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

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November 1, 1983 - August 21, 1986

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7/12/1986 3/2/1985

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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

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