General - Working Files, Vivian Berger's Vol. 4 of 4
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November 1, 1983 - August 21, 1986

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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.
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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