 

safeguards protecting the capital 

sentencing decision-making process. 

The procedural safeguards against 

purpose ful invidious discrimination which 

ats an integral part of the capital 

sentencing decision-making process readily 

distinguish that process from the job 

promotion and jury selection decision- 

making processes. In those processes 

+ 20. 

   



  

there are no comparable built-in 

safeguards against purposeful invidious 

discrimination on the part of the decision 

makers. Thus, an examination of their 

decisions cannot begin with the same 

confidence. The safeguards present in 

capital sentencing justify applying the 

general rule that disparate impact alone 

will not establish a prima facie case of 

purpose ful invidious discrimination 

unless, as the Court of Appeals held in 

the case below, the "disparate impact is 

so great that it compels a conclusion that 

the system is unprincipled, irrational, 

arbitrary and capricious such that 

purpose ful [racial] discrimination . . . 

can be presumed to permeate the system." 

McCleskey v. Kemp, 753 F.2d 877, 892 (llth   

cir. 1985).% 
  

9. Contrary to petitioner's contention 
that the Court of Appeals "fashioned 
unprecedented standards of proof" and 

21.  



  

  
  

  

The Court has previously recognized 

and applied the principles underlying this 

conclusion in Pulley v. Harris, supra, 465 
  

U.S. at 51-54. Therein, the Court 

addressed the issue whether mandatory 

comparative proportionality review was an 

essential element of a constitutional 

capital sentencing system. The Court 

found it was not, if the capital 

sentencing system already had in place 

other extensive procedural safeguards 

against arbitrariness. Clearly, if a 

system's in-place procedural safeguards 

against arbitrariness are factors to be 

considered in determining whether other 

such safeguards will be required, 

a fortiori, a system's in-place procedural 
  

  

"announced the abolition of the prima 
facie standard," the Court of Appeals in 
the case below merely restated this 
Court's general rule concerning proffers 
of disparate impact evidence. See Brief 
of Petitioner at 45, 62. 

  

22. 

 



  

safeguards against purposeful invidious 

discrimination are also factors to be 

considered in determining what standard of 

proof should be applied to claims of 

discrimination within that system. 

B. The Number, Complexity and 
Subjectivity of Factors 
Considered in Capital Sentencing 
Make Evidence of Disparate 
Impact Alone Insufficient 

  

  

  

  

  

In addition to the built-in proce- 

dural safeguards which distinguish the 

capital sentencing decision-making process 

from other decision-making processes, the 

greater number, complexity, subjectivity, 

and interactivity of factors legitimately 

affecting the capital sentencing decisions 

further distinguish the capital sentencing 

decision-making process from others. 

Likewise, this difference also justi fies 

applying the general rule, in claims of 

capital sentencing discrimination, that 

proof of disparate impact which reflects 

23.  



  
  

  

  

anything less than a stark pattern will 

not establish a prima facie case of 

purpose ful invidious discrimination. 

There are comparatively few factors 

which can legitimately affect the deci- 

sions whether to select a person to be a 

part of the venire or a grand jury or 

whether to hire an applicant for a Bale 

tion as a police officer. Many of these 

factors, such as the prospective grand 

juror's county of citizenship or the 

prospective police officer's score on a 

civil service vocabulary examination, are 

also relatively simple, objective factors 

for the decision maker to weigh. Further, 

‘the same set of these factors are appli- 

cable in each decision whether to hire an 

individual for a job or to select an 

individual to sit on a grand jury. See 

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

484-485 (1977); Washington v. Davis, 
  

24, 

 



  

supra, 426 U,8, at 232-236, In these 

contexts, a racially disparate impact 

evidenced by the decisions may itself hint 

of purposeful invidious discrimination 

merely because of the sparsity of alterna- 

tive explanations. 

The &i tution is starkly different as 

to decisions whether to sentence a person 

to death. These decisions are affected by 

countless legitimate factors, most of 

which are complex and subjective. Each 

individual case has its own set of unique 

legitimate factors. Indeed in each 

individual case, the capital-sentence 

decision maker is required to take into   

account "any aspect of a defendant's 

character or record and any of the circum- 

stances of the offense that the defendant 

proffers as a basis for a sentence less 

than death." Lockett v. Ohio, 438 U.S. 

586, 604 (1978), emphasis added; Eddings 

25,  



  

  
  

  

v. Oklahoma, 455 U.S. 104, 111, 113-114   

(1982). 

1t is patent that the specific set of 

factors legitimately applicable to the 

capital sentencing decision in one case 

will not be the same set of factors legi- 

timately applicable to the vast majority 

of other capital sentencing decisions. 

Petitioner does not bring to the Court's 

attention a single Georgia case other than 

his own in which the decision maker was 

faced with evidence sufficient to find the 

de fendant guilty beyond a reasonable doubt 

of killing a police officer to prevent his 

own arrest for the public-endangering 

daytime armed robbery the officer caught 

him committing in a retail store, in which 

the robbery had been planned, in which the 

defendant had accomplices, in which the 

de fendant boasted of the killing after his 

arrest, in which no mitigating evidence 

26. 

   



  

  

was presented to the penalty decision 

maker, and in which the defendant had 

three prior convictions for armed robbery. 

See McCleskey v. Kemp, supra, 753 F.2d at 
  

  

882; McCleskey v. Zant, 580 F.Supp. 338, 
  

345-346 (N.D. Ga. 1984). Consequently, in 

the context of capital sentencing deci- 

signe, a racially disparate impact of 

those decisions does not itself suggest 

purposeful invidious discrimination 

because of the veritable ocean of alter- 

native explanations. 

Since a bare showing of a racially 

disparate impact of capital sentencing 

decisions does not begin to reflect the 

thousands of unique factors considered by 

the decision makers in all the cases, it 

cannot be said that such a disparate 

impact "bespeaks discrimination.” See 

Hernandez v. Texas, 347 U.S. 475, 482 
  

(1954). Thus, proof of disparate impact 

27. 

 



  

  

IS 
UL AAA yt F-rt 

  

  

alone cannot suffice to demonstrate 

purposeful racial discrimination in the 

imposition of the death penalty. 

Arlington Heights v, Metropolitan Housing   

  

Corp., supra, 429 U.S. at 266. 

Ce Petitioner's Showing 
  

Petitioner's evidence, at most, was 

nothing more than a showing of disparate 

impact. The "bottom line" of his argument 

is that, even when 39 legitimate 

sentencing factors are taken into account, 

killers of white victims in Georgia are on. 

an average over 4.3 times more likely to 

receive a death sentence than similarly 

situated killers of black victims, 1% 

Brief for Petitioner at 55. 
  

10. According to petitioner, Professors 
Baldus and Woodworth collected data on 
over 500 factors. Brief for Petitioner at 

. 53. However, they considered only 39 
factors in what they called "their most 
explanatory model", reflecting a logistic 
regression analysis. 1d. at 55, 80, 
emphasis added. Although 230 variables 

28. 

   



  

The fact that Professor Baldus consi- 

dered 39 legitimate sentencing factors 

does not alter the disparate impact nature 

of his showing. It is no more suggestive 

of the conclusion that the race of the 

victim influenced the entire capital 

sentencing process in Gerais than it is 

suggestive of the conclusion that other 

legitimate factors, somehow associated 

with the race of the victim, but distinct 

from the race of the victim, influenced 

the process. In fact, if any conclusion 

can be drawn from Professor Baldus' 

figures it is the latter one. When 

Professor Baldus first examined Georgia's 

capital eligible cases and took into 
  

were considered in another model, 
reflecting a multiple regression analysis, 
Professor Baldus apparently was of the 
opinion that the "most meaningful summary 
indicators of the magnitude of the racial 
factors found" were those that he 
calculated under the logistic regression 
analysis. Id. at 80. 

29. 

 



  
  

  

  

consideration only the race of the victim, 

he found that the death sentencing rate in 

Georgia was nearly 11 times higher in 

white victim cases than in black victim 

cases. - 1d. at 52-53. This disparity 

plummeted from,11 to 4.3 when only 39 

legitimate race-neutral factors were 

considered. ld. at 55, Thug, it would 

appear that when only a fraction of the 

innumerable possible legitimate capital 

sentencing factors were taken into 

account, the initial disparity was reduced 

: by more than half. This would suggest 

that the race of victim disparity in 

Georgia merely reflects that white victims 

in Georgia are more likely to be targets 

of the aggravated type of killings which 

qualify the killer for the death penalty. 

In the enormously complex and subjec- 

tive context of capital sentencing, this 

"4.3" disparity based on a mechanical 

30. 

 



  

consideration of only 39 factors is 

relatively small and does not present a 

pattern resembling that found in Gomillion 
  

or Yick Wo. Accordingly, petitioner did 

not meet his burden of proof. 

II 

EACH CAPITAL CASE IS UNIQUE 

AND THE COMPARISON OF ONE 

CASE WITH ANOTHER, THROUGH 

THE USE OF STATISTICAL 

ANALYSIS, CANNOT REASONABLY 

BE EXPECTED TO YIELD VALID 

RESULTS 

The defect in petitioner's showing 

goes beyond his failure to demonstrate a 

level of disparate impact sufficient to 

make a prima facie case of purposeful 

invidious discrimination in the imposition 

of Georgia's death penalty. Amici curiae 

urge that, in the unique context of capi- 

tal sentencing decisions, a generalized 

statistical showing of disparate impact 

does not even reliably show disparate 

impact. While it may be theoretically 

31. 

   



  

  
  

  

possible to reduce capital sentencing 

decisions to a statistical analysis, in 

reality no statistical analysis of those 

decisions will yield a valid result. 

As petitioner characterizes it, his 

argument is at heart simple and direct: 

"Evidence of racial discrimination that 

would amply suffice if the stakes were a 

job promotion, or the selection of a Jury; 

should not be disregarded When the stakes 

are life and death. Methods of proof and 

fact finding accepted as necessary in 

every other area of law should not be 

jettisoned in this one." Brief for 

Petitioner, at 31-32. 

This contention demonstrates on its 

face why it is unsound. The methods of 

proof and factfinding accepted as neces- 

sary in other areas of the law are not 

jettisoned here. No one suggests that the 

Principles established in Yick Wo, 

32. 

 



Gomillion, Arlington Heights, and 
  

Washington v. Davis, supra (to name just a 
    

few pertinent cases) be ignored. Indeed, 

they are relied upon more strongly than 

ever. However, this is not a problem of 

discrimination in employment, housing or 

jury selection. Statistical analysis of 

capital cases is almost infinitely more 

complex than the statistical analysis of 

a job promotion or jury selection case. 

Petitioner has failed to meet the 

challenge of this argument. He masks over 

the near insuperable difficulties he faces 

with legal rhetoric which fails to address 

the problems of a statistical analysis of 

capital cases. If this were a simple case 

and the data analyzed by petitioner's 

experts were limited as it is in other 

types of discrimination cases (e.gq., 

Castaneda v. Partida, supra, 430 U.S. 482   

  

[jury panel composition]; Teamsters v. 
  

33.  



  

  
  

  

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

[employment discrimination]), the problems 

we outline below would be considerably 

less important. But this is not a simple 

case. As we shall show, there is 

virtually no hope of success of showing 

race discrimination through a statistical 

analysis. 

A. Use of Generalized Statistical 
Studies of Capital Sentencing 
Decisions Has Been Uni formly 
Rejected by Lower Courts 

  

  

  

  

Other courts which have addressed the 

issue of whether such generalized 

statistical studies as were presented in 

the instant case can succeed have 

concluded such studies have virtually no 

hope of success. smith v. Balkcom, 660 

F.2d 573, as modified 671 F.2d 858, 859- 

860 (5th Cir. 1982); Spinkellink v. 
  

Wainwright, 578 F.2d 582, 614-615 (5th   

Cir. 1978); Adams v. Wainwright, 709 F.2d 
  

1443, 1449 (11th Cir. 1983); Stephens v. 
  

34. 

 



Kemp, 464 U.S. 1027, 1030, n. 2 (1983) 

(Powell, J., dissenting). As the Court 

stated in Smith v. Balkcom, supra, 671 
  

F.2d at 859: "The raw data selected for 

the statistical study bear no more than a 

highly attenuated relationship to capital 

cases actually presented for trial in the 

state. The leap from that data to the 

conclusion of discriminatory intent or 

purpose leaves untouched countless 

racially neutral variables." 

B. Capital Sentencing Decisions 
Are Different From Decisions 
In Other Contexts 

  

  

  

Petitioner's argument that his 

statistical analysis is only different in 

degree from statistical analyses in other 

contexts such as jury panel composition 

and employment discrimination fails to 

address and appreciate the difficulties 

inherent in a statistical analysis of 

capital cases. Upon reflection, it will 

35.  



  

  
  

  

be evident that there are qualitative 

differences which distinguish statistical 

analysis of capital cases from all other 

types of cases considered thus far by the 

courts. 

Focusing first on employment discri- 

‘mination cases reveals striking differ- 

ences. In this context, the factors about 

an employee's background that are relevant 

to job performance are in general directly 

comparable across employees. They include 

education (does the employee have a high 

school diploma or a college degree), 

previous relevant job experience (has the 

employee or applicant any previous secre- 

tarial experience; can he/she drive a 

large tractor-trailer truck), supervisor 

evaluations (the employee's typing ability 

is nonexistent, poor, excellent), and the 

Lire. A compari son of these factors to 

the factors pertinent to death penalty 

36. 

 



decisions reveals there is no analogue in 

employment discrimination cases to such 

factors as the presence of torture in a 

killing. See McCorquodale v. State, 211 
  

8.F.2d 577, 579-580 (Ga. 1974). 

In addition, the decision makers and 

the decisions in capital sentencing have 

an entirely different character than in 

employment cases. In the employment 

situation, one company hires or promotes 

employees from a group of potential appli- 

cants. In capital cases, there is a 

separate decision maker (the trier of 

fact) for each case rather than one 

decision maker for all cases. In employ- 

ment decisions, a subset of employees is 

selected from a pool for a given number of 

jobs. 1In capital cases, each case is 

decided on its own merits. There is no 
  

quota. In many hiring and licensing situ- 

ations, all applicants have to pass 

37. 

 



      

  

exactly the same objectively scored test. 

A charge of discrimination in this context 

can be supported if the test does not meet 

the standards for job relatedness. There 

is no analogy to these situations in 

capital cases. 

Other contexts such as whether a 

constitutionally racial balance has been 

achieved in the formation of a grand jury 

panel are even simpler than employment 

discrimination cases. See, e.q., 

Alexander v. Louisiana, 405 U.S. 625 
  

  

(1972); Castaneda v. Partida, supra. 
  

  

Thus, relatively little statistical data 

may result in a compelling case. For 

example, in Alexander, a black defendant 
  

was able to show that although 21% of the 

adult local population was black, only one 

of 20 persons (5%) on the grand jury panel 

was black and none of the twelve persons 

on the grand jury which indicted him was 

38. 

 



black. This, together with evidence that 

the jury commissioners knew the race of 

all prospective jurors, was sufficient to 

prove a prima facie case. Clearly, the 

  

data in Alexander was reliable and the 

statistical analysis simple and 

compelling. | 

Sentencing a person to death has 

elements not shared by these other types 

of decisions. Thus, one cannot expect 

statistical analyses aimed at detecting 

racial influences in death sentencing 

decisions to be the same as those that 

per form well in analyzing racial 

influences in other more simple social 

science contexts, 

C. Critical Factors in Capital 
Sentencing Decisions Cannot 
Be Accurately and Reliably 
Measured 

  

  

  

  

This Court has indicated its concern 

in evaluating the reliability of quantita- 

tive evidence. Lockhart v. McCree, 
  

  

39.  



  

    

    

U.S. ’ ! 90 L.E4.2d 137, 144-147 
  

(1986) [reliability of social science data 

purporting to show conviction-proneness 

of juries]; Dothard v. Rawlinson, 433 U.S. 
    

321, 338 (1977) (concurring opinion of 

Rehnquist, J.) [reliability of statistical 

data purporting to show job disquali fica- 

tion of males versus females by reason of 

height and weigh requirements]. The 

reliability of the quantitative evidence 

submitted by petitioner in the instant 

case is open to great doubt. 

Petitioner has failed to adequately 

respond to the issue of how a statistical 

analysis can accurately and reliably 

measure such factors as torture, prior 

criminal record, the circumstances of the 

crime, the helplessness of the victim(s), 

the life experience of the defendant, and 

unusual aggravating factors. For example, 

it is clearly inadequate to simply 

40. 

 



  

  

determine that torture was either present 

or not present because there are varying 

degrees of torture. How does one compare 

cases when the criminal records of the 

defendants are not identical? Is the 

helplessness of a young brutalized female 

victim the same as the helplessness of a 

bound and gagged police officer? How does 

one compare the age and experience of a 

22-year-old hostile, angry young male with 

the age and experience of a 35-year old, 

cold, calculating, sadistic middle-aged 

male? How do unusual aggravating factors 

enter into the equation? For example, in 

the facts behind Pulley v. Harris, supra, 
  

the defendant coolly finished eating the 

hamburgers which two teenage boys had been 

in the process of eating when the defen- 

dant kidnapped and murdered them for use 

of their car in a bank robbery. People v. 

Harris, 28 Cal.3d 935, 943-945 (1981). 

41, 

 



  
  
  

  

How is such a factor measured? What 

measurable impact did it have on the jury? 

More importantly, how is it compared with 

other unusual but vastly different aggra- 

vating factors in other cases?1l/ What of 

the attitude displayed by a defendant 

during trial? Evidence of this factor in 

the record may be sparse if it exists at 

all, If it does exist, how can it be 

measured in such a way that it can be 

compared with evidence of another defen- 

dant's attitude in a different case? 

The courts have accepted as valid 

statistical analyses done in jury panel 

composition and employment discrimination 

  

11. A crucial case in point for amici is 
the California case of People v. Jackson, 
supra, 28 Cal.3d at 282-284, 303. During 

the course of one of his burglary-murders, 
Jackson raped his victim -- a 90-year old 
female -- with a wine bottle. Later, he 
described his victims to an acquaintance 
as "'two old bags [who] were a nuisance 

and . . . got what they deserved.'" 

42, 

 



cases but they have not accepted as valid 

a statistical analysis of death penalty 

cases which claimed to prove race discri- 

mination in the imposition of the death 

penalty because of these important 

distinctions. 

D. A Generalized Statistical 

Analysis of Capital Sentencing 

Decisions in Georgia Cannot 
Explain the Reasons Why 
Petitioner Was Sentenced to 
Death 

  

  

  

  

  

Finally, the premise upon which 

petitioner's analysis is based deliber- 

ately ignores what happened in his case. 

A statistical analysis can never prove 

directly that race was a factor considered 

by the jury in petitioner's case. As 

petitioner's foremost expert, David C. 

Baldus, has stated in his book on the use 

of statistics to prove discrimination: 

"The primary limitation of quantita- 

tive proof in the discrimination context 

ig its inability to support an inference 
about the reasons for a particular deci- 

sion, such as why a certain individual 

43.  



  

  
  

  

was hired or fired, or why a particular 

law was adopted. Statistics can provide 
power ful insight into general or long- 
run behavior, but as for a particular 
decision -- and many cases are concerned 
with just one decision -- at best it can 
provide a presumption by inferring from 
the general to the particular." Baldus 
and Cole, Statistical Proof of 
Discrimination, at 5 (1980). 
  

  

E. Conclusion 
  

Amici is not impugning the role of 

statistical analyses in the law as a 

general proposition. After all, this 

Court has made it "unmistakably clear that 

'[s]tatistical analyses have served and 

will continue to serve an important role’ 

in cases in which the existence of 

discrimination is a disputed issue. 

[Citations.]" Teamsters v. United States, 
    

supra, 431 U.S. at 339. However, even in 

the context of employment discrimination, 

where the number of significant variables 

operating is limited, this Court recog- 

nizes that "statistics are not irrefut- 

able; they come in infinite variety and, 

44, 

 



  

like any other kind of evidence, they 

may be rebutted. In short, their useful- 

ness depends on all of the surrounding 

facts and circumstances. See, e.g., Hester 

v. Southern R, Co., 497'F.2d4 1374, 
  

1379-1381 (CA5)." Id. at 340. Our point 

is that no court has ever validated the 

use of statistical analyses for the 

purpose of determining whether jury 

verdicts of capital cases, which involve 

hundreds if not thousands of significant 

variables, are constitutionally defective 

because the jury allegedly considered race 

of victim or defendant in arriving at 

their verdict. Capital cases are qualita- 

tively different from other types of 

discrimination cases: the number of 

significant variables operating in this 

context is exponentially greater than in 

any context heretofore considered by this 

Court. For this reason, petitioner's 

45,  



Vo Bat bh bo 5p “a ———— ~~   

  

  

analysis should be rejected as without 

merit. 

III   PETITIONER'S STATISTICAL 
ARGUMENT UNDERMINES THE 
RIGHT TO TRIAL BY JURY 
AND SUBSTITUTES IN ITS 
PLACE TRIAL BY STATISTI- 

CAL ANALYSIS 

Petitioner's position is an attack on 

the jury system itself. 

The right to a jury trial is one of 

| } the foremost protections of our legal 

| system. "It is fundamental to the 

American scheme of justice." Duncan Vv. 

Louisiana, 391 U.S. 145, 150 (1968). Its 
  

| lineage can be traced to the time of the 

Norman Conquest. Walker & Walker; The 

English Legal System, at 229 {1980). '1t 
  

: is a fundamental tenet that a criminal 

defendant is entitled to a trial by an 

impartial jury drawn from a representative 

cross-section of the community. This 

right is guaranteed by the Sixth Amendment 

46.   
 



  

to the Constitution. Taylor v. Louisiana, 
  

419 U.8. 522, 530 (1575). This right, 

thus, guarantees a defendant a trial by 

his peers and, together with other funda- 

mental rights, ensures a fair and just 

determination of the cause. Duncan v. 

Louisiana, supra, 391 U.S. at 151-156. 
  

Although juries are generally 

presumed to follow the law given to them 

by the court (Abney v. United States, 431 
  

U.S. 651, 665 (1977); Shotwell Mfg, Co, v. 
  

United States, 371 uvu.S. 341, 367 (1963)), 
  

petitioner's statistical analysis impli- 

citly assumes this presumption to be 

incorrect or inoperative. Notwithstanding 

the absence of any jury instruction 

permitting race to be considered by the 

jury, petitioner's statistical analysis 

rests on the conclusion that juries in 

fact do consider race in determining 

whether to impose the death penalty. 

47.  



  

  

  

N 

  

  

Petitioner's statistical argument 

postulates that the death penalty verdicts 

reached by presumptively lawfully consti- 

tuted juries, acting pursuant to constitu- 

tionally valid laws, are constitutionally 

invalid because statistically it can be 

shown that persons who kill white victims 

are more likely to receive the death 

penalty than those who kill non-whites. 

This argument strikes at the heart of 

the judicial system. A jury's verdict, 

based on literally hundreds (perhaps 

thousands or millions) of individual bits 

of information, arrived at through the 

collective reasoning process of twelve 

separate persons, is reduced to mere 

statistical data. Petitioner would, in 

essence, substitute a statistical analysis 

for the jury's verdict. The end result 

would be the emasculation of the right to 

a jury trial. 

48.



  

Petitioner's argument postulates that 

regardless of the observance of his 

constitutional rights in the course of a 

jury or court trial, conducted pursuant to 

constitutionally valid laws, the verdict 

is always subject to further statistical 

analysis. Petitioner would, thus, create 

a super appellate SroCess whereby after a 

verdict has been found legally valid on 

appeal to the highest court of a state, 

the verdict may nevertheless be tested 

again by being subjected to a statistical 

analysis. There is no constitutional 

basis for such procedure and a hearing 

aimed at subjecting jury verdict data in 

capital cases to such analysis is contrary 

to our system of criminal jurisprudence. 

In his Eondutring opinion in Gregg v. 

Georgia, supra, 428 U.S. at 226, Justice 
  

White disposed of a similar argument: 

"Petitioner has argued, in effect, that 
no matter how effective the death 

49. 

 



  

  
  

penalty may be as a punishment, govern~ 

ment, created and run as it must be by 
humans, is inevitably incompetent to 
administer it. This cannot be accepted 
as a proposition of constitutional law. 
Imposition of the death penalty is 
surely an awesome responsibility for any 
system of justice and those who partici- 
pate in it. Mistakes will be made and 
discriminations will occur which will be 
difficult to explain. However, one of 
society's most basic tasks is that of 
protecting the lives of its citizens and 
one of the most basic ways in which it 
achieves the task is through criminal 
laws against murder. I decline to 
interfere with the manner in which 
Georgia has chosen to enforce such laws 
on what is simply an assertion of lack 
of faith in the ability of the system of 
justice to operate in a fundamentally 
fair manner." 

CONCLUSION 

‘Petitioner's statistical analysis of 

capital cases and the conclusions he 

reaches should be rejected. He has failed 

to prove even a prima facie case of race   discrimination in the system. A fortiori   

he has failed to prove race discrimination 

by the jury in his case. In the instant 

case, petitioner has used "statistics as a    



drunk man uses a lamp post -- for support 

and not illumination." Keely v. 

Westinghouse Electric Corp., 404 F.Supp. 
  

573, 579 (E.D.Mo. 1975). 

Petitioner asks this Court to apply a 

standard for weighing evidence completely 

out of context. Then he asks this Court 

not just to accept but to validate a 

statistical analysis which inherently 

fails to identify and accurately measure 

all significant variables operating in 

capital cases. Finally, he asks this 

Court to reject his individual sentence of 

death on the novel theory that it must be 

infected with race bias because a general 

statistical analysis suggests race bias in 

other cases. All of this he asks be done 

after decisions by the Georgia Supreme 

Court, various federal courts, and this 

Court, upholding the jury's sentence. 

None of these requests have merit. To 

51.  



  

  

  

  

  

validate any of them would be contrary to 

law previously laid down by this Court. 

To grant them all will be tantamount to 

rejecting one of the principal elements of 

our judicial system: trial by jury. 

Surely, such request must be denied as 

without any foundation in the law. The 

judgment of the Court of Appeals should be 

affirmed. 

Respectfully submitted, 

John K. Van de Kamp, Ira Reiner, 
Attorney General District Attorney of 
of the State of Los Angeles County 
California : 

Michael D. Wellington George M. Palmer 
Supervising Deputy Deputy District 
Attorney General Attorney 

Susan Lee Frierson 
Deputy Attorney 
General 

Harry B. Sondheim 
[Counsel of Record] 
Head Deputy 
District Attorney 
Appellate Division 

9/86 

 



 



  

No. 84-6811 
  

  

IN THE 

Supreme Umut of the United States 
OCTOBER TERM, 1986 

WARREN MCCLESKEY, 
Petitioner, 

Y. 

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

Respondent. 

On Writ of Certiorari to the United States Court of Appeals 

for the Eleventh Circuit 

BRIEF AMICUS CURIAE 
OF THE WASHINGTON LEGAL FOUNDATION 

AND THE ALLIED EDUCATIONAL FOUNDATION 
IN SUPPORT OF RESPONDENT 

DANIEL J. POPEO 

GEORGE C. SMITH * 

WASHINGTON LEGAL FOUNDATION 

1705 N Street, N.W. 

Washington, D.C. 20036 
. | (202) 857-0240 

Attorneys for Amici Curiae = 
: Washington Legal Foundation 

and 

Allied Educational Foundation 

* Counsel of Record 

Dated: September 19, 1986 

  

  

WILSON - EPES PRINTING CO., INC. - 7898-0096 - WASHINGTON, D.C. 20001 

 



  

QUESTIONS PRESENTED 

1. Whether a state’s system for imposing capital pun- 
ishment which has been otherwise upheld as constitu- 
tional in all respects may be held unconstitutional merely 
because the collective sentencing results it has produced 
during a given period of years do not conform to sub- 
jective notions of racial proportionality in sentencing. 

2. Whether, in the absence of any evidence of inten- 
tional race discrimination causing the petitioner’s in- 
dividual death sentence, that sentence may be set aside 
as unconstitutional merely because the collective sen- 
tencing results of the past do not conform to subjective 
notions of racial proportionality in sentencing. 

3. Whether a claim that the death penalty has been 
unconstitutionally imposed due to race discrimination 

can succeed without the necessity of proving purposeful 
or intentional discrimination by state actors merely by 
asserting the claim under the Eighth Amendment instead 
of under the equal protection clause of the Fourteenth 
Amendment. 

4. Whether a claim that the death penalty has been 
unconstitutionally imposed due to race discrimination 
can be based upon evidence of disparities in sentencing 
associated solely with the race of the victim, as dis- 
tinguished from the race of the defendant. 

5. Whether the district court’s factual finding that 
the studies relied upon by petitioner were too flawed and 
untrustworthy to constitute cognizable evidence of ac- 
tionable sentencing discrimination was clearly erroneous. 

(1)  



  

QUESTIONS PRESENTED . 

TABLE OF AUTHORITIES 

INTERESTS OF AMICUS CURIAE 

TABLE OF CONTENTS 

  

  

  

SAT MENT OF THE CASE... ceeeiisnorainns 

SUMMARY OF ARGUMENT ......ccmmminmmmomimismmmesssase 

ARGUMENT . 

L 

II. 

  

  

  

MERE FAILURE TO MAINTAIN AN “AC- 
CEPTABLE” DEGREE OF RACIAL PROPOR- 
TIONALITY IN CAPITAL SENTENCING 
PROVIDES NO GROUNDS FOR STRIKING 
AN OTHERWISE VALID CAPITAL PUNISH- 
MENT SYSTEM 
A. A Death Sentence’s Constitutionality De- 

pends Upon its Conformity with Governing 

Legal and Procedural Standards, Not upon 

its Conformity to Statistical Notions of 
Racial Proportionality . 

B. The Statistical Disparities Alleged Cannot 

Prove Discriminatory Intent, Which has 

been Consistently Required by the Courts as 

a Necessary Element of a Race-based Attack 
on a Death Sentence 

C. The Standard of Statistical Proportionality 

Advocated Here is Unreasonable, Unwork- 
able, and Unjust when Applied to the Out- 

come of the Criminal Sentencing Process ..... 

EVEN IF A DISPARATE IMPACT STAND- 
ARD WERE APPROPRIATE IN THE CRIM- 
INAL SENTENCING CONTEXT, PETI- 
TIONER FAILS TO MAKE A PLAUSIBLE 
CASE ON THAT BASIS AS WELL................... 

  

  

  

(iii) 

Page 

13 

 



  

CONCLUSION .. 

iv 

TABLE OF CONTENTS—Continued 

. Petitioner’s Basic Contention is Based on a 

Myth... 

. The Theory of Vietim-based Discrimination 

is Legally and Logically Invalid 

. The Findings of the District Court on the 

Study’s Invalidity Should be Affirmed............ 

  

  

. The Myriad Individualized Factors and Com- 

binations of Factors Which Influence A Death 

Sentence are not Susceptible to Quantification 

or Precise Comparative Analysis ......cceeeeeeee.. 

  

Page 

25 

 



  

v 

TABLE OF AUTHORITIES 

Cases Page 

Adams v. Wainwright, 709 F.2d 1443 (11th Cir. 

1983) ...... 9,19   

846 (D. Wash. 1984), rev’d, 770 F.2d 1401 (9th 

Cir. 1985) 17 
Andrews v. Shulsen, 600 F. Supp. 408 (D. Utah 

1983), appeal pending, No. 84-2781 (10th Cir. 

  

  

  

  

  

1986) 9, 19, 24-25 
Britton v. Rogers, 631 F.2d 571 (8th Cir. 1980), 

cert. denied, 451 U.S. 939 (1981) coociiinns 10, 16, 20 
Brogdon v. Blackburn, 790 F.2d 1164 (5th Cir. 

1986) . 9 

Caldwell v. Mississippi, 105 S.Ct. 2633 (1985) ....... 13 

City of Cleburne v. Cleburne Living Center, 105 

S.Ct. 3249 (1985) ke 16 

Furman v. Georiga, 408 U.S. 238 (1972)... 5-8 

Godfrey v. Georgia, 446 U.S. 420 (1980) .oeeeeeennn.... 5 

Gregg v. Georgia, 428 U.S. 153 (1976) 5 

McCleskey v. Zant, 580 F. Supp. 338 (1984) ........... passim 
Prejean v. Maggio, 765 F.2d 482 (5th Cir. 1985) .. 9 

Pulley v. Harris, 104 S.Ct. 871 (1984) ............... 8-9, 12-13 

Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985) ........ 5,9 

Shaw v. Martin, 733 F.2d 304 (4th Cir.), cert. de- 

nied, 83 L.Ed. 2d 159 (1984). 9   

Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 

  

1978), cert. dented, 440 U.S. 976 (1979).............. 7.9, 9% 

Stephens v. Kemp, 104 S.Ct. 562 (1983) ..eeeeeeeeee. 7 

United States v. General Dynamics, 415 U.S. 486 

(1974) ... 29 
Washington v. Davis, 426 U.S. 229 (1976) ............. 10-11 

Whitley v. Albers, 106 S.Ct. 1078 (1986) ............. 12 

Woodson v. North Carolina, 428 U.S. 280 (1976)... 15 
, Zant v. Stephens, 462 U.S. 862 (1983) ..cceeeemeeennnn. 5,13 

Other Authorities 

Fed. RuCiv. Pra)... coo a 22   

R. Berger, DEATH PENALTIES (Harv. Press 1982) .. 10 

 



  

vi 

TABLE OF AUTHORITIES—Continued 
Page 

Bureau of Justice Statistics Bulletin, Capital Pun- 
1shment 1984, NCJ-98399 (August 1985) ...... 4, 18-20 

Note, Discrimination and Arbitrariness in Capital 

Punishment: An Analysis of Post-Furman Mur- 
der Cases in Dade County, Florida, 1973-76, 33 
STANFORD L. REV. 75 (1980) . .. 18-19   

 



  

IN THE 

Supreme mut of the United States 
OCTOBER TERM, 1986 

No. 84-6811 

WARREN MCCLESKEY, 
Petitioner, 

v. 

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

Respondent. 

On Writ of Certiorari to the United States Court of Appeals 
for the Eleventh Circuit 

BRIEF AMICUS CURIAE 
OF THE WASHINGTON LEGAL FOUNDATION 

AND THE ALLIED EDUCATIONAL FOUNDATION 
IN SUPPORT OF RESPONDENT 

INTERESTS OF AMICI CURIAE 

The Washington Legal Foundation (“WLF”) is a non- 
profit public interest law and policy center based in 
Washington, D.C., with over 80,000 members nation- 

wide. WLF engages in litigation, administrative proe- 
eedings, and policy advocacy in support of the legal and 
constitutional values and principles on which America 
was founded. 

WLF devotes substantial effort to asserting the rights 
of victims of crime and supporting effective law en- 
forcement measures. WLF has also been a leading 
voice in support of the legitimacy of the death penalty 

 



  

2 

from both a constitutional and policy standpoint. The 
Foundation’s experience and expertise on this issue are 
reflected in the amicus curiae briefs it has filed in many 
of the leading Supreme Court decisions on capital pun- 
ishment. E.g., Zant v. Stephens, 462 U.S. 862 (1983) ; 

Strickland v. Washington, 104 S. Ct. 2052 (1984); Ed- 

dings v. Oklahoma, 455 U.S. 104 (1982). WLF attorneys 
have also been repeatedly invited to testify before the 
U.S. Congress on capital punishment issues. 

WLF believes the instant case is of critical importance 
for its potential impact on not only capital punishment 
law but on many broader areas where claims of racially 
disparate impact may be raised. If petitioner prevails 
here, the jurisprudence of racial and ethnic proportion- 

ality will be carried to unprecedented extremes in the 
| governance of this nation. The notion that the duly con- 

victed murderer of a policeman could escape an other- 
wise valid death sentence by invoking the race of his 

victim as a defense is repugnant to any decent sense 
. of law and justice. 

The Allied Education Foundational (“AEF”), estab- 
lished in 1964, is a non-profit charitable and educational 
foundation based in Englewood, New Jersey, and devoted 
to the pursuit of knowledge, education, and the broad 
public interest. 

As part of its education and public interest efforts, 
AEF also supports the publication of books and studies 
on issues of law and law enforcement. Recently, for ex- 
ample, AEF joined with WLF in publishing a scholarly 
legal study on the death penalty, Capital Punishment 
1986: Last Lines of Defense. A chapter of that study 
directly challenges the theory of discrimination in capital 
sentencing reflected in petitioner’s argument in this case. 
Because AEF believes that petitioner’s argument here is 
not only profoundly erroneous as a matter of law, but 
profoundly misleading in its portrayal of the American 

 



  
  

3 

criminal justice system, AEF’s commitment to the spread 
of knowledge and to the rule of law have motivated it to 
join WLF in the following brief. 

STATEMENT OF THE CASE 

In the interests of judicial economy, amicus adopts and 
incorporates by reference the statement of the case set 
forth in the Brief of the Respondent. 

SUMMARY OF ARGUMENT 

1. Georgia’s statutory scheme for imposing ‘the death 
penalty has been repeatedly upheld as constitutional un- 
der the exacting standards imposed by this Court. That 
indisputably constitutional system was fairly applied in 
petitioner’s case, and there was no evidence that inten- 
tional race discrimination caused or influenced his death 
sentence. The mere fact that petitioner submits a study 
purporting to show that the collective sentencing out- 
comes of other Georgia capital cases fail to conform to 
subjective notions of racial proportionality provides no 
valid basis for questioning petitioner's sentence under 
these circumstances. Allowing death sentences to be re- 
versed solely on the basis of disparate impact data, and 
without proof of actual discriminatory motive, would be 
unjust, unworkable, and a source of disastrous upheaval 

for the entire criminal sentencing process. 

2. Even if an authentic and substantial race-based 
disparity in sentencing could be viewed as a valid basis 
for invalidating a death sentence, petitioner could not 
prevail on the facts of this case. Official government 
statistics demonstrate that, if anything, the death sen- 
tence has been disproportionately imposed on white mur- 
der defendants. Petitioner’s attempt to evade that fact 
by shifting his claim to victim-based racial disparities 
cannot salvage his case. This Court has not endorsed 
that oblique theory of discrimination, and there is no just 

 



  

_-
 
S
R
 

Ky 

or principled basis for it to do so now. Finally, the Dis- 
trict Court’s findings that the sentencing studies relied 
on by petitioner were fatally flawed and invalid were not 
clearly erroneous. They should be affirmed by this Court. 

ARGUMENT 

Preliminary Statement 

This case addresses the extraordinary argument that 
a state’s otherwise valid system for imposing the death 
penalty should be declared unconstitutional solely because 
it fails to allocate death sentences in conformity with 
theoretical notions of racial proportionality. Neither the 
presence of meticulously fair sentencing standards nor 
the absence of any discriminatory intent is considered 
pertinent under this argument. All that counts is the 
racial breakdown of collective sentencing statistics. 

Moreover, the petitioner rests his claim on the curious 
premise that juries would discriminate primarily on the 
basis of the slain wvictim’s race, rather than that of the 
criminal defendant in the dock—despite the contradictory 
circumstance that the victim is perforce absent from the 
trial and the victim’s race is rarely a matter of relevant 
concern at trial. Petitioner's reliance on this contrived 
theory of “victim-based” discrimination is at least under- 
standable, however, in light of the fact that the more 
plausible theory of direct discrimination against black de- 
fendants does not stand up. Official studies comparing the 
sentencing of white and black perpetrators now establish 
that it is actually white murderers who disproportion- 
ately receive the death penalty. See Bureau of Justice 
Statistics Bulletin, Capital Punishment 198, pp. 7, 9, 
Tables 11, A-1, A-2 (August 1985). This inescapable 
fact refutes petitioner’s sweeping factual claim that the 
death penalty discriminates against minorities. His legal 
theory fares no better. 

 



  

5 

I. MERE FAILURE TO MAINTAIN AN “ACCEPT- 
ABLE” DEGREE OF RACIAL PROPORTIONAL- 
ITY IN CAPITAL SENTENCING PROVIDES NO 
GROUNDS FOR STRIKING AN OTHERWISE 
VALID CAPITAL PUNISHMENT SYSTEM 

A. A Death Sentence’s Constitutionality Depends Upon 

Its Conformity With Governing Legal And Proce- 
dural Standards, Not Upon Its Conformity To 

Statistical Notions of Racial Proportionality 

Petitioner, the duly-convicted murderer of a policeman 

in Fulton County, Georgia, was sentenced to death by a 
judge following the binding recommendation of a jury. 
He now claims that his death sentence should be set aside 
because he is black, the policeman he murdered was 
white, and a study he cites purports to show that death 
penalties are disproportionately imposed on killers of 
white people. 

The dispositive flaw in petitioner's argument is that it 
utterly discounts the significance of the extensive legal 
safeguards incorporated in the Georgia death penalty 
scheme in conformity with post-Furman capital sen- 
tencing requirements. Georgia’s current death penalty 
statute and practice have been reviewed, refined, and ap- 

proved under this Court’s exacting constitutional scru- 
tiny. Gregg v. Georgia, 428 U. S. 153 (1976) ; Godfrey 
v. Georgia, 446 U.S. 420 (1980); Zant v. Stephens, 462 
U.S. 862 (1983). Those cases, together with numerous 
lower court decisions upholding Georgia death sentences 

against other forms of attack, e.g., Ross v. Kemp, 756 

F.2d 1483 (11th Cir. 1985), establish that the Georgia 
capital sentencing system has satisfactorily eliminated 
the kind of standardless, arbitrary sentencing discretion 
originally condemned in Furman v. Georgia, 408 U.S. 
238 (1972). It does so by, inter alia, enumerating objec- 
tive aggravating circumstances which genuinely narrow 
the class of persons eligible for the death penalty and 
by providing for “individualized determination and ap- 
pellate review at the selection stage.” Zant v. Stephens, 

 



  

A 
4 

6 

462 U.S. at 879-80. The Georgia system even exceeds 
constitutional requirements by providing for a form of 
‘proportionality review’ by the Georgia Supreme Court 
in each case. Id. at 880 n. 19. 

Georgia having satisfied this Court’s exacting standards 
of fairness and procedure in capital sentencing, petitioner 
now urges the Court to superimpose a novel and funda- 
mentally different requirement. He contends that the 
state must insure some acceptable (but unspecified) de- 
gree of racial proportionality in the allocation of the 
Fo sentence. Not only must the state ensure that 
fninority murderers receive no more than their “propor- 
tional” share of death sentences, but it must also guar- 
antee that those murderers who choose to kill white vic- 
tims are not disproportionately sentenced to death. This 
approach would require generalized, class-based consider- 
ations to preempt the particulars of the individual crime 
in deciding whether the death penalty is justified. It is 
racial balancing run amuck. 

How the state is expected to achieve and maintain this 
state of fine-tuned racial equilibrium in sentencing is 
not explained or addressed in petitioner's arguments—— 
and for good reason. For to do so would only bring peti- 
tioner, full circle, to the very kind of standards which 
this Court has already established—and which the State 
of Georgia has already satisfied—as a remedy to the arbi- 
trary and standardless sentencing practices struck down 
in the Furman case. Racial discrimination is merely one 
manifestation of the arbitrary and irrational sentencing 
inequities which the post-Furman capital sentencing stat- 
utes were designed to minimize and contain. A capital 
sentencing system which has been carefully reviewed and 
approved by this Court on those terms is no less consti- 
tutional merely because the collective sentencing results it 
produces do not conform to notions of demographic parity. 

Thus, the sufficient answer to petitioner’s contentions 
was stated by the Fifth Circuit in the leading case of 

 



  

7 

- £3 Spinkellink v. Wainwright, 578 F.2d 582, 613 (5th Cir. 
4 1978), cert. denied, 440 U.S. 976 (1979) :! 

The allegation that Florida’s death penalty is being 
discriminatorily applied to defendants who murder 
whites is nothing more than an allegation that the 
death penalty is being imposed arbitrarily and ca- 
priciously, a contention we previously have consid- 
ered and rejected. 

* * * 

As we previously noted, this Court reads Furman, 
Gregg, Proffitt, Jurek, Woodson, and Roberts as 
holding that if a state follows a properly drawn 
statute in imposing the death penalty, then the arbi- 
trariness and capriciousness—and therefore the ra- 
cial discrimination—condemned in Furman have 
been conclusively removed. 

Petitioner's contrary approach subordinates the signifi- 
cance of the actual procedures and practices followed in 
his case to the cumulative sentencing results in hundreds 
of remote cases tried years before, involving different 
crimes, different victims, different judges, and different 
juries. Even if validated post-Furman procedures were 
scrupulously adhered to throughout 2is case, and even if a 
perfectly unbiased judge and/or jury decided his sen- | 
tence, the constitutionality of that sentence would be dic- NT Hh 
tated by the collective statistical profile of the unrelated Ar 
cases of the past. This is not a rational basis for invali- 
dating a given murderer's sentence. It is a statistical 
lottery. 

1 This very same point has been echoed in the opinions of mem- 
bers of this Court. E.g., Stephens v. Kemp, 104 S.Ct. 562, 564-65 

Bo. fen (1983) (Powell, J., dissenting), where Justice Powell, joined by 
: ’ 4d _~ . three other justices, flating asserted, “It should be apparent from 

fv the decisions of this Court since Gregg was decided that claims 

based merely on general statistics are likely to have little or no 
merit under statutes such as that in Georgia.” [emphasis added]. 

This statement squarely applies to the instant case. 

 



  

~ 

  

8 

Petitioner's arguments make a mockery of the very 
core of the post-Furman approach to capital punishment 
—i.e., that the best means of achieving fairness and 
rationality in capital sentencing is by observing objective 
standards and procedures which limit and channel sen- 
tencing discretion without eliminating it altogether. In 
effect, petitioner contends that full and faithful compli- 
ance with such approved standards is futile if it does not 
produce (and maintain) results which conform to conclu- 
sory notions of racially “proportionate” sentencing. This 
“result-oriented” approach is alien to this Court’s post- 
Furman jurisprudence on capital punishment, and should 
be firmly rejected. 

The most significant shortcoming of the Baldus Study 
in this context is that it tells us nothing about the fair- 
ness and legal propriety of petitioner’s trial and sen- 
tencing. There is no evidence here showing that McCles- 
key’s conviction and sentencing were actually motivated 
by race discrimination— intentional or otherwise—or by 
any other impermissible considerations. The authors of 
the Baldus study themselves concede as much. 753 F.2d 
at 895. In fact, petitioner’s entire case was conducted in 
faithful conformity to the rigorous procedures required 
for all capital proceedings under federal constitutional 
law and the law of Georgia. 

To invalidate his sentence based upon flawed evidence 
of an unremarkable deviation from racial proportionality 
would be to subordinate settled standards of criminal 
procedure to the vagaries and manipulations of question- 
able social science theory. This Court should decline such 
a dubious invitation. 

In rejecting the closely-related argument in Pulley v. 
Harris that “proportionality review” of all death sen- 
tences is constitutionally required, this Court stressed 
that in light of the many other safeguards incorporated 
in the approved post-Furman death penalty statutes “pro-



  

9 

portionality review would have been constitutionally 
superfluous.” 104 S.Ct. at 879 [emphasis added]. The 
race-based statistical analysis of past sentences in capital 
cases is but an improvised variant of proportionality re- 
view, and it is redundant and unnecessary for the same 
reasons stated in Pulley v. Harris. 

B. The Statistical Disparities Alleged Cannot Prove 
Discriminatory Intent, Which Has Been Consist- 
ently Required By the Courts As A Necessary 
Element Of A Race-Based Attack On A Death 
Sentence 

Petitioner's arguments notwithstanding, the federal 
courts have consistently and properly required proof of 
discriminatory intent as a mandatory element of claims 
that the death penalty violates the Eighth and/or Four- 
teenth Amendments by some form of race disecrimina- 
tion. The cases so holding are legion. E.g., Spinkellink 
v. Wainwright, supra, 578 F.2d. at 612-15: Adams wv. 
Wainwright, 709 F.2d. 1443, 1449-50 (11th Cir. 1983) ; 
Ross v. Kemp, 756 F.2d 1483, 1491 (11th Cir. 1985) ; 
Shaw v. Martin, 733 F.2d. 304, 311-14 (4th Cir. 1984), 
cert. denied, 83 L.Ed. 2d. 159 (1984); Brogdon v. Black- 
burn, 790 F.2d. 1164, 1170 (5th Cir. 1986) ; Prejean v. 
Maggio, 765 F.2d. 482, 486 (5th Cir. 1985) : Andrews v. 
Shulsen, 600 F.Supp. 408, 426 (D.Utah 1983), appeal 
pending, No. 84-2781 (10th Cir. 1986). 

Petitioner now asks this Court to hold that this im- 
posing array of federal precedents is wrong, and that 
discriminatory intent really need not be proven at all. 
(Pet.’s Br. pp. 98-104). Petitioner would effectively eli- 
minate the intent requirement by the simple expedient 
of recasting his equal protection/discrimination claim in 
the guise of an Eighth Amendment claim, and contend- 
ing that discriminatory intent is wholly irrelevant to a 
claim of cruel and unusual punishment. (Pet.’s Br. pp. 
97-103). 

J 

( 
wy § a 

 



  

10 

There are numerous dispositive flaws in this argument. 

Initially, as cogently expressed by the district court 
(McCleskey v. Zant, supra, 580 F.Supp. at 346-47), 
the Eighth Amendment does not even validly apply to 
death penalty appeals based upon “race of the victim” 
disparate impact theory. Relatedly, the Eighth Circuit 
has held that perpetrators lack standing to assert a claim 

_.}~ based on disparate sentencing impact in relation to the 
\ . victim's race. Britton v. Rogers, 631 F.2d 571, 577 n.3 

J 5 (8th Cir. 1980), cert. denied, 451 U.S. 939 (1981). See 
"also Spinkellink, supra, 578 F.2d at 614 0.39 (“the focus 

of any inquiry into the application of the death penalty 
must necessarily be limited to the persons who receive 
it rather than their victims”). This Court should now 
hold that constitutional attacks on the death penalty 
based on claims of victim-related racial disparities in 

in collective sentencing data may be maintained (if at all, 
., +." , see Point ILB, infra) only under the equal protection 
XY, clause of the Fourteenth Amendment. Compare McCles- 

at key v. Zant, supra, 580 F.Supp. at 347. Such claims are 
not remotely within the scope of the cruel-and-unusual 
punishment clause as contemplated and recorded by the 
Framers of the Bill of Rights. See R. Berger, DEATH 
PENALTIES, pp. 44-58 (Harv.U.Press 1982). That amend- 

ra il ment bans only cruel and barbarous punishments, and 
.. does not purport to establish a standard of proportion- 

ality or parity for the allocation of sentences among the 
various classes of criminals. 

¢ 

Further, acceptance of petitioner’s argument would 
effectively nullify the discriminatory intent element 
which is indisputably required to sustain a death penalty 
challenge on equal protection grounds. Washington wv. 
Dawvis, 426 U.S. 229 (1976). This requirement of pur- 
poseful discrimination normally requires direct proof of 
actual discriminatory motive; only in the very rare cir- 
cumstances where the disparate impact is so monolithic 
as to defy explanation on any plausible non-racial 

 



  

HH 

grounds can the intent requirement be satisfied by “im- 
pact” statistics alone. Washington v. Davis, supra, 426 
U.S. at 242. Here, there are so many alternative plausi- 
ble explanations for the claimed racial disparities in 
death-sentencing *—e.g., the demonstrated fact that white- 
victim murders are a consistent “proxy” for high-aggra- 
vation felony murders (see Point II. A., infra) —that a 
purely statistical mode of proof is plainly foreclosed. 

Whatever the required mode of proof, the specific in- 
tent requirement for claims of racially discriminatory 
action by the state cannot be evaded by simply present- 
ing the claim in alternative legal garb. A claim of un- 
constitutional race discrimination is still just that, 
whether asserted under the Eighth or Fourteenth Amend- 
ment. The mandatory element of purposeful discrimina- 
tion is grounded on decades of mature and considered 
jurisprudence; it reflects the considered judgment of our 
law that seemingly “disproportionate” outcomes in terms 
of race or other characteristics are generally explainable 
by a host of legitimate factors other than actionable dis- 
crimination; and it is not tc be dismissed by the kind of 
legal sleight-of-hand attempted by petitioner in this case. 

Petitioner also errs in contending that the element of 
intent is simply irrelevant to Eighth Amendment claims. 
Any shortage of caselaw explicitly stating a diserimina- 
tory intent requirement results from the simple fact that 
discrimination claims like petitioner's are simply inap- 
posite to Eighth Amendment jurisprudence, the precise 
and proper concern of which is barbarous forms of 
punishment rather than a guarantee of racial equilibrium 
in sentencing. To the extent that the Eighth Amendment 

2 Among these plausible alternative explanations are the myriad 
non-racial variables which were not taken into account by the 
Baldus Study in trying to explain the sentencing “discrepancies” 
which the petitioner is pleased to ascribe to race. See Point II.D, 
infra. r 

JAN 

: an) 

nn 

 



  

\ ( > 
A 

a 

oh 

12 

might be held to encompass claims of racially discrimina- 
tory sentencing, it would be utterly anomalous to hold 
that such claims may be established on facts which 
would plainly fail to violate the Fourteenth Amendment. 

J» ¢'It is only by virtue of the Fourteenth Amendment, after 
all, that the Eighth Amendment has any application to 
the State of Georgia’s sentencing practices at all. 

Further, this Court only recently reiterated that the 
intent and culpability of state actors is indeed relevant 
to Eighth Amendment claims. In Whitley v. Albers, 106 
S.Ct. 1078, 1084 (1986), Justice O’Connor’s opinion for 
the Court stated as follows: 

It is obduracy and wantonness, not inadvertence or 
error in good faith, that characterize the conduct 
prohibited by the Cruel and Unusual Punishments 
Clause, . ... 

While there the Court was addressing the Eighth 
Amendment’s application to conditions of confinement 
rather than methods of sentencing, the underlying prin- 
ciple still applies in both instances: The cruel and un- 
usual punishment clause has no legitimate application to 
the merely “inadvertent” and unintentional imperfec- 
tions and aberrations in our human system of criminal 
justice. Accord: Pulley v. Harris, 104 S.Ct. at 881. 

Petitioner’s contention that inadvertent statistical dis- 
parities in the distribution of death sentences violates 
the Eighth Amendment is a grotesque distortion of the 
Constitution. The Eighth Amendment has nothing to do 
with a requirement for precisely calibrated allocations of 
sentences among the various races and ethnic groups. 

What the Eighth Amendment has been held to require 
in the allocation of the death sentence is that it not be 
dispensed in a wholly arbitrary and “freakish” manner, 
such that there is no rational justification for the deci- 
sion that one man is sentenced to death while another 

 



  

  

13 

receives only a term of imprisonment. The death penalty 

procedures applied in this case by the State of Georgia 
have conclusively passed that test, Zant v. Stephens, 462 

U.S. at 879-80, and nothing in the Baldus studies can 
undermine that controlling fact. 

C. The Standard of Statistical Proportionality Advo- 
cated by Petitioner Is Unreasonable, Unworkable, 
And Unjust When Applied To The Outcome of the 
Criminal Sentencing Process 

This Court has repeatedly stressed that in capital 
cases the jury is called upon to make a “highly subjec- 
tive, unique, individualized judgment regarding the 
punishment that a particular person deserves.” Caldwell 
v. Mississippi, 105 S.Ct. 2633 n.7 (1985), ( quoting Zant 
v. Stephens, 462 U.S. 862, 900 (1983). That sensitive 
judgment is simply not susceptible to the crude ecate- 
gorizations and generalizations on which all the conclu- 
sions and comparisons of the Baldus study must ulti- 
mately rest. 

In Pulley v. Harris, supra, 104 S.Ct. at 881, this Court 
further acknowledged that 

Any capital sentencing scheme may occasionally pro- 
duce abberational outcomes. Such inconsistencies are 
a far cry from the major systemic defects identified 
in Furman. As we have acknowledged in the past, 
“there can be no ‘perfect procedures for deciding in 
which cases governmental authority should be used 
to impose death.’ ” [citations omitted] 

Petitioner’s arguments cannot be reconciled with the 
foregoing observations. Petitioner’s theory holds that 
any deviation ® from statistically-based norms of racially 

3 Petitioner's brief asserts that “under the constitutional princi- 
ples outlined earlier, racial discrimination of any magnitude is 
unconstitutional.” (Pets Br., p. 95; emphasis added). 

  

  

 



  

Sy 

14 

proportional outcomes in a capital sentencing system 
would “require the invalidation of that system as a 
whole.” Pet. Br. p. 107. The disastrous practical im- 
plications of this legal theory are perhaps the best proof 
of its invalidity. : 

Initially, the Court should carefully ponder exactly 
what a state would be required to do in order to “re- 
habilitate” a capital punishment system condemned un- 
der petitioner’s theory of “statistical unconstitutionality.” 
If the reason for the system’s invalidation is its failure 
to conform capital sentencing outcomes to “acceptable” 
norms of racial balance, then the only fitting remedy 
would presumably be one that would eliminate or rectify 
such disparities to the fullest extent possible. See, e.g., 
Swann v. Charlotte Mecklenberg, 402 U.S. 1 (1971). 

It would plainly not be enough for the state to enact 
and implement objective procedures and standards which 
prevent the arbitrary and unrestricted exercise of sen- 
tencing discretion. The State of Georgia has already 
done precisely that, to the full satisfaction of this Court. 
See Gregg and Zant, supra. The only evident alternative, 
then, would be for the state to take more direct and 
positive measures—known in other contexts as affirma- 
tive action—to assure the elimination of racially dis- 
proportionate sentencing outcomes. 

This would presumably and logically entail a mora- 
torium on the execution of all black murderers and of 
all murderers of white vietims until the offensive statis- 
tical disparity was eliminated. Executions of white mur- 
derers of black victims could presumably go forward, 
since neither “defendant-based” nor “victim-based” racial 
bias could be credibly asserted in such cases. If this 
seems a bizarre and distorted remedy, it is because pre- 
cisely such a remedy is required to fit the distorted and 
anomalous logic of petitioner’s legal theory. 

There is really no remedy which could satisfy the un- 
reasonable and unrealistic standards of class-based jus- 

 



  

| 
| 
i 

15 

tice advanced by petitioner in this case. Petitioner’s pur- 
ported concern that racial factors infect the sentencer’s 

decisions in capital cases could only be resolved by the 
abolition of all jury discretion and the adoption of a 
mandatory death penalty approach (or, of course, com- 
plete abolition). But this Court has already rejected 

such an approach, Woodson v. North Carolina, 428 U.S. 
280 (1976), in favor of a regime which consciously 
tolerates the occasional variances produced by the sen- 
tencer’s discretion as long as they are rationally gov- 
erned by objective limitations and standards. Pulley wv. 
Harris, 104 S.Ct. at 881. Acceptance of petitioner’s argu- 
ments in this case would require the abandonment of 
these fundamental principles of post-Furman capital 
punishment law. 

The logic of petitioner's theory entails further praec- 
tical repercussions which are incompatible with any 
viable system of criminal sentencing. 

If a state’s capital sentencing system is invalid for its 
failure to produce racially proportionate outcomes, then 
what of the other forms of criminal sentencing? For ex- 
ample, if those sentenced to death in Georgia were in- 
stead sentenced to life imprisonment without possibility 
of parole, would the racial proportionality argument lose 
all of its force—such as it is—merely because the death 
penalty was no longer implicated? Nothing in the core 
logic of petitioner’s argument so indicates. 

Indeed, petitioner's primary argument in this case is 
phrased as follows (Pet.’s Br. p. 32): “A. The Equal 
Protection Clause of the Fourteenth Amendment Forbids 
Racial Discrimination in the Administration of Criminal 
Statutes.” [emphasis added]. Although this point is un- 
assailable by itself, petitioner insistently equates collec- 
tively “disproportionate” sentencing outcomes with the 
actionable racial discrimination he refers to. The argu- 
ment therefore plainly extends the demand for racial 
equilibrium in sentencing to other serious criminal pen- 

  

~
~
 

 



    

16 

alties (e.g., life imprisonment), if not to all criminal 
penalties. Compare Britton v. Rogers, 631 F.2d 572 
(8th Cir. 1980), where the court rejected the argument 
that racially disparate sentencing outcomes in past rape 
cases justified habeas corpus relief. 

The implication is clear. Acceptance of petitioner's 
argument would open the door to Title VII-style “dis- 
parate impact” challenges to criminal sentences of all 
kinds. The entire criminal sentencing process would be- 
come bogged down in the same morass of “underutiliza- 
tion” concepts, multivariate regression analysis, and 
“goals” or quotas which now complicate employment dis- 
crimination law. 

Nor do the radical implications end there. 

If the Constitution requires collective sentencing out- 
comes to satisfy some acceptable norm of racial propor- 
tionality, what then of the other “suspect” classifications 
under this Court’s Equal Protection jurisprudence? For 
example, discriminations based on alienage or on national 
origin now trigger the same degree of scrutiny as race 
discrimination. City of Cleburne v. Cleburne Living Cen- 
ter, 105 S. Ct. 3249, 3255 (1985). Moreover, it is now 
recognized that gender-based classifications “also call for 
a heightened standard of review,” City of Cleburne, 105 
S. Ct. at 3255, as do those based upon illegitimacy. Id. 

Accordingly, petitioner’s theory would also require pro- 
portional allocation of capital sentences with respect to 
such classifications as alienage, ethnicity, sex, and legiti- 
macy. If black murderers are entitled to invalidate their 
death sentences on grounds of statistical disparate im- 
pact, it would follow that those falling within the other 
specially protected classifications are entitled to produce 
additional studies showing analogous forms of disparate 
impact as to their respective groups. Further, petition- 
er’'s argument would allow defendants of all classifica- 
tions to challenge their sentences based on corresponding 

   

 



  17 

variants of petitioner’s theory of victim-oriented discrim- 
ination—e.g., a claim that those who murder American 
citizens are more likely to receive the death sentence 
than those who murder resident aliens. Such a claim 
would stand on the exact same constitutional footing as 
the claim at issue here. All of these predictable reper- 
cussions would hopelessly complicate the state’s efforts 
to enforce capital punishment systems which have already 
been upheld as valid by this Court. 

These are not exaggerated alarms, but merely acknowl- 
edgement of the logical consequences that could follow 
the Court’s acceptance of petitioner’s radical theory. Just 
as theories of statistical-based employment discrimination 
have produced permutations once deemed inconceivable, 
e.g., AFSCME v. State of Washington, 578 F.Supp. 846 

(D.Wash. 1984), rev'd, 770 F.2d 1401 (9th Cir. 1985), 
so too would endorsement of petitioner's theory of dis- 
parate impact in sentencing lead to bizarre and unfore- 
seen applications as well. 

No workable system of criminal justice could accom- 
modate the demands for race- and class-based parity in 
sentencing advanced by petitioner. Nor does the Consti- 
tution require a regime of “statistical justice” which 
would subject the validity of every criminal sentence to 
the vagaries and manipulations of fluctuating demographic 
data. 

II. EVEN IF A DISPARATE IMPACT STANDARD 
WERE APPROPRIATE IN THE CRIMINAL SEN- 
TENCING CONTEXT, PETITIONER FAILS TO 
MAKE A PLAUSIBLE CASE ON THAT BASIS AS 
WELL 

A. Petitioner's Basic Contention is Based on a Myth 

The core premise of petitioner's argument is the per- 
sistently repeated charge that the death penalty as admin- 
istered today pervasively discriminates against blacks. 
The problem with this key premise is that it is demon- 
strably false.  



  

18 

In a comprehensive study of sentences imposed on thou- 
sands of killers during the period 1980-1984, the Justice 

Department’s Bureau of Justice Statistics has discovered 
that it is white defendants who are disproportionately 
sentenced to death and disproportionately executed in 
this country. Bureau of Justice Statistics Bulletin, Capi- 

tal Punishment 1984, NCJ-98399, pp. 7-9, Tables 11, A-1, 
A-2 (August 1985) (hereafter cited as “BJS Bulletin”). 

The BJS report shows that for every 1,000 whites ar- 
rested on homicide charges, approximately 16 were sent 
to prison under sentence of death. BJS Bulletin. at p. 9, 
Table A-2. In comparison, fewer than 12 blacks for 
every 1,000 arrested on the same charges were sent to 

death row. The data indicates that white perpetrators 
as a group are 36% more likely to be sentenced to death 
than black perpetrators of comparable capital offenses. 

Further, white homicide convicts on average run a sig- 

nificantly greater likelihood than their black peers (i.e., 
55% more likely) of actually being executed subsequent 

row whites were actually executed, compared to only 
1.1% of blacks on death row. Id., p. 7, Table 11. 

These nationwide figures are not to suggest that the 
death penalty as administered actually discriminates 
against white perpetrators. The complex combination of 
factors involved in each individual homicide is so unique 
and personalized that attempts to draw legitimate infer- 
ences from such generalized class-based sentencing varia- 
tions are futile. 

But the BJS statistics do discredit petitioner’s sweep- 
ing contention that anti-black discrimination permeates 
the capital sentencing process. Moreover, other reputable 
studies undercut the claims of victim-anchored race dis- 
crimination in capital sentencing as well.* In sum, the 

  

+ See, e.g., Note, Discrimination and Arbitrariness in Capital 
Punishment: An Analysis of Post-Furman Murder Cases in Dade 

 



  

19 

image of a pervasively discriminatory criminal justice 
system which petitioner seeks to convey as a means of 
attacking the death penalty is flatly inaccurate. 

Petitioner might protest that the BJS Bulletin reflects 
nationwide data and is therefor technically irrelevant to 
a murder conviction under Georgia state law. But by 
the same reduction logic, the state-wide data relied upon 
for petitioner's most strongly-asserted contentions would 
also be over-inclusive. 

A truly-focused study for purposes of legitimate, 
“apples-to-apples” comparison between petitioner’s sen- 
tence and those in like cases—and one which eliminates 
cross-regional and urban/rural factors which might also 
account for sentencing disparities—would have to be con- 
fined to (1) murders of law enforcement officers (2) in 
Fulton County only. Such a comparison with cases truly 
similar to his own would seem an obvious prerequisite 
to an individual claim of discriminatory sentencing. 
However, the limited number of such cases (i.e., six— 
see 580 F. Supp. at 378) is too small to allow for any 
valid statistical analysis or comparison. See, e.g., Adams 

v. Wainwright, supra, 709 F.2d at 1449; Andrews wv. 
Shulsen, supra, 600 F.Supp. at 426. Accordingly, if the 
Court were to limit the proof to truly comparable cases 
within the specific prosecution venue, the statistical ap- 
proach is plainly unsuitable due to insufficient data. 

B. The Theory of Victim-Based Discrimination is 

Legally and Logically Invalid 

Petitioner’s curious reliance on the oblique “race-of- 
the-vietim” approach is best explained by the faet that 
focusing strictly on race of the defendant simply would 

County, Florida, 1973-76, 33 STANFORD L. REV. 75, 100-01 (1980), 
which demonstrates that the seeming predominance of death sen- 

tences in the case of white-victim murders by blacks is fully ex- 

plained by the fact that such killings disproportionately account 

for the highly aggravated felony-murders which allow and motivate 

death sentences. ; 

  

 



  

20 

not work. As clearly demonstrated by the district court, 
580 F.Supp. at 368, by the Court of Appeals, 753 F.2d. 
at 887, and by the BJS Bulletin, supra, the death penalty 
is not disproportionately applied to black defendants. 
On the contrary. 

Although Eleventh and Fifth Circuit cases have 
broadly assumed that a death sentence may be challenged 
on the alternative grounds of victim-based disparate im- 
pact statistics, that theory is by no means established as 
the Law of the Land. + 

Some courts have displayed well-founded skepticism 
towards this oblique and “once-removed” method of at- 
tempting to prove discrimination. In Spinkellink wv. 
Wainwright, 578 F.2d at 614 n.39, the Fifth Circuit 
approvingly quoted the district court’s ruling that chal- 
lenges to the application of the death penalty “must neec- 
essarily be limited to the persons who receive it rather 
than their victims”. In Britton v. Rogers, supra, 631 
F.2d at 577 n.3, the Eighth Circuit held that convicted 
criminals lack standing to challenge victim-based racial 
discrepancies in sentencing. And the district court in 
the instant case opined that such victim-based claims are 
not cognizable under either the Eighth Amendment of 
the equal protection clause of the 14th Amendment. 580 
F.Supp. at 347. 

These concerns are well-taken, and should command the 
careful attention of this Court. A murderer freely se- 
lects his own victim; it would therefore be grotesquely 
ironic for this Court to hold that the slain wvictim’s race 
can be subsequently invoked by the murderer as a shield 
against his just punishment. Yet that is exactly what 
the petitioner is doing in this case. A more distorted 
variant of the doctrine of jus tertii would be difficult to 
imagine. 

There are other convincing reasons why the Baldus 
study’s race-of-the-victim statistics cannot serve as a 

 



  

21 

valid or reliable basis for overturning death sentences. 
For instance, the record shows that the Baldus study 
was unable to account for the race of the victim in 62 
of the cases it examined. 580 F.Supp at 358. This raises 
the question of precisely how the Baldus study was able 
to verify that the juries in all the studied cases had aec- 
tually considered clear and reliable evidence of the race 
of the victim. After all, the murder victim is not present 
at the trial and the victim’s race is not normally a con- 
tested point requiring proof or authentication. There- 
fore, it is not at all clear that reliable evidence of the 
victim's race is uniformly and unambiguously conveyed 
to the jury in every case. 

Yet the Baldus study and petitioner's arguments rest 
on the assumptions that Georgia juries invariably have 
an accurate and unambiguous understanding of the vie- 
tim’s race—and that they ascribe significance to that in- 
formation. We submit that such an assumption is in- 
valid, providing further grounds for rejecting petitioner’s 
race-of-the-victim theory. 

C. The Findings of the District Court on the Study’s 
Invalidity Should be Affirmed 

In a thorough and painstaking analysis that warrants 
this Court’s careful attention, the trial court made con- 
vincing first-hand findings that the Baldus study was 
riddled with errors in its data base and was not essen- 
tially trustworthy; relied on statistical models which 
were not sufficiently predictive to support an inference 
of discrimination; and did not even compare like cases 
in purporting to find racially disparate impact. 580 
F.Supp. at 354-365. 

For reasons not clearly expressed, the Court of Ap- 
peals did not overtly pass judgment on these findings of 
fact. Instead, it chose to “assume” the Baldus study’s 
validity and proceeded to hold that petitioner’s argu- 

   



  

22 

ments failed as a matter of law even given that assump- 
tion. 753 F.2d at 894. 

Contrary to petitioner’s disingenuous suggestions, how- 
ever, the Court of Appeals in no way disturbed or ques- 
tioned the trial court’s actual findings of the study’s in- 
validity. Indeed, it expressly disclaimed any intent to do 
so. Id. at 894-95. 

Under Fed. R. Civ. P. 52(a), the Court of Appeals 
could have set aside the district court’s findings of fact 
only if they were “clearly erroneous.” United States V. 
General Dynamics, 415 U.S. 486 (1974). Obviously, the 
Court of Appeals did not do that in this case. So the 
trial court’s findings stand unimpeached. 

Therefore, if this Court does not affirm the Eleventh 

Circuit’s holding on the legal issues, petitioner’s death 
sentence- should still be affirmed on the ground that the 
Baldus study is too flawed and untrustworthy to raise 
a genwine issue of racially disparate sentencing. Given 
the manifest thoughtfulness and thoroughness of the dis- 
trict court’s findings, there is no sound reason for this 
Court to avoid passing on whether they are clearly er- 
roneous. And it would be a presumptuous appellate court 
indeed that would dismiss the trial court’s deliberate and 
painstaking demonstration of the study’s many palpable 
flaws as “clearly erroneous.” 

D. The Myriad Individualized Factors and Combina- 
tions of Factors Which Influence A Death Sen- 
tence Are Not Susceptible To Quantification Or 

Precise Comparative Analysis 

Petitioner’s theory of discrimination is only as good as 
the precision and reliability of its base data, the predic- 
tive capacity of its statistical models, and the essential 
equivalency of the cases it purports to compare. The dis- 
trict court’s thorough scrutiny of the Baldus study pro- 
duced unassailable findings that it is substantially de- 
ficient in each of those critical aspects. 580 F.Supp. at 

or ————————— r= £1 

 



  

23 

3564-365. The study therefore fails to establish the 
factual predicate which is necessary even to reach peti- 
tioner’s novel legal theory. 

. Putting aside the mere flaws, mistakes and inconsist- 
encies of the study, amici would call the Court’s atten- 
tion to what we consider to be a fatal and inherent fal- 
lacy in petitioner's methodology. Petitioner’s lawyers and 
“experts” claim that they carefully recorded and ac- 
counted for some 200 legitimate sentencing variables 
(e.g., various aggravating and mitigating factors) in at- 
tempting to isolate the “inexplicable’’ sentencing dis- 
crepancies which they then blithely assigned to the race 
factor. The problem with this approach is that (a) they 
did not even thoroughly account for the factors which 
they claim to have accounted or “controlled” for; and 
(2) the limited number of sentencing factors which they 
did choose to account for did not even begin to exhaust 
the vast range of legitimate sentencing variables (and 
combinations thereof) which can result in a legitimate, 

non-discriminatory sentencing variation.’ 

One particular example of these fundamental flaws is 
illustrative but by no means exhaustive. 

In demonstrating the numerous flaws infecting the 
data base of the Baldus studies, the distriet court found 

that the students who coded the various sentencing fac- 
tors affecting each case were limited by the study’s 
structure to entering only one method of inflicting death. 
As the court found, 580 F.Supp. at 356: 

8 Several professors or scholars who have a professional interest 
in the acceptability of statistical studies as binding proof in litiga- “ 

. | tion have filed a brief amicus curice supporting the complete itheut bg 
validity of the Baldus studies. This Court should regard such Art. 
palpably self-serving arguments with maximum skepticism. 

8 The district court expressly so found, 580 F.Supp. at 364: 
“(The Baldus studies] do not account for a majority either of 
aggravating or mitigating circumstances in the cases.” 

    

 



  

24 

The effect of this would be to reduce the aggrava- 
tion of a case that had multiple methods of inflict- 
ing death. In coding this variable the students gen- 
erally would list the method that actually caused the 
death and would not list any other comiributing as- 
saultive behavior. R463. [emphasis added]. 

The effect of such crude limitations on the accurate 
depiction of different capital cases can best be under- 
stood by observing how they would apply to the coding 
of an actual case. 

In Andrews v. Shulsem, 600 F.Supp. 408 (D.Utah 
1984), appeal pending, No. 84-2781 (10th Cir.), the de- 
fendant and his accomplice murdered three people and 
brutally injured two others while robbing a Hi Fi shop 
in Ogden, Utah. The immediate cause of death in the 
murders was simply shooting. But before the fatal shoot- 
ings, the defendants had (a) attempted to force the fa- 
ther of one of the victims, at gunpoint, to pour poisonous 
liquid drain cleaner down the throats of his own son and 
two other bound teenage victims (he refused) ; (2) force- 
fed the poisonous drain cleaner to the hapless vietims, 
then taped their mouths shut; (3) raped one of the teen- 
age girl vietims before methodically shooting her in the 
head; (4) attempted to strangle the father-victim with 
an electric cord; and (5) viciously kicked a long ball- 
point pen deep into the father’s ear. 

It is obvious from the district court’s findings that the 
Baldus study’s methodology would not begin to capture 
or account for all the hideous particulars and compounded 
variables which moved a Utah jury to vote for the death 

_ sentence in Andrews V. Shulsen. The cause of death 
would have been listed by the coders as a shooting (see 
580 F.Supp. at 356). Clearly, the collective horrors of 
such a case cannot be reduced to neatly coded vari- 

ables in a statistician’s pigeon holes. This incapacity 
to capture the intangible but critical nuances of actual 

—r— ne = a — — 
— ———————————————— or ——— ——_ 18 =e 

 



  

25 

murders undercuts the authenticity of all the study’s 
comparisons of supposedly similar cases. 

As it turns out, the murderers in Andrews Vv. Shulsen 

were black and their victims were white. The perpetra- 
tors in that case have appealed their death sentences, 
asserting the same claim of racially discriminatory sen- 
tencing presented in the instant case. If petitioner pre- 

: vails here, the just death sentences of the likes of the 
“Hi-Fi” murderers will be absurdly attributed to racial 
factors in the eyes of the law, rather than to the malici- 
ous particulars which in fact account for them. Nothing 
in the Constitution or this Court’s capital punishment 
jurisprudence requires such an unreasonable and unjust 
result. 

CONCLUSION 

For all the foregoing reasons, the decision of the 
Eleventh Circuit should be affirmed. 

Respectfully submitted, 

DANIEL J. POPEO 

GEORGE C. SMITH * 
WASHINGTON LEGAL FOUNDATION 

1705 N Street, N.W. 
Washington, D.C. 20036 

(202) 857-0240 

Attorneys for Amici Curiae 
| Washington Legal Foundation 

; and 
Allied Educational Foundation 

* Counsel of Record 

Dated: September 19, 1986 

  
A ——————— tv’ Sy {0 3 —— pp ———— | rr ———— 

Cr, WE — ED Rr © \— 

 



  

} No. 84-8811 
  

  

INTHE 

Supreme Court of the Hnited States 

Ocroser TErM, 1986 
  

: WARREN McCLESKEY, 
: : Petitioner, 

v. 

Rarre M. KEMP, superintendent, 

Respondent. 

  

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 OF THE CONGRESSIONAL BLACK CAUCUS, ! 
THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 

! LAW, AND THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, AS AMICI CURIAE 

m
n
 

Sa
 
R
T
 

H
Y
 

  

- 
er
as
er
 

(n
r 

SErE P. Waxman 
Miller, Cassidy, Larroca & Lewin : 

2555 M Street, Suite 500 
: Washingtcn, D.C. 20037 : 

} (202) 293-8400 
Counsel for the Congressional 

Black Caucus 

Harorp R. TYLER, JR. and : 
; J AMES ROBERTSON, Cochatrmen : 

: NorMAN REDLICE, Trustee : 
Wrrram L. ROBINSON * 

Lawyers’ Committee for Civil 

: Rights Under Law 

1400 I Street N.W., Suite 400 

Washington, D.C. 20008 

(202) 371-1212 

Grover HANKINS, General Counsel 
NAACP Special Contribution Fund 

4805 Mount Hope Drive, Room 501 

Baltimore, MD 21215 

(301) 388-8800   
*Ccounsel of Record 

 



  

  

  

  

  

No. 84-6811 

IN THE 
SUPREME COURT OF THE UNITED STATES 

October Term, 1986 

  

WARREN McCLESKLY, 

Petitioner, 

7. 

RALPH M. KEMP, Superintendent, 

Respondent. 

  

ON WRIT OF CERTIORARI TO THY UNITED STATES 
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

  

MOTION FOR LEAVE TO FILE BRIEF AMICT CDRIAT 
OF THE CONGRESSIONAL BLACX CAUCUS, 

THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, AND THE NATIONAL ASSOCIATION 
FOR THE ADVANCEMENT OF COLORED PEOPLE 

  

The Congressional Black Caucus, the 

Lawyers' Committee for Civil Rights Under 

Law, and the National Association for the 

Advancement of Colored People, respectfully 

 



   
move the Court pursuant to Supreme Court 

Rule 36.3, for leave to file the attached 

brief as amici curise in support of 
  

Petitioner. Petitioner has consented to 

this filing, but Respondent has refused its 

consent. 

The Congressional Black Caucus is 

composed of all twenty black members of the 

United States House of Representatives. 

Its primary function is to implement and 

preserve the constitutional guarantee of 

equal justice under the law for all 

Americans, particularly black Americans. 

The Lawyers' Committee for Civil 

Rights Under Law is a nationwide civil 

rights organization that was formed in 1963 

by leaders of the American Bar, at the 

request of President Kennedy, to provide 

legal representation to blacks who were . 

being deprived of their «civil rights. 

Since then, the national office of the 

Lawyers' Committee and its local offices 

    
 



  

have represented the interests of blacks, 

Hispanics and women in hundreds of cases 

challenging state and private actions based 

on race discrimination. Over a thousand 

members of the private bar, including 

former Attorneys General, former Presidents 

of the American Bar Association and other 

leading lawyers, have assisted it in such 

efforts. 

The National Association for the 

Advancement of Colored People is a New York 

nonprofit membership corporation, with some 

three million members nationwide. Its 

principal aims and objectives include 

eradicating caste or race prejudice among 

the citizens of the United States and 

promoting genuine equality of rights in the 

operation of its laws. 

Amici have a long-standing interest in 

insuring that no one is denied equal 

justice on the basis of race. We believed 

it well-established that the unequal 

 



    

application of criminal statutes on the 

basis Of race is a violation of the 

Constitution. Yet in this case the Court 

of Appeals has held that a proven racial 

disparity in death sentencing does not in 

and of itself violate the Eighth and 

Fourteenth Amendments. In order to respond 

to this ruling we have asked to participate 

as amici. In our view, the holding of the 

Court of Appeals threatens the principle of 

equality under the law and undermines our 

efforts to realize this fundamental 

principle. 

Because the issues raised by this case 

go beyond the interests of Petitioner 

alone, and the implications of the Court of 

Appeals' decision affect the rights of all 

Americans we are dedicated to preserve, we 

believe our ‘participation wlll ‘be of 

assistance to the Court. 

    
 



  

For the foregoing reasons, we 

respectfully request that leave to 

participate as amici curiae be granted. 
  

Respectfully submitted, 

  

WILLIAM L. ROBINSON¥ 
HAROLD R. TYLER and 
JAMES ROBERTSON, Cochairmen 
NORMAN REDLICH, Trustee 

Lawyers' Committee for 
civil Rights Under Law 
1400 I Street N.W. 
Suite 400 
Washington, D.C. 20005 
(202) 371-1212 

SETH P. WAXMAN 

Miller, Cassidy, Larroca & Lewin 
2555 M Street, Suite 500 
Washington, D.C. 20037 
(202) 293-6400 
Counsel for the Congressional 
Black Caucus 

GROVER HANKINS, General Counsel 
NAACP Special Contribution Fund 
4805 Mount Hope Drive, Room 501 
Baltimore, MD 21215 
(301) 358-8900 

*Counsel of Record  



    

  
 



  

TABLE OF CONTENTS 
  

Page 

TABLE OF AUTHORITIES. . . 0 4%. . +» - . 11. 

INTEREST OF THE AMICY +... 0 is 4 oo 1 

SUMMARY OF ARGUMENT oo .. . vv & i. 2 

ARCUMENT oa a8 0 vv Ve vier ofite nite 5 

I. THE EVIDENCE IN THIS CASE 
SHOWS THAT RACE REMAINS A 
DRIVING FORCE IN THE 
IMPOSITION OF CAPITAL 
SENTENCES IN THE STATE 
OF GPORQYA.,: wis sv wis ov vo iiw 5 

ITI. SIGNIFICANT RACIAL INFLUENCES 
IN DEATH-SENTENCING DECISIONS-- 
CONSCIOUS OR UNCONSCIOUS-- 
VIOLATE THE CONSTITUTION. . . 18 

A. Any Significant Quantum 
of Racial Discrimination 
in Death Sentencing is 
Intolerable.  .. «i... 29 

  

  

  

  

B. In the Context of 
Sentencing Decisions, 
Proof of Actual Subjective 
Intent is Not Required to 
Establish a Prima Facie 
Case of Discrimination. . 23 

  

  

  

  

  

  

III. BECAUSE GEORGIA'S UNIQUE 
DEATH SENTENCING SYSTEM HAS 
FAILED TO ELIMINATE THE 
INFLUENCE OF RACE, IT IS 
INCONSISTENT WITH THE EIGHTH 
AND FOURTEENTH AMENDMENTS. . . 36 

CONCLUSION . * Ld LJ LJ . LJ . . . . . 4 4 

i. 

 



TABLE OF AUTHORITIES 
  

  

Page 

CASES 

  

Alexander v. Louisiana 
408. 0,8 628 (1972) os vr vv 0. 12,28 

Amadeo v. Kemp 
213. F.2d 114) (11th Cir. lo8s) -, .."30 

Arlington Heights v. 
Metropolitan Housing Corporation 
420 1:9.7262 (1977) 5. «vs vs 28,35 

Batson v. Kentucky 
106. SCE. 1712 (1986), , J." 3,26 

Bazemore v. Friday 
106 8.CL, 3000 (1986) .'. , 12,25,27,31 

Bowden v. Kemp 

793 B.24 273 (11th Cir, 1986) .4, . 130 

Briscoe v. LaHue 
460. U.8, 325 (1983) 4 why Jd, e162) 

Burrows v. State 

640. P,2d B33 (Ok. Crim, 1982) ... 39 

Carter. v. Texas 

177 U.B8. 442041900) vy 0 oi ot, 23 

Casteneda v. Partida 
430 U.S. 482 (1977)... .+.011,22,28,29 

Chicago, Burlington & 
Quiney Railway v. Babcock 
204 U.8, 58541907) > FV . . a, 25 

Coker v. Georgia 
433 YU. 8% 884 (1577Y 0h iit oi Say 

11. 

    
 



  

Coley v. State 

+204 S5.E.24 612 (Ga. 1974) ... 

Davis v. Zant 

221 F.24 1478 (11th Cir. 1984) 

Eddings v. Oklahoma 
455 13.8. 104 (1982) , J bo oa, 

Estelle v. Gamble 

429 U.5, 97 (19176) ve dee, 

Ex Parte Virginia 
100 0.2, 667-{1879% . +... , 

Fayerweather v. Ritch 
308 U.S, 276 (1804) + i. 2 . ..¥%, 

Furman v. Georgia 
408 U.8.: 238 (1972) «0: vv . 5s 

Gardner v. Florida 

430 T1.8:.:349 (1977) +. ¢v oviy v +» 

Gates v. Collier 

50 FP.24 1291 (5th Cir. 1274) . . 

General Building Contractors 
Ass'n, Inc. v. Pennsylvania 
4858: U.8, 375 (1982) .i . i.e oie id 

Godfrey v. Georgia 
446 U.S. 420.(1980) , , ,:. . 

Gregg Vv. Georgia 
428 U.S, 153 (1976), .. , ' '4,5,30 

Hall v. State 

244 S.E.24 833 (Ga, 1978) «» +... 

Hazelwood School District 
v. United States 

433 U,8,;,.299 (1977)::.. 

: Be 5 

41 

30 

34 

33 

YY 

+ 225 

passim 

32,34 

33 

vii x2) 

34,39 

37,40 

41 

31 

 



   
Jones Vv. Georgia 
189 U.8.-24 (1967) . . . 

Lodge v. Buxton 
639 F.2d 1358 (llth cir. 1981) 

Loving v. Virginia 
388 Ulm a. (i967) 0 Jn 

McCleskey v. Kemp 
753 F.2d 877 (11th Cir. 1985) 

Norris v. Alabama 
294 U.S. 559 (1983) . . . 

Rhodes v. Chapman 
452 U.:8: 317: (1981) «+ «vi 

Rogers v. Lodge 
458 U.S. 613 (1982) 

Rose v. Mitchell 
443 U,.8¢. 545 (1979) + + + oi 

Ross v. Kemp 
785 F.24 1467 (11th Cir. 1986) 

Rozcecki v. Gaughan 
450 P.2d 6 (ist Cir. 1973): 

Shelly v. Kramer 
334 US. 1 (1948) . i 4a 

Smith v. Texas 

311 U.S. 128 (1940) « «i 

Spain v. Procunier 
600 F.2d 189 (9th Cir: 1979) 

Spencer v. Kemp 
784 F.2d 458 (11th Cir. 1986) 

Spivey v. State 
246 S.E.24 208 (Ga. 1978) . . 

iv. 

. 12 

sian 14 

20 

passim 

21 

‘iy 32 

io0,14,2%,39,3) 

37,21;31 

$3 30 

7 $& 33 

$e 127 

$ivy 33 

dio 033 

oun 30 

« + 138 

    
 



State v. Osborn 

61. Pe2A 187 (XA, A981) ev i ca ae 39 

Strauder v. West Virginia : 
100 U.8. 664 (1879) % Jt, .... .owniAd,2) 

Texas Dept. of Community 
Affairs v. Burdine 
450. Y.8. 248 (198Y) . oT ines YY 

Turner v. Fouche 

396 U.S. 346 (1970) cis ov ov 4. . 2,22 

Turner v. Murray 
106 S.Ct... 1683 (1986) 5. . '."¢ sis 27 

Ward v. State 

236 8.F.2d4 365 (Ga. 1977) «. + + «5H 4A} 

Washington v. Davis 
A326 10.8..229 (1976) : i. o, Gi 20 

Whalen v. State 

492 A.2d 552 (Del. 1985) HE ET 3 

Whiteley v. Albers 
106 S.Ct. 1078:.(1986) . . « vs .. 25,33 

Whitus v. Georgia 
385 U.S. 545 (1967) "ois .i viv a a 212522 

Willis v. Zant 
720 F.24 1212 (311th Cir. 1983) hn 30 

Yick Wo v. Hopkins 
118. 0.8. 356 (IBBE) «+ vs odio. 20 

Zant v. Stephens 
462 1.8. 862 (1983) . + . .+.5.1.39,40,43   
 



   
RULES AND STATUTES 
  

Georgia Code Ann. §27-2534(b)(2) . 35 

OTHER AUTHORITIES 
  

Bentele, The Death Penalty in 
Georgia: Still Arbitrary 
62 ASH. U.L.Q. B73 vv + +3 ¢ +» 38,41 

Bowers and Pierce, Arbitrariness 
and Discrimination Under the Post- 
Furman Capital Statutes 
26 CRIME AND DELINQUENCY 563 (1980) 7 

Gillers, Deciding Who Dies 
129 U.PA.L.REV. 1 (1980)  .V. . 38 

Gross and Mauro, Patterns of Death 
37 STAN.L.REV, 27 (1984) 2 wie 0 40,7 

HIGGENBOTHAM, IN THE MATTER OF 
COLOR: RACE IN THE AMERICAN LEGAL 
PROCESS (1978) ¢ « « ov av 90g iil] 

Joint Center for Political 
Studies, Black Elected Officials: 
A National Roster (1986) ‘vv... +s 30 

Joint Center for Political 
Studies, Black Judges in the 
United States: (1986). vw .... +» +» % 4 230 

MYRDAL, AN AMERICAN DILEMMA 
(1944) LJ LJ . LJ Ld LJ LJ LJ LJ . LJ LJ . 16 

NAACP Legal Defense Fund : 
Death Row U.S.A., August 1, 19886 . 5 

Stampp, The Peculiar Institution: 
Slavery in the Antebellum South 
(1956) . . . LJ . Phd LJ . LJ - LJ . LJ LJ 14 

vi. 

    
 



  

No. 84-6811 

IN THE 
SUPREME COURT OF THE UNITED STATES 

October Term, 1986 

  

WARREN McCLESKEY, 

Petitioner, 

VY. 

RALPH M. KEMP, Superintendent, 

Respondent. 
  

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

  

BRIEF OF AMICI CURIAE 
THE CONGRESSIONAL BLACK CAUCUS, 

THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, AND THE NATIONAL ASSOCIATION 
FOR THE ADVANCEMENT OF COLORED PEOPLE 

  

  

INTEREST OF AMICI   

The interests of amici in this case 

  

are set out in the preceding Motion for 

Leave to File this Brief. 

 



SUMMARY OF ARGUMENT 
  

  

The exhaustive scientific proof in 

this case shows that race has retained a 

powerful influence on capital sentencing 

decisions in Georgia, since Furman v.   

Qeoidia, 408° U.8.° 238 (1973), That 

confirms what is evident to even a casual 

observer: Just as before Furman, "a look 

at the bare statistics regarding executions 

is enough to betray much of the 

discrimination." 408 u.8. at 364 

(concurring opinion of Justice Marshall). 

The scientific evidence in this case tests 

every possible explanation for these 

apparent disparities, and shows nothing can 

explain them but the conscious or 

unconscious influence of race. It does so 

with a thoroughness and rigor which meet or 

exceed every standard this Court, or any 

other court, has ever set down for such 

proof. It cannot be simply explained away 

or ignored. 

    
 



  

The Court of Appeals' suggestion that 

the discrimination this evidence showed was 

of a tolerable magnitude is inconsistent 

with everything this Court has said about 

race discrimination in criminal justice. 

It also ignores the true magnitude of the 

racial disparities here, which matched or 

exceeded those the Court has found 

intolerable in related contexts. 

The Court of Appeals' insistence on 

proof of an intentional act of 

discrimination by an identified actor 

imposes "a crippling burden of proof," 

Batson v. Kentucky, 106 S.Ct. 1712, "1720   

(1986) on claims of discrimination in this 

context. There is no justification for 

imposing such an extraordinary burden here: 

Death sentencing is quintessential state 

action; it involves such a range of 

discretion and such a multitude of decision 

makers that proof of a particular 

discriminatory act or animus is unnecessary 

 



   and unrealistic. In such circumstances, 

the ‘Kind of strong statistical proof 

presented here, coupled with a history of 

discrimination, sufficiently shows 

"purposeful discrimination" under any 

established and realistic Fourteenth 

Amendment standard. Moreover, the separate 

requirements of the Eighth Amendment place 

on the states a duty to avoid 

discrimination in death sentencing which is 

independent of any particular actor's 

subjective intent. 

The evidence here shows that the hope 

  of Greqq Vv. Georgia, 428 U.S. 153 (1976) 

has not been realized. Georgia's uniquely 

discretionary post-Furman system has not 

removed discrimination from the imposition 

of death sentences in that state. 

    

 



  

ARGUMENT 
  

I. THE EVIDENCE IN THIS CASE SHOWS 
THAT RACE REMAINS A DRIVING FORCE 
IN THE IMPOSITION OF CAPITAL 
SENTENCES IN THE STATE OF GEORGIA. 

Since this Court's decision in Greqq 

Y. Georgia, 428 U.S, 153 (1976), the State 
  

of Georgia has carried out seven 

executions. Six of the seven men executed 

were blacks convicted of killing whites; 

the victim in the seventh case was white, 

also.l If this Court affirms the Court of 

Appeals' decision in this case, it appears 

- that pattern will persist: Of the fifteen 

men Georgia holds under death sentences now 

in force which precede Warren McCleskey's 

in time, thirteen are black; nine of the 

  

i! The seven men executed were John 
Smith (white defendant, white victim); Ivon 
Stanley (black defendant, white victim); 
Alpha Stephens (black defendant, white 
victim); Roosevelt Green (black defendant, 
white victim); Van Solomon (black 
defendant, white victim); John Young (black 
defendant, white victim); and Jerome Bowden 
(black defendant, white victim). NAACP 
Legal Defense Fund, Death Row U.S.A., 
August 1, 1986 at 4,  



   
thirteen had a white victim; so did both of 

the two white defendants in this group.?2 

These figures are particularly 

striking when one considers that black 

people constitute a substantial majority of 

the victims of all homicides in the state 

of Georgia, and black-on-white homicides 

are extremely rare.> Although these raw 

figures are certainly not scientific proof, 

no fair-minded observer who is aware of the 

history of race relations in this state can 

confront them without suspecting that 

racial inequities persist in the manner in 

which capital defendants are chosen for 

execution by the Georgia judicial system. 

  

2 See Appendix I. 

3 Professor Baldus' data showed 
black people were the victims in 60.7% 
(1502/2475) of Georgia homicides; and 
crimes involving black defendants and white 
victims constituted only 9.2% (228/2475) of 
Georgia homicides, during the period he 
studied. See D.Ct. Exhibit DB 63. FBI 
Uniform Crime Reports confirm these 
percentages. See Gross and Mauro, Patterns 
of Death, 37 STAN.L.REV. 27, 56 (1984). 

  

  

    

 



  

The evidence presented in this case is 

strict scientific proof; and it tragically, 

but unmistakably, confirms that SUSpielon, 

From Professor Baldus' most preliminary 

measures (which showed white victim cases 

nearly 11 times more likely to receive 

death sentences than black victim cases, 

D.Ct. Exhibit DB. 62), 0." his most 

comprehensive and refined (which showed 

race of victim to multiply the odds of 

death some 4.3 times, D.Ct. Exhibit DB 82), 

the evidence presented here shows the 

influence of race in the Georgia system 

persists, however it is examined. All 

other observers have reached the same 

conclusions, whatever methods and data they 

have used.? 

  

4 See Gross & Mauro, supra, n.z2; 

Bowers and Pierce, Arbitrariness and 
Discrimination Under the Post-Furman 
Capital Statutes, 26 CRIME AND DELINQUENCY 

  

  

  

563 (1980). 

 



These persistent findings admit only    
three conceivable explanations: Either (1) 

some or all of the actors in the Georgia 

criminal justice system empowered to make 

decisions affecting the imposition of the 

death penalty are intentionally 

discriminating by race; or (2) the 

discretionary aspects of the Georgia death 

sentencing system allow subconscious racial 

biases to influence the outcome of death 

sentencing decisions; or (3) some unknown 

nondiscriminatory influence is at work, and 

accounts for these persistent disparities 

in a way no one has yet fathomed. 

No one would deny the first of these 

possibilities violates the Constitution. 

As we will discuss in Part II below, in the 

context of the Georgia capital sentencing 

system, the second does as well. We must 

first pause, however, to consider the third 

possible explanation, which the Court of 

Appeals! majority seized upon when it 

    
 



  

faulted the Petitioner's proof for 

supposedly "ignor(ing] quantitative 

differences in cases: looks, age, 

personality, education, profession, job, 

clothes, demeanor, and remorse, just to 

name a few...." McCleskey Vv. Kemp, 753 
  

E.24 877 {11th Cir. 195485), With all 

respect, this remarkable assertion is wrong 

as a matter of fact, as a matter of law, 

and as a matter of common sense. 

The factual error in the Court of 

Appeals statement is both striking and 

revealing. Striking is the fact that 

several of the precise variables the Court 

of Appeals pointed to were taken into 

account by Professor Baldus' data.?> 

Revealing is the list of new variables the 

  

5 Professor Baldus' questionnaire 
(D.Ct. Exhibit DB 38), accounted for the 
defendant's age (Foil 46), education (Foil 
4.13) profession and employment status 
(Foils 61-69), and expressions of remorse 
{Foils . 183, 274). Professor Baldus 
recorded similar factors regarding the 
victim as well. See Foils 111, 112-120.  



    

Court of Appeals conjured up: "looks ... 

personality ... clothes ... and demeanor." 

Not only is it unimaginable that such 

criteria could serve as legitimate 

justifications for a death sentence; they 

would be obvious proxies for race prejudice 

if they were in fact used.® For as Judge 

clark in his dissenting opinion below 

noted, "it is these differences that often 

are used to mask, either intentionally or 

unintentionally, racial prejudice." 

McCleskey v. Kemp, supra, 753 F.2d at 925 
  

n.24. The Court of Appeals' resort to 

these farfetched hypotheticals illustrates 

how comprehensive Professor Baldus' data 

are: No one has yet suggested any factors 

he did not take into account which could 

  

6 Even the variables that the Court 
of Appeals identified and Professor Baldus 
did take into account--job, profession, and 
education--are not wholly race neutral. 
Any disadvantages black’ defendants may 
suffer in these respects are likely to be 
the result of past discrimination. Cf. 
Rogers v. Lodge, 458 U.S. 613, 625-6 (1982). 
  

10 

    

 



  

plausibly and fairly explain death 

sentencing outcomes. 

As a matter of law, the Court of 

Appeals' error lies in its holding that 

even such thoroughness was not enough, 

demanding that statistical proof of 

discrimination eliminate such nebulous and 

speculative influences. . The breadth of the 

Baldus studies--which accounted for over 

230 nonracial variables--far exceeds any 

other ever offered to meet a prima facie   

standard of proof announced by this Court.’ 

And as the Court has recently reiterated, 

one cannot dismiss or rebut a sophisticated 

regression analysis--or any prima facie 

proof of discrimination, for that matter-- 

"declar[ing] simply that many factors go 

into making [the relevant decision)", 

without any "attempt ... to demonstrate 
  

7 Compare Texas Dept. of Community 
Affairs v. Burdineg, 450 U.S. 248 (1981): 
Hazelwood School District v. United States, 
433 U.S. 299 (1977): Casteneda v. Partida, 
430 U.S. 482 (1977). 

  

  

  

  

11 

 



   that when these factors were properly 

organized and accounted for there was no 

significant disparity between ... blacks 

and whites." Bazemore v, Friday, 106 S.Ct. 
  

3000, 3010-11 n.l14 (1986).8 Yet the 

Eleventh Circuit majority did just that. 

The Court of Appeals' strain to find 

unexplained variables defies common sense 

because it ignores the social context and 

history in which the substantial racial 

discrepancies identified by Professor 

Baldus were found. The differing treatment 

of murder defendants in Georgia, based on 

their race and the race of their victim, is 

no newly-discovered phenomenon. In 

Georgia's earliest history, established law 

provided as follows: 

  

8 Accord Alexander Vv. Louisiana, 
405 U.S. 625, 631-32::(1972); Hhitus v,. 
  

  

Georgia, 2385 U.S. 545 (1967): Jones .v. 
Georgia, 389 U.S. 24 (1967). 

  

    
 



  

Any slave who killed a white 
person in order " to defend 
himself, his family, a fellow 
slave, or a white third party had 
to be executed. The courts or 
government could grant no mercy 
in such cases. 

* x x 

Death could likewise be imposed 
if a slave "grievously wound[ed], 
maim[{ed], or bruise[d] any white 
person"; was convicted for the 
third time of striking a white 
person; or, ... if he attempted 
to run away from his master out 
of the province. 

Yet conversely, when a white person killed 

a slave: 

Only on the second offense of 
willful murder did the ‘offender 
Suffer for the said Crime 
according to the Laws of England 
except that he shall forfeit no 
more of his Lands and Tenemants 
Goods and Chattels than what may 
be Sufficient to Satisfy the 
owner of such Slave so killed as 
aforesaid....! Conviction for 
willful murder of a slave also 
required after 1755 the "oath of 
two witnesses" an extremely 
difficult burden of evidence for 
most criminal prosecutions. 

HIGGENBOTHAM, IN THE MATTER OF COLOR: RACE 

IN THE AMERICAN LEGAL PROCESS 256, 253-4  



   (1978) .°2 
This legal system--with its 

differential treatment of blacks as 

defendants and victims--was explicitly 

among the waiscriminations which are steps 

toward reducing [blacks] sie ito the 

condition of a subject race," that the 

Fourteenth Amendment was enacted to 

  

  

    

abolish. Strauder v. West Virginia, 100 

9 See also Stampp, The Peculiar 
Institution: Slavery in the Antebellum 
  

South 210 (1956). 

This history, though ancient, remains 
relevant. As Judge Fay wrote in Lodge v. 
Buxton, 639 F.2d 1358, 1381 n.46 (llth Cir. 
1981), aff'd sub nom Rogers v. Lodge, 458 
U.S. 613 (1982): 

  

  

The problems of Blacks in Burke County 
[Georgia] should not be viewed in a 
vacuum. The present treatment of 
Blacks in the B8South is directly 
traceable to their historical 
positions as slaves. While many 
individual political leaders have 
attempted to bring meaningful reforms 
to fruition, it is equally true that 
the White communities, for the most 
part, have fought the implementation 
of programs aimed at integration with 
every device available. A ... court 
ordering relief in a case such as this 
must take cognizance of that fact. 

14 

    
 



    

U.S. 664, 665 (1879).10 yet as this court 

has too often had occasion to recognize, 

for a hundred years that noble effort 

utterly failed to overcome the entrenched 

social conditions that the antebellum laws 

reflected and reinforced. Thus, in 1944-- 

well within the lifetimes of most of the 

participants in Georgia's legal system 

today--Gunnar Myrdal observed: 

In criminal cases discrimination 
does not always run against a 
Negro defendant.... As long as 
only Negroes are concerned and no 
whites are disturbed, great 
leniency will be shown in most 
cases. ... The sentences for even 
major crimes are ordinarily 
reduced when the victim is 
another Negro. ... 

* * * 

  

10 The express intention of the 
framers of the Fourteenth Amendment to 
provide for the "equal protection" of 
blacks as victims of crimes, as well as 
criminal defendants, has been noted by this 
Court, Briscoe v. LaHue, 460 U.S. 325, 338 
(1983), and recounted briefly in the 
Petition for Certiorari in this case (at 
pages 5-7). Because it has nowhere been 
questioned below, we will not reiterate it 
here. 

  

15 

 



  

For offenses which involve any 
actual or potential danger to 
whites, however, Negroes are 
punished more severely than 
whites.... 

* * * 

The jury, for the most part, is 
more guilty of obvious partiality 
than the judge and the public 
prosecutor. When the offender is 
a white man and the victim a 
Negro, a grand jury will often 
refuse to indict. Even the 
federal courts find difficulty in 
getting indictments in peonage 
suits, and state courts receive 
indictments for physical violence 
against Negroes in an 
infinitesimally small proportion 
of the cases. ... ‘The patit jury 
is even less impartial than the 
grand jury, since its range of 
powers is greater. 

* * * 

There is even less possibility 
for a fair trial when the Negro's 
crime is serious. ... On the 
other hand, it 1s quite common 
for a white criminal to be set 
free if his crime was against a 
Negro. Southern whites have told 
the present author of singular 
occasions when a Negro got 
justice against a white man, even 
in a serious case, as something 
remarkable and noteworthy. 

MYRDAL, AN AMERICAN DILEMMA, 551-583 

(1944). 

    
 



  

Such deeply-rooted biases die hard. 

The lesson of Professor Baldus' data is 

that although the influence of these social 

forces may have diminished and are no 

longer openly acknowledged, they still 

weigh significantly in the balance that 

decides life and death in Georgia's 

judicial system. As the Court noted in Rose 

VY. Mitchell, 443 U.S, 545, 558-9 (1979):   

114 years after the close of the War 
Between the States and nearly 100 
years after Strauder, racial and other 
forms of discrimination still remain a 
fact of life, in the administration of 
justice as in our society as a whole. 
Perhaps today that discrimination 
takes a form more subtle than before. 
But it is not less real or pernicious. 

To pretend race prejudice has vanished 

or never existed, to conjure hypothetical 

explanations for persistent discrepancies 

that obviously reflect its influence, is to 

forget the reality that the Fourteenth 

Amendment was enacted to address, and this 

Court has long been vigilant to guard 

against. 

 



SIGNIFICANT RACIAL INFLUENCES 
IN DEATH-SENTENCING DECISIONS-- 
CONSCIOUS OR UNCONSCIOUS-- 
VIOLATE THE CONSTITUTION. 

  

The Court of Appeals' ruling goes 

beyond quibbling about hypothetical 

uncontrolled variables in the Baldus study. 

Indeed, the court's majority said it 

accepted, for purposes of its decision, the 

validity of Professor Baldus' study, and it 

"assume[d] ... that it proves what it 

claims to prove." McCleskey Vv. Kemp, 
  

supra, 753 F.2d at 886. Nonetheless, the 

court held that proof insufficient to raise 

even a prima facie case under the Eighth or   

Fourteenth Amendments. It gave two basic 

reasons for this: the supposedly 

insignificant magnitude of the racial 

disparities the evidence showed; and the 

lack of direct proof of a discriminatory 
  ni EE ———— 

motive. We will briefly address these each 

in turn. 

    
 



  

A. Any Significant Quantum of 
Racial Discrimination in Death 
Sentencing Is Intolerable. 

  

  

  

In part, the Court of Appeals seemed 

to agree McCleskey showed bias--just not 

enough bias. Absent proof of subjective 

discrimination by capital jurors or other 

decisionmakers in the sentencing scheme, it 

sald statistical proof of racial bias 

is insufficient to invalidate a 
capital sentencing system, unless 
that disparate impact is so great 
that it compels a conclusion that 
the system is unprincipled, 
irrational, arbitrary, and 
capricious such that purposeful 
discrimination--i.e., race is 
intentionally being used as a 
factor in sentencing--can be 
presumed to permeate the system. 

753 F.2d at 892. And here the court found 

McCleskey's proof lacking (id. at 895): 

The Baldus study statistical 
evidence does not purport to show 
that McCleskey was sentenced to 
death because of either his race 
or the race of his victim. It 
only shows that in a group 
involving blacks and whites, all 
of whose cases are virtually the 
same, there would be more blacks 
receiving the death penalty than 
whites and more murderers of 
whites receiving the death 

  

  

  

  

  

  

  

19 

 



  

penalty than murderers of blacks. 
  

(Emphasis added.) 

That any court in this day and age 

could simply dismiss admittedly valid, 

comprehensive proof because it "only" 

demonstrated that race is an influential 

factor in capital sentencing is astounding. 

Amici have long understood that unequal 

enforcement of criminal statutes based upon 

racial considerations violates the 

Fourteenth Amendment. Such racial 

disparity, whatever its magnitude, has "no 

legitimate overriding purpose independent 

of invidious racial discrimination," Loving 

Vv. Virginia, 388'0.8. 1, }1 (1967) Yick Wp   

vy. Hopkins, 118 U.8, 386 (1886); cf. Furman   

Vv. Georgia, supra, 408 U.S. 238, 389 n.l12 
  

(dissenting opinion of Chief Justice 

Burger). For well over 100 years, this 

Court has consistently interpreted the 

Equal Protection Clause to prohibit all —— 

racial discrimination in the administration 

    

 



  

of the criminal justice system.ll 

While questions concerning the 

necessary quantum of proof have 

occasionally proven perplexing, no federal 

court until now has ever, to our knowledge, 

seriously suggested that racial 

discrimination at any level of magnitude, 

if clearly proven, can be constitutionally 

tolerated. Yet that is precisely the 

holding of the Court of Appeals. 

Moreover, even if the magnitude of 

discrimination were relevant, the evidence 

here demonstrates an extraordinary racial 

effect. The regression models the Court of 

Appeals focused on, for example, showed the 

increased likelihood of a death sentence, 

if the homicide victim is white, ssl 06 7 or 
  

bl See, e.d,, Strauder wv. West 
Virginia, supra; Carter v. Texas, 177 U.S. 
442 (1900); Norris v. Alabama, 294 U.S. 559 
(1953): Turner vv. Fouche, 396 U.S. 346 
(1970); Rose Vv. Mitchell, supra; General 
Building Contractors Ass'n, Inc. V. 
Pennsylvania, 458 U.S. 375, 382-91 (1982); 
Briscoe v. LaHue, supra, 460 U.S. at 337- 

  

  
  

  

  

  

  

  

  

40. 

 



    

six percentage points, holding all other 

factors constant. 753 F.24 . at 896~7. 

Since the average death-sentence rate among 

Georgia cases is only (os, the fact that a 
gt 

homicide victim is white, rather than 

black, more than doubles the average 

    

likelihood of a death sentence (from 05 to 

.11).12 In plainest terns, these 

  

12 It is important to note that 
these figures, and all those Prof. Baldus 
used to express the racial disparities he 
found, are different from the raw numbers 
used to measure racial disparities in_jury 

allenges. In those cases, the Court has 
génerally compared the raw percentages of 
minority persons selected for Fury-service 
with the population as a whole. See, e.q., 
asteneda Vv. Partida, supra (40% 

disparity): Turner v. Fouche, 396 U.S. 346 
(1970) (23% disparity): Whitus v. Georgia, 
supra (18% disparity). 

  

  

  

  

  

Prof. Baldus' tables list smaller 
numbers, because they express a different 
ratio: the comparative percentages of 
persons in AI Tabant PATIL ator rion 
selected for death sentences. A comparable 
calculation using the figures in Casteneda 
(430 U.S. at 486 n.7), for example, would 
show an arithmetic difference of (.26% 
rather than 40%: The odds of a person 
the population as a whole being selected 
for_a grand jury was .54% (870/158690): the 
odds of a Spanish surnamed person being 
selected was .28% (339/120766). 

    

  

  

  

  

  
 



7 

7 

1» 

  
  

percentages suggest that, among every 100 

homicide cases in Georgia, 5 would receive 

a death sentence if race were not a factor: 

in reality, where white victims are 

involved, 11 out of 100 do. Six defendants 

are thus sentenced to death, who would not 

&@ Dblit for the race of thelr victims, 

"Stated another way, race influences the 

verdict just as much as any one of the 

aggravating circumstances listed in 

Georgia's death penalty statute." 753 F.2d 

at 921 (Clark, J., dissenting). : The Court 

of Appeals' bland suggestion that race 

affects at most a "small percentage of the 

cases," 753 F.2d at 899, scarcely reflects 

this harsh reality. No analysis true to 

the Fourteenth Amendment can condone it. 

B. In the Context of Sentencing 
Decisions, Proof of Actual 
Subjective Intent Is Not 
Required to Establish a Prima 
Facie Case of Discrimination. 

  

  

  

  

  

The question Professor Baldus' data 

does not and cannot answer is whether the 

23



    
   impact © of race on Georgia's © death 

sentencing system is the result of 

deliberate discrimination or unconscious 

racial influences on the actors who are 

part of it. Can it be that resolution of 

this issue--on which proof may be 

impossible--is a prerequisite to relief? 

We believe not. The dispositive issue is 

whether, not why, race is a significant 

influence on sentencing decisions. 

The Baldus study demonstrates that 

race is a significant influence. The Court 

of Appeals holds that this pattern affronts 

no constitutional principles. That cannot 

be the law. If race is a significant 

factor in capital sentencing outcomes, 

whatever subjective intent lies behind this 

factor--be it conscious or unconscious--is 

constitutionally irrelevant. 

The significance of the subjective 
— er 

intent in claims of discrimination and 
A 

cruel and unusual punishment has occupied   
 



  a
 

ea
 
—
—
—
 

E
T
 
e
y
 

this Court's attention several times in 

      recent years. See, e.9., Bazemore V. 

Friday, supra; Whiteley v. Albers, 106     

S.Ct. 1078 (1986); Rogers v. Lodge, supra. 
  

In every instance, the Court's answer has 

reflected a realistic focus on the context 
soiree EE 

in which the challenged governmental action 

occurs. Here, that focus militates against 

a holding that proof of an act: of 

intentional discrimination by an identified 

decision maker should be essential to 

showing a constitutional violation. 

Most fundamentally, requiring proof of 

subjective intent in the sentencing context 

raises an impossible burden. Jurors 

  

  

"oannot be called ,., to testify to the 

motives and influences that led to their 

  

verdict." Chicago, "Burlington & Quiney 

Rajlway vv. Babcock, 204 U.S. 585, .593 
  

(1907). Neither is it seemly or proper to 

so question judges about the motives for 

their decisions. Fayerweather v. Ritch, 
  

27K  



   
195 U.8. 276, 306 (1904). And as Justice 

Marshall recently observed, "[a]lny 
— 

— 

prosecutor can easily assert facially 
—_— 

neutral reasons for [his acticns) ... and 

trial courts are ill-equipped to second 

guess those reasons." Batson v. Kentucky,   

supra, 106 S.Ct. at 1728 (concurring 

opinion). Moreover, the influence of race 

prejudice may well be unconscious, unknown 

to the decision-makers themselves. Ibid. 

"Defendants cannot realistically hope 

to find direct evidence of discriminatory 

intent." McCleskey v. Kemp, supra, 753 
  

F.2d at 912 (Johnson, J., dissenting). 

Only last Term this Court reiterated that 

the Equal Protection Clause does not permit 

shouldering a defendant with "a. crippling 

burden of proof" in order to make out a 
ka ama 

prima facie case of discrimination. Batson   

vy.  Rentucky, supra, 106 S.Ct. at 1720. 
  

There is no reason to except from that 

here. 

    

 



  e
m
e
r
s
o
n
 
u
t
 

m
o
s
e
s
 

—
—
_
 

o
 

The death sentence decisionmaking 

process is one controlled from stem to 

stern by the state; everything about 

capital sentencing is state action.?13 

Nowhere does the wyoluntary and unfettered 

choice of private individuals", Bazemore v.   

Friday, supra, 106 5.Ct. at 3012 

(concurring opinion), intervene. At the 

same time, death sentencing decisions are 

highly discretionary, see Turner v. Murray, 

106 5.Ct. 1683 (1986) ; and as we 

demonstrate in the following section of 

  

this brief, Georgia's statutory capital 

sentencing scheme does less to guide 

discretion than any other this Court has 

Toe 
reviewed since Furman. 

Where official grants of discretion 
a ——— — srm— aE —— 

provide "the opportunity to Aizeriminate" 
a aaa 

and "the result "bespeaks discrimination”, 

  

this Court has found the Constitution is 
  

13 CE. shelly v, Kramer, 334 U.8. 1, 
15 (1948); Ex Parte Virginia, 100 U.S. 667, 
669 (1879). 

  

  

27  



   

  

violated "whether or not it was a conscious 

decision on the part of “any individual" to 
rome ————E——AT—— 

discriminate. Alexander v. Louisiana, 405 

  

  

U.S. 625, 632 (1972). Even though "[t}hs 

facial constitutionality of the ... system 

... has been accepted" by this Court, "a 

selection procedure that is susceptible of 

abuse ... supports the presumption of 

: smn te AA A WO 

discrimination raised by the statistical 
ti EEE Spm 

showings." Casteneda v. Partida, supra, 
EE ——— 

430 U.S. at 497, 494. 

  

  

This is especially true where, as 

here, the discretionary decision is not an 

individual one, but the collective one 

involving a multitude of individuals. When 

decisionmaking responsibility is diffused, 

[rlarely can lt be said that a 
[decisionmaking] bo body 
operating under a broad mandate 
made a decision motivated solely 
by a single concern, or even that 
a particular purpose was the 
'dominant' or 'primary' one. 

Arlington Heights v. Metropolitan Housing 
  

Corporation, 429 U.S, 252, 265 (1977).: In   

    
 



  

   such systems, for practical purposes, there 

is no difference between subjective intent 

and objective results. As Justice Stevens 

explained in Washington v. Davis, supra: 
  

Normally the actor is presumed to 
have intended the natural 
consequences of his deeds. This 
is particularly true in the case 
of governmental action which is 
frequently the product of 
compromise, of collective 
decision making, and of mixed 
motivation. 

426 U.S. at 253 (concurring opinion). 

It 1s also significant that capital 

sentencing occurs in an arena in which 

blacks have traditionally lacked the means 
pm—————————————————— TT —————_ es 

to defend themselves through participation 

  

  

  

EE 

in the process. Cf. Rogers Vv. Lodge, 

gupra, 458 U.S, at 650-53 (dissenting 

  

  

opinion of Justice Stevens); Casteneda v. 
  

Partida, supra, 430 U.S, at 515-16 

(dissenting opinion of Justice Powell). 

The legacy of past discrimination, if 
  rm 

nothing else, has kept blacks from equal 

participation as prosecutors and judges, 

 



   
the officials who can influence death 

  

penalty decisions in Georgia.l4 And one 

need not look beyond recent casebooks to 

find evidence that blacks--at least at the 

time of Warren McCleskey's trial--often 

lacked an equal voice on Georgia juries, as 
“—. 
      mr > man 

well. 15 This--and the history of 
  

discrimination in capital sentencing this 

~~ Court acted on in Furman--highlights the 

Significance of objective disparities: 
a’ Fr 

/ 

  

| 14 Even today, there are no elected 
‘black District Attorneys anywhere in 
Georgia. Joint Center for Political 
Studies, Black Elected Officials: A 
INational Roster 113 (1986). Only 2.3% 
(20/865) of Georgia judges are black. 
‘Ibid; Joint Center for Political Studies, 
Black Judges In The United States 38-40 
(1986). At the time of Warren McCleskey's 
trial there were less than a quarter that 
number (4)--and not one in a court with 
jurisdiction over a capital case. Joint 
Center for Political Studies, Black Elected 
Officials: A National Roster 53 (1976). 

15 See, e.dq., Bowden v. Kemp, 793 
F.2d 273 (11th cir. 1986): Spencer v. Kemp, 
784 F.2d 458 (11th Cir. 1988); Ross v. 
Kemp, 7835 F.2d 1467 (11th Cir. 1986) ; 
Amadeo v. Kemp, 773 F.2d 1141, 1143 (11th 
Cir. 1985): Davis v. Zant, 721 F.24 1478 
(11th Cir. 1984): Willie v. Zant, 720 F.24 

  

  

  

  

  

  

  

  

  

  

1212, 1217-18 (11th cir. 1983), 

  

  
 



  

Evidence of historical 
discrimination is relevant to 
drawing an inference of 
purposeful discrimination, 
particularly in cases such as 
this one where the evidence shows 
that discriminatory practices 
were commonly utilized, but that 

by courts..... . and that they were 
replaced by laws and practices 
which, though neutral on their 
face, served to maintain the 
status quo. 

Rogers v. Lodge, supra, 458 U.S. at 625; 
  

see also Bazemore v. Friday, supra, 106 
  

S.Ct. at 3009; Hazelwood School District v. 
  

United States, 433 U.S. at 309-10 n.15. 
  

Finally, it is significant that the 

discrimination here falls in the most 

central core area to which the Fourteenth 

Amendment was directed. "Discrimination on 

  

the basis of race, odious in all its 

aspects, 1s especially pernicious in the 

administration of justice." Rose Vv.   

Mitchell, 443 U.S. 545, 555 (1979). Denial   

of raclal equality in the context of 

criminal justice "not only violates our 

Constitution and the laws enacted under it, 

 



   but is at war with our basic concepts of a 

democratic society and a representative 

government." Smith v. Texas, 311 U.S. 128, 
  

130 (1940). And where the criminal law 

involves the death sentence, 

[i]t is of vital importance to 
the defendant and to the 
community that any decision to 
impose the death sentence be, and 
appear to be, based on reason 
rather than caprice or emotion. 

Gardner Vv. Florida, 430 U.S. 349, 358 
  

(1977). 

The fact the death penalty is involved 

here, of course, means this is an area in 

which the Eighth Amendment must play a part 

——— —_— 
in addition to the Fourteenth. Throughout 

  

its jurisprudence, the Court has found the 

touchstone of Eighth Amendment analysis in 

  

results, not intentions. See Rhodes Vv. 

Chapman, 452 © 'U.8, 337, 364 (1981) 

(concurring opinion of Justice Brennan); 

    
 



  

i 

id. at [345-45 (plurality'. opinion).}% 

"Deliberate indifference" to deprivations 
dm i 

of constitutional magnitude has, in all but 

  

  

    

the rarest circumstances, been held 
ad » id 

sufficient to make out a claim under the 

Eighth Amendment. Estelle v. Gamble, 429 
  

U.S. 97, 105 (1976).17 This court's death 

penalty cases have repeatedly charged the 

states with the responsibility, not just to 

avoid "indifference", but to positively 

insure "that general laws are not applied 

  

16 The lower federal courts have 
read this Court's decisions to mean that 
"wrongful intent is not a necessary element 
for an Eighth Amendment violation." Spain 
Vv. Procunier, 600 F.2d 189, 197 (9th Cir. 
1979); see Gates v. Collier, 501 F.2d 1291, 
1300-01 (5th Cir, 11974); Rozcecki 'v. 
Gaughan, 459 F.24 6, 8B (Ist Cir, 1972). 

  

  

  

17 Obviously, the context here does 
not provide the kind of exceptional 
circumstance involving a "clash with other 
equally important governmental 
responsibilities" or a need to make a 
review of "decisions necessarily made in 
haste, under pressure, and frequently 
without the luxury of a second chance," in 
which the Court has held "ordinary errors 
of judgment" must be insulated from 
hindsight review. Whitely v. Albers, 106 
S.Ct. 1078, 1084, 1085 (1986). {i 

 ¥. 

  

[20 3 

 



| 

   
sparsely, selectively, and spottedly to 

unpopular groups." Furman Vv. Georgia, 
  

supra, 408 U.S. at 256 (concurring opinion 

of Justice Douglas): see also id. at 274 

(concurring opinion of Justice Brennan). 

"[{Cclapital punishment [must] be imposed 

fairly, and with reasonable consistency, or 

not at all." Eddings v. Oklahoma, 455 U.S. 
  

/ 104, 112 (1982).18 If nothing else, Furman 

made it clear that departures from that 

rule are intolerable, regardless of the 

motives that created them. See Furman v. 
  

Georgia, supra, 408 U.S. at 303 (concurring 
  

opinion of Justice White). 

  

18 Accord, Gardner v. Florida, 
supra, 430 U.S. at 351 (1977) ("[T]he state 
must administer its capital sentencing 
procedures with an even hand."):; Godfrey v. 

  

  
Georgia, 446 U.S. 420, 428 (1980) ("If a 
state wishes to authorize capital 
punishment it has a constitutional 
responsibility to tailor and apply its laws 
in a manner that avoids the arbitrary and 
capricious infliction of the death penalty.") 

    
 



  

Everything in this Court's 

jurisprudence to date suggests that 

differential treatment by race in death 

sentencing should be the subject of the 

strictest judicial scrutiny of any 

governmental action. If, in this context, 

overwhelming, comprehensive proof of racial 

disparities--proof that excludes every 

plausible, legitimate explanation other 

than the influence of race bias--is not 

enough, where can it be? 

The answer this Court has given before 

is that it is enough to prove that a state 

has failed to break a historical pattern of 
aa. kL ———" — ne Re —— i 

discrimination, and that discrationary 
  2) 

  

  

decisions have produced "a clear pattern, 
    

unexplainable on grounds other than race." 
  

——— ES ony 

Arlington Heights v. Metropolitan Housing 
  

Corp., supra, 429 U.S. at 266. There is no   

reason to change that answer now. 

 



   
III. BECAUSE GEORGIA'S UNIQUE DEATH 

SENTENCING SYSTEM HAS FAILED TO 
ELIMINATE THE INFLUENCE OF RACE, 
IT IS INCONSISTENT WITH THE EIGHTH 
AND FOURTEENTH AMENDMENTS. 

Greqq  V. Georgia expressed this 
  

Court's hope that a new Georgia death 

sentencing system could eradicate the 

inequities that had led to the invalidation 

of its predecessor in Furman. Of all the 

statutory schemes reviewed by this Court in 

1972, the Georgia system differed the least 

from those struck down in Furman. But it 

was a new statute, and the Court 

understandably declined to "accept the 

naked assertion that the effort [to purge 

the system of discrimination] is bound to 

fail", 428 v.s. at 1222 (concurring 

opinion). It 1s now apparent--from 

experience, not assertion--that it has. 

The reason for this must lie in the 

way the Georgia statute 1s written or 

enforced. The enforcement of the law, of 

course, 1s the primary responsibility of 

    
 



  

   district attorneys. In Greqq, the ore 

refused to assume, without proof, "that 

prosecutors [will] behave in a standardless 

fashion in deciding which cases to try as 

capital felonies...." 428 U.83. at 225 

(concurring opinion). The evidence in this 

case strongly suggests that they have. 

Lewis Slayton, the District Attorney 

whose office tried Warren McCleskey, 

testified in this case that the decision- 

making process in his office in capital 

cases was 'Yprobably ... the same" before 

and. after Furman. Slayton Dep.,, at 59-61, 

Other Georgia prosecutors have candidly 

admitted that their decisions to seek, or 

not to seek, death sentences are often 

based on a variety of "factors other than 

the. styength of their case and the 

likelihood that a jury would impose the 

death sentence if it convicts," 428 U.S. at 

225--including office resources, subjective 

opinions about the defendant, public 

 



   
pressure, the standing of the victims, and 

even the desire "to obtain a more 

conviction prone jury through the 

Witherspoon qualification." Bentele, The   

Death Penalty in Georgia: Still Arbitrary, 
  

62 WASH. U.L.Q. 573, 616-621 (1985). T¢ im 

therefore hardly surprising that the 

outcome of these prosecutorial decisions 

often appears to be unfair (ibid.)--or that 

Prof. Baldus found them a source of 

substantial disparities based on race of 

both the defendant and the victim. See 

D.ct. Exhibit DB 95-6. 

When capital charges are pursued, the 

structure of Georgia's law gives juries 

uniquely broad and unguided discretion. 

Unlike virtually all other states, Georgia 

does not provide juries with lists of 

aggravating and mitigating factors, or any 

statutory formula for balancing them 

38 

    
 



  
| 

¥ 

against one another.19 See Spivey Vv. 

gtate, 246 S.E.2d 288 (Ga. 1978}. Unlike 

most states, Georgia does not limit its 

juries to consideration of statutory 
nm 

aggravating factors, Zant v. Stephens, 462   

U.S. 862 (1983); and its broadest statutory 
—— — 

factors often do not substantially narrow 
  

the class of persons eligible for a 
cS ———— 

sentence of Asati. 20 

    a 

19 Virtually all other states' death 
penalty laws list mitigating circumstances 
(except Texas, which is unique); the vast 
majority also provide guidelines for 
balancing them against aggravating factors. 
Gillers, Deciding Who Dies, 129 U. PA. L. 
REV. 1, 102-119 (1980). Of the four states 
  

"that do not provide for =a Jdisting ‘of 
mitigating factors by statute, three do by 
Judicial decision. Whalen v. State, 492 
A.2875%2, 560-2 (Del. 1935); State wv. 
Osborn, 631  P.2d 187, 197. (31d, 1981); 
urrows v. State, 640 P.2d 533 (Qk! Crim. 

1982). The exception is South Dakota, 
which has had no death sentences and no 
appellate decisions. 

  

  

  

  

  

  20 gee Godfrey Vv. Georgia, supra. 
Even apart from the (b)(7) aggravating 
circumstance addressed in Godfrey, Georgia 
is one of the few states that still makes 
conviction of unintentional felony murder-- 
the crime of which William Henry Furman was 
convicted--a sufficient prerequisite for a 
death sentence. Ga. Code Ann. §27-2534(b) (2). 

Vu oF {awed . 

39 

 



  

This discretion has not been    
controlled by the provision for special 

review by the Georgia Supreme Court, the 

major feature of the Georgia system which 

impressed this Court in Gregq, and appeared 

to distinguish Georgia's law from the pre- 

Furman statutes. Zant v. Stephens, supra, 
  

482 U.S. at... 876. Justice White's 

concurring opinion in Greqq emphasized the 

potential importance of this review: 

[I]f the Georgia Supreme Court 
properly performs the task 
assigned to it under the Georgia 
statutes, death sentences imposed 
for discriminatory reasons or 
wantonly or freakishly for any 
given category of crime will be 
set aside. Petitioner has wholly 
failed to establish, and has not 
even attempted to establish, that 
the Georgia Supreme Court failed 
properly to perform its task in 
this case or that it is incapable 
of performing its task adequately 
in all cases; and this Court 
should not assume that it did not 
do so. 

428 U.S. at 224. But now, ten years after 

Greqq, that apparent protection has proven 

/ illusory. The Georgia Supreme Court has   
 



  

—
—
—
—
—
—
—
—
—
—
 

death judgments without—+finding legal 
error. One of them had received a life 
sentence in a previous trial. Ward "v. 
Strate, 236 S.E.24 365 (Ga. 1977). The 

~ other was a nontr erman, whose 
codefendant receive a death sentence. 

never reversed a single death sentence 

based on a finding of passion, prejudice, 

or race discrimination. Nor has it reduced 
ee 

a murder sentence as disproportionate to 
em m—— 

  

the sentences imposed in other cases for 

comparable crimes.< = 
i 
In light of the evidence in this case, 

that means that for thirteen Years, the 

Georgia Supreme Court has presided over a 

system that demonstrably discriminates on 

the basis of race and done nothing to 

correct it. Whether this reflects a 
  

21 since 1974--when it partly 
anticipated Coker v. Georgia, 433 U.S. 584 
(1977) by reversing a single rape death 
  

sentence as disproportionate, Toley v.k 
  

7 
~)
 

State, 204 S.E.2d 612 (Ga. 1974)--thevw> 
Georgia court has freed only two men from 

  

  

Hal) Vv. State, 244 8,.F,2d.833 (Ga, .1973). 
Although the Georgia court did not so hold 
--and three of its Justices dissented each 
time--both sentences were probably 
ndependently invalid under the federal 

Constitution. See Bentele, supra, 62 WASH. 
U.L.Q. at 594-5, 

   



| | 
} 

| 

! 
ma 

of the defendant and the race of the 

victim. But the proof of discrimination is 
~~ 

    
"deliberate indifference" to race 

discrimination or--more 1likely--a systemic 
PP —— i 

inability to identify it when it occurs, 
RA 

the result is the same: The hope this 

Court expressed in Gregg has not been 

realized. 

As Chief Justice Burger recognized in 

his Furman dissent (408 U.S. at 389 n.12): 

If a statute that authorizes the 
discretionary imposition of a 
particular penalty for a particular 
crime is used primarily against 
defendants of a certain race, and if 
the pattern of use can be fairly 
explained only by references to the 
race of the defendant, the Equal 
Protection Clause of the Fourteenth 
Amendment forbids continued 
enforcement of that statute in its 
existing form. Cf. Yick Ho v; 

  

Hopkins, 118 U.S. 356 (1886). 

Georgia's post-Furman statute was not shown 
  

to fit that description in Greqq: but it 

has been now. The discriminatory pattern 

is more complex and involves both the race 

clear and compelling. 

42 

    

 



  

This wide-open statutory system has 

permitted prosecutors and jurors, 

consciously or unconsciously, to nattach(] 

the 'aggravating' label to factors that are 

constitutionally impermissible or totally 

irrelevant to the sentencing process," Zant 

v. Stephens, supra, 462 U.S. at 885: the 
  

race of the defendant and victim. From 

Furman to Zant, this Court has said that 

the Constitution will not allow such 

discriminatory factors to. govern. the 

allocation of death sentences. It should 

so hold now. 

43 

 



  

CONCLUSION 
  

The decision of the Court of Appeals 

should be reversed. 

Respectfully submitted, 

  

WILLIAM L. ROBINSON* 
HAROLD R. TYLER and 
JAMES ROBERTSON, Cochairmen 
NORMAN REDLICH, Trustee 

Lawyers' Committee for 
Civil Rights Under Law 
1400 I Street N.W. 
Suite 400 
Washington, D.C. 20005 
(202) 371-1212 

SETH P. WAXMAN 
Miller, Cassidy, Larroca & Lewin 
2555 M Street, Suite 500 
Washington, D.C. 20037 
(202) 293-6400 
Counsel for the Congressional 
Black Caucus 

GROVER HANKINS, General Counsel 
NAACP Special Contribution Fund 
4805 Mount Hope Drive, Room 501 
Baltimore, MD 21215 
(301) 358-8900 

*Counsel of Record 

August 21, 1986 

    
 



    
 



  

Memo 

To Jack 

From: Viv 

Re: Respondent's Brief ("R") and Washington Legal Foundation 

Brief ("WLF") in McCleskevy   

Date: September 25, 1986 

  

Because we hadn't anticipated your absence today, and 

because I will be in the country tomorrow, I thought I'd set down 

my initial reactions to the opposing briefs in McC., for 

whatever worth they may prove in shaping the reply brief. (Jim 

and I have also spoken at some length today, and our major 

reactions seems similar; I know he has already spoken some to 

you.) I make no effort at this time to be comprehensive. 

(1) My principal reaction to R and the factual statistical 

arguments generally: to the non-cognoscenti it's all Greek-- 

"he sez, you sez,"; who knows? 

£ 
to some of these 0 (a) I assume you have good replie 

arguments. Since, as I recall, most of our main brief was 

addressd to the COA's opinion, we have the opportunity to write a 

true "reply" containing some new or newly emphasized matter: an 

answer to the District Court's factual and related analytical 

errors. Obviously, though, you shouldn't and probably can't 

 



  

dignify every cavil with a targeted response. 

NE | 1 - a me 

(b) Surely, however, you'll take on their abiding error 

{or lie): the canard that white-victim cases are just more 

aggravated when in fact that's been controlled for. Can you 

perhaps suggest (I'm not sure now how frontally, or with what 

precise "tone") that the persistent adherence of R and their 

henchmen to this patently wrong contention in a sense reflects 

the whole problem we're dealing with: white-victim cases are 
  

treated by the system as being more aggravated because the 
  

victims are white? WLF, in particular, reflects rather than 
  

resolves the problem 

({C) Confirming my initial response to the cert. 

petition in Rook, I now believe even more strongly that -- in 

order to simplify matters (and avoid falling into the "Greek" 

trap ourselves, as much as possible) and because it's true and 

important -- we should stress the "non-isolation"” principle. 

Examples of this: [1] other studies, with different designs and 

assets and defects, virtually all point in the same direction;? 

[2] Baldus' gross results and sophisticated elaborations 

corroborate each other. (As to [2], though, we might have to be 

careful since gross results on Ds show that black Ds are 

  

1 BR and WLF don't really deal with this. All WLF can 

dredge up, interestingly, is the Stanford 1980 Note (pp. 18-19 

n.4). Fven if WLF is correct, this is student work --— not 

exactly a major study. 

 



  

Ln] 
o 

"advantaged. ") 

> 

(d) I think even "neutrals" might find offensive WLF' [)]
 

heavy-handed suggestion of bias by professionals of the 

reputation of F. Fisher (p. 23 n.5). I don't Enow if it's worth 

dealing with directly -- but surely world-famous statisticians of 

his order don't live or die on whether they're paid to testify in 

litigation. 

(e) Relatedly -- while "[f]or reasons not expressed" 

(WLF pp. 21-22), COA didn't (except sporadically, as I recall) 

take on Baldus -- the obvious answer does suggest itself: the 

District Court was pretty weak and Baldus (and corroborating 

studies) are pretty hard to refute.? 

£3 I strongly believe we have to find some way of 

reemphasizing in simple, appealing terms (as opposed to their 

legalistic, and partially clearly erroneous arguments on concepts 

like standing), why victim-based racial discrimination is legally 

and morally offensive. I continue to believe this notion is 

something even right-thinking people don't necessarrily take to 

naturally. Therefore, they can be misled by rhetoric to the 

  

20f course, as to all of this there is a real question how 

much recognition to give amici --especially those, like WLF and 

unlike Fisher et al. for us -- who have nothing to add but their 

point of view, however eloquently expressed. To the degree the 

Court thinks R is weak, it's more likely to read WLF; they're 

pretty used to them, though, I hear. 

 



  

" 
effect that is moral 

victim, there shoul "affirmative 

penalty area to achieve racial balance 

~ + 1 
Trai technical 

efforr ls to. pin us © the horns of . 
n 

intent, and there's no standing under 

8th Amendent, post-Gregg and Godfrey (!)., 

state follow its own procedures. 

hn very vulnerable under the 8th Amendment, 

major the area 1s 

"perfection-in-statistics-isn't required” 

supra). 

4 
|. R's and Oo some 

surprisingly, is therefore 

of the 8th Amendment into E.P. -— hoping t 

of intent and statistical mumbo-jumbo. 

analytical prong of that effort, especial 

+= implicit subsuming of racial 

"arbitrariness." The "logic" apears t 

Gregg-approved procedures (Godfrey is 

ly offensive ( 

(WLF 

the 

Obvious 

extent, 

to collapse the 

  

  

8th Ame: 

only requires th 

ly, their argumen 

- 
{ legally; 

factual/ statis 

(see subhead 

WLF's attemp 

independent exi 

o drown us in the 

i | think a 

lv in R, centers 

discrimination 

o be that if you 

never satisfac 

  

4 

C [=
 

>» 
hn M ts 2 ( 

dh 
Che 

Jr ~~" F 
Li1Ca.l/ 

x, not 

stence 

swamp 

major 

on the 

= 

torily 

accounted for but I suppose one could say the then-"heinous” 

standard, as applied, was the equivalent of pre-Gregg no- 

standards), you don't have arbitrariness and that is the only 

pertinent 8th Amendment concern here (see R pp. 24, et sec.) 

 



  

However, even though we usually lump "arbitrariness" and 

"discrimination" together, for present purposes we have to make 

clear that while discrimination isn't arbitrary in the sense of 

  

Furman's "freakish lightning” analogy. it is arbitrary (or even 

without that label, independently invidious) in the sense of 

being an implicit criterion or pattern. that has no rational, 

constitutionally permissible basis. Obviously, although R's 

approach beclouds this, it would be no better under the 8th 

Anendment if "lightning”™ hit blacks (or killers of blacks) 

exclusively, or disproportionately often, than if lightning just 

hits very few people randomly --- particularly, if one can prove, 

as we have proved, that the "lightning rod" is race. 

(3) The third major area about which I worry (Q., again, how 

seriously to take WLF; see id. at pp. 14-17) is their "parade of 

horribles." Substantively, this is difficult. I suppose we've got 

some answers: "death is different": there are few or no studies 

we know of on other forms of discrimination -- at least to this 

extent. (Do we carve race out as being "special-special” in 

theory, too, a la Rehnquist's theory of the 14th Amendment?) 

Perhaps the toughest moral and strategic issue is the extent to 

which we refine further our short "remedies" section in the main 

brief. I'd be inclined at least to mention the subject, 

especially in light of the eye-catching "Drano" example. Perhaps 

we shouldn't emphasize the "harmless-error" potential of 

aggravated, as opposed to midrange, cases so much as the 

 



  

likelihood of diverse factual contexts in cases to come. 

Statistics always appear in some setting. We had some evidence 

of prosecutors’ conduct in this case (I forget exactly what); we 

have the historical context of Georgia (things might seem 

different in Washington State, e.g.). Maybe we can suggest other 

sorts of facts that might provide, at least in outline, relevant 

distinctions for later cases as to what makes up a prima facie 
  

(or rebuttal) case in this area. 

See you Monday. Good luck. 

Note: After I finished the above, the State of 

amicus came in. It is insidious in a different way from WLF's 

since it is fairly "balanced." Some instantaneous reactions: 

l. (DD. 1-10). Their outside-the-record discussion of 

the burdens of discovery in McC.-type cases perhaps underlines 

|
 Hh
 

Hh
 

0) H M 3 ig
 

QO QL N M (0)
 the need to say that di will present different 

problems; the Court is to decide this case alone, and not 

extraneous issues involving, e.g., who has the burden of 

collecting data to produce studies on race. Insofar as amici 

contend that it will all be too "time-consuming" and "expensive" 

—-—— "[r]legardless of who collects the data" -- again: (a) issues 

of whether the criminal process must stop while data is being 

collected are not before the Court, especially since we're on 

habeas; and (b) nobody worries about time or money when I.B.M. 

wants to mount its defense in an anti-trust case (if that's not 

 



  

too snotty!). 

  

  
  

2. (DD. 18 et seg.) Ke're “not 

procedures are needed, a priori (cf., 

anything, we're saying our stark 

"presumption," if vou will, after Gregd. 

would produce acceptable outcomes. I.e. 

=]
 

  

saying more or better 

e,g., Pulley). If 

results impugr the 

that the new procedures 

gee pp. 50}, there's a 
&   

lot more now than what Justice White dubbed a mere "lack of 

amici's arguments regarding the 

inherent complexity of capital sentencing decisions as compared 

with, say Title VII (pp. 2-3 et sed.,)  1o 

Some of the examples at pp. 41-42 have a 

(I don't know how many are covered by 

controlled for these . . . ). Now, maybe 

lack of sophistication in the area. But 

the role of "Visiting District Judge from 

be not insubstantial. 

t least surface appeal. 

that's just my relative 

in this case, I play 

Wyoming." 

 



  

  

  

Memo 

To Jack 

From: Viv 

Re: Respondent's Brief ("R") and Washington Legal Foundation 

Brief ("WLF") in McCleskey 

Because we hadn't anticipated your absence today, and 

because I will be in the country tomorrow, I thought I'd set down 

my initial reactions to the opposing briefs In Mce., for 

rt
 

whatever worth they may prove in shaping the reply brief. (Jim 

and I have also spoken at some length today, and our major 

reactions seems similar; I know he has already spoken some to 

you.) I make no effort at this time to be comprehensive. 

a
 a
 

( ) My principal reaction to R and the factual statistical 

arguments generally: to the non-cognoscenti it's all Greek—- 

"he sez, you sez,"; who knows? 

(a) I assume you have good replies to some of these 

arguments. Since, as I recall, most of our main brief was 

addressd to the COA's opinion, we have the opportunity to write a 

true "reply" containing some new or newly emphasized matter: ar 

answer to the District Court's factual and related analytical 

errors. Obviously, though, you shouldn't and probably can't 
- 

dignify every cavil with a targeted response. 

 



  

(b) Surely, however, you'll take on their abiding error 

{or lie): the canard that white-victim cases are just more 

aggravated when in fact that's been controlled for. Can you 

perhaps suggest (I'm not sure now how frontally, or with what 

precise "tone") that the persistent adherence of R and their 

henchmen to this patently wrong contention in a sense reflects 

the whole problem we're dealing with: white-victim cases are 
  

treated by the system as being more aggravated because the 
  

victims are white? WLF, in particular, reflects rather than 
  

resolves the problem 

(C) Confirming my initial response to the cert. 

petition in Rook, I now believe even more strongly that -- in 

order to simplify matters (and avoid falling into the "Greek" 

trap ourselves, as much as possible) and because it's true and 

important -- we should stress the "non-isolation” principle. 

Examples of this: [1] other studies, with different designs and 

assets and defects, virtually all point in the same direction; 

[2] Baldus' gross results and sophisticated elaborations 

corroborate each other. (As to [2], though, we might have to be 

careful since gross results on Ds show that black Ds are 

"advantaged. ") 

  

1 ; 3 yp 3 . 1 1 -{ *} T 

l1 R and WLF don't really deal with this. All WLF can 

dredge up, interestingly, is the Stanford 1980 Note (pp. 18-19 

n.42). Fven if  WLF is correct, this is student work -—- not 

exactly a major study. 

 



  

Ww
 

(4d) I think even "neutrals" might find offensive WLF's 

heavy-handed suggestion of bias by professionals of the 

reputation of .F. Fisher (p. 23 n.5)}. I Gon't know if it's worth 

dealing with directly —-- but surely world-famous statisticians of 

his order don't live or die on whether they're paid to testify in 

litigation. 

(e) Relatedly -- while "[f]or reasons not expressed" 

(WLF pp. 21-22), COA didn't (except sporadically, as I recall) 

take on Baldus -- the obvious answer does suggest itself: the 

District Court was pretty weak and Baldus (and corroborating 

studies) are pretty hard to refute. 2 

(2) I strongly believe we have to find some way of 

reemphasizing in simple, appealing terms (as opposed to their 

legalistic, and partially clearly erroneous argumentfon concepts 

like standing), why victim-based racial discrimination is legally 

and morally offensive. I continue to believe this notion is 
necessarily > 

something even right-thinking people don't [take to alussses— 
-_— 

  

naturally. Therefore, they can be misled by rhetoric to the 

effect that our approach is morally offensive (e.g.. D chose his 

  

20f course, as to all of this there is a real question how 

much recognition to give amici --especially those, lik 

unlike Fisher et al. for us -- who have nothing to add bu 

point of view, however eloquently expressed. To the deg 

Court thinks R is weak, it's more likely to read WLE; +r 

_gysee~ they're pretty used to 4 though, I hear. 

ad 

 



  

hee Shev(d be ne 4 4 

he death-penalty area to achieve 

  

victim, [affirmative action in 

racial balance (WL passim), etc.   

(a) In a technical rather than rhetorical sense, the 

effort is to pin us on the horns of a dllemma: E.P. requires 

intent, and there's no standing under the 8th Amendment \Or the 

8th Amendent, post-Gregg and Godfrey (!)a only requires that the 
/ 

  

state follow its own procedures. Obviously, their arguments are 

very vulnerable under the 8th Amendment, legally; probably the 

Longer response in the E.P. area is 

x rid sigh pens Te — re a SIT ——————————————— rs 

ed factusisathtistionl/bertect ion in-statistics-isn't required (see 

subhead (1), supra). 

(b) R's and to some extent, WLF's attempt, not 

surprisingly, is therefore to collapse the independent existence 

of the 8th Amendment into E.P. -- hoping to drown us in the swamp 

of intent and statistical mumbo-jumbo. I think a major 

analytical prong of that effort, especially in R, centers on the 

inplicit subsuming of racial discrimination within 

"arbitrariness." The "logic" apears to be that 1 

Gregg—-approved procedures (Godfrey is never satisfactorily 

  

accounted for but I suppose one could say the then-"heinous" 

standard, as applied, was the equivalent of pre-Gregg no- 

standards), you don't have arbitrariness and that is the only 

pertinent 8th Amendment concern here (see ay et seqg.). 

However, even though we usually lump "arbitrariness" and 

 



  

5 

"discrimination" together, for present purposes we have to make 

¥ 

  

clear that while discrimination isn't arbitrary in the sense of 

Furman's "freakish lightning" analogy, it is arbitrary (or even 

without that label, independently invidious) in the sense of 

being an implicit criterion or pattern that has no rational, 

constitutionally permissible basis. Obviously, although R's 

approach beclouds this, it would be noc better under the 8th 

- 

Ff “lightning” hit blacks: (or killers of blacks) [W
H Amendment 

exclusively, or disproportionately Lio, tan if lightning just 

) 
hits very few people randomly --- particularly, if one can prove, 

as we have proved, that the "lightning rod" is race. 

(3) The third major area about which I worry (Q., again, how 

LC 
seriously to take WLF; see id. at pp. 14-17) is the] "parade of 

horribles." Substantively, this is difficult. I suppose we've got 

some answers: "death is different"; there are few or no studies 

we know of on other forms of discrimination -- at least to this 

extent. (Do we carve race out as being "special-special"” in 

theory, too, a la Rehnquist's theory of the 14th Amendment?) 

Perhaps the toughest moral and strategic issue is the extent to 

which we refine further our short "remedies" section in the main 

brief. I'd be inclined to {at least {mention the subject, 
  

especially infl ign of the eye-catching "drano" example. Perhaps 
a— 

we shouldn't emphasize the "harmless-error" potential of 

aggravated, as opposed to midrange, cases sO much as the 

"n 
likelihood of diverse factual contexts em cases to come. 

 



  

Statistics always appear in some setting. We had some evidence 

of prosecutors’ conduct in this case (I forget exactly what); we 

have the historical context of Georgia (things might seem 

n Washington State, e.g.). Maybe we can suggest other [E
e different 

sorts of facts that might provide, at least in outline, relevant 

| afr 
distinctions #m——eklhey cases as to what makes up a prima facie 

  

(or rebuttal) case in this area. 

See you Monday. Good luck. 

Note: After I finished the above, the State of Calirornia's 

amicus came in. It is insidious in a different way from WLF's(" 

Jiner 
[it is weddwritsemr-anes fairly "balanced." Some instantaneous 

reactions: 

il. (pp. 1-10). Their outside-the-record discussion of 

the burdens of discovery in McC.-type cases perhaps underlines 

SKY 
the need to memask that different cases will present different 

a | twa, 

problems; the Court is to decide this case] and not extraneous 

issues involving, e.g., who has the burden of collecting data to 

; Cece, = : ; : 
produce studies on Be Insofar as amici contend that 1t 

will all be too "time-consuming" and "expensive'-——- 

: : : 4 ol : : 
"[r]legardless of who collects the data -- again: (a) issues 

of whether the criminal process must stop while data is being 

collected are not before the court, especially since we're on 
a 

Ando — 
habeas; Jib) nobody worries about time or money when I.B.M. wants 

to mount its defense in an anti-trust case {if that's not too 

 



  

» 

2. (pp. 18 et seq.) We're not saying more or better 1 

procedures are needed,     
  

anything, we're saying our 

  

      

"presumption! after Gregg that the new procedures would produce 
ad 
! 

acceptable outcomes. I.e./f (see p. 50), there's a lot more now 

a rt
 

M Q url
 

O 0 iD 0
 A) = M Ln
 MD : 
= 

4)
 

0 oy
 

0 Hh
 

4)
 

ct
 

oy
 ~

~
 

-
~
,
 

fd
s 

than what Justice n 

Georgia's procedures. 

y 3 I find some of amici's arguments regarding the 

- - 4 - - - - » 

inherent complexgtye of capital sentencing decisions as compared 

with, say Title VII (pp. 2-3 et seqg.,) to be not insubstantial. 
Ser agpantin, 

Some of the examples at pp. 41-42 have at least surface appeal. 

(I don't know how many are covered by the reply that Baldus 

controlled for these . . . ). Now, maybe that's just my relative 

lack of sophistication in Ris area. But in this case, I seme 

play the role of "Visiting District Judge from Wyoming." 

 



  
 
 

  

¢ 
J 

- 
\ 

o
m
 

- 
. 

b 
’ 

3 
® 

[ 
] 

: 
v 

<A, 
¥ 

e
n
 

: 
i 

n 
oi 

[4 
Ao 

4 
{ 

” 
. 

J 

N 
ph 

a
 

LA 
- 

- 
- 

N
G
 

N 
& 

os 
~ o 

4 
)
 

“ 
- 

\ 
} 

-
 

3 
} 

X 

  
  

  
  
 
 

  
  

N 
¥ 

- 
, 

\! 
\ 

J 
- 

i 
" 

5 

A 
on 

hy, 
D 

oh 
0n 

\) 
\ 

¥ 

™
\
 

: 
“ 

B 
\¢ 

} 
% 

\ 
: 

A 
¥: 

% 
Last 

h 
~ 

: 
’ 

ne 
¢ 

. 
Vi 

, 
i 

a 
a 

“it 
“ 

’ 
n
e
 

pi 
ak 

- 

. 
-
 

PB 
* 

-
 

A
Y
 

= 
% 

™
N
 

’ 
y 

i 
N 

- 
3 

a 
Ry 

3 
iid 

N 
- 

-t 

hy 
bre, 

; 
’ 

‘ 
£ 

hy 
pe 

pe 
- 

%
 

3 
¢ 

| 
: 

~ 
~~ 

“ 
o 

4 
g 

¢ 
# 

7 
hon 

> 
—
 

“Bi 
¢ 

bh 
5 

- 
: 

‘¢ 
4 

“) 
> 

" 
i 

» 
. 

. 
~ 

4 
~
~
 

_
—
 

In 
- 

1 
1
 

% 
PF 

y, 
-~ 

~
 

-
 

* 
-
 

N
 

i 
‘ 

2 
5 

W 
7) 

. 
N 

b) 
Whi 

« 
J
 

« 
N 

\ 
d 

J 
~~ 

> 
oo 

} 
(4) 

¥ 

& 
| 

~
~
 

£ 
a 

T
N
 

 
-
 

Ba. 
~ 

i 
LO 

| 
dg 

— 
Ni 

- 
AL 

| 
O
\
 

<
 

i 
», 

: 
v 

oN 
N
 

~— 
= 

a
 

Ny 
- 

-
J
 

) 

Vv 

. 
/ 

\ 
r 

N 

dy > 

- 
\ 

' 
\ 

N 
J 

8 
~
 

P
o
 

” 
NE S
a
 

¢ 
is 

S 
i
y
 

¥ 

{ | 
wham,