McCleskey v. Kemp Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae in Support of Petitioner

    N o. 84-6811

IN THE

Supreme Court of tj)e ?Hruteb S ta tes
O c t o b e r  T e r m , 1986

W arren McCleskey,

v.

Ralph M. Kemp,

Petitioner,

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:
Steven M. Schneebaum 
Patton, Boggs & Blow 
2550 M Street, N.W. 
Washington, D.C. 20037
Larry Garber 
International Human Rights 

Law  Group
722 Fifteenth Street, N.W. 
Suite 1000
Washington, D.C. 20005

* Ralph G. Steinhardt 
720 20th Street, N.W. 
Washington, D.C. 20052 
(202) 676-5739

* Counsel of Record

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 o f  the Rules o f  this Court, 
the International Human Rights Law Group (the Law 
Group) moves for leave to file the attached brief A m i­
cus Curiae in support o f Petitioner. The Law Group 
is a non-profit organization o f  international lawyers 
and scholars, which, through litigation, publication, 
and other public activism, seeks to prom ote 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 o f the petition for a writ o f  certiorari in this 
case. Having argued in favor o f the propriety o f re­
view, the Law Group now m oves 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 o f  the 
death penalty, which violates perem ptory norms of 
international law. In failing to consider international 
law as a relevant source o f  the rule o f  decision, the 
Eleventh Circuit’ s opinion violates the Supremacy 
Clause o f the Constitution as interpreted. A t a min­
imum, the decisions o f this Court oblige the Eleventh 
Circuit to consider international standards in deter­
mining whether Petitioner’ s sentence was “ cruel and 
unusual”  within the meaning o f the Eighth Am end­
ment.

Amicus also brings a unique institutional perspec­
tive to these proceedings. Between 1980 and 1984,



2

the Law Group sought to litigate the very issues of 
race discrimination raised in this case before the In­
ter-Am erican Commission on Human Rights, an in­
strumentality o f  the Organization o f  Am erican States. 
On October 3, 1984, the Commission held the Law 
Group’ s petition inadmissible on certain procedural 
grounds and in particular on the representation o f 
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 o f any other presentation o f 
these data or arguments to this Court. Counsel for 
Petitioner has consented to the filing o f this brief. 
Amicus sought the consent o f counsel for Respondent 
who declined to provide it, necessitating this motion. 

Respectfully submitted,

Ralph G. Steinhardt 
720 20th Street, N .W .
W ashington, D.C. 20052 
(202) 676-5739

Counsel o f Record for the 
International Human Rights 
Law  Croup

August 21, 1986



1

TABLE OF CONTENTS

Table of A uthorities ..................................,..............  ii
Interest o f  the Amicus .............................................  1

Summary of Argument ..............................     2
Argument ......................................................      4

I. 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........................................................  4

II. 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 .....................................................  8

III. 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. . 12

Conclusion ....................................................................... 17

Page



11

TABLE OF AUTHORITIES
Cases: Page
Barcelona Traction Light and Power Co., Ltd., [1970]

I.C.J. Rep. 32 .... ................................................... 11
Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313 (1971) ......  4
Chisolm v. Georgia, 2 Da. 419 (1793)   13
Coker v. Georgia, 433 U.S. 584 (1977)   15
Cook v. United States, 488 U.S. 102 (1983)    15
Eddings v. Oklahoma, 455 U.S. 104 (1982)    4
Enmund v. Florida, 458 U.S. 782 (1982) ..............  16
Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan.

1980), affd sub nom. Rodriguez-Fernandez v. 
Wilkinson, 654 F.2d 1382 (10th Cir. 1981) .....  14

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.
1980)     14

First National City Bank v. Banco Para el Com- 
mercio Exterior de Cuba, 103 S.Ct. 2591 
(1983)   13

Lauritzen v. Larsen, 345 U.S. 571 (1953) ............. 15
Legal Consequences for States of the Continued Pres­

ence of South Africa in Namibia (South West 
Africa) Notwithstanding Security Council Reso­
lution 276, [1971] I.C.J. Rep. 57 .. ............   11

McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985)
(en banc) ................................................................ 3, 7, 8

McCulloch v. Sociedad Nacional de Marineros de
Honduras, 372 U.S. 10 (1963)...............................  15

Murray v. The Charming Betsy, 6 U.S. (2 Cranch)
64 (1804) ........................................................... . 15

The Nereide, 13 U.S. (9 Cranch) 388 (1815)..............  13
North Sea Continental Shelf Cases, [1969] I.C.J. Rep.

37              14
The Paquete Habana, 175 U.S. 677

(1900) ..................... ...... ......................... 3, 12, 14, 16



Ill

Procunier v. Navarette, 434 U.S. 555 (1978) ........  4
Respublica v. DeLongchamps, 1 U.S. 119, 1 Dali. I l l

(O.&T. Pa. 1784) ...................................................  14
South West A frica Cases (Second Phase), [1966] I.C.J.

4    10
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 Craneh) 1 (1801) ...... 15
Trop v. Dulles, 356 U.S. 86 (1958) ................... 3, 15, 16
Vance v. Terrazas, 444 U.S. 252 (1980) ................  4
Village o f  Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252 (1977)   17
Ware v. Hylton, 3 U.S. (3 Da.) 199 (1796) ............ 13
Weinberger v. Rossi, 456 U.S. 25 (1982) ...............  15
Wood v. Georgia, 450 U.S. 261 (1981) .................... 4

Treaties, Declarations, Statutes, and Regulations

American Convention on Human Rights, signed Nov.
22, 1969, OAS Official Records OEA/Ser. K/ 
XVI/i.i, Doc. 65, Rev. 1, Corr. 1 (Jan. 7,
1970) ......................................................................... 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 ./
V/I. 4 Rev. (1965) ...............................................  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 
(1969) ........................................................................  10

Table of Authorities Continued
P a g e



IV

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/6015 (1965) .............................  10

The International Convention on the Elimination of 
All Forms of Racial Discrimination, opened fo r  
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. 2200A, 21 U.N. 
GAOR, Supp. (No. 16) ......................... . 9

International Covenant on Economic, Social, and Cul­
tural Rights, adopted Dec. 16, 1966, G.A. Res. 
2200A, 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.T. 2394, T.I.A.S. No. 2361 ........  9

United Nations Charter, signed June 26, 1945, en­
tered into force  October 24, 1945, 59 Stat. 1031,
T. S. No. 993 ........................ .................................  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 (III), 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 L. 875 (1969), 8 INT’L LEG.
MAT. 679 (1969) ...................................................  8

Legislative Materials:

S. Exec. Doc. L., 92d Cong., 1st Sess. (1971) ...... 9

Miscellaneous:

Table of Authorities Continued
P a g e



V

Table of Authorities Continued
P a g e

American Law Institute, Restatement of
Foreign Relations Law of the United States 
(Revised) (1986) ............................................... . 12, 13

Baldus, et al., Monitoring and Evaluating Contem­
porary Death Sentencing Systems: Lessons From 
Georgia, 18 U.C. DAVIS L. REV. 1375 
(1985) ................................................... .................7

Barnett, Some Distribution Patterns for the Georgia 
Death Sentence, 18 U.C. DAVIS L. REV. 1327 
(1985)     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 (1980).....................................  11

McKean, Equality and Discrimination Under Inter­
national Law (1983) ............................................  11

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 (January 1980) ................ ....... . 10

Op. Att’y Gen. 27 (1972)............... .............................. . 13
Santa Cruz, Racial Discrimination, U.N. Doc. E/CN.

41 Sub. 2/307/Rev. 1, 28 (1971)............................ 10
Zeisel, Race Bias in the Administration of the Death 

Penalty: The Florida Experience, 95 HARV. L.
REV. 456 (1981) ................................................... 7



IN THE

rnpreme Court of tf)e H m teti
October Term, 1986

>tatesf

No. 84-6811

W a r r e n  M c C l e s k e y ,

v.
R a l p h  M . K e m p ,

Petitioner,

Respondent.

On Writ Of Certorari to the 
United States Court 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.



2

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 o f this case. In 1980, 
the Law Group petitioned the Inter-Am erican Com ­
mission on Human Rights, an instrumentality o f the 
Organization o f Am erican 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 o f whose crimes are white and that such 
discrimination based upon the race o f the victim was 
in violation o f treaties to which the United States is 
a party. A fter 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 o f the issue by Am erican 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 com mitting reversible error.

SUMMARY OF ARGUMENT

With remarkable candor, the en banc Court of 
Appeals for the Eleventh Circuit accepted the factual 
findings o f  Petitioner’ s studies, namely that no factors 
other than race could account for the marked increase 
in capital sentences am ong those defendants whose



3

victims were white. Indeed, the court below expressly 
“ assumfed] the validity o f the research”  and acknowl­
edged “ that it proves what it claims to prove.”  
McCleskey v. Kemp, 753 F.2d 877, 886 (11th Cir. 1985) 
(en banc). The conclusion as a matter o f  law that this 
evidence established no violation o f 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 o f 
the rule o f decision. Under The Paquete Habana, 175 
U.S. 677 (1900) and its progeny, the Georgia death 
penalty statute should have been considered in light 
o f  the perem ptory norm o f 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 o f Petitioner’s rights is reversible error. At 
a minimum, the case should be remanded to the E lev­
enth Circuit Court o f Appeals for its analysis o f the 
limits imposed by this international obligation on the 
discretion o f State officials to administer the death 
penalty.

In addition, under Prop v. Dulles, 356 U.S. 86 (1958) 
and its progeny, the Eleventh Circuit should have 
consulted international standards in determining the 
contours o f the Eighth Am endm ent’s ban on cruel 
and unusual punishment.

Confining itself to the argument that each o f Ques­
tions Presented 1 through 5 should have been con­
sidered in light o f applicable international law,1

1 Although the international issues raised by Amicus were not 
presented to the courts below, this Court has established that



4

Amicus offers no opinion as to the circuit court’ s 
disposition o f  purely dom estic 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-Am erican Commission on Human Rights, an 
instrumentality o f  the Organization o f  Am erican 
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 o f  racially-based disparities in death 
sentencing based on the race o f  the victim. In par­
ticular, the evidence showed that a person convicted 
in the State o f Florida o f m urdering a white person 
was ten times more likely to receive the death penalty 
than one convicted o f  m urdering a black person.2 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 Illinois Foundation, 402 U.S. 
313, 320-21 n. 6 (1971).

2 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.



5

Texas, the ratio was eighteen to one.3 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 1977*
Estimated Persons Probability
Number of Sentenced of a Death

Race of Offender Offendersb 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 horn-
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

3 Id., at pp. 4a and 7a.



6

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 o f 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).

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 o f  
magnitude. And when the data are controlled for 
defendant’ s race, as noted, the defendant o f either 
race who kills a white person is twelve times more 
likely to be sentenced to death than the defendant o f 
either race who kills a black person (.060 versus .005).

In the proceedings before the Inter-Am erican Com ­
mission, the United States never challenged the va­
lidity o f these data or the statistical methods employed 
to produce them. Rather, the United States opposed 
the petition almost exclusively on the grounds that 
dom estic remedies for the redress o f such discrimi­
nation had not been exhausted, despite the denial o f 
certiorari in Spinkelink v. Wainwright, 578 F.2d 582 
(5th Cir. 1978), cert, denied, 404 U.S. 976 (1979). The 
United States assured the Commission that U.S. 
courts, including this Court, remained receptive to 
evidence dem onstrating the fact and extent o f dis­
crimination, and that they would respond fully and



7

fairly to any such demonstration. Opposition o f  the 
United States, Case 7465, Inter-American Commis­
sion on Human Rights (June 16, 1981). In light o f 
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 dom estic court 
in each individual case.

The Law Group’ s data, unchallenged and stark as 
they are standing alone, becom e especially compelling 
in light o f  other consistent and sophisticated dem­
onstrations o f  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 Administration o f  the Death Penalty: 
The Florida Experience, 95 H ARV . L. R E V / 456 
(1981); Gross, Race and Death: The Judicial Evalu­
ation o f Evidence o f Discrimination in Capital Sent­
encing, 18 U.C. DAVIS L. REV. 1275 (1985); Barnett, 
Some Distribution Patterns fo r  the Georgia Death Sen­
tence, 18 U.C. D AVIS L. RE V . 1327 (1985); Baldus, 
et a l, Monitoring and Evaluating Contemporary 
Death Sentencing Systems: Lessons From  Georgia, 18 
U.C. D AVIS L. REV. 1375 (1985). To Am icus’s 
knowledge, the only sustained attack on any o f  these 
studies is the en banc court’s treatment o f the Baldus 
study in the decision below. Though lengthy, that at­
tack suffers from  inconsistency4 and an apparent un­

4 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.



fam iliarity with rudim entary m athem atics.5 The 
evidence remains persuasive that there exists a 
marked, significant disparity in the susceptibility o f 
certain categories o f  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 governm ent-spon­
sored discrimination on the basis o f race is so uni­
versally accepted by nations as to constitute a 
perem ptory norm o f international law.6 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 
File Brief Amici Curiae and Brief Amici Curiae For Dr. Peter 
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.

6 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-



9

in such fundamental texts as the Charter of the 
United Nations7, and the Charter of the Organization 
of American States,8 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 rights9 and in

printed in 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 O.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 
3(j).

9 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/XVI/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] I.C.J. 
Rep. 37. Other treaties which prohibit racial discrimination are



10

numerous international declarations and resolutions.* 10 
The m ost authoritative o f these—the Universal D ec­
laration o f Human Rights11—sets forth in various 
form s a basic guarantee o f  rights and freedom s “ with­
out distinction o f  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 o f  the core 
human rights protected by international law .12 The 
renunciation o f  official racial discrimination is re­
flected as well in the laws and constitutions o f  a vast 
majority o f  states,13 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.

10 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, O.A.S. 
Res. XXX, adopted by the Ninth International Conference of 
American States, held at Bogota, Columbia (1948), OEA/SER.L./ 
V/I. 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 
1, 3.

11 G.A. Res. 217A(III), U.N. Doc. A/810 (1948).
12 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] I.C.J. 4, 299 (Tanaka, J., dissenting).



11

piece o f  contem porary human rights norms in the 
writings o f international law scholars.14

Recognizing this consistent and universal condem ­
nation o f racial discrimination, the International Court 
o f  Justice has concluded that “ the principles and rules 
concerning the basic rights o f  the human person, in­
cluding protection from  . . . racial discrimination,”  
constitute an international obligation o f 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 o f  race, colour, de­
scent or national or ethnic origin . . . 
constitutes a denial o f fundamental human 
rights [and] is a flagrant violation o f the pur­
poses and principles o f  the [U.N.] Charter.

Legal Consequences fo r  States o f  the Continued Pres­
ence o f South A frica in Namibia (South West Africa) 
Notwithstanding Security Council Resolution 276, 
[1971] I.C.J. Rep. 57. The cumulative power o f this 
international consensus has led the Am erican Law 
Institute to include “ systematic racial discrimination”  
in its authoritative catalogue o f  fundamental viola­
tions o f  customary international law. Am erican 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).



12

Institute, Restatement o f Foreign Relations Law o f the 
United States (Revised) § 702(f) (1986).15 16

Thus, the prohibition against governm ent-sponsored 
racial discrimination is firmly grounded in all o f the 
traditional sources o f custom ary international law set 
out by Mr. Justice Gray in The Paquete Habana, 175 
U.S. 677, 700 (1900). That norm, stated in com pre­
hensive and unqualified language, has never been lim­
ited in any authoritative way to demand some 
incontrovertible showing o f individualized intent. Sim­
ilarly, apparently unlike the Eighth and  ̂ Fourteenth 
Am endm ents as read by the Eleventh Circuit, it ad­
mits no defense o f degree. Although international law, 
like dom estic law, will not redress trifles, racial dis­
crimination o f the type admittedly and repeatedly 
dem onstrated in this case plainly falls within the cus­
tom ary international prohibition.
ITT 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 o f the 
law o f the United States and that, under the Su­
prem acy Clause o f the U.S. Constitution1̂  as inter­
preted, it “ must be ascertained and administered by 
the courts o f justice o f appropriate jurisdiction, as 
often as questions o f right depending upon it are duly 
presented for their determ ination.”  The Paquete Ha­
bana, 175 U.S. 677, 700 (1900). This basic principle

15 The ALI adopted the revised Restatement of Foreign Re­
lations Law at its meeting in Washington, D.C., on May 14-15. 
1986.

16 U.S. Const., Art. VI, Sec. 2.



13

has been accepted by this Court from  the earliest days 
o f  the Republic, Chisolm v. Georgia, 2 Da. 419, 474 
(1793) (“ Prior . . .  to that period [the date o f  the 
Constitution], the United States had, by taking a place 
am ong the nations o f  the earth, becom e amenable to 
the law o f 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 F irst 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 o f nations, although not specially adopted by the 
Constitution or any municipal act, is essentially part 
o f the law o f the land.” 17

The “ law o f 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 o f the practice 
o f  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 o f intergov­
ernmental bodies, public pronouncements by heads o f 
state, and empirical evidence o f the extent to which

17 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

custom ary law rules are observed. See North Sea Con­
tinental Shelf Cases, [1969] LC.J. Rep. 37. Unlike 
treaties which specify obligations only for their sig­
natories, custom ary international is binding on all na­
tions by virtue o f  membership in the international 
community. Consent is unnecessary, and ad hoc ob­
jection is unavailing.

As a matter o f  United States law, custom ary inter­
national law also creates enforceable rights and ob­
ligations for individuals. Thus, in The Paquete Ha- 
bana, supra, this Court held that the customary 
international law o f prize in time o f war created rights 
in an individual whose boat had been seized in vio­
lation o f  those norms. See also Respublica v. De- 
Long champs, 1 U.S. 119, 1 Dali. I l l  (0 . & T. Pa. 
1784); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.
1980) ; Fernandez v. Wilkinson, 505 F. Supp. 787 (D. 
Kan. 1980), affd  on other grounds sub nom., Rodri- 
guez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.
1981) . As The Paquete Habana teaches, when juris­
diction is clear, custom ary rights by their nature are 
enforceable by individuals in U.S. courts.18 Any other 
disposition would erect the anomoly o f a right without 
a remedy. Thus, in construing the Georgia death pen­
alty statute and Petitioner’ s sentence thereunder, the 
Eleventh Circuit Court o f  Appeals was obliged to 
“ ascertainQ and administer^”  international law, in­
sofar as “ questions o f  right”  depend upon it. 175 U.S. 
at 700.

18 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.



15

The argument here is not that international law in 
any sense displaces dom estic law. It is rather that 
statutes enacted by Congress or the state legislatures 
“ ought never to be construed to violate the law o f 
nations, if  any other possible construction rem ains.”  
Weinberger v. Rossi, 456 U.S. 25, 33 (1982), quoting 
M urray 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 o f  Georgia could not by statute sus­
pend the customary laws o f  war or diplomatic 
immunity within its territory. So too is its imple­
mentation o f  racial discrimination in the imposition 
o f  capital punishment a forbidden departure from  
binding customary international norms.

A t a minimum, this Court should reverse the de­
cision below on the ground that the Eighth Am end­
ment to the Constitution, as interpreted in light o f 
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 
Am endm ent “ must derive its meaning from  evolving 
standards o f decency that mark the progress o f  a 
maturing society.”  In determining the content o f these 
“ evolving standards,”  the Court noted that the vast 
majority o f  nations did not employ denaturalization 
as a punishment for desertion and concluded that such 
punishment would be “ cruel and unusual”  within the 
meaning o f  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 o f the death 
penalty for the rape o f 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 o f 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
tom ary norm more powerful or well-established than 
the prohibition o f  governm ent-sponsored racial dis­
crimination. Under Trop, Coker, and Enmund, there­
fore, petitioner’ s Eighth Am endm ent 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 o f  decency”  protected by the 
Eighth Amendment. The en banc court did not ad­
dress the relevant norms o f  international law as in­
corporated into federal common law, nor did it address 
whether the racial disparities alleged by Petitioner fall 
within the scope o f  the international prohibition. In­
stead, on the issue o f  discrimination, the en banc court 
o f appeals contented itself with considering only the 
contours o f dom estic law. The court’s apparent ne­
glect o f the perem ptory norm o f international law 
prohibiting racial discrimination cannot be squared 
with this Court’ s consistent adherence to the law of 
nations as providing the rule o f  decision, whenever a



17

litigant’ 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 o f 
discrimination was valid constitutes error which should 
be reversed by this Court.

CONCLUSION

“ Sometimes a clear pattern, unexplainable on 
grounds other than race, em erges from  the effect o f 
the state action even when the governing legislation 
appears neutral on its fa ce .”  Village o f Arlington  
Heights 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 o f  white and black lives in the 
State o f Georgia. Although the structure and precise 
results o f  these studies may vary, the conclusion does 
not. That the court below was willing to concede the 
discrim inatory im pact makes its affirm ation o f  
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 o f the Constitution as inter­
preted, and ignores the decisions o f this Court which 
establish the fundamental role o f international law in 
the law o f the United States and its persuasive role 
in interpreting the Eighth Amendment.



18

For all o f these reasons, Amicus respectfully urges 
this Court to reverse the decision o f the court o f 
appeals below.

Respectfully submitted,

O f Counsel:

Steven M. Schneebaum 
Patton, Boggs & Blow 
2550 M Street, N .W . 
Washington, D.C. 20037

* Ralph G. Steinhardt 
720 20th Street, N .W . 
W ashington, D.C. 20052 
(202) 676-5739

* Counsel o f  Record

Larry Garber
International Human Rights 

Law  Group
722 Fifteenth Street, N .W . 
Suite 1000
W ashington, D.C. 20005



APPENDIX



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. Boyd 
Notary Public

My Commission Expires:
Nov. 28, 1980

SEAL



2a

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 Probability
Number of Sentenced of a Death

Race of Offender Offenders’1 to Death Sentence
White 2265 72 .032'
Black 2606 61 .023

Race of Victim
White 2439 122 .050
Black 2432 11 .005

Offender [Victim 
Racial Combinations

Black Kills White 286 48 .168
White Kills White 2146 72 .034
Black Kills Black 2320 11 .005
White Kills Black 111 0 .000

All Offenders 4871 133 .027

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.

aThe 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).



3a

GEORGIA

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR CRIMINAL HOMICIDE BY RACE 
OF OFFENDER AND VICTIM IN GEORGIA FROM 
THE EFFECTIVE DATE OF THE POST-FLYMAN 

STATUTE THROUGH 1977

Estimated Persons Probability
Number of Sentenced of a Death

Race of Offender Offenders'1 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 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
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 1975 through De­
cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia.

aThe 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 
under cover age. 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).



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

Race of Offender
Number of 
Offendersa

Sentenced 
to Death

of a Death 
Sentence

White 3771 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).



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-FURMAN 

STATUTE THROUGH 1977

Estimated Persons Probability
Number of Sentenced of a Death

Race of Offender Offendersa to Death Sentence
White 307 54 .176
Black 251 50 .199

Race of Victim
White 432 97 .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).



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 Offendersa 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 134 34 .254
White Kills WLite 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.

aThe 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).



7a

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

OffenderfVictim 
Racial Combinations

Black Kills White 173 25 . .144
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 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).