General - Working Files, Vivian Berger's Vol. 4 of 4
Working File
November 1, 1983 - August 21, 1986
125 pages
Cite this item
-
Case Files, McCleskey Background Materials. General - Working Files, Vivian Berger's Vol. 4 of 4, 1983. 56ca1ba8-5aa7-ef11-8a69-7c1e5266b018. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/849c615f-6312-4a53-a631-ffc10442238a/general-working-files-vivian-bergers-vol-4-of-4. Accessed April 19, 2025.
Copied!
No. 84-6811
ET —— —-_.—e- i —————————————————————
IN THE
Supreme Court of the Tnited States
OcToBER TERM, 1986
WARREN MCCLESKEY,
Petitioner,
Y.
RaLpu M. KEMP,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals for
The Eleventh Circuit
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
AND BRIEF AMICUS CURIAE OF THE
INTERNATIONAL HUMAN RIGHTS LAW GROUP
IN SUPPORT OF PETITIONER
Of Counsel: * RALPH G. STEINHARDT
STEVEN M. SCHNEEBAUM 720 Min Su LH
PATTON, BOGGS & BLow (202) ar
2550 M Street, N.-W.
Washington, D.C. 20037 * Counsel of Record
LARRY GARBER
INTERNATIONAL HUMAN RIGHTS
Law GROUP
722 Fifteenth Street, N.W.
Suite 1000
Washington, D.C. 20005
iris Ch ia ii i a a —-————
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
MOTION OF THE
INTERNATIONAL HUMAN RIGHTS LAW GROUP
TO FILE BRIEF AMICUS CURIAE
IN SUPPORT OF PETITIONER
Pursuant to Rule 36.3 of the Rules of this Court,
the International Human Rights Law Group (the Law
Group) moves for leave to file the attached brief Ama-
cus Curiae in support of Petitioner. The Law Group
is a non-profit organization of international lawyers
and scholars, which, through litigation, publication,
and other public activism, seeks to promote respect
for human rights norms in all nations, including the
United States.
By order dated October 7, 1985, this Court allowed
the Law Group to file a brief Amicus Curiae in sup-
port of the petition for a writ of certiorars in this
case. Having argued in favor of the propriety of re-
view, the Law Group now moves to file a brief on
the merits. In particular, Amicus wishes to submit
for this Court’s consideration the argument that the
en banc decision below approved an admittedly ra-
cially-discriminatory system for the imposition of the
death penalty, which violates peremptory norms of
international law. In failing to consider international
law as a relevant source of the rule of decision, the
Eleventh Circuit’s opinion violates the Supremacy
Clause of the Constitution as interpreted. At a min-
imum, the decisions of this Court oblige the Eleventh
Circuit to consider international standards in deter-
mining whether Petitioner's sentence was ‘“‘cruel and
unusual’ within the meaning of the Eighth Amend-
ment.
Amicus also brings a unique institutional perspec-
tive to these proceedings. Between 1980 and 1984,
t——— A ——— ——————
the Law Group sought to litigate the very issues of
race discrimination raised in this case before the In-
ter-American Commission on Human Rights, an in-
strumentality of the Organization of American States.
On October 3, 1984, the Commission held the Law
Group’s petition inadmissible on certain procedural
grounds and in particular on the representation of
the United States that U.S. courts should be allowed
to consider the Law Group’s data and argumentation.
Amicus files this brief in order to lay before this
Court these legal and empirical submissions.
Amicus is not aware of any other presentation of
these data or arguments to this Court. Counsel for
Petitioner has consented to the filing of this brief.
Amicus sought the consent of counsel for Respondent
who declined to provide it, necessitating this motion.
Respectfully submitted,
RALPH G. STEINHARDT
720 20th Street, N.W.
Washington, D.C. 20052
(202) 676-5739
Counsel of Record for the
INTERNATIONAL HUMAN RIGHTS
LAW GROUP
August 21, 1986
TABLE OF CONTENTS
ABCUMENT indi is, ST Se RE
L
IL.
III.
DATA SUBMITTED TO THE INTER-AMER-
ICAN COMMISSION ON HUMAN RIGHTS
ESTABLISH THAT THE DEATH PEN-
ALTY IS IMPOSED IN A RACIALLY DIS-
CRIMINATORY MANNER IN THE STATE
OF GEORGIA. ...civercvorsrcrcernocovsvssnsirossonssnsanes
THE EXISTENCE OF RACIAL DISCRIMI-
NATION AS ACKNOWLEDGED BY THE
COURT OF APPEALS FOR THE ELEV-
ENTH CIRCUIT EN BANC VIOLATES A
PEREMPTORY NORM OF INTERNA-
TIONAL LAW. ......ccosinrmiosnensocisinnmosssabnmsssssss
THE ELEVENTH CIRCUIT WAS RE-
QUIRED TO CONSTRUE THE GEORGIA
DEATH PENALTY STATUTE CONSIST-
ENTLY WITH PERTINENT INTERNA-
TIONAL LAW AND FAILED TO DO SO. .
ONCLUSION: ieeivivississersitiortonss sttdusersssss dereotnsrnsoirnnaaes
12
ii
TABLE OF AUTHORITIES
CASEs: Page
Barcelona Traction Light and Power Co., Ltd., [1970]
1.C.J. Rep, 32 .... persons rs eseas instream rissss ssi ansbass (Jf)
Blonder-Tongue Laboratories, Inc. v. University of
Illinois Foundation, 402 U.S. 313 (1971) ...... 4
Clisolm v. Georgia, 2 Da. 419 (A738) ..vverecrrsrneesess 13
Coker v. Georgia, 433 U.S. 584 (1977): .crvrvrerssssssnns 15
Cook v. United States, 488 U.S. 102 (1983) .......... 15
Eddings v. Oklahoma, 455 U.S. 104 (1982) .......... 4
Erwmund v. Florida, 458 U.S. 782 (1982) .....c....... 16
Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan.
1980), aff'd sub mom. Rodriguez-Fernandez v.
Wilkinson, 654 F.2d 1382 (10th Cir. 1981) ..... 14
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.
OY ier stoss scierorntrnnsirmnnnetuiepantanenpshnberinontnnee 14
First National City Bank v. Banco Para el Com-
mercio Exterior de Cuba, 103 S.Ct. 2591
(LORD ei reieaisienssssassessssnssssseumrtnitmontannsassassiassssses 13
Lauritzen ». Larsen, 345 U.S. 571 (1953) ...ccevenens 15
Legal Consequences for States of the Continued Pres-
ence of South Africa im Namibia (South West
Africa) Notwithstanding Security Council Reso-
ition: 278, [1971] L.C.J. Rep. B71 .ccreirmssresisens 11
McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985)
(OT DOTIC) ov iorieierminaossrivesnionsecrnseomsssornesopnsenransnne 3,7, 8
McCulloch v. Sociedad Nacional de Marineros de
Honduros, 372 UB. 10(19683). cicviernicnssrcsrsosns 15
Murray v. The Charming Betsy, 6 U.S. (2 Cranch)
34 (A804) cover rrsnsmmrissssonsmssmsorsiscrsessrsnrssssnagsonnss 18
The Nereide, 13 U.S. (9 Cranch) 388 (1815). ........ 13
North Sea Continental Shelf Cases, [1969] [.C.J. Rep.
7 SERRE LEI SLSR des Rn INL TN 14
G00): a 312. It 16
TEI fn Fe nn. nem ete t nt AA A tS. St
ii
Table of Authorities Continued
Page
Procunter v. Navarette, 434 U.S. 555 (1978) ........ 4
Respublica v. DeLongchamps, 1 U.S. 119, 1 Dall. 111
(OT. Pa 1784) ...ciiovsedicniviniivonsseisinssersitornens 14
Bon West Africa Cases (Second Phase), [1966] 1.C.J.
Spinkelink v. Wainwright, 578 F.2d 582 (5th Cir.
(1978), cert. denied, 404 U.S. 976 (1979) ....... 6
Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1301) ...... 15
Trop v. Dulles, 356 U.S. 86 (1988) .....coveecunee 3,15 18
Yonce v. Terrazas, 444 U.S. 282 (1980) ......ccoone... 4
Village of Arlington Heights v. Metropolitan Hous.
Dey. Corp. 429 1.5. 282 (I8T7) .ovsisessivncicioos 17.
Ware v. Hyllon, 3 U.S. 3 Da.) 199 (1796) ........... 13
Weinberger v. Rosst, 456 U.S. 25 (1982) .............. 15
Wood v. Georgia, 450 U.S. 261 (1981) ....ccceeeeeneee.. 4
TREATIES, DECLARATIONS, STATUTES. AND REGULATIONS
American Convention on Human Rights, signed Nov.
22, 1969, OAS Official Records OEA/Ser. K/
XVIAi, Doe. 68, Rev. 1, Corr. 1 (Jan. 7,
E070) ..oicirsitusrninssiesnsarsrcssosssesrasrgiunsshsagronssessnnsns 9
American Declaration on the Rights and Duties of
Man, O.A.S. Res. XXX, adopted by the Ninth
International Conference of American States,
held at Bogota, Colombia (1948), OEA/Ser. L./
VIL 4 Ray. (1988) hii ilameiecirinsioniniisssionions 10
Declaration of Social Progress and Development,
adopted Dec. 11, 1969, G.A.Res. 2542, 24 U.N.
GAOR, Supp. (No. 30) 49, U.N. Doc. A/7630
(1080)... re iirrisnrnroniiississnsdsirrrsriisssimantes Tosniongsns 10
Iv
Table of Authorities Continued
Page
Declaration on the Promotion Among Youth of the
Ideals of Peace, Mutual Respect and Under-
standing Between Peoples, adopted Dec. 7, 1965,
G.A. Res. 2037, 20 U.N. GAOR, Supp. (No. 14)
40, U.N. Dec. A/B015 (1985). ....coommnrinrsiinmssinons 10
The International Convention on the Elimination of
All Forms of Racial Discrimination, opened for
signature March 7, 1966, 660 U.N.T.S. 195 .. 9
International Covenant on Civil and Political Rights,
adopted Dec. 16, 1966, G.A. Res. 22004, 21 U.N.
GAOR, Supp, (NO. 18) 0 cerccnsmmtirreninserissnss 9
International Covenant on Economic, Social, and Cul-
tural Rights, adopted Dec. 16, 1966, G.A. Res.
22004, 21 U.N. GAOR, Supp. (No. 16) .......... 9
Organization of American States Charter, signed
April 30, 1948, entered into force December 13,
1951, 2 U.S. 7, 2304, T.LAS. No. 23681 ....... 9
United Nations Charter, signed June 26, 1945, en-
tered into force October 24, 1945, 59 Stat. 1031,
LS NG. O00 riiiitieiriesssn Ef aR 9
United Nations Declaration on the Elimination of All
Forms of Racial Discrimination, adopted Nov.
20, 1963, G.A. Res. 1904, 18 U.N. GAOR Supp.
(No. 15) 35, 36, U.N. Doc. A/5515 (1963) ..... 10
Universal Declaration of Human Rights, G.A. Res.
217A (IID), U.N. Doc. A/810 (1948) ................ 10
Vienna Convention on the Law of Treaties, adopted
May 22, 1969, entered into force, Jan. 17, 1980,
U.N. Doc. A/CONF. 39/27 (1969), reprinted in
63 AMER. J. INT’ L. 875 (1969), 8 INT'L LEG.
MAT, BT{I009) i vectors tire narrsastoissdbussivnrnsasn 8
LEGISLATIVE MATERIALS:
S. Exec. Doc. L., 92d Cong., Ist Sess. (1971)... 9
MISCELLANEOUS:
Table of Authorities Continued
Page
American Law Institute, Restatement of
Foreign Relations Law of the United States
(Revised) (1988) ......cccocrsvmvmrenmssarersesssssssrsrsrnrens 12, 13
Baldus, et al., Monitoring and Evaluating Contem-
porary Death Sentencing Systems: Lessons From
Georgqua, 18 U.C. DAVIS L. REV. 1375
Barnett, Some Distribution Patterns for the Georgia
Death Sentence, 18 U.C. DAVIS L. REV. 1327
(LOBBY. sisieessersissssssssessisrnssivnvunsontosnasnsrrarossesisinen 7
Gross, Race and Death: The Judicial Evaluation of
Evidence of Discrimination In Capital Sentenc-
ing, 18 U.C. DAVIS L. REV 1275 (1985) .... 7
Henkin, International Law as Law in the United
States, 82 MICH. L. REV. 1555 (1984) ......... 13
Lillich, “The Role of Domestic Courts in Enforcing
International Human Rights Law,” Guide To In-
ternational Human Rights Practice (1984) ..... 11
McDougall, Lasswell, & Chen, Human Rights and
World Public Order (3380). .....cecormeesraversrsesans 11
McKean, Equality and Discrimination Under Inter-
national Law (F983) ccsrcisrrnsicrsssscernsisenmmrorminnss 11
Memorial of the United States, The Case Concerning
United States Diplomatic and Consular Staff in
Tehran (United States v. Iram), [1980] I.C.J.
Pleadings 181 (January 1980) -.ceeevesseisssseenses 10
Op. Att'y Gen. 27 (1972). .vcvnmssssvrnnisssernssccssenssenns 13
Santa Cruz, Ractal Discrimination, U.N. Doc. E/CN.
41: Sub. 2/307/8ev. 1; 28 (1971), '# .correrssrussinsunen 10
Zeisel, Race Bias in the Administration of the Death
Penalty: The Florida Experience, 95 HARV. L.
REV. 458 (1081). .iliiosisidrerssrriisnpinesssessansarnes =
IN THE
Supreme Court of the Tnited States
OCTOBER TERM, 1986
No. 84-6811
WARREN MCCLESKEY,
Petitioner,
v.
RaLpe M. Kevp,
Respondent.
On Writ Of Certorari to the
United States Ceurt of Appeals
For the Eleventh Circuit
BRIEF AMICUS CURIAE OF THE
INTERNATIONAL HUMAN RIGHTS
LAW GROUP IN SUPPORT
OF PETITIONER
INTEREST OF AMICUS
The International Human Rights Law Group is a
non-profit organization of international lawyers and
scholars which seeks to promote the observance of
international human rights norms by providing legal
assistance and information to individuals and groups
on a pro bono basis; representing clients in interna-
tional forums; and participating amicus curiae in U.S.
litigation involving international human rights norms.
No
The Law Group respectfully submits and intends to
demonstrate that this case requires consideration of
relevant human rights law.
The Law Group also has a unique and direct in-
stitutional stake in the resolution of this case. In 1980,
the Law Group petitioned the Inter-American Com-
mission on Human Rights, an instrumentality of the
Organization of American States (the Commission), to
declare that capital sentences in the United States
are Imposed in a racially discriminatory manner. In
particular, the Law Group argued that the death pen-
alty is imposed disproportionately on those defendants
the victims of whose crimes are white and that such
discrimination based upon the race of the victim was
in violation of treaties to which the United States is
a party. After receiving statistical evidence similar to
that presented below by Petitioner herein, the Com-
mission held the Law Group's petition inadmissible on
procedural grounds, and effectively deferred the Law
Group’s international claims pending an authoritative
disposition of the issue by American courts.
The Law Group submits this brief in order to lay
before this Court the race discrimination data sub-
mitted to the Commission, and to demonstrate that
the en banc court below failed to construe the Georgia
death penalty statute consistently with binding inter-
national law, thereby committing reversible error.
SUMMARY OF ARGUMENT
With remarkable candor, the en bane Court of
Appeals for the Eleventh Circuit accepted the factual
findings of Petitioner’s studies, namely that no factors
other than race could account for the marked increase
in capital sentences among those defendants whose
er —— p——
(V
i)
victims were white. Indeed, the court below expressly
“assumf(ed] the validity of the research’ and acknowl-
edged ‘‘that it proves what it claims to prove.”
McCleskey v. Kemp, 753 F.2d 877, 886 (llth Cir. 1985)
(en banc). The conclusion as a matter of law that this
evidence established no violation of the Eighth and
Fourteenth Amendments to the U.S. Constitution does
not exhaust the legal analysis the court was required
to undertake. In particular, the en banc court failed
to consider international law as a pertinent source of
the rule of decision. Under The Paquete Habana, 175
U.S. 677 (1900) and its progeny, the Georgia death
penalty statute should have been considered in light
of the peremptory norm of international law con-
demning racial discrimination—a customary norm to
which the United States is bound beyond peradven-
ture. The failure to consider an applicable source or
guarantor of Petitioner’s rights is reversible error. At
a minimum, the case should be remanded to the Elev-
enth Circuit Court of Appeals for its analysis of the
limits imposed by this international obligation on the
discretion of State officials to administer the death
penalty.
In addition, under Trop v. Dulles, 356 U.S. 86 (1958)
and its progeny, the Eleventh Circuit should have
consulted international standards in determining the
contours of the Eighth Amendment's ban on cruel
and unusual punishment.
Confining itself to the argument that each of Ques-
tions Presented 1 through 5 should have been con-
sidered in light of applicable international law,
' Although the international issues raised by Amicus were not
presented to the courts below, this Court has established that
Amicus offers no opinion as to the circuit court's
disposition of purely domestic legal issues.
ARGUMENT
I. DATA SUBMITTED TO THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS AND TO THE
COURT BELOW ESTABLISH THAT THE DEATH
PENALTY IS IMPOSED IN A RACIALLY DIS-
CRIMINATORY MANNER IN THE STATE OF
GEORGIA.
On August 6, 1980, Amicus submitted a petition to
the Inter-American Commission on Human Rights, an
instrumentality of the Organization of American
States, alleging that the United States imposed the
death penalty in a racially discriminatory manner. The
data submitted to the Commission established a pro-
nounced pattern of racially-based disparities in death
sentencing based on the race of the victim. In par-
ticular, the evidence showed that a person convicted
in the State of Florida of murdering a white person
was ten times more likely to receive the death penalty
than one convicted of murdering a black person.? In
it has the power to consider relevant issues raised in a case “in
the interest of justice,” irrespective of whether those issues were
previously raised, Wood v. Georgia, 450 U.S. 251, 265 n. 5
(1981). The exercise of that power is especially appropriate in
capital cases. Eddings v. Oklahoma, 455 U. S. 104 (1982). See
also, Vance v. Terrazas, 444 U.S. 252 (1980); Procunier v. Na-
varette, 434 U.S. 555, 559-60 n. 6 (1978); Blonder-Tongue Lab-
oratories, Inc. v. University of Illinots Foundation, 402 U.S.
313, 320-21 n. 6 (1971).
? The data are described in the affidavit of Professor William
J. Bowers, which is attached hereto in the Appendix. The Florida
data appear on pp. 2a and 5a.
a cit =
Texas, the ratio was eighteen to one.* In Georgia,
where this litigation arose, it was twelve to one, a
figure which reinforces the conclusions of the study
submitted by Petitioner herein. More specifically, the
Law Group's statistician, Professor William Bowers
of Northeastern University, produced the following
tabulation:
PROBABILITY OF RECEIVING THE DEATH
SENTENCE FOR CRIMINAL HOMICIDE BY RACE
OF OFFENDER AND VICTIM IN GEORGIA FROM
THE EFFECTIVE DATE OF THE POST-FURMAN
STATUTE THROUGH 19772
Estimated Persons Probability
Number of Sentenced of a Death
Race of Offender Offenders® to Death Sentence
White 1082 41 .038
Black 2716 49 .018
Race of Victim
White 1265 76 .060
Black 2529 25 .005
Offender/ Victim
Racial Combinations
Black Kills White 258 37 143
White Kills White 1006 39 : .039
Black Kills Black 2458 12 .005
White Kills Black 71 2 .028
All Offenders 3798 90 .024
a Data Sources: Supplementary Homicide Reports on criminal hom-
icide data from April 1973 through December 1976, supplied by the
Uniform Crime Reporting Program, Federal Bureau of Investigation,
United States Department of Justice, Washington, D.C.; (2) Supple-
mentary Homicide Reports on criminal homicide data for 1977, supplied
31d., at pp. 4a and Ta.
by the Criminal Activity Reporting Unit, Georgia Bureau of Investi-
gation, Georgia Crime Information Center, Atlanta, Georgia; (3) Vital
Statistics tabulations on willful homicide from April 1973 through De-
cember 1977, supplied by the Office of Health Services Research and
Statistics, Division of Physical Health, Atlanta, Georgia; (4) Persons
sentenced to death from April 1975 through December 1977, supplied
by Georgia Committee Against the Dealth Penalty, Atlanta, Georgia.
b The estimated number of offenders for a given category is obtained
by multiplying the reported number of offenders in that category for
the years 1976, 1977 (sources: 1, 2) by a victim-based adjustment factor
to correct for undercoverage. The adjustment factor 4.453 equals the
number of homicide victims from April 1973 through December 1977
(source: 3) divided by the number of homicide victims in the years 1978,
1977 (sources: 1,2).
Thus, although black defendants on average were
less likely than white defendants to receive the death
sentence (.018 versus .038), black defendants who
killed white people were more likely than any other
group to receive that sentence by several orders of
- magnitude. And when the data are controlled for
defendant’s race, as noted, the defendant of either
race who kills a white person is twelve times more
likely to be sentenced to death than the defendant of
either race who kills a black person (.060 versus .005).
In the proceedings before the Inter-American Com-
mission, the United States never challenged the va-
lidity of these data or the statistical methods employed
to produce them. Rather, the United States opposed
the petition almost exclusively on the grounds that
domestic remedies for the redress of such discrimi-
nation had not been exhausted, despite the denial of
certiorari in Spinkelink ». Wainwright, 578 F.2d 582
(5th Cir. 1978), cert. denied, 404 U.S. 978 (1979). The
United States assured the Commission that U.S.
courts, including this Court, remained receptive to
evidence demonstrating the fact and extent of dis-
crimination, and that they would respond fully and
espn ores
5 Nt rn erg nv ee ep
fairly to any such demonstration. Opposition of the
United States, Case 7465, Inter-American Commis-
sion on Human Rights (June 16, 1981). In light of
this representation and on other procedural grounds,
the Commission denied the petition on October 3,
1984, noting that the statistical evidence submitted
was more appropriately directed to a domestic court
in each individual case.
The Law Group’s data, unchallenged and stark as
they are standing alone, become especially compelling
in light of other consistent and sophisticated dem-
onstrations of the same phenomenon, including the
Baldus study in the instant litigation and multiple
reports in the scholarly literature. See e.g., Zeisel,
Race Bias in the Admanastration of the Death Penalty:
The Florida Experience, 95 HARV. L. REV. 456
(1981); Gross, Race and Death: The Judicial Evalu-
ation of Evidence of Discrimination wm Capital Sent-
encing, 18 U.C. DAVIS L. REV. 1275 (1985); Barnett,
Some Distribution Patterns for the Georgia Death Sen-
tence, 18 U.C. DAVIS L. REV. 1327 (1985); Baldus,
et al., Monitoring and Evaluating Contemporary
Death Sentencing Systems: Lessons From Georqa, 18
U.C. DAVIS 1. REV. 1375 (1985). To Awicus’s
knowledge, the only sustained attack on any of these
studies is the en banc court’s treatment of the Baldus
study in the decision below. Though lengthy, that at-
tack suffers from inconsistency* and an apparent un-
+ Despite its apparent rejection of the Baldus data in parts of
its opinion, the en banc court was also willing to “assume the
validity of the research.” 753 F.2d at 886, acknowledging ‘‘that
it proves what it claims to prove.” Id.
eS US. A A ea tt on —— au —
familiarity with rudimentary mathematics.> The
evidence remains persuasive that there exists a
marked, significant disparity in the susceptibility of
certain categories of defendants to the ultimate sanc-
tion and that that disparity is determined by race.
The values placed on white and black lives in Georgia
are demonstrably unequal.
II. THE EXISTENCE OF RACIAL DISCRIMINATION
AS ACKNOWLEDGED BY THE COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT EN
BANC VIOLATES A PEREMPTORY NORM OF IN-
TERNATIONAL LAW.
The right to be free from official government-spon-
sored discrimination on the basis of race is so uni-
versally accepted by nations as to constitute a
peremptory norm of international law.’ It is included
5 For example, the Eleventh Circuit focused on the “.06” dis-
parity by race of victim in overall death sentencing rates, as
reported by Baldus. It consistently viewed this as a six percent
disparity, 753 F.2d at 896, 899. But the figure is in fact a six
percentage point disparity, raising the overall death sentence rate
from .05 to .11, a percentage increase of 120%, not 6%.
Petitioner and other Amici offer a thorough critique of the
Eleventh Circuit's statistical acumen. See Motion for Leave To
Toker File Brief Amici Curiae and Brief Amici Curiae For Dr. Peter
eevited |W. Sperlich, Dr. Marvin E. Wolfgang, Professor Hans Zeisel
and Professor Franklin E. Zimring in Support of the Petition
for Writ of Certiorari, filed herein on June 27, 1985.
5 A peremptory norm of international law is a “norm accepted
and recognized by the international community of states as a
whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general
international law having the same character.” Vienna Conven-
tion on the Law of Treaties, adopted May 22, 1969, entered into
force, January 17, 1980, U.N. Doc. A/Conf. 39/27 (1969), re-
a
in such fundamental texts as the Charter of the
United Nations?, and the Charter of the Organization
of American States,® both of which are treaties ra-
tified by and binding upon the United States. Similar
prohibitions are found in every comprehensive inter-
national treaty pertaining to human rights’ and in
printed mn 63 AMERICAN J. INT'L L. 875 (1969), 8 INT'L
LEG. MAT. 679 (1969). Although the Vienna Convention has
been signed but not ratified by the United States, the Depart-
ment of State, in submitting the Convention to the Senate, stated
that it “is already recognized as the authoritative guide to cur-
rent treaty law and practice.” S. Exec. Doc. L., 92d Cong., 1st
Sess. (1971) at 1.
7" U.N. Charter, signed June 26, 1945, entered into force Oc-
tober 24, 1945, 59 Stat. 1031, T.S. No. 933, at Article 55(c).
8 0.A.S. Charter, signed April 30, 1948, entered into force
December 13, 1951, 2 U.S.T. 2394, T.I.A.S. No. 2361, at Article
33). :
? International Convenant on Civil and Political Rights, adopted
December 16, 1966, G.A. Res. 2200A, 21 U.N. GAOR, Supp.
(No. 16), Articles 2(a), 13, 26: International Covenant on Eco-
nomic, Social, and Cultural Rights; adopted December 16, 1966,
G.A. Res. 2200A, 21 U.N. GAOR, Supp. (No.16), Article 2(2);
American Convention on Human Rights, signed Nov. 22, 1969,
OAS Official Records OEA/Ser. K/XVT1/i.i, Doc. 65, Rev. 1, Corr.
1 (Jan. 7, 1970), Articles 22(7) 22(9), 24; The International Con-
vention on the Elimination of All Forms of Racial Discrimination,
opened for signature March 7, 1966, 660 U.N.T.S. 195, Articles
1, 2. The United States has signed but not yet ratified each of
these treaties. Under Article 18 of the Vienna Convention on
the Law of Treaties, supra, the United States is obliged not to
defeat the object and purpose of these conventions prior to their
entry into force. In addition, those international agreements to
which the United States is not a party may nevertheless create
_ or evidence a customary norm which is equally authoritative and
equally binding. North Sea Continental Shelf Cases, [1969] 1.C.J.
Rep. 37. Other treaties which prohibit racial discrimination are
10
numerous international declarations and resolutions.
The most authoritative of these—the Universal Dec-
laration of Human Rightsi'—sets forth in various
forms a basic guarantee of rights and freedoms ‘“with-
out distinction of any kind, such as race ... [or] na-
tional -or social origin,” id., at Articles 2, 7, and 14.
In international adjudication, the United States itself
has invoked those provisions as evidence of the core
human rights protected by international law.:? The
renunciation of official racial discrimination is re-
flected as well in the laws and constitutions of a vast
majority of states,'* and is conceived as the center-
catalogued in Appendix B to Amicus’ Brief in Support of Petition
for Certiorari, filed herein on July 8, 1985, at 8a-9a.
' United Nations Declaration on the Elimination of All Forms
of Racial Discrimination, adopted Nov. 20, 1963, G.A. Res. 1904.
18 U.N. GAOR Supp. (no. 15) 35, 36, U.N. Doc. A/5515 (1963);
American Declaration of the Rights and Duties of Man, 0.A.S.
Res. XXX, adopted by the Ninth International Conference of
American States, held at Bogota, Columbia (1948), OEA/SER.L./
VII. 4 Rev. (1965), Articles II, XXCII: Declaration of Social
Progress and Development, adopted Dec. 11, 1969, G.A. Res.
2542, 24 U.N. GAOR, Supp. (No. 30) 49, U.N. Doc. A/7630
(1969), Articles 1, 2; Declaration on the Promotion Among Youth
of the Ideals of Peace, Mutual Respect and Understanding Be-
tween Peoples, adopted Dec. 7, 1965, G.A. Res. 2037. 20 U.N.
GAOR, Supp. (No. 14) 40, U.N. Doc. A/6015 (1965), Principles
bd
' G.A. Res. 21TA(III), U.N. Doc. A/810 (1948).
2 Memorial of the United States, The Case Concerning United
States Diplomatic and Consular Staff in Tehran (United States
v. Iran), [1980] I.C.J. Pleadings 181, n. 3 (January 1980).
13 Santa Cruz, Racial Discrimination, U.N. Doc. E/CN. 41
Sub. 2/307/Rev. 1, 28 (1971). See South West Africa Cases (Sec-
ond Phase), [1966] 1.C.J. 4, 299 (Tanaka, J., dissenting).
11
piece of contemporary human rights norms in the
writings of international law scholars.
Recognizing this consistent and universal condem-
nation of racial discrimination, the International Court
of Justice has concluded that “the principles and rules
concerning the basic rights of the human person, in-
cluding protection from ... racial discrimination,”
constitute an international obligation of all states.
Case Concerning The Barcelona Traction Light and
Power Co., Ltd., [1970] I.C.J. Rep. 32. The Interna-
tional Court has also concluded that
to establish ... and to enforce distinctions,
exclusions, restrictions, and limitations exclu-
sively based on grounds of race, colour, de-
scent or national or ethnic origin
constitutes a denial of fundamental human
rights [and] is a flagrant violation of the pur-
poses and principles of the [U.N.] Charter.
Legal Consequences for States of the Continued Pres-
ence of South Africa in Namibia (South West Africa)
Notunthstanding Security Council Resolution 276,
[1971] I.C.J. Rep. 57. The cumulative power of this
international consensus has led the American Law
Institute to include “systematic racial discrimination’
in its authoritative catalogue of fundamental viola-
tions of customary international law. American Law
14 See e.g., Lillich, “The Role of Domestic Courts in Enforcing
International Human Rights Law,” International Human Rights
Practice (1984); McDougall, Lasswell & Chen, Human Rights and
World Public Order 581-611 (1980). See generally, McKean,
Equality and Discrimination Under International Law (1983);
Henkin, The Rights of Man Today (1978).
i — LN hn nd a Sd mira SA nh Mt AS mM
12
Institute, Restatement of Foreign Relations Law of the
Unated States (Revised) § T02(f) (1986).15
Thus, the prohibition against government-sponsored
racial discrimination is firmly grounded in all of the
traditional sources of customary international law set
out by Mr. Justice Gray in The Paquete Habana, 175
U.S. 677, 700 (1900). That norm, stated in compre-
hensive and unqualified language, has never been lim-
ited in any authoritative way to demand some
incontrovertible showing of individualized intent. Sim-
ilarly, apparently unlike the Eighth and Fourteenth
Amendments as read by the Eleventh Circuit, it ad-
mits no defense of degree. Although international law,
like domestic law, will not redress trifles, racial dis-
crimination of the type admittedly and repeatedly
demonstrated in this case plainly falls within the cus-
tomary international prohibition.
III. THE ELEVENTH CIRCUIT WAS REQUIRED TO
CONSTRUE THE GEORGIA DEATH PENALTY
STATUTE CONSISTENTLY WITH PERTINENT
INTERNATIONAL LAW AND FAILED TO DO SO.
It is axiomatic that international law is part of the
law of the United States and that, under the Su-
premacy Clause of the U.S. Constitution!¢ as inter-
preted, it “must be ascertained and administered by
the courts of justice of appropriate jurisdiction, as
often as questions of right depending upon it are duly
presented for their determination.” The Pagquete Ha-
bana, 175 U.S. 677, 700 (1900). This basic principle
>» The ALI adopted the revised Restatement of Foreign Re-
lations Law at its meeting in Washington, D.C., on May 14-15,
1986.
6 U.S. Const., Art. VI, Sec. 2.
13
has been accepted by this Court from the earliest days
of the Republic, Chisolm v. Georgia, 2 Da. 419, 474
(1793) (“Prior ... to that period [the date of the
Constitution], the United States had, by taking a place
among the nations of the earth, become amenable to
the law of nations’); Ware v. Hylton, 3 U.S. (3 Da.)
199, 281 (1796); The Nereide, 13 U.S. (9 Cranch) 388,
423 (1815). It has received fresh confirmation as re-
cently as 1983 in Justice O’Connor’s opinion for the
Court in First National City Bank v. Banco Para el
Commercio Exterior de Cuba, 103 S.Ct. 2591, 2598
(1983). The executive branch has reached the same
conclusion. See e.g., Op. Atty. Gen. 27 (1972): “The
law of nations, although not specially adopted by the
Constitution or any municipal act, is essentially part
of the law of the land.”"
The “law of nations” which the courts are directed
to apply includes treaties to which the U.S. is a party,
as well as customary international law or ‘‘interna-
tional .common law,” which arises out of the practice
of states acting in a particular manner because they
feel themselves legally bound to do so. This state
practice may be deduced from treaties, national con-
stitutions, declarations and resolutions of intergov-
ernmental bodies, public pronouncements by heads of
state, and empirical evidence of the extent to which
i7 See generally American Law Institute, Restatement (Revised)
of the Foreign Relations Law of the United States, § 131, Com-
ment D (“The proposition that international law and agreements
are law in the United States is addressed mainly to the courts.
They are to apply international law or agreements as if their
provisions were enacted by Congress.”’); Henkin, International
Law as Law in the United States, 82 MICH. L. REV. 1555,
1560 (1984).
14
customary law rules are observed. See North Sea Con-
tinental Shelf Cases, [1969] 1.C.J. Rep. 37. Unlike
treaties which specify obligations only for their sig-
natories, customary international is binding on all na-
tions by virtue of membership in the international
community. Consent is unnecessary, and ad hoc ob-
jection is unavailing.
As a matter of United States law, customary inter-
national law also creates enforceable rights and ob-
ligations for individuals. Thus, in The Paguete Ha-
bana, supra, this Court held that the customary:
international law of prize in time of war created rights
in an individual whose boat had been seized in vio-
lation of those norms. See also Respublica v. De-
Longchamps, 1 U.S. 119, 1 Dall. 111 0. & 7, Pa.
1734); Filartiga v. Pena-Irala, 630 F.2d 876 {2d Cir.
1980); Fernandez v. Wilkinson, 505 F. Supp. 787 (D.
Kan. 1980), aff'd on other grounds sub mom., Rodri-
guez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.
1981). As The Paquete Habana teaches, when juris-
diction is clear, customary rights by their nature are
enforceable by individuals in U.S. courts. ® Any other
disposition would erect the anomoly of a right without
a remedy. Thus, in construing the Georgia death pen-
alty statute and Petitioner's sentence thereunder, the
Eleventh Circuit Court of Appeals was obliged to
“‘ascertain(] and administer{]” international law, in-
sofar as ‘“‘questions of right” depend upon it. 175 U.S.
at 700.
'® The self-execution doctrine, generally critical in treaty anal-
yses, is irrelevant—indeed meaningless—in the context of cus-
tomary international law, the intent of whose draftsmen
necessarily defies discovery.
TEC WG Sp. 4,14 Hi, ——_
15
The argument here is not that international law in
any sense displaces domestic law. It is rather that
statutes enacted by Congress or the state legislatures
“ought never to be construed to violate the law of
nations, if any other possible construction remains.”
Weinberger v. Rossi, 456 U.S. 25, 33 (1982), quoting
{75 Murray v. The Charming Betsy, 6 U.S. (2 Cranch)
64, 118 (1804). See also, Talbot v. Seeman, 5 U.S. (1
Cranch) 1, 43 (1801); Cook v. United States, 288 U.S.
102 (1983); Lauritzen v. Larsen, 345 U.S. 571, 578
(1953); McCulloch v. Sociedad Nacional de Marineros
de Honduras, 372 U.S. 10, 21 (1963). Thus, for ex-
ample, the State of Georgia could not by statute sus-
pend the customary laws of war or diplomatic
immunity within its territory. So too is its imple-
mentation of racial discrimination in the imposition
of capital punishment a forbidden departure from
binding customary international norms.
At a minimum, this Court should reverse the de-
cision below on the ground that the Eighth Amend-
ment to the Constitution, as interpreted in light of
international norms, prohibits death sentences tainted
by racial discrimination. See Rodriguez-Fernandez, su-
pra, 654 F.2d at 1388. In Trop v. Dulles, 356 U.S.
86, 101 (1958), this Court emphasized that the Eighth
Amendment “must derive its meaning from evolving
standards of decency that mark the progress of a
maturing society.” In determining the content of these
“evolving standards,” the Court noted that the vast
majority of nations did not employ denaturalization
as a punishment for desertion and concluded that such
punishment would be ‘“‘cruel and unusual” within the
meaning of the Eighth Amendment. 356 U.S. at 102-
103. Similarly, in Coker v. Georgia, 433 U.S. 584
16
(1977), this Court held that the imposition of the death
penalty for the rape of an adult woman was “cruel
and unusual,” referring explicitly to international
standards. 433 U.S. at 596, n. 10. The Court recently
turned again to the “climate of international opinion”
in determining that the death sentence was cruel and
unusual when imposed on a defendant who had not
intended to kill his victim. Enmund v. Florida, 458
U.S. 782, 796 n. 22 (1982).
Plainly then, customary international standards are
entitled to persuasive weight under the decisions of
this Court. As demonstrated above, there is no cus-
tomary norm more powerful or well-established than
the prohibition of government-sponsored racial dis-
crimination. Under Trop, Coker, and Enmund, there-
fore, petitioner's Eighth Amendment claim should
have been assessed in this light.
Obviously, the en banc court below made no attempt
to discharge its burden under either The Paquete Ha-
bana to apply international law or Trop and its prog-
eny to consult international standards in determining
the “evolving standards of decency’ protected by the
Eighth Amendment. The en banc court did not ad-
dress the relevant norms of international law as in-
corporated into federal common law, nor did it address
whether the racial disparities alleged by Petitioner fall
within the scope of the international prohibition. In-
stead, on the issue of discrimination, the en banc court
of appeals contented itself with considering only the
contours of domestic law. The court’s apparent ne-
glect of the peremptory norm of international law
prohibiting racial discrimination cannot be squared
with this Court’s consistent adherence to the law of
nations as providing the rule of decision, whenever a
17
-
lifigant’s rights may be framed in its terms. In short,
the en banc court’s failure to assess international law
issues raised by its acceptance that the showing of
discrimination was valid constitutes error which should
be reversed by this Court.
CONCLUSION
“Sometimes a clear pattern, unexplainable on
grounds other than race, emerges from the effect of
the state action even when the governing legislation
appears neutral on its face.” Village of Arlington
Hewghts v. Metropolitan Hous. Dev. Corp., 429 U.S.
252, 266 (1977). This is such a case. Data collected
by Petitioner and by Amicus in parallel international
proceedings demonstrate that unequal sanctions are
attached to the taking of white and black lives in the
State of Georgia. Although the structure and precise
results of these studies may vary, the conclusion does
not. That the court below was willing to concede the
diseriminatory impact makes its affirmation of
Petitioner's sentence all the more erroneous. In ad-
dition, the en banc court’s failure to consider the in-
ternational law issues relevant to this case violates
the Supremacy Clause of the Constitution as inter-
preted, and ignores the decisions of this Court which
establish the fundamental role of international law in
the law of the United States and its persuasive role
in interpreting the Eighth Amendment.
18
For all of these reasons, Amicus respectfully urges
this Court to reverse the decision of the court of
appeals below.
Respectfully submitted,
Of Counsel: * RALPH G. STEINHARDT
720 20th Street, N.W.
STEVEN M. SCHENEEBAUM Washington, D.C. 20052
PATTON, BOGGS & BLow (202) 676-5739
2550 M Street, N.W. * Counsel of Record
Washington, D.C. 20037
LARRY GARBER
INTERNATIONAL HUMAN RIGHTS
Law GROUP
722 Fifteenth Street, N.W.
Suite 1000
Washington, D.C. 20005
APPENDIX
a
ep op.
P
—
—
1
4
v
o
y
I
la
APPENDIX
AFFIDAVIT OF PROFESSOR WILLIAM BOWERS
I am a sociologist with particular training in statistics and
computer applications to sociology. I graduated from Wash-
ington and Lee University in 1957 and received my doctorate in
sociology in 1966 from Columbia University. I am presently a
professor of sociology at Northeastern University, Boston,
Massachusetts, and Director of that University’s Center for
Applied Social Research.
Since approximately 1972, I have been engaged in research,
study, and writing on the use of the death penalty in the United
States. I am the author of numerous articles on the subject and
of the book Executions in America, published in 1974.
Together with the Assistant Director here at the Center,
Glenn L. Pierce, and others, I have supplied the figures and
statistics on race-victim death sentencing disparaties con-
tained in appendices A and B of this complaint. These figures
are accurate to the best of our abilities and reflect sustained
research and the use of widely-accepted statistical methods.
I believe, on the basis of my research and analysis, that the
broad pattern of race-victim death sentencing disparities com-
plained of in the foregoing document remain unremedied by
state or federal authorities and therefore continue today.
(signed) William Bowers
Professor William Bowers
SS: Commonwealth of Massachusetts
County of Suffolk
Subscribed and sworn to before me this 11th day of April,
1980.
(signed) Philip C. Bovd
Notary Public
My Commission Expires:
Nov. 28, 1980
SEAL
FLORIDA
PROBABILITY OF RECEIVING THE DEATH SENTENCE FOR CRIMINAL HOMICIDE BY RACE OF OFFENDER AND VICTIM IN FLORIDA FROM THE EFFECTIVE DATE OF THE POST-FURMAN STATUTE THROUGH 1977
Estimated Persons
Number of Sentenced Race of Offender Offenders: to Death White 2265 72 Black 2606 61
Race of Victim
White 2439 122 Black 2432 11
Offender/Victim
Racial Combinations
Black Kills White 286 BRL
White Kills White 2146 72 Black Kills Black 2320 11 White Kills Black 111 0
All Offenders 4871 133
Probability
of a Death
Sentence
032"
.023
.050
.005
.168
.034
.005
.000
.027
supplied by Citizens Against the Death Penalty, Jacksonville, Florida.
multiplying the reported number of offenders in that category for the years 1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for undercoverage. The adjustment factor 3.484 equals the number of homicide victims from January 1973 through December 1977 (sources: 1, 2) divided by the number of homicide victims in the years 1976, 1977 (sources: 1, 2),
Uniform Crime Reporting Program, Federa| Bureau of Investigation, United States Department of J ustice, Washington, D.C... 2 Supplementary Homicide Reports on criminal homicide data for 1977, supplied by the Uniform Crime Reports Program, Department of Law Enforcement, Tallahassee, Florida: (3) persons sentenced to death from January 1973 through December 1977,
33
GEORGIA
PROBABILITY OF RECEIVING THE DEATH SENTENCE FOR CRIMINAL HOMICIDE BY RACE
Estimated ~~ Persons Probability
Number of Sentenced of a Death Race of Offender Offenders: to Death, Sentence White 1082 41 .038 Black 2716 49 .018
Race of Victim
White 1265 76 .060 Black 2529 14 .005
Offender/Victim
Racial Combinations
Black Kills White 258 LL .143 White Kills White 1006 39 .039 Black Kills Black 2458 12 .005 White Kills Black 71 . .028
All Offenders 3798 90 .024 Data Sources: (1) Supplementary Homicide Reports on criminal homicide data from April 1973 through December 1976, supplied by the Uniform Crime Reporting Program, Federal Bureau of Investigation, United States Department of Justice, Washington, D.C.: (2) Supplementary Homicide Reports on criminal homicide data for 1977, supplied by the Criminal Aec- tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In-
ta, Georgia; (4) Persons sentenced to death from April 1975 through De- cember 1977, supplied by Georgia Committee Against the Death Penalty, Atlanta, Georgia,
undercoverage. The adjustment factor 4.453 equals the number of homicide victims from April 1973 through December 1977 (source: 3) divided by the number of homicide victims in the years 1976, 1977 (sources: L2
4a
TEXAS
PROBABILITY OF RECEIVING THE DEATH
SENTENCE FOR CRIMINAL HOMICIDE BY RACE
OF OFFENDER AND VICTIM IN TEXAS FROM THE
EFFECTIVE DATE OF THE POST-FURMAN
STATUTE THROUGH 1977
Estimated Persons ~~ Probability
Number of Sentenced of a Death
Race of Offender Offenders to Death Sentence
White a 3971 38 .010
Black 2940 29 .010
Race of Victim
White 3964 71 .018
Black 2740 2 .001
Offender/Victim
Racial Combinations
Black Kills White 344 27 .078
White Kills White 3616 37 .010
Black Kills Black 2597 2 007
White Kills Black 143 0 .000
All Offenders 6711 73 011
Data Sources: (1) Supplementary Homicide Reports on criminal homicide data from January 1974 through December 1976, supplied by the Uniform Crime Reporting Program, Federal Bureau of Investigation, United States Department of Justice, Washington, D.C.; (2) Supplementary Homicide Reports on criminal homicide data for 1977, supplied by the Uniform Crime Reporting Bureau, Texas Department of Public Safety, Austin, Texas: (3) Vital Statistics records on willful homicides from January 1974 through December 1977, supplied by the Bureau of Vital Statistics. Texas Depart- ment of Health, Austin, Texas: (4) persons sentenced to death from January 1974 through December 1977, supplied by the Office of Court Administration. The Supreme Court of Texas, Austin, Texas.
“The estimated number of offenders for a given category is obtained by multiplying the reported number of offenders in that category for the years 1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for undercoverage. The adjustment factor 2.473 equals the number of homicide victims from January 1974 through December 1977 (source: 3) divided by the number of homicide victims in the years 1976, 1977 (sources: 1, 2).
TT EI A i—. og SS S———o". Bat—
FLORIDA
PROBABILITY OF RECEIVING THE DEATH
SENTENCE FOR FELONY TYPE MURDER BY RACE
OF OFFENDER AND VICTIM IN FLORIDA FROM
THE EFFECTIVE DATE OF THE POST-F URMAN
STATUTE THROUGH 1977
Estimated Persons Probability
Number of Sentenced of a Death
Race of Offender Offenders® to Death Sentence
White : 307 54 .176
Black 251 50 .199
Race of Victim
White 432 a7 224
Black 122 7 057
Offender/Victim
Racial Combinations
Black Kills White 136 41 .301
White Kills White 296 54 182
Black Kills Black 115 7 .061
White Kills Black 7 0 .000
All Offenders 558 104 .186
Data Sources: (1) Supplementary Homicide Reports on criminal homicide data from January 1973 through December 1976, supplied by the Uniform Crime Reporting Program, Federal Bureau of Investigation, United States Department of Justice, Washington, D.C.; (2) Supplementary Homicide Reports on criminal homicide data for 1977, supplied by the Uniform Crime Reports Program, Department of Law Enforcement, Tallahassee, Florida: (3) persons sentenced to death from January 1973 through December 1977, supplied by Citizens Against the Death Penalty, Jacksonville, Florida.
“The estimated number of offenders for a given category is obtained by multiplying the reported number of offenders in that category for the years 1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for undercoverage. The adjustment factor 3.484 equals the number of homicide victims from January 1973 through December 1977 (sources: 1, 2) divided by the number of homicide victims in the years 1976, 1977 (sources: 1, 2).
em he ———— ae + em
6a
GEORGIA
PROBABILITY OF RECEIVING THE DEATH
SENTENCE FOR FELONY-TYPE MURDER BY RACE
OF OFFENDER AND VICTIM IN GEORGIA FROM
THE EFFECTIVE DATE OF THE POST-FURMAN
STATUTE THROUGH 1977
Estimated Persons Probability
Number of Sentenced of a Death
Race of Offender Offenders® to Death Sentence
White 196 37 .189
Black 338 42 124
Race of Victim
White 316 69 218
Black 218 10 .046
Offender/Victim
Racial Combinations
Black Kills White 124 34 i 0nd
White Kills White 183 35 191
Black Kills Black = 205 8 .039
White Kills Black 13 2 154
All Offenders 534 79 148
Data Sources: (1) Supplementary Homicide Reports on criminal homicide
data from April 1973 through December 1976, supplied by the Uniform
Crime Reporting Program, Federal Bureau of Investigation, United States
Department of Justice, Washington, D.C.; (2) Supplementary Homicide
Reports on criminal homicide data for 1977, supplied by the Criminal Ac-
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In-
formation Center, Atlanta, Georgia; (3) Vital Statistics tabulations on willful
homicides from April 1973 through December 1977, supplied by the Office of
Health Services Research and Statistics, Division of Physical Health, Atlan-
ta, Georgia; (4) Persons sentenced to death from April 1973 through De-
cember 1977, supplied by Georgia Committee Against the Death Penalty,
Atlanta, Georgia; (4) Persons sentenced to death from April 1973 through
December 1977, supplied by Georgia Committee Against the Death Penalty,
Atlanta, Georgia.
“The estimated number of offenders for a given category is obtained by
multiplying the reported number of offenders in that category for the years
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for
undercoverage. The adjustment factor 4.453 equals the number of homicide
victims from April 1973 through December 1977 (source: 3) divided by the
number of homicide victims in the years 1976, 1977 (sources: 1, 2).
tr mm ni mon aes matin <r Amram
S—
Ta
TEXAS
PROBABILITY OF RECEIVING THE DEATH
SENTENCE FOR FELONY-TYPE MURDER BY RACE
OF OFFENDER AND VICTIM IN TEXAS FROM THE
EFFECTIVE DATE OF THE POST-FURMAN
STATUTE THROUGH 1977
Estimated Persons Probability
Number of Sentenced of a Death
Race of Offender Offenders to Death Sentence
White 411 34 .083
Black 294 27 .092
Race of Victim
White 551 63 114
Black : 151 2 .013
Offender/Victim
Racial Combinations
Black Kills White 173 25 . «1dd
White Kills White 378 34 © .090
Black Kills Black 121 2 .016
White Kills Black 30 0 .000
All Offenders 705 61 .087
Data Sources: (1) Supplementary Homicide Reports on criminal homicide data from January 1974 through December 1976, supplied by the Uniform Crime Reporting Program, Federal Bureau of Investigation, United States Department of Justice, Washington, D.C.; (2) Supplementary Homicide Reports on criminal homicide data for 1977 , supplied by the Uniform Crime Reporting Bureau, Texas Department of Public Safety, Austin, Texas: ( 3) Vital Statistics records on willful homicides from January 1974 through December 1977, supplied by the Bureau of Vital Statistics, Texas Depart- ment of Health, Austin, Texas; (4) persons sentenced to death from January 1974 through December 1977, supplied by the Office of Court Administration, The Supreme Court of Texas, Austin, Texas.
“The estimated number of offenders for a given category is obtained by multiplying the reported number of offenders in that category for the years 1976, 1977 (sources: 1, 2) by a vietim-based adjustment factor to correct for undercoverage. The adjustment factor 2.473 equals the number of homicide victims from January 1974 through December 1977 (source: 3) divided by the number of homicide victims in the years 1976, 1977 (sources: 1, 2).
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
egal efense und 99 Hudson Street, New York, N.Y. 10013 ® (212) 219-1900
August 6, 1986
Dear Folks:
Enclosed is an unproofed first draft of the Brief for
Petiticner in McCleskey v. Kemp. As you will quickly see, the
work at present is more stone than sculpture: rough-hewn,
oversized and almost totally without polish. That's where you
all come in. Suggestions, please.
The introductory section, in particular, is about 10 pages
too long. Edits will be cheerfully accepted; new ideas,
applauded; major rearrangements tolerated from wellwishers; keep
sighs to yourselves.
There are some minor (I hope) deviations from the outline
that at the time seemed compelled by the structure as it was
emerging. Finally, there are a lot of minor changes in
paragraphing, wording, phrasing, etc. that I know should be
changed.
Present plans are to begin collation of your suggestions on
Monday, August 11th or Tuesday, August 12th, since we'll need to
get the brief to a printer by Thursday or Friday, if possible.
Thanks in advance for your help. (If your ldeas are sO
wide-ranging that they won't wait, I'll be in the LDF's New York
office on Friday, August 9th and probably over the weekend as
well. If not, my home number is (201) 746-8645.
Best regards.
Sincerely,
hu
John Charles Boger
JCB:agf
signed in JCB's absence
Contributions are deductible for J.S. income tar purposes
The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part of the National Association for the Advancement of Colored People (NAACP) although
{ DF was founded by the NAACP and shares its commitment to equal rights. LDF has had for over 25 years a separate Board. program, staff, office and buaget.
To: John Charles Bopger, cae.” Samuel R. Gross, Esa. Richard H. Burr, IIl, Esq. James M. Nabrit, III, Esq. Julius L. Chambers, Esa. Steven L. Winter, Esa. Timothy K. Ford, Esq.
From: Tony Amsterdam
Re: Outline of the Supreme Court brief in McCleskey Form Sn avast Saten S—— pa— v—
Date: July 12, 1986
Dear Gang:
Rccording to my notes, this is the structure of the brief which seemed to have the collective support of the oroup when we spoke by phone yesterday. It is driven by the feeling that the only way we can hope to win the case is to convince the Court early in the brief — and therefore before we embark upon the detailed and tedious description of the evidence and of the Elev— enth Circuit’s holdings that is necessary to lay the foundation for argument of the specific Questions Presented in the cert. petition —— that (a) the evidence makes a powerful factual show- ing of race-of-victim discrimiviatiorn: (b) the Eleventh Circuit trivialized this showing and the large constitutional issue which it raises, by niggling and nit-picking, and (©) our position on the merits of at least one of the larpe constitutional issues is sound. r — —— ig mmonns
1. The Statement of the Case should not describe in detail the evidentiary record ard its treatment by the courts be- low. It should recite the history of the case chronologically (eliminating, except perhaps for brief mention in footnote, all Proceedings relating to issues other than arbitrariress/discrim- ination), in such a way as to
(RA) summarize ard Characterize the Baldus studies as
(1) methodologically sophisticated, exhaustive and reliable, and
{£') substantively convincing that race is 2
patent factor in Geocrpia’s observed capi-— tal sentencing pattern:
(EB) summarize the Court of Rppeals?® decision ir such a way as to make apparent that the Elev- enth Circuit erected standards of procf which are
{19 uriprecedented and counterintuitive, ard
{Z) impossible to meet, even if racial ciscrim-
ination iv fact exists.
1
descriptions of the evidence and of its treatment by the courts
Ibelow will be developed in the Argument section of the brief, in
[connection with the specific issues to which these details are
“pertinent.
11. The Summary of Argument should contain
(AR) a preview of Argument (A), stressing both the strength
and the importance of the arguments that the Consti-
tution carmot tolerate race-of-victim discrimination
in capital sentencing; and
(R) a preview of arpument (BE), conveying the sense that
the Court of Appeals essentially immunized such dis-—
crimination against constitutional correction by
encumbering its proof with a host of improvident
technical requirements (cf. Batson).
111. The Argumert should have two basic parts:
(AR) The first part should begin by saying that, in
order to understand the issues raised by the decision
below, it is necessary to understand the constitu-—
tional principles upon which McCleskey's case is
based. It should then develop the lepal, historical
and moral foundations supportino the conclusions that
{1) the Equal Protection Clause, and
(2) the Eighth Amendment
nrohibit race-of-victim discrimination in capital sentencing.
(EB) The second sectior should deal with the Guestions
Fresernted in the cert. petition.
£3) It should first tackle the Court of Appeals’
recuirement of a showing of intentional discrim-
imation in each individual case, and should show
Q.3Y that: \
(a) under McCleskey's Egual Protection theory,
a prima facie case can be made (and was
ae vote wr — mo a — — —
made) by statistical evidence; and
Vid
par
(b) under MeCleskey's Eighth Amendment theory, 119:
N no showing of intentional discrimination 1s
; required.
{ES It should ther deal with the Court of Appeals’
recuirement that the evidence show discrimina-—
tion so pervasive that no other finding is
Rz possible. This subpart should describe the
-
fe
Baldus study (methodology, data and conclu-
sions), Baldus® testimony, and the prounds of
decision by the District and Circuit Courts, in
detail, and should demonstrate the error of the
remaining holdings of the Court of Appeals
identified for review by the Questions Fre-
sented in the cert. petition. Emphasis should
be placed upor both the €% overall racial dis-—
parity and the 22% racial disparity in "mid-
range” cases, moving from the former to the
latter and particularly stressing the latter
so as to permit the Court to rule in our favor
without announcing standards for the for eval-
wation of evidence of race-of-victim discrim-
ination that will appear to invalidate the
Georgia statute across the board, or to jeoc—
pardize the death sentences imposed for the
most heinous and atrocious kinds of murders.
Throughout this subpart, we should
(a) argue each point, and develop the stand-
ards for adjudication of each issue, al-
ternatively under Equal Protection and
Eighth Amendment theory, so as to give the
Court a choice of narrower or broader
prounds of decision (in effect, making
Equal Protection theory available to those
Justices who are most concerned not to
issue a sweeping decision invalidating &
lot of death sentences, and making Eighth
Amendment theory available to those Jus-—
tices who are most concerned not to spawn
a flood of diseconomical and dilatory evi-
dentiary litigation); and
(b) argue primarily that the Court of Appeals’
decision was wrong and must be reversed
because that court emploved incorrect
lepal principles, then po on to develop
the standards which we say should povern
the application of correct legal prin-
ciples to proof of claims of race-of-
victim-discrimination (saying that, while
the Court reeds not announce these stand-
ards in order to reverse, it may wish to
do so for the puidance of the court below
or remand).
Implementation of this design is, of course, the hard
Take care.
Rs ever,
(
= ho gt «The Color of the Victim
ARREN McCLESKEY was robbing an
"“W Atlanta furniture store in 1978 when he
shot and killed a police officer who at-
tempted to stop the crime. Mr. McCleskey, who
was later sentenced to death for the murder, is
black; the victim was white. These are the critical
facts in the case the Supreme Court has just
agreed to hear next term, a case that challenges
the constitutionality of capital punishment on
grounds of racial discrimination. Although for
many years in this country blacks were far more
likely to be executed than whites convicted of
similar crimes, that is not the issue presented
here. Instead, the focus has shifted to the race of
the victim, for Mr. McCleskey’ s attorneys intend
to show that the penalty is applied disproportion-
ately to blacks who kill whites.
It is strange that a subject of such emotional
and moral intensity will be argued in terms of
statistics. But David Baldus, a University of Iowa
law professor who studied all the capital cases in
Georgia from 1973 through 1978, found that a
black whose victim was white was far more likely
to receive the death penalty than a white who
killed a white or than anyone who killed a black.
Some of this is due to factors other than race.
wa ye Fk . 8 met xr ah y 4 22
PET ma SE SE SE SEN SEER, Yo mi
Intrafamily murders, for example, are often
treated with more leniency than felony murders
or the shooting of police officers. The heinous-
ness of the crime and the prior record of the
offender are relevant and are unrelated to race.
Nevertheless, Prof. Baldus found that a black
killer with a white victim was still 20 percent
more likely to be sentenced to death than
murderers in other categories.
We believe capital punishment is unconstitu-
tional and immoral in any case, and we deplore its |
becoming become close to commonplace. Prof.
Baldus’ study reinforces our belief becauses it |
raises the possibility that race influences judges
and juries deciding these life-or-death matters. In
one shameful period of this country’s history,
- some lives were clearly held to be more valuable
than others. This was true not only for the wrong
reasons that some victims were wealthier, more
powerful or more accomplished than others, but
because they were a certain color. Any vestige of
“this prejudice in a criminal case taints the process
beyond repair. ‘The. McCleskey appeal is the last
in a series ‘of cases challenging ‘not only the
specific conviction on appeal but the imposition of
the death penalty vider ony circumstances.
i ARVETZ 9a
—.-
——————————————————
MEMORANDUM
To: Anthony G. Amsterdam
From: Robert Nelson ct
Re: Standing in the race of victim case
Date: March 2, 1986
Question Presented
[. Whether a defendant sentenced to death has standing to challenge the
sentence based on an equal protection claim that a state more often imposes
the death sentence upon Killers of whites than upon Killers of blacks for
crimes otherwise indistinguishable?
Introduction
This memorandum focuses primarily upon the concept of fisy tertit
mm
standing and its application to the race of victim case. While the SA AES
memorandum strongly suggests that the rules of jus tertii standing should
Ty
be relaxed in the race of victim case S0 that a capital defendant will have
W—— ramen
standing to challenge the victim- based discrimination. the memorandum
La
pays little attention to the decision of whether to frame the issue in terms of
————
the third party rights of potential black victims. To the extent that we
SR
frame the issue in terms of these third parties’ rights, we not only accept
traditional arguments about capital punishment and deterrence, but we also
open ourselves to the argument that more Killers of blacks should be
sentenced to death.
Although the impetus behind this memorandum was a question about
the "Linda RS. standing problem.” [ do not see the importance of that case
regarding standing. Standing was not found in that case primarily because
the remedy that would have attached to the plaintiff's claim! would not
result in anv payment for her child, but only imprisonment of the father of
their illegitimate child. Because the plaintiff mother "made no showing that
her failure to secure support payments resultfed] from the nonenforcement”
of the statute to her child's father, the Court concluded that the direct
a.
relationship between the alleged injury and the claim sought to be
mmm
adjudicated. a prerequisite of standing, was absent. 410 US. 614. 61 73
This prerequisite is easily satisfied in the race of victim case, for the remedy
sought -- Te the vacating of the capital sentence -- is directly related to the
-—... cess
claim of discrimination in the capital sentencing Srocedurh:
Linda R S. also stands for the proposition that a citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of another.
Id. at 619. As discussed below.” the fact that potential black victims might
not have standing to bring a class action challenging the capital sentencing
fo Cra RE :
procedure favors a [inding of us tertii standing for the capital defendant.
A. Article II] limitations on standing
A capital defendant should not have a problem meeting the Article [II]
requirements of standing. According to Phillips Petroleum v. Shutts, 53 US.
LW. 4879 (June 25, 1985), federal standing requires that there be "an
J
I Linda RS. v. Richard D., 401 US. 614 (1973) involved an equal protection
challenge to a Texas ¢ criminal statute that made it a crime for any parent to
fail to support a child. The plaintiff, the mother of an illegitimate child,
sought to have the statute apply to all parents of children, and not simply lo
parents of legitimaTe children. SE
See Bp. IX ArT
allegation of a p { or immediate injury in fact, at 488 1, where the
party requesting standing has “alleged such Fi 3 the outcome
—" of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues.” Id. quoting Baker v. Carr. 369 US. 186, 204
(1962). According to Arlington Heights v. Metropolitan Housing Development
Corp. 429 US. 252 (1977). the “essence” of the standing question 1s whether
the complainant has alleged such a personal stake in the outcome of the
a
controversy’ as to warrant his invocation of federal court jurisdiction and to
justify exercise of the court's remedial powers on his behalf.” Id. at 261,
citing Warth v. Seldin, 422 US. 490. 498-499 (1975 {emphasis in original).
See also Vallev Forge Christian College v. Americans United for Separation of
Church and State. Inc. 454 US. 464. 472: Gladstone, Realtors v. Village of
Bellwood, 441 US. 91, 99-100 (19761. The fact that a case involves a
criminal conviction also favors a finding of Article 11] standing.?
There must also be some ait connectiombetween the asserted
et
4 CINUrY 4 he challenged action, and the injury must be of the type likely to
be redresse by a favorable decision.” “Shuts 53 US. L.W. at 4881, quoting
Valley Forge, 454 u. S. 464, 472 (1982) and citing Simon v. Eastern Kentucky
Welfare Rights Org. 426 US. 26, 41-42 (1976); Arlington Heights, 429 US. at
261 (1977).
3 For example, in Eisenstadt v. Baird, 405 US. 438, 443 (1972), the Court
found Article 111 standing primarily because the case involved a criminal
conviction. According to the Court. that factor "decisively distinguishe[d]”
Eisenstadt from Tileston v. Ullman, 318 US. 44 (1943), where the Court held
that a physician lacked standing to bring an action for declaratory relief to
challenge, on behalf of his patients, a Connecticut law prohibiting the use of
contraceptives. The physician did not meet the injury-in-fact requirement.
Eisenstadt involved the conviction of a lecturer on population control for
distributing contraceptives to unmarried women in violation of a
Massachusetts statute.
A capital defendant sentenced to death for killing a White person
should be able to meet these Article [11 standing requirements. A capital
defendant alleges present, immediate harm: s/he received the death
sentence and not a life sentence because of discrimination in the
administration of the capital sentencing procedure. As this case involves a
criminal conv iction and the potential harm is the wrongful taking of the
na
dotendint’ 3 ito. a capital defendant has a “personal st stat ie” in ‘the outcome of
by ———
< the controversy which will assure ‘concrete 2AVErSOTRes” and a sharp
presentation of the issues. Indeed, there could be no greater personal stake
in the outcome of any controversy.
i There also exists a “cpusal connection’ between the asserted injury
and the challenged action. The injury -- i.e, that the defendant was
sentenced to death and not to a life sentence -- is caused by the challenged
action, the discrimination built into the sentencing procedure. Finally, the
defendant's injury would b Foqress d” by a favorable decision that would
vacate the death sentence. All these factors favor Article [11 japung
——— — A
a a ES ——
If our equal protection argument focuses solely upon the rights of a
capital defendant who has killed a white ite person, and not upon the rights of
nae aoe. ve ——————————— ————————————————— rp.
third parties such as the underprotected potential black victims, the standing
SO —————————_——— aa ————
analysis ends here. A capital defendant should have standing to challenge
Ar the discrimination. As noted in my October 20 memorandum (and as
Lvs ~ complemented by #3 of Eric Multhaup’ s November 25 memorandum), both
¢ Lhe rationality and ( the jury selection/strict scrutiny standard d may be
9 eros om
>
v
implicated bv relying solely on the capital defendant's constitutional
interests as a Killer of a white person.
If a capital Jue api that s/he is JER the interests of
—,
a
While a tertii standing can probably be established (as discussed below),
there are important risks associated with this strategy. To the extent that
we argue that blacks are ‘underprotectected. we open ourselves up to the
A ——————t
obvious remedy that Kill ers of blacks should be punished as severely as
killers of whites. Alternativ ely, if we frame issue in terms of discrimination
against Killers of whites, we can argue that those Killers get partic licularly
PE a It ees oso stats
severe punishment because of the race of their vicums. The remedy then
EE —
m————
- may be to make the number of capital sentences conform to the ratio of
capital sentences that exists amongst Killers of blacks. See Multhaup, #4. In
any event, only if we use the potential black victim argument must we
consider the ptr udential jmiaiians on standing. Ap RR
acini
a TET A
[—
B. Prudential limitations on standing
Agdisonalforudentinl inmiadions on standing may exist even though
the Article 11] requirements are met, These limitations are meant to ensure
that the judiciary "avoid deciding questions of broad social import where no
individual rights would be vindicated” and to limit access to the federal
ee —
courts 10 those litigants best suited to assert a particular claim.” "Shutts, 53
U. 31 LW at 4881. citing Gladstone. F Realtors v. Village of Bellwood, 441 US. 91,
99-100. The prudential rules are related to the broader doctrine that
constitutional BGjugication. should Where possible be avoided. Ashwander v.
4 See ppainfra where this claim is considered in light of the standing issues
in jury selection.
6
Tennessee Valley Authority, 297 US. 288, 346-348 (Brandeis concurring).
The rules are recognized as “self-imposed rules,” to which a court is not
necessarily bound?
One of these prudential limitations on standing is that a litigant ‘must
normally assert his own legal Interests rather than those of third parties. :
ie. S3 USL W. ol 4231, citing Sinateton v. ull 428 US. 106 (1976) and
Craig v. Boren 429 US. 190 (1976).¢ This limitation "frees the Court not
only from unnecessary pronouncement on constitutional issues, but also -
from premature interpretations of statutes in areas ‘Where their
aie mT
constitutional application might be cloudy” Sec. of State of Marvland v.
Joseph H. ‘Munson. Lo. 104 S.Ct. 2839, 2846 (1984) quoting US. v. Raines, 362
US. 17, 22 (1960); see also Craig v. Boren, 429 US. 190, 193 (1976). This
limitation also supports the Article [II requirement that the issues before
the court will be concrete and sharply presented. Munson, 104 S.Ct. at 2846.
asi TA
Despite these compelling justifications, the Court has, as discussed below,
often relaxed this rule and found jus tertii standing.
TL ————— A A 558 ————
5 See, e.g. Eisenstadt v. Baird, 405 US. at 438, 443-44 (1972); Barrows v.
Jackson, 346 US. 249, 255-257 (1953). In Craig v. Boren, 429 US. 190
(1976), the Court noted that the prudential rules "stem from a salutory rule
of self-restraint. |." Id. at 103. Because the Court found that the objectives
of the-prudential limitations could not be furthered in Craig since the lower
courts had already entertained the constitutional challenge and no party
opposed standing and as the case would be vigorously enforced, it held that
a denial of jus tertii standing in deference to a direct class suit "can serve no
functional purpose.” Id. at 103-104. See also Shutts, 53 USL. W. at 4881.
See discussion of Shutts at pagejlinfra, where the limitations were
discarded.
6 See also Sec. of State of Maryland v. Joseph H. Munson Co., 104 S.Ct. 2839,
2846 (1984): Warth v. Seldin, 422 US. at 499; Gladstone Realtors, 441 US. 91,
100; Duke Power Co. v. Carolina Environmental Study Group, 438 US. 59, 80
(1978); Valley Forge, 454 US. 464, 474 (1982): NAACP v. Alabama ex. rel
Patterson, 357 US. 449, 459 (1958).
~~.
Jus Tertii Standing
A capital defendant whose complaint is based upon discrimination
based upon the race of the victim is at least to some extent representing the
interests of third parties -- 1.2... potential black dor Tie tan. B/06 Clans
that-asingte application of a law both injures him or her and impinges upon
the constitutional rights of those third parties. According to Wright in 1980,
esa
the rule against relying on jus tertii has been | 1 “markedly relaxed in recent
fe
—
years.” Wright, Federal Courts. D. 77 Despite much judicial activity in this
So
area. however, the Court has not articulated a coherent doctrine around jus
tertii.
A review of the case law suggests that the Court has permitted jus
tertii standing when (D) there exists a substantial relationship between the
S———————E REN ET —— a ————— a —————
claimant and third parties,’ i 1s impossible for rightholders | 10 assert
ERT ——
their own constitutional rights, § 3) dilution of third party rights might result
Ba —— A AA.
were jus tertii not permitted, 9 and4) The injury to defendant is great! 10 As
CI ——— mn ——.
discussed Below not all of these factors must be met in a particular case, nor
———
is any one factor of controlling significance.!! Jus tertii standing is generally
granted if Wo of these factors are established, as should be possible in the
TB SA I ST ITT
race of victim case.
Dem
1. The relationship between the claimant and third parties
7 See pp.g-0 infra.
5 See pp.(r-pinfra.
9 See pp.i3winfra.
10 See pp oyinfra.
11 In the area of First Amendment overbreadth, the dilution of rights is
controlling and compels relaxation of the rules against jus tertii standing.
See pp.I3winfra.
The cases that Wright cites for the proposition that the rule against jus
tertii is more relaxed in recent vears -- eg.. Singleton v. Wulff, 428 US. 106
(1976) physicians allowed to assert the rights of their patients in challenging
a statute to limit abortions); Craig v. Boren 429 US. 190 (1976 seller of 3.2%
beer can assert that men aged [8 to 20 have the same equal protection right
to purchase that beer as do women in the same age group); Carey v.
Population Services Intl 431 US. 678 (1977) (a mail-order seller of
contraceptives allowed to raise the privacy rights of potential customers) --
all demonstrate the significant nexus between the claimant and the third
A i ———
parties.
~ Another case where jus tertii standing has been found and that
reflects the importance of the relationship between the claimant and third
parties is Truax v. Raich, 239 US. 33 (1915), where an emplovee had
1 ——
standing to raise the rights of the employer. In Pierce v. Society of Sisters,
268 US. 510 (1925). a parochial school had standing to attack a statute that
I —————..
would have required public education for all children, even though the
—————————
constitutional rights implicated were those of the parents and schoolchildren.
The Court in NAACP v. Alabama ex. rel Patterson, 357 US. 449 (1958), held
that the NAACP had standing 10 assert the rights-of its: members because the
a, AILEL i
NAACP and its members were in "every practical sense identical” Id. at 459.
In Griswold v. Connecticut, 381 US. 479 (1965), the Executive Director of the
Planned Parentood League of Connecticut and a licensed physician had
RRA A A AS
prescribed contraceptives for married persons and been convicted as
accessories to the crime of using contraceptives; they were held to have
standing to raise the constitutional rights of the patients with whom they ERM ait en,
had a professional relationship.
In Barrows v. Jackson, 346 US. 249 (1953). a white vendor was
rr
allowed to assert the equal protection rights of a black vendee. This
relationship was characterized in Eisenstadt v. Baird, 405 US. 438, 445
11972), as not "simply the fortuitous connection between a vendor and
potential vendees, but the relationship between one who acted to protect the
pr
rights of a minority and the minority itself. The Court found a similar
mn Sr -
retdfionship in ‘Eisenstadt. There, the relationship between the claimant and
those whose rights he sough{to assert was characterized as that between “an
advocate of the rights of persons to obtain contraceptives and those desirous
of doing so.” The point of his distributing contraceptives was to challenge the
Massachusetts statute that limited access to contraceptives. 405 US. at 445.
i The relationship at issue in the race of victim case -- i.e, between the
capital defendant and the potential black victims -- is at first blush far more
tenuous and general than the above noted cases. Other than. for example,
with friends and possibly family outside of prison, the capital defendant has
BE a
pursued no transaction whatever with the potential black victims. !2 Still.
there is some language in Eisenstadt -- specifically regarding the Court's
consideration of Barrows -- that suggests that a sufficient nexus may exist
between the capital defendant and black potential victims to support
standing. As in Barrows, the relationship is between one who is acting to
protect the rights of a minority and the minorities themselves. The white
vender in Barrows -- not unlike the capital defendant -- was pursuing his
own interest in the transaction, and was not, as was the
‘defendant in Eisenstadt, arrested for the very purpose of challenging the
statute. Unlike in Barrows, however, the capital defendant in the race of
aN
™
12 If the cap capital defendant is black, then the relationship is tighter, for s/he
was once a member of this under- protected class.
10
victim case has hig no direct contact, no transaction ¥haiever with the
parties did not Tove et Rnative in hal or Prey however. Still | am
SAN
not persuaded by This argument. “The relationship at issue in the race of
a amar — EN ————
victim case is extremely general, far more tenuous than those relationships
cn — ae
found in Truax, NAACP. Pierce, Barrows, Craig. Carey, and Griswold.
In any event. more important than the nature of the relationship
EE ————
betw een the litigant and those whose rights he seeks 10 assert 18 the impact
—_———
of the litigation on the third party interests.” Eisenstadt, 405 Us at 445.
————
The third party interests are addressed by the(second and (hird jus tertii
factors discussed immediately below.
2. Impossibility of claim 7 id
A second factor that favos relaxation of the rules of jus tertii standing
considers whether it would be impossible for the third party rightholders to
assert their own constitutional rights if standing were denied. For example,
the Court in Eisenstadt held that a married male -- who was not a doctor or
pharmacist nor denied contraceptives -- had standing to challenge on equal
protection grounds a Massachusetts statute prohibiting the distribution of
contraceptives to ynmarried women. He had been convicted under the
state statute for distributing contraceptives. While the Court noted the
tenuous relationship between the def endant and the unmarried women
CE — a
whose interests he was in effect representing, id. at 445, the Court
app——
Smphasized that unmarried persons denied access to contraceptives are not
subject to prosecution, “and to that extent, are denied a forum in which to
HT po — C—O TEN
assert their own views.” Id. at 446. The Court also noted that the case for
Asserting third party rights Ag Bm in Eisenstadt than in Griswold
aS na = CES a
11
precisely because hnanrrid persons denied access to CORIAROOPLIVeS in
Masodhugetts | unlike Tn Concticvt | were not subject to prosecution and
CL —
hujless likely to challenge the constitutionality of the statute. The Court
concluded that since the defendant was then in a position to assertthe rights
ofthe unmarried § women. Land had adequate incentive to Lik so; he should
E————— ES a
have standing.
Barrows v. jackson is also a good example to illustrate this second
factor. The Court found standing in large part because "it is the action of the
state court which might result in a denial of constitutional rights and in
which it would be difficult if not impossible for the persons whose rights are
asserted to present they ‘gfievance before any court.” 346 US at 257—
PASE i
(emphasis in original).
Similarly, in NAACP v. Alabama, the Court held that since individual
NAACP members were constitutionally entitled to withhold the fact of their
connection with the NAACP despite the production order, "it is manifest that
this right is properly assertable by the Association. To require that it be
claimed by the members themselves would result in nullification of the right
at the very moment of of the assertion.” 357 US. at 459. As in Barrows,
then, the Court found that the’ rights of persons who are not fppediaisly
before the Court could not be effe ectively vindicated except through an
-_—
appropriate represenative before the Court. 357 US. at 359.
GR lis principle clearly applies to the race of victim case. The potential
J— a
Ta rights are being litigated by the capital defendant would
ER OE
“probably not have Article 11 standing to assert their rights. These potential
victims arguably cannot allege a "present or immediate injury in fact’
Shutts, 53 US.L.W. at 4881, for this Article ITT requirement is strictly
msi, arog Sesion
construed. In Citv of Los Angeles v. Lyons, 103 S.Ct. 1660 (1983), for
———————
example, the Court held that someone who had been the victim of an illegal
chokehold did not have standing to enjoin the police's use of choKehelds in
non-life threatening situations. In order to establish an actual controversy
in the case, Lvons "would have had not only to allege that he would have
another encounter with the police but also to make the incredible assertion
a ya 2 ——
either, (1) (Bat all police officers in Los Angeles always choke any citizen with
——— i —————.
whom they vhom they happen to encountes——0rC2) that the City ordered or authorized
oe
police officers to act in such manner.’ ‘Id. at 1667 (emphasis in original)
f——
~ithout any ; provocation whatsoever, id. at 1668, the Coust could not find
iin pA SR
RR Ho
Article [1 standing. 13
p————
it Lyons S governs case or controversy questions regarding future
A
injury, then potential black victims could not meet such a burden. Not all
pa a —.
K illers of blacks get life imprisonment as opposed to death, and the state has
a
fou institutionalized capital sentencing based on the race of the victim.
Another consideration against standing is that, according to Linda RS.
. PE HE ii > Te
v. Richard D. 410 US. 614, a citizen “lacks [Article 111 1 standing to contest
the policies of the prosecuting ‘authority when he himself is neither
prosecuted nor threatened with prosecution. ‘1d. at 6 1 9 citing Younger Vv.
Harris, 401 US. 37,42 (1971); Bailey v. Patterson, 369 US. 31, 33 (1962); Poe
v. Ullman, 367 US. 497,501 (1961). As no potential victim in the race of
victim case is prosecuted or threa d with prosecution, ‘they might not ng
——
Nr SS A
13 Justice Marshall, joined by Brennan, Blackmun and Stevens, J]. dissented,
and found standing because Lyons had a claim for damages against the City,
a aaa sn serra
and he could not prevail on that claim unless he demonstrated that the city's
~chokehold policy violated the Constitution. Lyons, 103 S.Ct. at 1677-78.
anne a
~~
13
able to litigate the claim of discrimination in the attempt to contr ol the
proSecu tion/ sentencing of a particular defendant. fas.
The claim of discrimination in the administration of the capital
sentencing statute most t likely could not, then. ie brought except by a capital
defendant. If the equal protection claim is not ‘made. the equal protection
rights of both the capital defendant and third parties will have been
abridged. This factor strongly favors the granting of standing jus tertil
— a
This factor also demonstrates the close relationship between the
impossibility of asserting the claim, and the dilution of rights, fre thirg and
——— ———— PI
perhaps most important factor in jus tertii standing claims.
3. Need to avoid rights dilution
Several cases also suggest that third party standing is found where a
dilution of the third pariies constitutional rights would result ir the assertion
of jus tertii standing were not permitied. The Court's interest in dilution 0
A ss ———
rights is most clearly articulated in the First Amendment overbreadth cases.
Overbreadth cases are substantively different from traditional jus tertii
defendant and a different application of the law to hypothetical third
persons. Under the doctrine of jus tertii, the single application of a law
ae | “injures the defendant and impinges on the constitutional rights of others. -
Also, in overbreadth cases, not unlike the race of victim case but unlike most
~
I4 If there were a class action protesting this problem generally, and not in
the context of a simglecapitaldefendant, Linda R.S. might not come into play.
See e.g. Carter v. Green County, 396 US. 320 (1970) and Turner v. Fouche
396 US. 346 (1970) _where the Court found that a class of blacks had
standing to challenge e the ‘constitutionality of the jury selection ren
5, rar rl)
——————————— et
14
jus tertii claims. the only connection between the defendant and third
parties 18 that the same statute imposes a legal duty on both.!5
—~—
While the Court has not expressly noted tt these differences, the Court
i —————
has applied a substantively different standard to First Amendment
— . 3 i .
overbreadth cases. As the Court explained in Eisenstadt, "in First
Amendment cases we have relaxed our rules of standing without regard to
the relationship between the litigant and those whose rights he seeks to
assert precisely because application of those rules would have an intolerable,
inhibitory effect on { eed of speech 4 4035 US. at 445. n. 5, citing Thornhill
his
v. Atlanta, 310 US. 88,97-98 (1940) and US. v. Raines. 362 US. 17, 22
(1960). As the Court npted | in Schaumberg v. Citizens for a Better
Environment, 440 US. 620 (1980), "a litigant whose activities are unprotected
may nevertheless challenge a statute by showing that it substantially
abridges the First Amendment rights of other parties not before the court.”
Id. at 634. In Schaumberg. the Court struck down an ordinance barring
- —
door-to-door and on-street solicitations of contributions by charitable
organizations that did not use at least 75% of their receipts for charitable
purposes. The Court applied an overbreadth analysis, and invalidated the
ordinance because of the "possibility that protected speech or associative
activities may be inhibited by the overly broad reach of the statute.” In
Bates v. State Bar of Arizona, 433 US. 350 (1977) the Court concluded that
the use of overbreadth analysis "reflects the conclusion that the possible
harm to society from allowing unprotected speech to go unpunished is
outweighed by the possibility that protected speech will be muted.” [d. at
380.
15 See Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L.Rev. 423
(1974).
24 fons 2
15
[n Marviand v. Munson, 104 S.Ct. 2839 (1984). the Court expressly
noted the a argument against standing that there is no showing that a
——i
charity! cannot bring it's own lawsuit. The Court continued: ° ‘Although such
an argument might defeat : a 2 party's § standing outside the First Amendment
A a,
CL ——————
whether standing exists to challenge a statute t that al legedly chills free
speech.” 1d. at 2847. The Court explained that challenges to overly broad
s——
Statutes are allowed "not primarily for the benefit of the litigant, but for the
benefit of society -- to prevent the statute from chilling the First
g——— pe
Amendment rights of other parties not before the court.” Id. at 2848
Thus while the Court has not articulated the inherent differences
between overbreadth and traditional jus tertii, the Court has offered some
sons Tor its approaching third party First Amendment claims in relative
—————— A A
a ——————
‘cavalier fashion. Yet despite this spec ecial status given to overbreadth cases,
i
the case for game jus tertii standing requirements may be more compelling
am A
in the traditional jus tertii c context. If assertions of overbreadth are not
REESE
per mitted, the third party rightholders remain free to exercise their rights of
free speech in disregard of the statutory restriction, and to vindicate their
rights if and when the restriction is enforced. Thus the chilling effect which
RRO inc
may follow a denial of standing in an overbreadth case only deters
- ge —— . . . - K . - .
rightholders from exercising their freedom of speech; individuals willing to
risk-tiability re main fi ree to enjoy their rights. This alternative is generally
v
not-available to rightholders in Zine jus tert context, there, the rights are a
16 In Munson, the Court considered a claim by a professional fundraiser that
a 25% limit on charitable fundraising expenses imposed by Maryland statute
unconstitutionally restricted the charities’ activities. iti
16
stake in the actual proceeding in which the jus tertii claim is raised.!7 If
m—
standing is denied, their rights may be finally and pgfmanently abridged.
4
An argument could be made that the special place of free speech in
third party standing is unwarranted, and tharwhenever constitutional rights
that impact upon society are at stake rules against third party standing
should be relaxed. If society's interests constitute the basis for treating free
ra
speech differently, society's interest certainly is greatly gomaronised by the
racially motivated administration of capital punishment Along this same
Tine of reasoning, potential victims may be deterred from exercising essential
Rt A ———
freedoms -- eg. the right to travel - -- because ise of the le lesser protection the 4
BRL Ae Amy ia
ial
state affords them. Most importantly, the state's actions stigmatize the biack
offend the central puspose of equal protection of the laws. Thus it
me
would not be unreasonable to argue that rules of jus tertii should be relaxed
in the race of victim case. just as in overbreadth cases, for the rights
implicated are essential donlond: interests. Ir this argument flies, then the
capital defendant will enjoy standing, since the exception carved out in
ov erbreadth cases is of controlling signific: icance on the deter mination of
standing.
The Court has applied this third factor (dilution of rights) to equal
protection cases, though not with the same vigor as it has in the First
Amendment overbreadth context. In Truax v. Raich, 239 US. 33 (1915), the
Court concluded, ° It 1s also entirely clear that unless the enforcement of the
act is restrained the complainant will have no adequate remedy, and hence
we think that the case falls within the class in which, if the
unconstitutionality of the act is shown, equitable relief may be had. Id. at
17 See Note, 88 Harv. L Rev, at 439-440.
17
39. Here the Court combined the reality of the impossibility of the claim
——————
and the consequent dilution of rights. with the fact that the case involved an
equal protection claim. [f there are unacceptable applications of TH ;
np
an crates should be able to raise the equal protection rights of an
employer. Still, however, unlike in the overbreadth cases, there existed in
Truax a close relationship between the claimant and third party, and the <7 ~ os
claimant was directly affected by the unconstitutionality of the statute.
In Barrows v. jackson, the Court concluded that the rule denving
standing to raise another's rights is "outweighed by the need to protect the
fundamental lequal protection] rights which would be denied by permitting
the damages action to be maintained.” 340 US. at 257. Again, however,
Barrows, like Truax, involved a close relationship ip between claimant and
TE
third party. In Eisenstadt, the Court noted that more important than the
nature of the relationship between the litigant and those whose rights s/he
seeks to assert is the impact of the litigation on third party interests. 4095
oo
US. at 445. There the Court found that enforcement of the Massachusetts
statute would "materially impair the ability of single persons to obtain
contraceptives.” Id. at 446. Similarly, in Craig v. Boren, 429 US. at 195, the
Court noted that the statute's sanctions would deter the vendor from selling
5.2% beer to young males, thereby ensuring that "enforcement of the
challenged restriction against the [vendor] would result indirectly in the
violation of third parties rights.” Id. quoting Warth v. Seldin, 422 US. 490,
510.
Outside of overbreadth and equal protection, dilution of third party
rights was also considered in NAACP v. Alabama, where the Court po kéd
the chilling effect on reedom of association if the NAACP could not represent
the interests of its ‘members. In Griswold, the Court stated that the rights of
p———
on
husband and wife "are likely to be diluted or adversely affected unless those
rights are considered in a sult involving those who have this Kind of
confidential relation to them -- te, that of doctor-patient. 381 US. at 481.
As noted above, this third factor applies with ample force to the race
of victim cases.!S Asin Truax, Barrows, Eisenstadt and Craig, as well as in
“the First Amendment ca ¢. fundamental rights are jmplicated. Ey deny this Bil stone Undo nh
claim-would dilute the the rights of blacks to be protected equally under the
Fourteenth Amendment. Because the potential blacks most likely could lk
vifidicale their interests were thir d party standing denied, society $ interests
here are arguabl y greater than in the overbreadth cases, where third parties
S—
can still vindicate their own rights if they choose to speak. Thus the real
question for a capital defendant regarding this third factor is whether the
dilutionref-rights with necessarily establish standing. as it does-inthe
I. Tr On MILL
overbreadth cases. Even if the rights at issue in the race of victim cases do
18 108 applicability of this third f actor seems to hinge at least to some
at is implicated. This conclusion is
also demonstrated by the dissentifig opinions in Valley Forge. Valley Forge
involved the federal government giving away surplus government property
to a church. The federal law directed the government to sell the surplus
property, not give it away, and the action was challenged by a citizens group
committed to the separation of church and state. While the majority denied
standing based on the Article III limitations, including the failure to allege
injury suffered as a consequence of alleged constitutional error, Justice
Brennan, dissenting with Blackmun and Marshall, stated that standing was
found in Flast and should be found in Valley Forge precisely because the
case involved the Establishment Clause. Justice Stevens, also dissenting,
noted that Flast "attaches special importance to the Establishment Clause and
dogs not per mit drawing of tenuous distinctions...” Similarly inWarth v.—
Seldin, Justice Brennan dissented from the denial of standing precisely
because the claim involved a pattern or practice of discrimination violative
of the Equal Protection Clause. (The majority did not find standing because it
could find no injury to the litigants, Which included people who lived in
Rochester, and not Fenfeld, which is Where the alleged discriminatory
practices existed.)
not rise to the level of statutory overbreadth in standing analysis, the fact of
tution of third partyy rights strongly favors jus tertii standing.
Some commentators have argued that, correctly understood, many
traditional third party standing claims really involve first L party Clams. A ee
a
Wonaghan!9 argues, for example, that’ overbreadth challenges are best
s————— ee —
understood as invoking the co conventional principle that a litigant’s s conduct
AT
may be regulated only in accor dance with a valid rule” 1d. at 285. Thusa
rm
Cli |
Tar litigant's claim is, in effect, that s/he is being rune to an invalid rule.
J
He adds that where the standard is more stringent than TCT basis
IOS LDS demand translates into 2 requirement of significant congruence
A
men A——————
betWeeH the boundaries of the rule and constitutionally acceptable
AA ES SRS SA Rpt
| government ends. Id He states that this principle applies not just in the
First ‘Amendment context, but wherever "significant means-ends congruence
7
/
Aam———_————————
i$ required by the applicable substantive law.” Id. Viewed this way, the
gaan defendant is also asserting his or her right not to be subjected to a
law that is ad ministered discriminatorily.— —
p—
Albert20 also argues that the question of third party standing often is
really an is issue of one's own claim for r relief. citing , Eisensta 1, Griswold, baie lrachil
———————————" . .
Barrows, Pierce, and Truax. For example, Barrows, according to this
analysis, involved derivative protections in white sellers because the
restrictive policy implied collateral protections for white sellers and not, in
“standing terminology. because black buyers cannot assert their own rights.
BE
9 Monaghan, "Third Party Standing,” 84 Colum. L.Rev. 277 (1984).
20 Albert, Standing to Challenge Administrative action, 83 Yale L.]. 425
(1974). He argues that these third party claims which really are first party
claims involve a claim by A, the [ifigant, that implementation of a legal
policy favoring B requires es protection of A in his out of court relationship
with-B.
ra -
Id. at 966. Eisenstadt, Barrows, and Truax involve, as noted above, equal ALIN
protection claims. Under this analysis. the capital defendant's right that is
nplicated is derived from the lack of aqua! protection afforded black
| 5 a ENA A
V victims. This is arguably a personal derivative right that makes third party
pi———
p———
Sanding pringiples neither necessary nor applicable.
=
£
4. Nature of the injury to claimant
Also of importance in the standing analysis may be the degree to
3
which the claimant is inyuray by the challenged action. In Shutts, for ]
en SB TAT As
—gxample, alter expressly noting that Phillips Petroleum might not possess
standing jus tertii to assert the rights of opposing class members, 53
USL. W. at 4881, the Court found standing because Phillips was in a "unique
predicament” as a class action defendant; it could be bound to 28, i080
RRR
jrdement holders, and none of them will be bound by the Kansas decree. ld.
RRR
The only way “that a a class action defendant can insure itself of a binding
effect of the judgment is to ascertain that the forum court has jurisdiction
over every plaintiff whose claim it seeks to adjudicate, sufficient to support
a defense of res judicata in a suit for damages by class members. Id.
Because Phillips would be "obviously and immediately injured” if this class-
action judgment against it became final without binding the plaintiffs, the
Court found that such an injury! is Sultiiem to raise the jurisdiction claim in
——————————————————— —_—
this Court.” Id.
~ Thus in Shutts the extent of the injury to the claimant limited the
applicability of the prudential rule against jus tertii standing. ‘The injury to
PR —
| the claimant at work in the race of victim case is unparalleled. Ir standing
iS denied, Lhe capital defendant will have been unfairly sentenced 10 death
| and Siscrnntion will be immunized from constitutional protection. This is
—
T ei———
bn i J Bri?
eadio:
21
a powerful argument in light of Justice Rehnquist's recent pronouncements
in Shutts. The state will try to distinguish Shutts on the ground that Shutts
is limited to the "unique situation” of a class- action defendant. We should
argue that Shutts stands for the broad principle. that the degree of injury can
mr——
override the prudential standing limitations and that that principle controls
in the race of victim case.
C._Jury Selection
Regarding Standing. the race of victim case is in some ways analogous
UR
—————
tthe jury selection cases The} jury selection cases involve two kinds of
discrimination: that which works against the defendant (generally found in
———
he Sixth Amendment), and that which works against the excluded potenti!
jurors and the class to which they belong (Equal Protection Clause). So the
delendant in the jury. selection cases, like Lhe capital defendant in the race of
victim case, represents his/her own constitutional interests. and the interests |
of third parties.
I There are some structural differences in the two types of claims that
i i
disfavor comparison. There is a ‘much closer_nexus between the claimant
| and third parties in the jury selection case than in the race of victim case. In
/1 | ic _ / mm
/| the jury selection context, the potential jurors who are excluded are
/\ | potentially those who would’d deter nindv whether to indict or convict the
ee
EE —
defendant. In the race of victim case, there is hardly any relation whatever
prmmm—————— ——————
between the potential black victims and the def endant.
oo — . ie.
Another difference is that excluded black jurors have been found to
—
I
22
from juries. In Carter v. Green County, 396 US. 320 (1970),2! the Court held
that a class of black plaintiffs could seek affirmative relief because people
excluded from juries because of their race "are as much aggrieved as those
indicted by juries chosen under a svstem of racial exclusion.” Id. at 329.
The exclusion of blacks from jury service because of their racexheld to be, as
it was 90 years before in Strauder, "practically a brand upon them . . an
assertion of their inferiority..." Id. at 330, quoting Strauder v. West
Virginia, 100 US. 303, 308 (i880). Discrimination in jury selection also
denies the class of potential juries the "privilege of participating equally . ..
in the administration of justice.” Peters v. Kiff, 407 US. 493, 498, citing
Strauder, 100 US. at 3068. While the discrimination at issue in the race of
victim case may stigmatize blacks, it does not do so in n such a way that would
accommodate Article 11 standing 22 As noted above, the fact that Article III
standing is not available to potential black victims favors jus s tertii standing.
~ Prior L 10 Duncan V. Louisiana, 391 U S. 145 (1968), and the application
of the Sixth Amend ment to the stated Firy selection claims rested upon the
——— ce ———— ——
Equal Protection Clause. In Strauder, Tor ex example, the Court held that it was
a denial of equal protection for a state to try a black defendant before a jury
PIE, CC ———
rE a
from Which all members of his race hay been excluded pursuant to a statute
limiting jury service to’ ‘White male persons.” A year later, in Neal v.
Delaware, 103 US. 370 (1881), the principle was extended to the
ime ME
T p——
he Siraudes Neal qual “protection Approach, the constitutional challenge can
» Yer immarony administration of ostensibly fair jury. selection laws. Under
21 Tine v. Fouche, 396 US. 346 (1970), decided the same day as Carter, also
involved a plaintiff class challenging jury selection and selection of school
board members.
2Z That Article 111 standing was found in Carter and Turner may suggest that
the prohibition on controlling the prosecution, recognized in Linda RS, isnot
amano bar.
23
be made only by a defendant who is a member of the excluded class.23 In
\ — ise :
Castaneda v. Partida, 430 US. 482 (1977), for example, the Court noted that
“in order to show that an equal protection violation has occurred in the
context of grand jury selection, the defendant must show that the procedure
employed resulted in substantial underrepresentation of his race or of the
identifiable group to which he belongs.” Id. at 494. {emphasis supplied)
Apparently a group Interest or Pat is recognized, and the defendant serves
— A vaca cas
as the representative of the aroup.
When the defendant is not a member of the excluded group. the
analysis changes, and it is possible that the Equal Protection Clause becomes
1 EE ——_—————————
inapplicable. In Peters v. Kiff 407 US. 493 (1972), for example, a white
——n
defendant chalienged the exclusion of blacks from the jury that convicted
him. Justice Marshall noted d that if the Sixth Amendment were applicable
es
and the defendant challenged a post-Duncan petit jury, 24 he would clearly
have standing to chaliege the 5y stematic exclusion of any identifiable group
from jury service under that Amendment. Id. at 502. Yet to find a cause of
action for the defendant that would provide an Article 111 case or
controversy, the Court asserted that to subject a defendant to indictment by
a=
juries that are plamly illegal in their com positioft is a violation of due process
————
a ——
of law. Id. Thusd simads application of the due process clause enabled the ~
P— Er W—— 0
‘White defendant to make the im The equal protection rights of the gi
a
A
excluded black jurors evidently was not enough to make out a case or
=
controversy despite the fact that the Court quoted extensively from
SE—
23 Lafave & Israel, Criminal Procedure, p. 835 (1984). In the course of my
research, | have not been able 1s claim.
24 Duncan was inapplicable because the case was first tried two years prior
to Duncan.
24
Strauder about the "brand. . . of inferiority” racially motivated jury seleqflon
TT ——
places on blacks. Id. at 498. The Court concluded:
“In light of the great potential for harm latent in an unconstitutional
jury-selection system, and the strong interest of the criminal
defendant in avoiding that harm, any doubt should be resolved in
favor of giving the opportunity for challenging the jury to too many
defendants, rather than giving it to too few. Id. at S04.
Justice White, goneuring ould have found fianding based upon the
rr——————
Equal Protection Clause, as well as under 18 USC §243. Justice White
quoted extensively from Hill v. Texas, 316 US. 400,25 and held that the
‘rationale and gperalive language of Hill suggest[s] a broader sweep” than
that given ty to the Equal Protection Clause by Justice Marshall and by the
gp——
Court S prior cases. For Justice White, Hill reflects the "central concern of the
Fourteenth Amendment with racial discrimination, by permitting petitioner
to challenge his conviction on grounds that the Negroes were excluded from
a
the g grand jury that indicted him." 407 US. at 507.
=
Chief Justice Burger, joined by Justices Blackmun and Rehnquist,
haw
dissented, and would, limitfury selection challenges only when the defendant
1s the same race as that of the alleged excluded jurors. The “presumption of
a
prejudice derives from the fact that the defendant is a member of the
25 Justice White quoted the following passage from Hill, "[I]Lis our duty as
‘well as the State's to see to it that throughout the procedure for bringing him
to justice he shall enjoy the protection which the Constitution guarantees.
Where, as in this case, timely objection has laid bare a discrimination in the Compt 1)
selection of grand jurors, the conviction cannot stand, because the Lixe.2
Constitution prohibits the procedure by which it was obtained.” 407 US. at
06, quoting Hitt v_Texas, 316-U-5-at-406—According to Smith v_Texas, 311
US. 128, "What the Fourteenth Amendment prohibits is racial discrimination
in the selection of grand juries.” 1d. at 132. Still, however, prior to Peters,
“the Court found standing to challenge racist jury selection procedures only
when the defendant was the same race as that of the excluded jurors.
23
excluded class,” and the Court has never intimated that a defendant is "the
victim of unconstitutional discrimination if he does not ciaim that members
of his own race have been excluded.” 407 US. at 509.
In Taylor v. Louisiana, the Court held that a man had Sanding to
————————
contest the exclusion of women from the jury from which the petit jury was
drawn. As this was a post-Duncan case, the Court found for the defendant
based upon the Sixth Amendment right to an impartial j jury drawn from a
J a
representative cross section of the community. Despite the f act that the
equal protection rights of women were obviously implicated, neither the
question of standing nor relief was calculated based upon those rights. Thus
P—————
it appears that in the jury selection context, a defendant can raise the Squat
rt ———— OR a
protection claim only when s/he is a member of the race that is excluded. Ir
the defendant 1s not 2a member of the group that is excluded, then it appears
that a defendant can raise only his or her rights -- i.e, the Sixth Amendment,
or, in the case of Peters, the que process Clause. & A nr -ar ble -capc, pot
— Aone oy
Relying on the jury selection cases, then, we can argue that the Equal
I ———s
Protection Clause is violated by the race of victim discrimination, and a
“capital defendant has standing 10 complain of this violation SO long as the od or Hurt COs
— peeks of + &
capital defendant is black 1 think this analogy is helpf ul. When the ash Liv
po Jer A ¢ do
def endant is not black, however, application of the jury selection standard
oo
Cporv
becomes problematic. Taylor and the majority in Peters suggest that the a
Pe
ld uf copia defendant must have an independent first party claim against the Sqwy ho
i ——— ay.
state. In Peters, it was a due process claim; in Taylor , the Sixth Amendment. :
fr Ta + ht)
ital defendant is white is not
Eighth Amendment ori
If the discrimination/ arbitrarines wh
trong enough 10 establish ai
\ protection claim, then 1 think the analogy | to jury selection regarding
independent equal
standing f alters. The task will be to make the equal protection claim in the
of Article m standing would be enough.
ig OR r————————————
1 Conciusion
A capital defendant challenging discrimination based upon the race of
the victim has Article [I standing to complain of this violation. If the equal
“protection claim requires consideration of the rights of potential black
victims, then the Court will have to find that the capital defendant has
standing jus tertii to represent the constitutional interests of the potential
CL ———— ———— EE ——
black victims. Because it would be impossible for these rightholders to
assert their own constitutional rights, and because their fundamental right to
enjoy equal protection of the laws would necessarily be diluted if this action
were denied, the prudential rules against jus | tertii standing should be
relaxed in the race of victim case. Here, the magnitude of the injury to the
ee Si —
L —
~ Capital defendant if standing were denied also favors jus tertit standing.
bp
That the relationship between between the capital defendant and potential
black victims is relatively tenuous, a factor that goes against finding third
party standing, pales next to the clear satisfaction of all of the three other
f actors that favor standing. If comparisons between the race of the victim
case and the overbreadth cases are apt, then simply the dilution of the rights
of the third parties will be controlling and will, of itself, establish just tertii
standing.
27
While the jury selection and i race of victim casesare in many ways
mc t————————————" i
similar, the usefulness of the analogy falters when the race of the capital
LETT
defendant is different from that of the ‘potential black victims. In the jury
sefeclion cases, application of the Equal Protection Clause to challenge racist
selection procedures has been limited to cases where the defendant is a
P———.....
member of the race that is excluded as jurors. Justice White's reasoning in
Peters that any discrimination in jury selection is violative of the equal
protection rights of the defendant is persuasive. and helpful to the race of
victim case. We. too, should argue that the Equal Protection Clause is
si
“necessarily pr by discrimination in the administration of capital
= pigs ~
7 Sunishment, and it the race of the defendant is irrelevant. This approach taps 4 smmm——
I ——,
in well with the notion that this case is in essence a first party claim for Gr
a —— Pa
relief, and neither standing nor relief will be based on the race of the victim. —
ng,
+ v2 Lo-
fr mB Te
MEMORANDUM >
Car me J Can gral BS 4
_— {
To: Anthony G. Amsterdam IC a 1; (IM Tn)
: ( (F271 = ]
From: Robert Nelson “3 Wak Gol tine
Re: The discrimination claim in cases like McCleskv
Date: December 22, 1985
Questions Presented
I. Whether the jury selection equal protection standard can be applied Hoo pn
§ ™m
outside of the jurv selection context? ny
11. Whether under the jury selection standard there exists an affirmative
constitutional duty bv public officials to prevent discriminatory results?
111. Whether the legislative history of 18 US.C. 8242 suggests that the
framers of the Fourteenth Amendment did not contemplate that
discriminatory purpose would be an essential requisite of equal protection
claims involving punishment?
IV Whether the same standard utilized to make out a violation of 42 USC.
§1983 was originallv intended 10 applv to Fourteenth Amendment
violations?
Introduction
Y
This memorandum attempts to answer some of the questions raised
by my memorandum of October 20. [985. [t exclusively addresses the
traditional equal protection claim involving a showing of discrimination, as
Seve BI Wiad
opposed to the arbitrariness claim.
The first two questions presented focus on the jury selection standard.
Tags question considers whether the requirement that a jury be a
selection differently from other equal protection areas. If the representative
El ——————————————————"
nisi
ine .—
—_—
————
requirem: ment is the basis for treating jury selection differently, then the jury
PE
selection 7 sanitard could not be applied to cases like McClesky where there
exist no fair representation requirement. To prove that this requirement 1s
not the basis for the jury selection standard, the memo traces the history of
standard has existed only since Castaneda v. Partida white the requirement
—
of a representativ e jury ‘has existed for one hundred ‘years. This
em tin A —————r
representative requirement cannot. then. constitute the basis of the modern
jury selection standard. As noted in the first memorandum. the
justifications {or the mosdern jury selection standard were set out in Dav
oe —— ———————
LL e———————— —— ———————————————————
and those justifications apply with ample force outside of tae e jury selection
context and to cases like McClesky.
The( second, question considers the possibility of an affirmative
constitutional duty to prev ent discriminatory results under the jury selection
standard. While there does in fact exist a constitutional duty not lo pursue
——
a course of conduct [that] operates to discriminate on racial grounds,” the
duty has been interpreted to mean, in effect. a duty not to discriminate
—— Se — —
2
since Castaneda and the onset of modern jury selection standard. Prior to
TT rmanirhets—————""
¥ Castaneda, a showing of discriminatory purpose was required. [nthe post-
to make out an equal protection claim. it is possible that hy ony ory
| f cripneits world which does not require a showing of discriminatory purpose
|
|
| could have more teeth to it.
| ~The last two questions presented consider the the require ment of
Jisctinmanyry Dupes | in T historical perspeciive. Dofuate het Civil Rights Act
‘upon which 42 U 3. C. §1983 -- the civil law counterpart of 18 US S.C £8247 - -- iS
based, expressly required a showing of willf ul discrimination to find a
rrr re erm tee eter eee ee ee Ran Ls
— errm—
wo Cy
statutory violation. [n fact. it is likely that something markedly less than
Or IAator purpose established an equal protection violation under the
Reconstruction statutes. As these statutes or their immediate predecessors
| were enacted to enforce the Fourteenth Amendment. il may | be possible to
| {afer that the framers of the Fourteenth Amendment also did aot
|
contemplate that willful discrimination would be an ‘essential requisite to-a eg.
I
wenn |
{od
il pri ma facie equal protection claim.
|, \l__Whether the jurv selection standard can be applied outside of the jury
selection context?
If we apply the jury selection standard outside of the jury selection
context, we must grapple with the argument that the jury selection equal
protection standard is necessarily different from other equal protection
areas precisely because a jury must be composed of a representative body of
one's peers. Given this representative requirement, it makes good sense that
the standard would be less accepting of discriminatory results than other
equal protection areas where there exists no requirement of
p
r
v
—
—
—
—
—
—
—
—
—
—
—
—
—
—
representativeness. If it is true that the justification for the jury selection
standard is the need for representative juries, then the jury selection
standard most likely cannot be applicable outside of the jury selection
context: the standard's raison d'etre would be applicable only to jury
selection.
The history of the jury selection standard does not, however, support
this argument. “The history suggests that while the requirement ofa
‘representative jury has existed for 100 years, it has only been in the last 10
————————————"
amram
hi since Castaneda v. Partida, 450 US. 482 1977). that the jury selection
er
other equal protection ar areas. The iury selection Standard e most likely
me smm— Cn oe PREY sg
cannot, then, be due simply to the requirement of a representative jury. for
the requirement of a representative jury has existed long before a
substantively different equal protection standard attached to jury selection.
Since Strauder v. West Virginia, 100 US. 303 (1880); the Supreme
Court has recognized that a jury must be composed of "peers of equals of the
person whose rights it is selected or summoned Lo determine: that is, of his
neighbors. fellows. associates. persons having the same legal status in society
as that which he holds.” Id. at 308. Racial discrimination that results in the
systematic exclusion of otherwise qualified groups 1s at war with our basic
concepts of a democratic society.” Smith v. Texas, 511 US. 128. 130 (1940).
Such exclusion contravenes the very idea of a jury -- ‘a body truly
representative of the community.” [d.!
| Wainwright v. Witt, S3 USL W 4108 4121 (Brennan, }.. dissenting on
other grounds); Rose v. Mitchel 443 US. 545,556 (1979); Tavior v.
Louisiana, 414 US. 522. 528 11975); Carter v. Jury Commission, 396 US. 520,
330 (1970); Glasser v. US 315 US. 60, 85 (1942).
Yet despite these expansive pronouncements about the need for a
representative jury which could certainly serve as the basis for treating jury
selection differently from other equal protection cases. the Court did not,
prior to Castaneda, apply a markedly different equal’ protection ‘standard to
<= JE ——
jury selection. Equal protection violations were found where cases involved
mes — ——
either a showing of purposeful discrimination, Na discriminatory jury
selection procedure. [n Neal v. Delaware, 103 US. 370 (1881). for example.
rs RE Ln
the Court quashed the indictment of a black man by an all white jury from
which blacks had been excluded. No black had ever been summoned as a
juror although its black population exceeded 26,000 in a total population of
less than 150.000. Id at 377. This showing of disparate impact was,
however, accompanied by testimony from jury selection officers that hey.
had excluded blacks justifiably since blacks were ‘Utterly disqualified, by
—— BE
want of intelligence, experience, or moral integrity, to sit on juries.” Id.
In Smith v. Texas, 311 US. 128 (.1940), five out of 384 grand jurors
during the period from 1931-38 were black in a district in which 3,000 to
6.000 blacks met the legal qualifications for sitting on a jury. As in Neal the
Court also found evidence of purposeful ¢ fiscrimination to justify its finding
am equal protection GION. | Even though the jury commissioners who
testified stated that they did not intentionally or systematically discriminaie
against blacks. some commissioners also stated that they did nt Know any
blacks and therefore would not select blacks. Id at (31-132. The Court held
that "discrimination can arise {from commissioners who Know no negroes as
well as from commissioners who know but eliminate them.” 1d. at 132.
While the Court in Smith called this Kind of discrimination
"ingenuous’ discriminaticn. 1id.. the Court has characterized such
discrimination as ‘intentional discrimination. For example. in Cassel v.
Texas, 339 US. 282 (1950), a case similar to Smith involving disparate
impact and the defense by the jury commissioners of not Knowing any
qualified blacks, the Court stated: "The statements of the jury commissioners
that they chose only whom they knew. and that they know no eligible
Negroes in an area where negroes made up [15.9%] of the population prove
the intentional exclusion that is discrimination in violation of petitioner's ;
constitutional rights.” 1d. at 290.2 In these and other jury selection cases
more than disparate impact was required. "A purpose to discriminate must
be present. . ” Akins v. Texas, 316 US. 400, 403 (1943). In Fay v. New York,
332 US. 261 (1947), the Court, relying on Smith, held that a jury selection
equal protection claim cannot be established by a "mere showing” of
disparate impact. but only by “a clear showing that [a group's absence on a
Se ————
jury] was caused by discrimination.” Id. at 284.
IN ee
ber
/ In cases where an equal protection violation was found absent a
showing of discriminatory purpose. the jury selection procedure was found
A ——————————————————
| to be oki Sn to abuse. See eg. Alexander v. Louisiana, 405 US.
\ 625 (1972): Whitus v. Georgia, 385 US. 545 (1967); Avery v. Georgia, 345 US.
539.
The Court could conclude. then. in Apudaca v. Oregon, 406 US. 404
(1972): "All that the Constitution forbids. however, is systematic exclusion of
identifiable segments of the community from jury panels and from the juries
ultimately drawn from those panels; a defendant may not. for example.
challenge the make up of a jury merely because no members of his race are
on the jury. but must prove that his race has been systematically excluded.’
2 The Court found an equal protection violation in Eubanks v. Louisiana, 336
US. SR4 (1958), a similar case in which the jury commissioners attributed the
disparate impact on “local tradtion.”
Id. at 413, citing Swain v. Alabama, 380 US. 202, 208-209 (1965); Cassel v.
Texas, 339 US. at 286-287; Akins v. Texas, 316 US. at 403-404.
\ These cases suggest U that the Jury selection standard prior to
mn RII ry
Castaneda was not very different f rom traditional equal protection analysis
er
——————
outside of the jury selection context 3 Discriminatory purpose or a
: J
Yi Srna pristine alongside a discriminatory result was a
J mre pa——— Ram ein
Strauder and continually sf since. the cases ‘demonstrate that the desire for a
| representative jury did not lead to a jury selection standard that did not
require a showing of discriminatory purpose. Thus any justification for
| today treating jury selection differently from other equal protection
re 2s x
| violations cannot rely solely. i at all. on the need for a representative jury of
AR, A
one's peers.
——
——————————
The reasons for the change in the standard were. ironically,
established in Washington v. Davis, 426 US. 229 ( (976), the case that firmly
established the purpose requirement outside of the jury selection context,
and were first Implemented in Castaneda. In Castaneda. the Court expressi:
relied on Washinglon v. Davis and Arlington Heights to show that an equal
protection violation had been shown. 430 US. at 495-494. According to
Davis, jury selection should be treated differently becausg 1) systematic
exclusion of blacks from a jurv is "itself such an equal application of the law
i A OUR SAREE oA
~~
as 10 show i intentional discrimination” (2) and the discrimination is very
See IG gly
— JO
Gifts to oIplam on 1 other grounds.” © 426 US. 241-242. Based solely on
e L. ot
3 But see Peters v. Kiff, where Justice White, concurring, stated that Congress
put exclusions from jurv service on grounds of race "in a class by
themselves.” 407 US. at SOS. See infra at 20.
these justifications -- no mention was made in Castaneda or Davis about the
requirement of a representative jury as being a justification for a different
hi selection standard -- the Court in Castaneda fashioned the modern jury
|| selection rule. (First, the person must be a member of a group that is a
[| I i ogi
| recoanizavte class and is singled out for different trediment by application of
n } the law: ond the degree of underrepresentation must be substantial and
| ‘must be demonstrated by comparing the ‘proportion of the group in the total
I | population to the proportion called to serve as grand jurors, over a
\ significant period of time: Ghird/the Court required that the selection
I | procedure be susceptible to ab Use\or iat it be racially non-neutral. 430 ba
ee ——————————————_————" ————————
\ at 494. The Court concluded that “[olnce the defendant has shown
substantial Underropraseniaam of his group. he has made outa prima facie
case of discriminatory purpose.” 1d at 495. In Castaneda, perhaps for the
first time, the Court found an equal protection violation without finding
discriminatory purpose by public officials or a jury selection procedure that
7
was flagrantly subject to abuse.
[ Because the Davis justifications for treating jury selection differently
Ce ——————————————————r— tt tise 8 | So
7) | and the Castaneda require ments for making out a pr ima facie Sim all apply
PES re ——
smi RARE
oa RE
we | to the facts of McClesky, 1 1L 1S possibie to nrgue that the jury selection equal
£4 | I ——— ee rst e————————
protection standard, can apply outside of the jury. selection context and 10 —tf eb
11. Whether under the jury selection standard there exists an affirmative
constitutional duty by public officials to prevent discriminatory results?
The jury selection standard does provide some basis upon which it can
be argued that the fant Protection Clause requires PUBL officials to
1 See my memorandum of October 20, 1985. at 14-29.
8
exgroise a duty to prevent discriminatory results. The origins of this
SE rte
possible alTir mative duty are in Smith v. Texas, 311 US. 128 (1940). where
jury commissioners testified that they did not select any blacks to sit on a
grand jury because they did not know any blacks.) The Court found that
where jury commissioners limit those from whom grand juries are selected
to their own personal acquaintances. "discrimination can arise from
commissioners who know no negroes as well as from commissioners who
know but eliminate them.” Id. at 132. The Court concluded: "If there has
been discrimination. whether accomplished ingeniously or ingenuously, the
conviction cannot stand.” Id. That the jury commissioners denied that they
intentionally, arbitrarily or systematically discriminated against black jurors
was irrelevant in light of the "ingenuous” discrimination. Id. Smith may be
the first case where an equal proleciion yicialion ¥ was 8 ound absent h
Ntt———————
showing of actual discriminatory purpose.
In Hill v. Texas, 316 US. 400 ( (1942). iL jury commissioners testified that
they did not know any qualified blacks who could serve as jurors. Yet they
had made no effort to ascertain whether any blacks were qualified to serve
as jurors. According to the Court. the jury commissioners failed to perform
their constitutional duty -- recognized bv 34 of the Civil Rens Act of March
5 See supra at 5-6.
1.18758 and fully established since our decision in 1881 in Neal v. Delaware,
103 US. 370 (1881) -- not to pursue a course of conduct in the
administration of their office which would operate to discriminate in the
selection of jurors on racial grounds.” Hill, 316 US. at 404. Therefore, the
Court found, "no State is at liberty to impose upon one charged with crime a
discrimination in its trial procedure which the Constitution and an Act of
Congress passed pursuant to the Constitution, alike forbid.” Id. at 406. The
essence of this duty in Hill seems to mean a duty not to discriminate a
fa, SR
purposef uity « on the basis of race or to utilize procedures which Recessarily
discriminate -- hardly helpful for equal protection claims like McClesky' s
a eee ram Ae
that involve f ar more Sublie for ms of discrimination. The Court in Hill
BS ——
concluded that it is our duty as well as the State's to see to it that
throughout the procedure for bringing [the defendant] to justice he shall
enjoy the protection which the Constitution guarantees. Id. at 406. While
framed in the affirmative, this definition of the duty simply begs the
question, for its meaning is dependent on what the Constitution ‘guarantees.’
6 {8 Stat. 336, now codified at 18 U.S.C. §243. This section provides: No
citizen possessing all other qualifications which are or may be prescribed by
law shall be disqualified for service as a grand or petit juror in any court of
the United States, or of any state on account of race, color, or previous
condition of servitude: and whoever, being an officer or other person
charged with any duty in the selection or summoning of jurors, excludes or
fails to summon any citizen for such cause, shall be fined no more than
$5.000." It should be noted that this section, like the other Reconstruction
statutes noted below in questions III and IV of this memorandum, did not
expressly contain a requirement of purpose. The statute since ils inception
has, however, only applied to the situation where discriminatory purpose
has been shown. See ég. Neal v. Delaware, 103 US. 370 ({881), where a
showing of extreme c disproportionate impact was found (no blacks ever on a
jury) alongside the testimony of jury selection officers who stated that they
had excluded blacks justifiably since blacks were “utterly disqualified. by
want of intelligence, experience, or moral integrity, to sit on juries.” Id. at
377
10
More importantly, if the duty is simply a duty not to do what the
Constitution forbids, then the duty does not add any substantive limits to the
standard. ;
The nature of this constitutional duty was next considered in Cassel V.
Texas. 339 US. 282 (1950). a similar case involving jury commissioners Who
claimed that they knew no qualified black jurors. Here the Court required
jury commissioners to take affirmative steps Lo prevent discrimination:
“When Lhe com missiofiers were appointed as judicial administrative officials,
it was their duty to familiarize themselves fairly with the qualifications of
the eligible jurors of the county without regard to race or color.” Id at 289.
As noted in Question | above, this kind of discrimination was characterized
as “intentional” discrimination. Id. at 290. So here. too. it seems the duty to
prevent discrimination Kicked in because the selection procedure was 50
obviously flawed that an inference of purposef ul discrimination had to be
ca—————.
commissioners take affirmative steps to correct the procedure.
in
This duty was found alongside slightly different facts in Alexander v.
Louisiana, 405 US. 625 (1972). In Alexander. the Court found that atl two
—
separate points in the jury selection procedure racial identifications were
fi 0
visibly attached to-guestionnaires: at these two points blacks were
~~
disproportionately excluded, and no blacks were on (he grand jury that
indicted the defendant.” While the progressive decim ation of potential black
grand jurors was “striking.” the Court did not find a prima facie-violation
7 In Alexander, 21% of the parish was black; 14% of the blacks responded to
a questionnaire from which jurors were selected. After the two culling out
procedures when racial identifications the commissioners had attached to the
forms were visible the pool was reduced to 400, of whom 27, or 7% were
black. It was from this pool that the grand jury was selected.
It
based on the procedure. 1d. at 630. Insiead the Court engaged in a factual
inquiry that took into accout “all possible explanatory factors.” Id. at 630.
The Court noted that the "result bespeaks discrimination, whether or not it
was a conscious decision on the part of any individual jury commissioner.”3
“Id at 632. The Court then went on to quote verbatim fom Hill about the
duty of jury commissioners ‘not to pursue a course of conduct ... which
would operate to discriminate ...~ Id. The Court concluded by quoting
| from Whitus v. Georgia, 385 US. 545 (1967). noting that the “opportunity for
discrimination was present any [that it cannot be said] on this record that it
| was not resorted to by the com missioners. "1d. at 632. Here there was an
opportunity to discriminate and a duty was found not Lis discriminate. Based
—, ce ara Ho A RS
on the record, the Court concluded that that duty was violated.
In Alexander, then. the “course of conduct” did not involve the
“ingenuous” and obviously discriminatory action reminiscent of Hill, Smith,
and Cassell. Yet the jury selection procedure in Alexander was structurally
—————— ———————————————————
flawed. That fact, alongside the disparate impact. proved determinative.
ee sess se——————
———————
/ : Surely we would have a hard t lime showing that Deora S death statute is
I — gins
[similarly structurally flawed. Still. however, the administration of the death
i
\ penalty is is s subject 10 abuse: indeed. the race of the victim of the capital
————————————
ra crime is apparent to public oificials involved in the death sentencing
y & N \ ~~
procedure. This fact. alongside a “result [that] bespeaks discrimination. | may
[—
8 The Court was quoting here from Hernandez v. Texas, 347 US. 475, 482
(1954).
constitute a sufficient f actual basis to violate a constitutional duty that may
exist to prevent discrimination. :
So not unlike Alexander. then, the discrimination in Mctlosky is not
Ce ——————— eres ere mt ever ek smn
urodsel ul in the Hill sense, and the discriminatory result is based upon PE
ee ere
istical showing of disparate impact alongside a procedure that is is at least | =
ef eee eee ——————————— LC S—
ES
0 some ogres susceptible to abuse. Thus it is possible that the requisites
en.
of a prima facie violation of this duty may exist in McClesky. Yet because
STARLET SE el Se
no court would 1 ind Georgia's death statute structurally defective to the
same degree as the jury selection utilized in Alexander, Whitus, or Avery,
i —~d —
[mmm |
the ages in } McClesky is to argue that the duty is oreven discriminatory
|
| results, and that duty is violated when any DUbLiL conduct leads to i
Baye a e———————————
—— + —————————rimo——
————————————
aR
“a
| jiscriminatory results. Surely this reading is consistent with the Sh Gry
language of the duty. But if the duty is violated only by flagrantly ( As >
\
Sr ? IR ly” 3 i
\discriminatory actions of by procedures flagrantly subject to abuse -- a
nn ee ta—————————— te raat
S—
se
errr
re A
se ——— st ————
9 It should be noted that in Peters v. Kiff, 407 US. 493 (1972), Justice White,
concurring, quoted extensively from Hill. Id. at 506. He stated that ‘where
jury commissioners disqualify citizens on the grounds of race, they fail to
8 perform their constitutional duty...” Id. Thus he implied that the duty is
| simply not to discriminate intentionally. [tis not known in what fact pattern
he would invoke the duty in Peters because the kind of discrimination was
not made known in the case. (The issue was whether a white defendant
could suffer a Fourteenth Amendment violation if blacks were systematically
excluded from the jury, not whether he did in that particular case. The
evidence of Jinn was never presented.)
13
reading which is onijrely consistent with the cases -- Tihen fhe duly s would
not be violated in M cClesky. 10
One explanation why this duty does not seem (0 be very helpful in
establishing an equal protection claim absent a showing of purpose is that
the ‘modern jury selection equal protection standard that does not require a
strong showing of discriminatory purpose or an obviously discriminatory
Wm procedure did not exist prior t to Castaneda V. Partida. ‘As noted in Question |
i above, the jury selection standard prior to Castaneda was not all that unlike
the equal protection standard outside of the jury selection context. Read in
light of this history, the duty recognized in Hill, Cassel. and Alexander
becomes important in the evolution of the standard; these are the first cases
that began to compromise the purpose standard, if only marginally. It could
be that the duty only marginally changed the jury selection standard
because the standard was constrained within the old purpose framework.
Now that that framework has been rejected in jury selection, perhaps it is
possible to argue that the duty requirement should today be read to limit
further constitutional actions under the modern standard. If the duty
requirement limited constitutional actions under the jury selection standard
prior to the Castaneda standard. why then should it not do the same in the
post Castaneda world ole. limit Sonstijviionsl actions so that the duty is
10 [n light of the possible applicability of this duty requirement to McClesky.,
it is important to note that the ingenious/ingenuous distinction has been
utilized outside of the jury selection context. In Cooper v. Aaron, 358 US. L,
17 (1958), the Court noted. “In short, the constitutional rights of children not
to be discriminated against in school admission on grounds of race or color . .
. can neither be nullified openly and directly by state legislators or state
executives or judicial officers, nor nullified indirectly by them through
evasive schemes for segregation, whether attempted ‘ingeniously or
ingenuously.” Again, however, as in Smith, discrimination was inferred from
egregious facts.
— eal
.,
14
violated by the existence of discriminatory results. The Court in Castaneda
did not say th that the standard it enunciated reached the constitutional limits
Jr. the jury selection standard. Perhaps. then. we could argue that the
constitutional duty not to pursue “a course of conduct that operates to
discriminate on racial grounds should be read today to mean a duty to
i) prevent discriminatory results. of course we are on very shaky legal turf
9% AA
here. dir Sr aE
111. Whether the legislative history of 18 US.C. 824211 suggests that the
framers of the Fourteenth Amendment did not contemplate that
discriminatory purpose would be an essential requisite of equal protection
claims involving punishment?
§2 of the Civil Rights Act of 1366. 12 made it a crime for any person
rn eee “ll =
under color of any law to SunetL or cause to be subjected [freed blacks] to Unf 1A4 0
_ different punishment.” Senator Trumbull, chairman of the Senate
Judiciary Committee which reported the Civil Rights Bill, stated that the Bill's
purpose was to "to protect all persons in the United States in their civil
pr’
It {8 US.C. §242 provides: Whoe der color of any law, statute,
ordinance, regulation, or custom(willf ully ubjects any inhabitant of any
State, Territory, or District to the depri valion of any rights, privileges-or——
a immunities secured or protected by the Constitution or laws of the United
I\| States, or to different $unishments, pains, or penalties, on account of such
I inhabitant being an alien. or by reason of his color, or race, than are
| prescribed for the punishment of citizens, shall be fined not more that =.
$1,000 or imprisoned not more than one vear, or both; and if dif death results
shall be subject to imprisonment for any term of years or for fife.” Publ
90-284. aa I SL
12.14.S1at 27.
fi
[
N
rights, and furnish means of their vindication."!3 It would, according to
Trumbull, destroy the discrimination against blacks in the laws of the
Southern states and enforce the 13th Amendment.!4 In 1870, after the
enactment of the Fourteenth Amendment, the statute was amended by 8817
and 18 of the Act to Enforce the Provisions of the Fourteenth Amendment of
May 31. 1870. 15 The clause "subject or cause to be subjected” remained in
the statute. The prohibition against the "deprivation of any rights,
13 Cong. Globe, 39th Cong., 1st Sess, p. 211.
14 Flack, The Adoption of the fourteenth Amendment (1908) at 21. The Civil
Rights Act of 1866 was hotly debated and was passed over two Presidential
vetoes. Many thought that it was unconstitutional, as it usurped the powers
of the states. Among those Republicans who objected most strongly to the
Bill was Thaddeus Stevens. See id.
15 16 Stat. 14. The statute provided, in pertinent part: "That any person
who, under color of any law, statute, ordinance, regulation, or custom, shall
subject, or cause to be subjected, any inhabitant of any State or Territory to
the deprivation of any right secured or protected by the last preceding
“secotion of this act.m or to differnt punishment, pains, or penalties on
‘account of such person being an alien, or by reason of his color or race, than
is prescribed for the punishment of citizens, shall be deemed guilty of a
misdemeanor. and. on conviction. shall be punished by [ine not exceeding
% one thousand dollars, or imprisonment not exceeding one year, or both, in
\ Ys discretion of the court.’ |
/
The p ceding section ‘referred to provided: "That all persons within
the jurisdiction of the- United States shall have the same right in every State
and Territory in the United States to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of person and property as is enjoyed by white
citizens. and shall be subject to like punishment, pains penallies. taxes.
licenses, and exactions of every Kind, and none other, any law, statute,
ordince, regulation, or custom to the contrary notwithstanding. No tax or
charge shall be imposed or enforced by any State upon any person
immigrating thereto from a foreign country which is not equally imposed
and enforced upon every person immigrating to such State from any other
foreign country; and any law of any State in conflict with this provision is
hereby declared null and void.” (emphasis supplied)
16
privileges, or immunities, secured or protected by the Constitution and laws
of the United States” was added in 1874.!® Like its predecessors, the 1874
revision was applicable to any person who under color of law “subjects. or
causes to be subjected” any inhabitant to the deprivation of any rights, etc.
| [t was not until 1909 that the requirement of a “willful” violation was
introduced to the Criminal Code.!” “Willfully” was added to the Revised
Statutes §5510. according to Sen. Daniel. to make the section “less severe."!8
Other than this statement by Sen. Daniel. [ have come across no other
legislative history that helps explain why Congress made this express change
in the Criminal Code. Neither the Senate!9 nor House Reports20 of the bill
provide any insight into the basis for the change to willfulness. The Senate
Report did not even recommend adding the willfulness requirement into
this section of the Code?!
Still, the fact that an express requirement of willfulness was added
more than 40 years after t h
the statute was to make the law “less severe.” suggest that the law was more
severe between 1866-1909 -- Le, that it was easier for persons to be
prosecuted under the statute. During this period. it is likely that a cause of
action could have been contemplated under the statute without showing a
16 Revised Statutes 55510, at 1068.
17 Act of March 4, 1909, 35 Stat. 1092.
!8 43 Cong. Rec, 60th Cong.. 2d Sess. p. 3599 (March 2, 1909). The statute
was then codified at 1R USC 1940 ed, 852. :
19 Senate Report 10, Criminal Code Bill for Revision, S. 2982, 60th Cong., Ist
Sess.
20 House Report 2, Criminal Code Bill for Revision, HR. 11701, 60th Cong., Ist
Sess.
21 The only change the Senate committee recommended was to change
"Every person who under color of state law..." to "Whoever under color of
anv law..."
4
willful violation of the law. As the 1370 Act was expressly enacted to
a
| ‘enforce the protections afforded by Lhe Equal Protection Clause, it ay be
required to make out a prima facie ‘equal protection claim. A similar, more
“severe "standard, ‘may have been intended. P
This interpretation is not inconsistent with Screws v. United States,
325 US. 91 (1945), where the Court attempted to define the willfulness
requirement in §20 of the Criminal Code.22 There, §20 of the Criminal Code
was attacked as unconstitutionally vague.23 Justice Douglas argued that the
requirement of a “specific intent to deprive a person of a federal right”
would avoid those consequences which may otherwise render a vague or
indefinite statute invalid. Id. at 101-103. Such a requirement “saves” the
Act from any charge of unconstitutionality on the grounds of vagueness. Id.
at 103.
However, Justice Douglas found that this construction was consistent
with the history of the statute. This was true, he found. since the word
“willfully” was added to make the section'less severe.” 1d. Prior to 1909,
Congress intended that one who deprived a person of any right protected by
the Constitution should be liable "without more.” Id. This was the patternof | °
trina Si which has been sustained without any charge or proof of
NL,
2820 of he rep Code was codified as 18 US.C. 1940 ed.. §52 [Derived /
fom RS. 85510]. In 1948, 18 US.C §242 was enacted. Mg vo, 10) Ta
23 The claim was made that a local law enforcement could tae §20 lt”
commit a federal offense if he does an act which some court later holds
deprives a person of due process of law or equal protection. Those who
enforced local law today might not know for many months whether what
they did deprived someone of due process of law. The enforcement of a
criminal statute so construed would cast law enforcement agencies "loose at
their own risk on a vast uncharted sea.” Id at 97-98%.
18
scienter. 1d.24 The Court concluded that since the section was amended to
be "less severe,” it is permissible to infer that that its severity was to be
lessened by making it applicable only where the requisite intent to deprive a
|
was not a a requisite of the statutory claim. Thus it vould appear that
something broaching an effects or results based Standard existed prior to
1909.
Justice Douglas did note that prior to the willfulness requirement, §20
"would have been susceptible” to this more severe interpretation. But he
added that the Equal Protection Clause was not susceptible to such an
interpretation prior to §20 since “surposeful discrimination must be
shown.” ld. at 103, quoting Snowden v. Hughes, 321 US. 1, 8-9. Its
significant for us that his support for this claim 18 prior case law as opposed
he to legisiative history. Justice Douglas is not, | dint think, suggesting that
the framers of the Fourteenth Amendment had something different in mind
for the due process or privileges and immunities clauses. Nor is there any
indication that Congress intended this statute to enforce different provisions
of the Fourteenth Amendment differently. Most probably a unitary
| constitutional standard was contemplated. and it was solely judicial
a
interpretation that made the equal protection standard a less severe |.)
for alk as
A standard. Thus despite this statement by Justice Douglas in Screws, the
legislative history of [8 US.C. §242 may still be helpful in understanding
what standard the Reconstruction Congresses had in mind for the Fourteenth
dari?
1 Amendment. [tisat least an opén question whether the lack of scienter
on
standard was intended 10 apply to the Equal Protection Clause.
24 The Court cited Shevlin-Carpenter Co v. Minnesota, 218 US. 57; US. v.
Balint, 2538 US. 230
19
That the Civil Rights Act of 1866 was successively amended in the |
1870s after the enactment of the Fourteenth Amendment tends to suggest
that rigorous scrutiny should attach to Fourteenth Amendment violations. | WS
Simply the fact of the statutes is important. Reconstruction Congresses were
apparently so concerned about the problem of racially discriminatory
punishment that they considered it necessary to enact a criminal statute to
do ostensibly what the Constitution set out to do. If punishment were so
important an issue. it could be that when the discrimination involved
punishment, the framers of the Fourteenth Amendment thought a more
severe standard was necessary to guard against even the result of unequal
punishment. This would have meant that something less than a
discriminatory purpose was required.
( This reading of the statutes is perhaps also consistent with the way
some would argue the jury selection standard has evolved. The jury
\selection statute, 18 USC 32435, which came out of the Reconstruction era,
has. arguably, had something to do with the more severe standard that jury
selection now enjoys in the equal protection context. In Peters v. Kiff, 407
US. 493 (1972), Justice White, concurring, noted that [bly this unambiguous
provision. now contained in 18 USC §243. Congress put cases involving
exclusions from jury service on grounds of race in a class by themselves.” He
then quoted from Fay v. New York 332 US. 261, 282-283 (1947): "For us the
majestic generalities of the Fourteenth Amendment are thus reduced to a
concrete statutory command when cases involve race or color which is
[ wanting in every other case of alleged discrimination.” In light of this,
perhaps we should argue that Congress also wanted discrimination in
| punishment lo enjoy a more severe equal protection standard; that
—— - W—"
253 See supra note 6.
[com mand, we should argue, can only be met today by a standard that
| dispenses with the purpose requirement.2®
| Thinking along these lines taps in well with #3 of Eric Multhaup's
memorandum of November 25, 1985. He argues there that in the post-Gregg
universe, courts should be particularly “alert,” rather than “deaf” to counter-
currents of applied discrimination in the otherwise unobjectionable capital
statutes. If the framers considered discrimination in punishment so! «vr «a 4s
Coe
important an issue that an additional statute was necessary ‘to enforce the
Constitution. then such claims of discriminatory punishment should be heid
to the highest level of scrutiny. This arguably would compel the Equal
Protection Clause to ensure against the situation where public officials
simply condone the discriminatory implementation of the death penalty.
1 Certainly drawing analogies {from 18 US.C. §242, a criminal statute. to
the Equal Protection Clause is a strained exercise. Yet this history should
not be altogether discounted. It suggests that a statute which was meant to
\ enforce the Fourteenth Amendment had a more severe standard than the
usual criminal standard of purpose. The [act that 18 US.C. §242.is a
—
/
/ Criminal statute does not seem problematic. itis in the criminal context
E Lornere the least severe standard of discrimination would apply: indeed. the
~~
fact that §20 was a criminal as opposed to a civil statute was a major factor
in Justice Douglas’ decision to require a showing of specific intent under the
statute. Perhaps we can infer from this that the framers intended the
Fourteenth Amendment -- which also attempts to prevent discrimination in
punishment -- to have a qualitatively more severe standard, one that goes
26 [t is important to note that pu argument is inconsistent with t ihe
beyond a purpose requirement and approaches a duty on public officials to
prevent even the effects of discrimination.
1V. Whether the same standard utilized to make out a violation of 42 US.C.
§1983 was originally intended to apply to Fourteenth Amendment
violations?
42 US. C.§198327 is the civil law counterpart to 18 USC. §242.
———— Lo
Although 42 u S.C. §1983 does not expressly refer to punishment, it provides
a civil remedy to those who have been deprived of rights secured by the
Constitution or laws of the United States. In Parratt v. Taylor, 451 US. 527
[18 US.C. 8242], has never - been found by this Court to contain a state-of-
| (1981), the Court fated thay "42 US.C. §1983, unlike its criminal counterpart
|
mind requirement, ‘citing Monroe v. Pape, 365 US. 167 (1961). In Monroe.
the the Court distinguished Screws and the finding there of a specific intent to
deprive a person of a federal right under 18 US.C §242 because the word
"willfully" does not appear in 42 US. C. 81983 and because §1983 provides a
civil and not a criminal remedy that could be challenged on vagueness
grounds. Monroe, 365 US. at 187. Instead of a state-of -mind requirement,
31983 “should be read against the background of tort iabilny that makes a
man responsible for the natural consequences of his actions. "id at. 187,
Under §1983. then, public officials who could reasonably forsee that their
actions could result in discrimination would be liable for their discriminatory
27 42 US.C. §1983 provides: "Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights. privileges, or immunities secured by the
Constitution and laws, shall be liable to the partv injured in an action at iaw,
suit in equity, or other proper proceeding for redress.
22
officials have a duty to prevent discrimination if a Seriminhtory os is
the forseeable consequence of their actions.
In Monroe, the Court traced the history of the42 US.C §1985 before
concluding that a tort liability standard, as opposed to an intent standard,
was appropriate. The statute was first enacted as §1 of the Klan Act of April
20. 1871.28 This statute, like the Enforcement Act of {870, was passed
pursuant to §5 power of the Fourteenth Amendment. Sen. Edmunds. chair of
the Judiciary Committee that reported the Bill. noted that the first section of
the Act “is merely carrying out the principles of the Civl Rights Bill which has
since become a part of the Constitution.” Indeed, the Act was also known as
“An Act to Enforce the Provisions of the Fourteenth Amendment to the
Constitution.” Thus this statute. like the precursors of 18 US.C. §242, was
meant expressly to enforce the Equal Protection Clause, and statute never
Mi
required a showing of discriminatory purpose. ~ Also, according 10 Justice
‘Douglas. its aim was to provide a federal remedy where the state remedy,
though adequate in theory. was not available in practice: id. at 174; the
statute was not intended to create new rights or remedies (other than
providing a federal forum! but only those which the Fourteenth Ame ndment
| already contemplated.
ny
( Given these two facts -- i.e.. that the statute was meant (¢ enforce the
6 provisions of the Fourteenth Amendment. and that it was not intended to
| cr eate new rights -- it would not be unreasonable to argue that the
[
a
Standards of proof contemplated under the Constitution and statute, laws
passed with three years of one g another. were. similar if not identical. As the
Court in Monroe found that $1983 has ‘never’ been found to have a state- of -
J
28 {7 Stat. 13.
mind requirement, perhaps it is possible also to infer that a state-of -mind
requirement was not intended by the framers to attach to Fourteenth Lut aA yee
iY LA SV pr fang 7
Amendment violations. Lp
A review of the legislative history of the 1871 Act does suggest that
something less than a discriminatory purpose could satisfy a statutory claim.
Congresspersons Who spoke about the statute focused on the impact of the
J
discrimination. and not the discriminatory purpose. For example, Burchard
of Tilinois stated: #
But if the statutes show no discrimination, yet in its judicial tribunals
one class is unable to secure that enforcement of their rights and
punishment for their infraction which 1s accorded to another, or if
secret combinations of men are allowed by the Executive to band
together to deprive one class of citizens of their legal rights without a
proper effort to discover, detect, and punish the violations of law and
order. the state has not afforded to all its citizens equal protection of
the laws.29
Rep. Beatty of Ohio stated:
[Mlen were murdered, houses were burned, scourged, and officers of
the law shot down: and the State made no successful effort to bring
the guilty to punishment or afford protection or redress to the
outraged and innocent The State, from lack of power or inclination,
practically denied the equal protection of the law to these persons.30
Again echoing the equal protection theme, Mr. Hoar of Massachusetts stated:
Now. it is an effectual denial by a State of the equal protection of the
taws when any class of officers charged under the laws with their
administration permanently and as a rule refuse to extend that
protection. If every sheriff in South Carolina refuses to serve a writ
for a colored man and those sheriffs are kept in office year after vear
by the people of South Carolina, and no verdict against them for their
30 Id. at 428.
failure of duty can be obtained before a South Carolina jury. the State
of South Carolina, through the class officers who are its
representatives to afford the equal protection of the laws 10 that class
of citizens, has denied that protection.3!
Mr. Lowe of Kansas said, "While murder is stalking abroad in disguise, while
whippings and lynchings and banishment have been visited upon
unoffending American citizens, the local administrations have been found
inadequate or unwilling to apply the proper corrective.’32
When public officials did not, for whatever reason, vigorously enforce
the Constitution or the laws of a state, these Congresspersons contemplated
that those officials would be liable to the victims of discrimination. They
contemplated a duty of officials to guard against discriminatory application
of the laws, under both the 1871 Act and the Fourteenth Amendment.
Justice Douglas concluded after reviewing this legislative history: "It is
abundantly clear that one reason the legislation was passed was to afford a
federal right in federal courts because, by reason of prejudice, passion,
neglect, intolerance or otherwise, state laws might not be enforced and the
claims of citizens to the enjoyment of rights, privileges, and immunities
guaranteed by the Fourteenth Amendment might be denied by the state
agencies.” Id. at 180. He also noted the Act was meant as a remedy against
State officials who were "unable or unwilling to enforce state law.” Id. at 176
(emphasis in original). Discriminatory purpose was not an essential
smn,
———— mesma EE —
requisite to establish a statutory violation. “Indeed, if the state were, for
apm —
whatever reason, “unable” to prevent discrimination, the legislative history
————
————— ————————————
of the statute strongly suggests that the state would be liable under the
statute=
3
32
b
t
p
t
ao
LC.
[W
W
IE
O
d
L
I
~]
WI
N
N
In light of this history, and the de-emphasis of 4 requirement of
discriminatory purpose, it is important to remember that the Act was meant
expressly to enforce the Fourteenth Amendment. Indeed, the
Congresspersons who spoke to the Act considered it in relation to the Equal
Protection Clause, and nowhere did they distinguish between standards
contemplated by the framers of the Fourteenth Amendment. a IV TINTNG\ fe Hi
i it epi aeemsts
Conclusion
Application of the jury selection standard outside of the jury
selection context and to cases like McClesky ought not be rejected simply
because the requirement of representaliveness is unique to jury selection.
The requirement of a representative jury has been around for one hundred
years, and it has only been within the last ten years since Castaneda that a
qualitatively different equal protection standard attached to jury selection.
The basis for the change in the standard was not rooted in the
representative requirement.
4 [t is possible, then, that the constitutional duty recognized under ine
/ jury selection standard not to pursue a course of conduct that operates to
| discriminate on racial grounds could also apply outside of jury selection
i context. As interpreted. this duty seems to have added little to the pre-
Castaneda standard beyond making ‘ingenuous’ forms of discrimination Puiljdips
sm —
\.
/ unconstitutional. For the duty to be applicable to cases like McClesky, it
L must be construed to prevent far more subtle forms of discrimination. One
——
26
way to do this is to argue under the post-Castaneda standard. the duty
should interpreted to be. like the standard, far more expansive, so that it
works to ensure that public officials act to prevent discriminatory resulls. |
eer ag
pr AANA
am not persuaded by this argument.
n The Reconstruction statutes strongly support the possibility that the
framers of the Fourteenth Amendment did not contemplate that-a showing 3
Md
~
|
5 7
of. discriminatory purpose would necessarily ac company giccesstul equal on PRE dio
i er
ee —————
| protection claims. Importantly, the prscurscrs of both 18 USC §242 and 42]
I
ro pF pre >
| 1 USE 51983, most of which were enacted expressly to enforce the provisions
N—, ——
of the Fourteenth Amendment, did not require a showing of discriminatory
purpose to make out a statutory violation. The fact that Congress passed i
several criminal laws specifically designed to address the problem 3 Tl
re st————
discriminatory punishment also suggests that Congress. intended hdl a
m— RRR
severe standard ought apply to claims af unequal punishment. Certainly the
port PCLT rp ett
Fourteenth Sasadment was also aimed at stamping « out discrimination in
punishment, and iL 18 not unreasonable to infer that a similarly severe
standard was contemplated under the Equai Protection Clause.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
’ Petitioner,
-against- ; CIVIL ACTION
’ : NO. C81-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification g
Center, :
Respondent.
c
e
Lb]
PETITIONER'S SUPPLEMENTAL MEMORANDUM OF LAW
ROBERT H. STROUP
1515 Healey Building
. Atlanta, Georgia 30303
JOHN CHARLES BOGER
10. Columbus Circle
New York, New York 10019
TIMOTHY KX. FORD
600 Pioneer Building
Seattle, Washington 94305
* ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS FOR PETITIONER
TABLE OF CONTENTS
I. Petitioner's Burden of Proof On His Claim Of Racial
DISCriminaEion + ov ov tes + oii anise wie a eBiey eh 2
II. The Methods Employed By Petitioner To Meet His Burden
Of Proof, tite shi ai sien al easel ihe aie witelie iim. v8
TII., Petitioner's Proof Of Discrimination. . « « + so vo +s +16
CONC LUE LON. oy Ey i et ee eileen id .. eh
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN McCLESKEY,
Petitioner,
-against- CIVIL ACTION
NO. C81l-2434A
WALTER D. ZANT, Superintendent,
Georgia Diagnostic & Classification
Center, :
Respondent.
PETITIONER'S SUPPLEMENTAL MEMORANDUM OF LAW
Petitioner Warren McCleskey ("petitioner") submits this
supplemental memorandum of law at the invitation of the Court,
following the hearing of October 17, 1983, to address certain
questions arising from the evidence presented by the parties.
This memorandum. is designed, not as a comprehensive statement of
petitioner's case, but rather to supplement petitioner's previous
memorandum of September 26, 1983. That initial memorandum provided
the Court with an overview of petitioner's case and addressed at
length the constitutional foundations of petitioner's arbitrariness
and racial discrimination claims.
In this brief, petitioner will not retrace that ground;
instead, having already demonstrated that proof of persistent and
intentional disparities by race in the treatment of capital cases
in Georgia would suffice to make out a violation of the Equal
Protection Clause of the Fourteenth Amendment, requiring petitioner's
death sentence to be vacated, petitioner will now turn to the question
of how such disparate racial treatment must be proven. Specifically,
petitioner will address: (i) the burden of proof petitioner must
shoulder to establish his evidentiary claims; (ii) the methods of
proof petitioner has adopted to meet this burden; and (iii). the
facts petitioner has establishéd, measured by the prevailing legal
standards.
I.
Petitioner's Burden of Proof
On His Claim of Racial Discrimination
Petitioner has shown in his initial brief (see Pet. Mem.,
86-92)1" that inbeAtional discrimination sufficient to establish an
Equal Protection Clause violation under the Fourteenth Amendment
can be proven by statistical evidence alone: "In some instances,
circumstantial or statistical evidence of racially disproportionate
impact may be so strong that the results permit no other inference
but that they are the product of a racially discriminatory intent
or purpose." Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. Unit B
1982) (on rehearing); accord, Spencer v. Zant, 715 F.2d 1562, 1581
(11th Cir. 1983); cf. Adams v. Wainwright, 709 F.2d 1443, 1449
- (11th Cir. 1983).2/
l/ Each reference to Petitioner's Post-Hearing Memorandum of Law,
dated September 26, 1983, will be indicated by the abbreviation
"Pet. Mem."
2/ By denying as irrelevant petitioner's prehearing request for
discovery on other actions that might demonstrate a pattern of
fecont'd.]
In Castaneda v. Partida, 430 U.S. 482 (1977), the Supreme
Court has held that to make out a prima facie statistical case, at
least "in the context of grand jury selection," requires a
petitioner to establish that
"the [racial] group is one that is a recognizable,
distinct class . . . Next the degree of underrepre-
sentation must be proved, by comparing the propor-
tion of the group in the total population to the
proportion called to serve as grand JULrOrsS vai.
Finally, a selection procedure that is susceptible
of abuse or is not racially neutral [must be shown
which] supports the presumption of discrimination
raised by the statistical showing."
Castaneda v. Partida, supra, 430 U.S. at 494. At that point, the
Court continued, petitioner "has made out a prima facie case of dis-
criminatory purpose, and the burden then shifts to the State to
rebut that case." 1Id., at 495. The Eleventh Circuit recently |
adopted a virtually identical procedure in analyzing a BonPusents
Amendment equal protection claim stemming from the detainment of
Haitian immigrants:
Although the standard of proof in Title VII cases
differs from that in constitutional equal protection
cases, the framework for proving a case, i.e. prima
facie case, rebuttal, ultimate proof, is the same.
See, e.g., Castaneda v. Partida, 430 U.S. at 495-96,
. Because of the similar framework, and because
there are few equal protection cases relying on
statistics, when appropriate we draw upon Title VII
cases."
2/ cont'd.
racial discrimination in the criminal justice system in Fulton
County and the State of Georgia, the Court necessarily limited
petitioner's proof to statistical evidence, supplemented by
reported decisions evidencing racial discrimination of which the
Court might take judicial notice. (Pet. Mem. 101-02; see also
Petitioner's First Interrogatories to Respondent, dated April
18, 1983, 99 9-18; Order of June 3, 1983, at 2.)
Be
Jean v. Nelson, 711 F.2d 1455, 1486 n.30 {i1ith Cir.), vacated and
pending on reh'g en banc, 714 F.2d 96 (llth Cir. 1983); cf.
Eastland v. Tennessee Valley Authority, 704 F.2d 613, 618 (llth
Cir. 1983).
A proper analysis therefore requires, first, the
determination of whether petitioner has established a prima facie
case; second, the examination of respondent's rebuttal case, if
any; and third, an assessment of whether, in light of petitioner's
responsive evidence, he has ultimately met his burden of proof. To
prevail, petitioner must demonstrate an Equal Protection violation
"by a preponderance of the evidence." Jean v. Nelson, supra, 733
F. 2d at 1487, citing Texas Dep't. of Community Affairs v, Burdine,
450 U.S. 248, 252-~5% (1981).
Since petitioner asserts systemwide discrimination, the
principal focus of analysis should be, not upon the evidence of
discrimination in petitioner's individual case, as would be appro-
priate in analogous individual Title VII cases, see McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); Mt. Healthy Board of
Education v. Doyle, 429 U.S. 274 (1977), but rather upon systemwide
(or perhaps judicial circuitwide, gee Pet. -Mem. 104-09) statistical
y evidence of disparities, as in analogous jury cases and other cases
alleging classwide or systemwide discrimination. See, e.d.,
Castaneda v. Partida, supra; see also Washington v. Davis, 426
U.S. 229, 241-42 (1978); Arlington Heights v, Metropolitan Housing
Authority, 429 U.S. 252, 266 (1977); Hazelwood School District v.
United States, 433 U.S. 299, 307-08. (1977).
The precise evidentiary burden necessary to establish a
prima facie capital sentencing case has never been definitively
a
established. In Smith v. Balkcom, on rehearing, the former Fifth
Circuit strongly suggested by negative implication what might
suffice to establish a prima facie case:
"No data is offered as to whether or not charges
or indictments grew out of reported incidents or
as to whether charges were for murder under aggra-
vating circumstances, murder in which no aggra-
vating circumstances were alleged, voluntary man-
slaughter, involuntary manslaughter, or other
offenses. The data are not refined to select
incidents in which mitigating circumstances were
advanced or found or those cases in which evidence
of aggravating circumstances was sufficient to
warrant submission of the death penalty vel non
to a jury. No incidents resulting in not f quilty
verdicts were removed from the data. The unsupported
assumption is that all such variables were equally
distributed . . . ."
Smith v. Balkcom, supra, 671 F.2d at 860 n.33. On the other hand,
the Eleventh Circuit's per curiam opinion in Adams Vv. Wainwright,
supra, 709 F.2d at 1449, contained dicta that "lolnly if the evidence
of disparate impact is so strong that the only permissible inference
is one of intentional discrimination will it alone suffice." More
recently, the Eleventh Circuit in Spencer V. Zant, 7158 F.2d at 1582
n.15, drawing directly from Arlington Heights, supra, 429 -U.5. at
266, suggested that the proper standard may require evidence of
3/
"'a clear pattern, unexplainable on grounds other than race."—
3/ Petitioner contends that determination of whether the proper
standard should be drawn from Smith, from Adams, from Spencer or
from some other case need not be Fescived here, since petitioner's
statistical evidence accounts for every plausible rival hypothesis,
thereby meeting or exceeding even the most stringent possible
standard. See discussion at pp. 16-23, infra.
Once petitioner has shown a prima facie case, the
burden then shifts to the State to rebut the case in one of
three ways: (i) "by showing that plaintiff's statistics are
misleading..;;[ii] by presenting legitimate non-discriminatory
reasons for the disparity," Eastland v. TVA, supra, 704 F.24 at
618-19; or (iii) by proving that the discrimination is justified
by a compelling state interest (see Pet. Mem. 77-78, 115-23). A
rebuttal case challenging a party's data base as misleading or
inaccurate cannot succeed without strong evidence that the data
are seriously deficient and unreliable?
"[A] heavy burden must be met before a party can
justify the rejection in toto of any statistical
analyses on grounds of errors or omissions in the
data . . . the challenging party bears the burden
of showing that errors or omissions bias the data
[and] . . . that this bias alters the result of the
statistical analyses in a systematic way."
Vuyanich v. Republic Nat'l Bank of Dallas, 505 F. Supp. 224, 255-56
(N.D. Texas 1980); accord, Trout v. Lehman, 702 F.24 1094, 1101
(D.C. Cir. 1983): Detroit Police Officer's Ass’n Vv, Young, 808 F.24
671, 687 (6th Cir. 1979), cert. denied, 452 U.S. 938 (1981) (see
generally, Pet. Mem., 115-18).
A rebuttal case predicated upon "legitimate non-discrim-
inatory reasons for the disparity" cannot succeed merely by challeng-
ing petitioner's prima facie case "in general terms," Wade Vv.
Mississippi Cooperative Extension Service, 528 F.24 508, 517
(5th Cir. 1976). "[Ulnquantified, speculative, and theoretical
objections to the proffered statistics are properly given little
weight by the trial court, " Trout v. Lehman, supra, 702 F.2d at
1102: see, e.g., Castaneda v. Partida, supra, 430 U.S. at 499 n.19;
Jean v. Nelson, supra, 711 F.2d at 721, 730. Addressing this theme,
Chief Judge Godbold recently noted in Eastland v. TVA, supra, 704
F.2d at 622-235 n.14, citing D. BALDUS & J. COLE, STATISTICAL PROOF
OF DISCRIMINATION §8.23 at 74 (1980):
"A defendant's claim that the plaintiff's
model is inadequate because a variable has
been omitted will ordinarily ride on evidence
[from the defendant] showing that (a) the
qualification represented by the variable was
in fact considered [by the defendant], and (Db)
that the inclusion of the variable changes the
results of the regression so that it no longer
supports the plaintiff. Both of these facts are
established most clearly and directly if the defend-
ant offers an alternative regression model similar
to the plaintiff's except for the addition of the
variable in question." :
Finally, while a rebuttal case might theoretically
be made in support of racially discriminatory treatment in some
limited area of the law, the Supreme Court in Furman v. Georgia,
408 U.S. 238 (1972) made it perfectly clear that no purported state
interest could ever justify discriminatory imposition of the death
penalty. (The State in this case has never suggested that any valid
State policy could be furthered by such discrimination, and there-
fore this possible line of rebuttal need not detain the Court. (See
Pet. Mem., 77-81A)).
Petitioner should prevail under the analysis outlined
above if his prima facie case -- discounted by any valid criticisms
adequately proven by the State's rebuttal case, augmented by any
surrebuttal evidence petitioner can muster to counter the State's
rebuttal case -- establishes discrimination by a preponderance of
the evidence. Petitioner need not produce statistical evidence
which would fully explain the workings of the system so long as
he can demonstrate that racial discrimination is a real and per-
sistent characteristic of that system.
11.
The Methods Employed By Petitioner To
- Meet His Burden Of Proof
Petitioner McCleskey employed well-accepted and rigorously
controlled statistical methods in support of his constitutional
claims of discrimination in capital sentencing. He first established
through the comparison of unadjusted racial comparisons that sig-
nificant race-of-defendant and race-of-victim disparities are
characteristic of Georgia's capital Senteriing system. (DB 62; DB 69;
DB 70). Although such "unadjusted" racial disparities have been
held legally insufficient to establish a constitutional violation in
the context of capital sentencing systems, see, e.g., Spinkellink
v. Wainwright, 578 F.2d 582 (5th Cir. 1978); Smith v. Balkcom, 660
F.2d 573 (5th Cir. Unit B 1981), it is instructive to note that
statistical evidence no more sophisticated than this has regularly
been deemed sufficient to require reversal in other equal protection
contexts such as jury cases, see, e.g., Castaneda v. Partida, supra,
(statistically significant racial disparities, with no additional
variables held constant); and employment discrimination cases, see
e.g., Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527, 544 {5th
Cir. 1980), cert. denied, 449 U.S. 1115 (198l1)(a prima facie case
established by "glaring" statistical disparities even without
controlling for job qualifications).
Petitioner obviously did not rest, however, with an
identification of these unadjusted racial disparities. Instead,
Professor David Baldus, petitioner's principal expert, testified
that he drew on his own expert knowledge of the criminal justice
system, as well as the experience and knowledge of his professional
colleagues, supplemented by extensive reading and review, to develop
an extensive list of variables that might plausibly affect the
sentencing outcome in a capital case. This list was incorporated
into a questionnaire, completed for each case included in PRS and
CSS studies, which contained over five hundred variables. For
purposes of analysis, Professor Baldus employed more than 230 of
these "recoded" Variables that he judged to be plausible factors
in conducting his sentencing analyses. (Professor Baldus specifically
testified that he employed every relevant variable on which he could
obtain information.)
To proceed beyond unadjusted analysis, petitioner analyzed
the effect on sentencing outcomes of the racial factors while "con-
trolling" for, or holding constant, the effects of the other plausible
explanatory variables. Professor Baldus and Professor George Woodworth
both testified that, in conducting these analyses, they relied upon
the two accepted statistical methods available to achieve such control:
cross-tabulations, and multiple regression analysis. Cross-tabular
analysis, Professor Baldus explained, proceeds by dividing cases
into successively smaller subcategories, each distinguished by the
presence or absence of a series of relevant variables. Cross-tabular
analysis permits one to compare cases that are comparable or similar
on all of the variables examined, observing changes in the variable of
interest. (Professor Baldus reported upon the results of a number of
BY 0
cross-tabular analyses he performed in which the racial effects
remained influential (see DB 67; DB 76 ). The inherent limitation
of cross-tabular analysis, Baldus and Woodworth explained, is that
it cannot meaningfully account for a very large number of variables
simultaneously, since at some point the number of cases possessing
similar characteristics on each of the increasing number of variables
becomes very small, and "cell sizes" decrease toward statistical
and practical insignificance.
Multiple regression analysis, Professors Baldus and
Woodworth testified, avoids this inherent limitation of cross-tabular
analysis by employing algebraic formulae to calculate the additional
impact of the presence or absence of a variable of interest (e.g.,
the race of the victim) over and Abo the collective impacts of
a host of other variables. Professor Woodworth explained that re-
gression accomplishes this result, not by examining cases that are
similar on all variables other than the variable of interest, but
instead by assigning cases an index value along a scale determined
by the presence or absence of other variables, and then calculating
the comparative sentencing rates at each level. (See GW 9; GW 10).
This use of regression analysis, Professor Woodworth testified
(without contradiction from State's expert Dr. Joseph Katz), is
mathematically sound and fully accepted as a valid means of statis-
tical measurement. The algebraic formula for calculating a sample
regression analysis with three variables was presented to the
Court as GW 13 and GW 14.
30
The Fifth Circuit first adverted to the use of regression
analysis in 1976, calling 1% "a sophisticated and difficult method
of proof in an employment discrimination case,” Wade v. Mississippi.
Cooperative Extension Service, 528 F.2d 508, 517 {sth Cir. 1976).
Five years later, the Court, having gained greater familiarity
with the method, observed that "[m]ultiple regression analysis is
a relatively sophisticated means of determining the effects that ~
any number of different factors have on a particular factor ,*
Wilkins v. University of Houston, 654 F.2d 388, 402-03 {Sth Cir.
1981). The Court held in Wilkins that "if properly used, multiple
regression analysis is a relatively reliable and accurate method of
gauging classwide discrimination," id. at 402-03 n.l8, indeed noting
that "it may be the best, if not the only, means of proving classwide
discrimination . . . in a case where a number of factors operate
simultaneously to influence" the outcome of interest. Id. at 403.
With proper attention to its possible misuse, the Eleventh Circuit
has also embraced multiple regression analysis as an appropriate
tool for the proof of discrimination claims. See, e.g., Eastland
v. TVA, supra, 704 F.2d. at 621-22; Jean Vv. Nelson, supra; see also,
Valentino v. United States Postal Service, 674 F.2d 56, 70 (D.C.
Cir. 1982); see generally, Finkelstein, "The Judicial Reception of
Multiple Regression Studies in Race and Sex Discrimination Cases,"
80 COLUM. L. REV. 737.(1280).
Perhaps the most extensive judicial discussion of the
nature and role of multiple regression analysis in the proof of
discrimination claims is Judge Higgenbotham's influential and
widely cited opinion in Vuyanich v. Republic Nat'l Bank of Dallas,
= 21 ~
505 F. Supp. 224, 261-79 (N.D. Tex. 1980). Judge Higgenbotham
observes that multiple regression techniques have been "long used
by social scientists and more recently [have been] used in judicial
resolution of antitrust, securities, and employment discrimination
disputes," Vuyanich, supra, 505 F. Supp. at 261. He notes that these
"mathematical models are designed to determine if there is any differ-
ential treatment not entirely attributable to legitimate differences,"
id. at 265, calling them "an important addition to the judicial
toolkit,” id. at 267.
Drawing upon basic texts in econometrics Ad regression
analysis (including D. BALDUS & J. COLE, STATISTICAL PROOF OF
DISCRIMINATION (1980)), Judge Higgenbotham then embarks upon an
extensive mathematical and statistical discussion of regression
methods, including the derivation of the basic regression formulae,
id. 269-71, the calculation of the statistical significance of
regression coefficients, id., 271-73, improper applications of
regression methods, id., 273-75, and different methods of employing
regression analysis to measure possible discriminatory behavior, id.,
275-79.
The discussion in Vuyanich coincides with and confirms
the teachings of Professor Franklin Fisher in his influential article
"Multiple Regression in Legal Proceedings," 80 COLUM. L. REV. 702
(1980). Both make clear that multiple regression analysis "is
a substitute for controlled experimentation," Vuyanich, supra,
505 F. Supp. at 269, and that "[tlhe results of multiple regressions
-- such as what we will call 'coefficients' in the ordinary least
square methodology -- can be read as showing the effect of each
independent variable on the dependent variable, holding the other
ay {Aa
independent variables constant. Moreover, relying on statistical
inference, one can make statements about the probability that the
effects described are due only to a chance fluctuation,” id., at
269; accord, Fisher, supra, 80 COLUM. L. REV. at 706. Chief Judge
Godbold explicitly recognized the value of regression analysis in
Eastland v. TVA, supra, 704 F.2d at 621, finding that "ImJultiple
regression analysis is a quantitative method of estimating the
effects of different variables on some variable of interest."
These clear precedents estabilugh that the multiple
regression method has been judicially accepted as a principal
analytic tool -- indeed, in cases involving a large number of
simultaneously operative variables, perhaps "the only means of
proving classwide discrimination,” Wilkins v. University of Houston,
supra, 654 F.24 at 463.
In evaluating regression analyses, the courts and commenta-
tors have pointed to a number of problems that could arise if sufficient
care is not taken in analysis. If data are totally inaccurate or
are shown to be systematically biased for the variable of interest,
the analysis may be flawed. Vuyanich v. Republic Nat'l Bank of
Dallas, supra, 505 F. Supp. at 255-56, 27%. Parther, if a "model,"
or group of independent variables is employed that omits "some
relevant explantory variable . . . the regression coefficient
would be 'biased' . . . and the usual tests of significance
concerning the included regression coefficient . . . will be invalid,”
id. at 274. Fortunately, as Judge Higgenbotham notes, nlclertain
statistical tests are available to suggest whether this sin of
omission has occurred." Id.
- he
At the other extreme, "when one or more irrelevant
variables are included in the model . . . [a] risk of 'multicolinearity'"
arises. Id. Yet the effect of possible multicolinearity is not
to increase but to deflate evidence of possible discriminatory
impact, id. at 274-75: thus "if multicolinearity exists, the prob-
ability will be increased that the net impact of [racial factors]
« « « Will be judged statistically nonsignificant, even in cases
where there are actual differences in the treatment." Id. In short,
multicolinear models may underestimate, but do not overestimate,
the extent of possible discrimination.
A third possible problem can arise "where the analyst
chooses to use a regression equation that is linear in the explanatory
variables when the true regression model is nonlinear," id. at 27S.
Obviously, the means by which to avoid such a problem is to conduct
Sralyses employing both linear and nonlinear (such as logistic)
regressions.
Finally, least squares. regression depends upon the
assumption that the "error term," -- the "u" in a regression formula
which stands for idiosyncratic or "random influences" that characterize
virtually every social scientific model, id. at 269-70, 273 --
"follows the 'normal distribution, '" id. at 275, that is, displays.
no systematic relation to other independent variables. However,
Judge Higgenbotham observed that "[w]ith respect to this assumption,
basic least squares regression models are "quite" robust" in that
they will tolerate substantial deviations without affecting the
validity of the results.’ D. Baldus §& J. Cole, supra, n.55 $8A.41,
at 284." Id. at 275. Moreover, he noted, "[n]lonnormality of errors
can be detected through the use of [statistical] . . . techniques." Id.
i,
Petitioner's experts testified without contradiction
that they had carefully followed all of the requisite steps in
conducting regression analysis, and that they had taken particular
care to conduct statistical diagnostic tests to determine whether
any of the assumptions of regression analyses had been violated
in petitioner's analyses, and whether the results could possibly
be biased thereby. Professor Woodworth offered his expert statis-
tical opinion, without any contradiction by the State, that the methods
employed by petitioner were appropriate, that models were not
misspecified, and that no bias could be discerned in the reported
results. Professor Berk, petitioner's reubttal expert, confirmed
Professor Woodworth's expert opinion. He explicitly complimented
petitioner's conduct of regression analysis as vShate or hoa"
and found both of petitioner's studies to be of "high credibility."
In sum, the statistical methods employed by petitioner,
including cross-tabular and regression analysis, have been expressly
adopted by the Fifth and Eleventh Circuits as appropriate tools
for the measurement of the possible effect of racial variables.
The regression analyses relied upon by petitioner were properly
conducted by leading experts in the field, were carefully monitored
for possible statistical problems, and have been found to be both
statistically appropriate and accurate in their assessment of the
presence and magnitude of racial disparities in capital sentencing
in Georgia. Methodological concerns, whether based in law or in
statistics, thus pose no impediment to the Court's evaluation of
petitioner's reported results.
15
IIT.
Petitioner's Proof of Discrimination
To meet his prima facie burden of proof, petitioner has
of fered the Court a wide range of statistical analyses, virtually
all of which demonstrate or, at a minimum suggest, significant
race-of-victim effects, as well as significant race-of-defendant
effects within important Sbcategories. Petitioner reported strong
unadjusted racial disparities (see Pet. Mem., 24-25). He then con-
structed a model which would take into account the statutory factors
identified by the Georgia legislature as sufficiently important
aggravating circumstances to permit the imposition of a death sentence,
together with the "nonstatutory" aggravating circumstance of prior
record (also expressly designated as relevant by Georgia statute).
Professor Baldus reported the results of this analysis employing
both a least squares analysis, which assumes a linear distribution
of cases, and a logistic analysis, which depends upon no such
assumptions. The results, as indicated below, demonstrate that the
race-of-victim factor wields an independent effect on sentencing
outcome at a highly significant level:
w.L.S. Logistic Regression
Regression Results Results
Regression Coefficient & Regression Death Odds
Level of Statistical Coefficient Multiplier
Significance
Race of Victim 07 oe 2:
{.0014) 2
Race of Defendant «04 «02 3.0
(.09) (.93)
(DB 78)
Under this analysis, race of the victim is at least as
important a determinant of sentence as such factors as that the
defendant had a prior capital record, that the murder was vile,
horrible or inhuman, that the victim was a policeman, or other
serious aggravating factors. When Professor Baldus refined this
model to incoprorate not only statutory aggravating factors, but
75 mitigating factors as well, the relative impact of the race-of-
victim variable actually increased:
w.L.S. Logistic Regression
Regression Results : Results
Regression Coefficient & Regression Death Odds
Level of Statistical Coefficient Multiplier
Significance
Race of Victim 10 : 2.1 8.2
{(.001) (.001)
Race of Defendant 07 +36 1.4
{.01) ({ ns)
Professor Baldus thereafter employed a wide range of models
(see,e.g., DB 80, DB 8%, DBE 96, DB 98) to see whether any constellation
of variables would eliminate or substantially diminish the race-of-
victim effect. None did. In effect, petitioner thereby "anticipated
and adequately met the government's statistical challenge. Plaintiffs
of fered a variety of statistical and testimonial evidence to demonstrate
that [other independent variables] . . . were irrelevant," Jean Vv.
Nelson, supra, 711 F.2d at 1498, in explaining the persistence of
the racial variables.
ET
Professor Baldus, as noted, conducted a number of
analyses employing the 230+ variable model which included all
known variables which plausibly might have affected sentencing
outcome, and the racial factors. remained significant (see, e.g.,
DB 80 "Race of Victim . . . After Simultaneous Control for 230+
Non-Racial Variables . . . .06(.01); Race of Defendant . . . .06
(.01)). In one sense, this model operates most "realistically"
since it includes and controls for the effects, however small, of
any aggravating or mitigating factors that might affect a prosecutor's
or jury's judgment. Yet, because of problems of multicolinearity,
‘which as explained above can actually dampen or Suppress the real
impact of other independent variables, Professor Baldus, Professor
Woodworth and Professor Burford, the State's expert, all indicated
that the 39 variable or "mid-range" model probably provided the
best statistical evaluation of the independent impact and significance
of the racial variables.
Using that mid-range model (as well as models with seven
variables, eleven variables, all statutory aggravating circumstances,
and all statutory plus 73 mitigating circumstances), Professor
Woodworth conducted a comprehensive series of diagnostic tests to
see whether problems in the weighting procedure employed, the selection
of least squares or logistic regression, the existence of some
"missing" data, the influence of the 48 most important cases, or the
presence of possible "interaction" effects among the variables
included might explain the racial disparities reported. Professor
Woodworth's conclusion, amply supported by Table 1 from GW 4, is
that the race-of-victim coefficient remains large (from .041 to
-18 -
.117) and statistically significant throughout the diagnostic
analyses. The race of the defendant exhibited an unstable,
although often important effect as well. In sum, the persistent
racial effects reported in petitioner's regressions are not statis-
tical artifacts, but reflect real-world disparities in capital
sentencing treatment based upon racial factors.
Professor Woodworth also explained that the npn
calculations reported in his diagnostics did not mean that peti-
tioner's models were inadequate or incapable of accurately measuring
the racial effects. First, Professor Woodworth noted that, insofar
as Georgia's capital sentencing system is in fact operating in an
arbitrary and capricious pattern, no statistical model can explain
all of the variance, since a part of it will necessarily be random
and idiosyncratic. Secondly, Professor Woodworth stressed that
large npn or "u" terms do not affect the accuracy of the measurement
of the effect of other variables, concurring with Professor Fisher's
analogous observation that
w{ilt is very important . . . to.realize that =a
large standard error of estimate does not tell
one anything at all about the accuracy with
which the effects of the independent variables
are measured . . . The standard error of estimate
is a way of assessing how important the random part
of the model is; it does not tell one how large the
affects of such randomness are on one's ability to
measure the systematic part.”
Fisher, supra, 80 COLUM. lL. REV. at 719.
-YO
Both Professor Baldus and Professor Woodworth agreed
that the figures which most accurately and completely summarized
the racial effects they had observed were reflected in GW 5 and GW 6.
Those figures, based upon the mid-range model. with interactions
and nonlinearities accounted for, show a disparity in the treatment
of homicide cases by race-of-victim and race-of-defendant. which
varies in magnitude depending upon the level of aggravation, or
seriousness, of the homicide. Among the least aggravated cases,
little racial disparity exists, because virtually o death sentences
are imposed in any cases. Among the most aggravated cases, once
again there exists little racial disparity, since nearly all of the
cases receive a death sentence. Among the moderately aggravated
cases, however, substantial and unchecked racial disparities exist.
At petitioner McCleskey's level of aggravation, for example, the
sentencing disparity between white victim and black victim cases
is .22 points,
(See next page for GW 6,Table 2)
DY
GWo
i Figure 2: Midrange’ Model With Interactions and Nonlinearities--
Black Defendants
i100 T
75 +4
£14
25 +
00 A : MrCleskey ;
or Aa 8 1.0 1.2
LEVEL OF AGGRAVATION
2/ The curves represent 95% confidence bounds on the average death
sentencing rate at increasing levels of aggravation (redrawn from
computer output).
Petitioner has set forth in his principal brief the parallel
findings he obtained from both a statistical and a qualitative analysis
of data from Fulton County, where petitioner was tried. Although
the smaller sample size restricted the statistical significance
of the results, the same pattern of influence of racial variables
. can clearly be ascertained. (See Pet. Mem., 36-40; DB 106-116).
Beyond this statistical evidence in support of his prima
facie case, petitioner introduced the deposition of District Attorney
Lewis Slayton. That testimony, summarized in petitioner's principal
brief at page 48, reveals a system for the processing of capital
indictments in Fulton County that is decentralized among a dozen
or more assistants, carried out with no written procedures or
guidelines, and no central review of all decisions in homicide
cases. Therefore, petitioner has shown a circuitwide system which
affords an "opportunity for discrimination," since it leaves
processing decisions up to a multitude of decisionmakers whose
decisions are not routinely reviewed by a central authority for
compliance with any objective criteria.
In response to petitioner's prima facie case, the State
offered nothing more than "unquantified, speculative, and theoretical
objections to the proffered statistics," Trout v. Lehman, supra,
702 F.2d at 1102, ignoring judicial warnings that "the most effective
way to rebut a statistically based prima facie case is to present
more accurate statistics." Id. The State presented one untested
hypothesis -- that the apparent racial disparities could be explained
by the generally more aggravated nature of white victim cases -- but
it offered not a single statistical analysis to confirm or deny the
- ayo
hypothesis. (Petitioner's analyses reported at GW 5 and GW 6, by
contrast, demolish the State's theory, proving by examina-
tion of cases at similar levels of aggravation that white victim cases
are systematically more likely to receive capital sentences).
The State offered, in fact, not a single analysis in which it
had controlled for any variable. It did not propose, much less
test the effect of, any plausible explanatory variable that had
not been included in petitioner's models. It did not propose
any alternative model employing a different combination of
petitioner's variables that might plausibly reduce the racial
factors. It did not suggest any form of statistical analysis, apart
from those employed by petitioner, that might yield a different
result. It did not point to a single analysis conducted by peti-
tioner in which the racial effects disappeared or ran counter to
petitioner's claims.
The State, in short, presented no affirmative statistical
case. on rebuttal at all.
What the State attempted unsuccessfully to do was to
attack the integrity of petitioner's data sources. On surrebuttal,
however, petitioner presented strong evidence to defend those data
(see Pet. Mem., 48-49, 54-58), and he showed that additional
analyses conducted, on a worst case basis, to take full account
of the State's criticisms, simply did not alter the racial effects
consistently found by petitioner. (See Pet. Mem. 56-57; DB 120-DB 124).
The uniqueness of petitioner's evidence, compared with
that in most other constitutional Res dependent upon analysis of
statistical data, is the comprehensive and thoroughgoing presentation
<. 22 i,
made by his experts, and the unanimity of results on the presence
and persistence of the racial variables. Petitioner has uncovered
no reported decision in which more methods of analysis, involving
more alternative hypotheses, have been applied to the data. The
problems that might confront a court in determining which of
several statistical methods to credit -- if those methods yielded
radically contrary results -- pose no problem here, where all of
the methods agree, confirming the reality and persistence of the
racial effect. Indeed, Professor Richard Berk, referring to these
"triangulated" results, testified that they offered perhaps the
strongest possible witness that racial factors play a real and
genuine role in determining capital sentencing outcomes in Georgia.
Faced with this overwhelmingly one-sided and unrebutted
statistical case, which after accounting. for all plausible alternative
variables nevertheless shows = the existence of strong racial factors
that systematically influence the decision to impose sentences of life or
death, this Court should apply the clear and controlling Fourteenth
Amendment principles guaranteeing equal protection of the law to
grant petitioner's requested relief and vacate his sentence of
death.
3%
CONCLUSION
The writ should therefore issue, ordering petitioner
to be released unless, within a reasonable time, he is resentenced
to life imprisonment.
} Dated: November 1,:1983
Respectfully submitted,
ROBERT H. STROUP
1515 Healey Building
Atlanta, Georgia 30303
JOHN CHARLES BOGER
10 Columbus Circle
New York, New York 10019
TIMOTHY K. FORD
600 Pioneer Building
Seattle, Washington 94305
ANTHONY G. AMSTERDAM
New York University Law School
40 Washington Square South
New York, New York 10012
ATTORNEYS,K FOR PETITIONER
OL -
CERTIFICATE OF SERVICE
a I hereby certify that I am one of the attorneys for
petitioner and that I served the annexed Supplemental Memorandum
of Law on respondent by placing a copy in the United States mail,
first-class mail, postage prepaid, addressed as follows:
Mary Beth Westmoreland, Esq.
Assistant Attorney General
132 State Judicial Building
Atlanta, Georgia 30334
Done this lst day of November, 1983.
(12r liad Bi
\JCHN CHARLES BOGER