Motions to File Amicus Briefs

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7 

No. 84-6811 
    

IN THE 

Supreme Court of the United States 
OcroBER TERM, 1986 

  

WARREN McCLESKEY, 
Petitioner, 

‘Ravpa M. KEMP, Superintendent, : 
ee Respondent. 

  

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

    

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE =~ 
AND BRIEF OF THE CONGRESSIONAL BLACK CAUCUS, 

THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 
~~ LAW, AND THE NATIONAL ASSOCIATION FOR THE 

~ ADVANCEMENT OF COLORED PEOPLE, AS AMICI CURIAE 

    

£7 Soma. Wain he he 
2 ~ Miller, Cassidy, Larroca & Lewin 

2555 M Street, Suite 500 
~ Washington, D.C. 20037 

~~ (R0R) R93-6400 : 
Counsel for the Congressional 

Black Caucus : 

YIaR0IE R. TyLER. J Rend 
J AMES ROBERTSON, Cochairmen 

~ NorMAN REDLICH, Trustee 
- Wirriam L. RoBINSON * 

Lawyers’ Committee for Civil 

Rights Under Law 

1400 I Street N.W., Suite 400 

Washington, D.C. 20005 

(ROR) 371-1212 

GROVER HANKINS, General Counsel 

NAACP Special Contribution Fund 
48085 Mount Hope Drive, Room 501 

Baltimore, MD 21215 

(301) 358-8900 

*Counsel of Record  



 



No. 84-6811 

IN THE 
SUPREME COURT OF THE UNITED STATES 

October Term, 1986 

  

WARREN McCLESKEY, 

Petitioner, 

Vv, 

RALPH M. KEMP, Superintendent, 

Respondent. 

  

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

  

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE 
OF THE CONGRESSIONAL BLACK CAUCUS, 

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

  

  

The Congressional Black Caucus, the 

Lawyers' Committee for Civil Rights Under 

Law, and the National Association for the 

Advancement of Colored People, respectfully  



  

move the Court pursuant to Supreme Court 

Rule 36.3, for leave to file the attached 

brief as amici curiae in support of 

Petitioner. Petitioner has consented to 

this filing, but Respondent has refused its 

consent. 

The Congressional Black Caucus is 

composed of all twenty black members of the 

United States House of Representatives. 

Its primary function is to implement and 

preserve the constitutional guarantee of 

equal justice under the law for all 

Americans, particularly black Americans. 

The Lawyers' Committee for Civil 

Rights Under Law is a nationwide civil 

rights organization that was formed in 1963 

by leaders of the American Bar, at the 

request of President Kennedy, to provide 

legal representation to blacks who were 

being deprived of their «civil rights. 

Since then, the national office of the 

Lawyers' Committee and its local offices 

   



have represented the interests of blacks, 

Hispanics and women in hundreds of cases 

challenging state and private actions based 

on race discrimination. Over a thousand 

members of the private bar, including 

former Attorneys General, former Presidents 

of the American Bar Association and other 

leading lawyers, have assisted it in such 

efforts. 

The National Association for the 

Advancement of Colored People is a New York 

nonprofit membership corporation, with some 

three million members nationwide. Its 

principal aims and objectives include 

eradicating caste or race prejudice among 

the citizens of the United States and 

promoting genuine equality of rights in the 

operation of its laws. 

Amici have a long-standing interest in 

insuring that no one is denied equal 

justice on the basis of race. We believed 

it well-established that the unequal  



I, 

application of criminal statutes on the 

basis of race is a violation of the 

Constitution. Yet in this case the Court 

of Appeals has held that a proven racial 

disparity in death sentencing does not in 

and of itself violate the Eighth and 

Fourteenth Amendments. In order to respond 

to this ruling we have asked to participate 

as amici. In our view, the holding of the 

Court of Appeals threatens the principle of 

equality under the law and undermines our 

efforts to realize this fundamental 

principle. 

Because the issues raised by this case 

go beyond the interests of Petitioner 

alone, and the implications of the Court of 

Appeals' decision affect the rights of all 

Americans we are dedicated to preserve, we 

believe our participation will be of 

assistance to the Court. 

 



For the foregoing reasons, we 

respectfully request that leave to 

participate as amici curiae be granted. 
  

Respectfully submitted, 

  

WILLIAM L. ROBINSON* 

HAROLD R. TYLER and 

JAMES ROBERTSON, Cochairmen 
NORMAN REDLICH, Trustee 

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

SETH P. WAXMAN 

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

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

*Counsel of Record  



   



TABLE OF CONTENTS 
  

  

  

  

Page 

TABLE OF AUTHORITIES * efoto Bk a ii. 

INTEREST OF THE AMICT vv. 0ite.oov o in 1 

SUMMARY OF ARGUMENT +. «+ + « ¢ +o 2 

ARGUME N T » LJ eo LJ LJ ® LJ LJ LJ LJ LJ - LJ 5 

I. THE EVIDENCE IN THIS CASE 

SHOWS THAT RACE REMAINS A 

DRIVING FORCE IN THE 

IMPOSITION OF CAPITAL 

SENTENCES IN THE STATE 

OF GEORGIA. Ve dees ive ete 5 

II. SIGNIFICANT RACIAL INFLUENCES 

IN DEATH-SENTENCING DECISIONS=-- 

CONSCIOUS OR UNCONSCIOUS=-- 

VIOLATE THE CONSTITUTION. . 18 

A, Any Significant Quantum 
of Racial Discrimination 
in Death Sentencing is 
Intolerable. sisi oc « +» +» 19 
  

B. In the Context of 

Sentencing Decisions, 
Proof of Actual Subjective 
Intent is Not Required to 
Establish a Prima Facie 
Case of Discrimination. . 

  

  

  

  

  

  

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

CONCLUSION « « + os 0 ¢ 2 2 oo » 

i. 

23 

36 

Kies  



TABLE OF AUTHORITIES 

CASES 

  

Alexander v. Louisiana 
408 U.S. 625 (1972) « v cv nins 

Amadeo v. Kemp 
773 F.24 1141 (11th Cir. 1985) 

Arlington Heights v. 
Metropolitan Housing Corporation 
420 0,8. 252 (1977. = ve a ov. 

Batson v. Kentucky 
106 S.Ct. "1712 (1988) "+ « « « « 

Bazemore v. Friday 
106 S.Ct. 3000(1986) . . . 12,25, 

Bowden v. Kemp 
793. F.24 273 {llth Cir. 1986) . . 

Briscoe v. LaHue 
460 U.8., 325 (1983) + ¢ + 4 0 2 

Burrows v. State 

640 P.2d4 533 (Ok. Crim. 1982) . 

Carter v. Texas 

177 U.5+.442 (1900) =o 3s +s o'¢ + 

Casteneda v. Partida 
430 U.S. 482 (1977) . «. . . 11,22, 

Chicago, Burlington & 
Quiney Railway v. Babcock 
204 UsSe B85 (1007) vc « os vs 

Coker v. Georgia 
433 U.S. 584 (1977) LJ LJ LJ LJ LJ LJ [J 

ii. 

28,35 

3,26 

27.31 

   



Coley v. State 
204 S.E.2d 612 (Ga. 1974) 

Davis v. Zant 

721:F.24 1478 (11th Cir. 1984) 

Eddings v. Oklahoma 
455a0.,8, 104:.(1982) ., .. , (754 

Estelle v. Gamble 

429 U.S. 97 (1976) 

Ex Parte Virginia 
100:U.5...667. 41879) .. « ideas 

Fayerweather v. Ritch 
195. U.S, 276 (1904) .. .. tial, 

Furman v. Georgia 
408 U.S. 238:(1972) .. .. ‘siivi, 

Gardner v. Florida 
430. U.S. 349. (1577) .. .. inTaL} 

Gates v. Collier 
501:F.24 1291:(5th cir. 1974) 

General Building Contractors 
Ass'n, Inc. v. Pennsylvania 
458:U.,8, 375.(1982Y . + . . . 

Godfrey v. Georgia 
446. UWS: 420 (1580) «oss wise 

Gregg v. Georgia 

41 

$230 

. 34 

«2.33 

“ii vB? 

25 

passim 

32,34 

33 

vii ad 

34,39 

495. 1.8, 153. (1976): » '. .« 4,5,36,37,40 

Hall v. State 

244 S.E.2d 833 (Ga. 1978) . . 

Hazelwood School District 
Vv. United States 

433 U.S. 299 (1977) + + « .2: 

jai. 

 



  

Jones Vv. Georgia 
389 U.S. 24 (1967) oie ete 4 

Lodge v. Buxton 
639 F.24 1358 (11th Cir. 1981) 

Loving v. Virginia 
3880.8. 1 (1967)... . a 3sL, 

McCleskey v. Kemp 
753 .F.24 877 (11th Cir. 1985) 

Norris v. Alabama 
294 U.S. 559 (1953) 

Rhodes v. Chapman 
452 U.8., 337 (1981) 

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

Rose v. Mitchell 
443 U.S. 545 (1979) 

Ross v. Kemp 
785 F.24 1467 (11th Cir. 19886) 

Rozcecki v. Gaughan 
459 F.2d 6 (1st Cir. 1972) . 

Shelly v. Kramer 
334 U.S. 1 (1948) . . . + =, 

Smith v. Texas 
311 U.S. 128 (1940) . . . +. 

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

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

Spivey v. State 
246 S.E.2d4 288 (Ga. 1978) . . 

iv. 

viens )2 

vs v-'14 

o 20. ¥120 

passim 

¢e=:2] 

> ¢>:32 

10,14,25,29,31 

17,215 

LJ LJ 30 

Ji, «33 

$7. 3527 

v +" 32 

sts :33 

« “9430 

. 38



State v. Osborn 

631.P.24 187 (Id. 1981) wv « ¢ ectnres:39 

Strauder v. West Virginia 
00 U.S. 6584 (1879+... , . , . 14,2 

Texas Dept. of Community 
Affairs v. Burdine 
450 U.S. 248 (1981) wiv isis ii ions vakdd 

Turner v. Fouche 

396 U8. 346. £1970) s0s0 sizeco ie smaly22 

Turner v. Murray 
106.8.CL. 1683 (19868) oni viin wits wiir27 

Ward v. State 

236.5.F.248 365 (Ca,-1977):« wus + s= #41 

Washington v. Davis 
426. 0,8. 239 (1076) sscsy ts oirec st syis20 

Whalen v. State 

492 A.2d 552 (Del. 1985) ii iN alr a2 SS 

Whiteley v. Albers 
106 S.Ct. 1078 (1986): s-% arte “opi: 25,33 

Whitus v. Georgia 
385 U.S, B4B (1067). a0, Co, 132. 32 

Willis v. Zant 
720. F.24 1212 °(11lth Cir. 1983) . iia 30 

Yick Wo v. Hopkins 
118, U.S, 356 (1888) . . . . . .... & £20 

Zant v. Stephens 
462.U.S. 862 (1983). 4 oie exe: 39,40,43 

 



RULES AND STATUTES 
  

Georgia Code Ann. §27-2534(b)(2) . 39 

OTHER AUTHORITIES 
  

Bentele, The Death Penalty in 
Georgia: Still Arbitrary 
62 WASH.U.L.Q. 573 + . + o.oo + +» 38,41 

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

Gillers, Deciding Who Dies 
129 U.PA.L.REV. 1 (1980) $e . +. ss 28 

Gross and Mauro, Patterns of Death 
37 STAN.L.REV. 27 (1984) . "+ +. . 6,7 

HIGGENBOTHAM, IN THE MATTER OF 
COLOR: RACE IN THE AMERICAN LEGAL 
PBOCESS 1978) . « « + oa + + + + + .13 

Joint Center for Political 
Studies, Black Elected Officials: 
A National Roster (1986) , . .”. . 30 

Joint Center for Political 
Studies, Black Judges in the 
United States (1986) *. «+ .“%": "30 

MYRDAL, AN AMERICAN DILEMMA 
(1944) LJ [J [J LJ LJ [J [J [J LJ [J ® LJ LJ LJ 16 

NAACP Legal Defense Fund 
Death Row U.S.A., August 1, 1986 . 5 

Stampp, The Peculiar Institution: 
Slavery in the Antebellum South 
(1956) LJ LJ LJ LJ @ [J LJ LJ LJ LJ LJ [J ® LJ] 14 

vi. 

  

al 

Le 

 



No. 84-6811 

IN THE 
SUPREME COURT OF THE UNITED STATES 

October Term, 1986 

  

WARREN McCLESKEY, 

Petitioner, 

¥. 

RALPH M. KEMP, Superintendent, 

Respondent. 

  

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

  

BRIEF OF AMICI CURIAE 
THE CONGRESSIONAL BLACK CAUCUS, 

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

  

  

INTEREST OF AMICI 
  

The interests of amici in this case 

are set out in the preceding Motion for 

Leave to File this Brief.  



  

SUMMARY OF ARGUMENT 
  

The exhaustive scientific proof in 

this case shows that race has retained a 

powerful influence on capital sentencing 

decisions in Georgia, since Furman Vv. 
  

Georgia, 408 U.S. 238 (1972). That 

confirms what is evident to even a casual 

observer: Just as before Furman, "a look 

at the bare statistics regarding executions 

is enough to betray much of the 

discrimination." 408 U.S. at 364 

(concurring opinion of Justice Marshall). 

The scientific evidence in this case tests 

every possible explanation for these 

apparent disparities, and shows nothing can 

explain them but the conscious or 

unconscious influence of race. It does so 

with a thoroughness and rigor which meet or 

exceed every standard this Court, or any 

other court, has ever set down for such 

proof. It cannot be simply explained away 

or ignored. 

    
 



  

The Court of Appeals' suggestion that 

the discrimination this evidence showed was 

of a tolerable magnitude is inconsistent 

with everything this Court has said about 

race discrimination in criminal justice. 

It also ignores the true magnitude of the 

racial disparities here, which matched or 

exceeded those the Court has found 

intolerable in related contexts. 

The Court of Appeals' insistence on 

proof of an intentional act of 

discrimination by an identified actor 

imposes "a crippling burden of proof," 

Ratson v. Kentucky, 106: :8.Ct..11712,/91720 
  

(1986) on claims of discrimination in this 

context. There is no justification for 

imposing such an extraordinary burden here: 

Death sentencing is quintessential state 

action; it involves such a range of 

discretion and such a multitude of decision 

makers that proof of a particular 

discriminatory act or animus is unnecessary  



    

and unrealistic. In such circumstances, 

the kind of strong statistical proof 

presented here, coupled with a history of 

discrimination, sufficiently shows 

"purposeful discrimination" under any 

established and realistic Fourteenth 

Amendment standard. Moreover, the separate 

requirements of the Eighth Amendment place 

on the states a duty to avoid 

discrimination in death sentencing which is 

independent of any particular actor's 

subjective intent. 

The evidence here shows that the hope 

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

has not been realized. Georgia's uniquely 

discretionary post-Furman system has not 

removed discrimination from the imposition 

of death sentences in that state. 

  
  

   



  

ARGUMENT 
  

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

Since this Court's decision in Gregg 

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

of Georgia has carried out seven 

executions. Six of the seven men executed 

were blacks convicted of killing whites; 

the victim in the seventh case was white, 

also.l If this Court affirms the Court of 

Appeals' decision in this case, it appears 

that pattern will persist: Of the fifteen 

men Georgia holds under death sentences now 

in force which precede Warren McCleskey's 

in time, thirteen are black; nine of the 

  

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



  

thirteen had a white victim; so did both of 

the two white defendants in this group.? 

These figures are particularly 

striking when one considers that black 

people constitute a substantial majority of 

the victims of all homicides in the state 

of Georgia, and black-on-white homicides 

are extremely rare.3 Although these raw 

figures are certainly not scientific proof, 

no fair-minded observer who is aware of the 

history of race relations in this state can 

confront them without suspecting that 

racial inequities persist in the manner in 

which capital defendants are chosen for 

execution by the Georgia judicial system. 
  

2 See Appendix I. 

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

  

of Death, 37 STAN.L.REV. 27, 56 (1984). 

    

 



  

The evidence presented in this case is 

strict scientific proof; and it tragically, 

but unmistakably, confirms that suspicion. 

From Professor Baldus' most preliminary 

measures (which showed white victim cases 

nearly 11 times more likely to receive 

death sentences than black victim cases, 

D.Ct. Exhibit: DB-1:62), to his most 

comprehensive and refined (which showed 

race Of victim to multiply the odds: of 

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

the evidence presented here shows the 

influence of race in the Georgia system 

persists, however it is examined. All 

other observers have reached the same 

conclusions, whatever methods and data they 

have used.4 

  

4 See Gross & Mauro, supra, n.2; 
Bowers and Pierce, Arbitrariness and 
Discrimination Under the Post-Furman 
Capital Statutes, 26 CRIME AND DELINQUENCY 
563 (1980). 

  

  

  

   



    

These persistent findings admit only 

three conceivable explanations: Either (1) 

some or all of the actors in the Georgia 

criminal justice system empowered to make 

decisions affecting the imposition of the 

death penalty are intentionally 

discriminating by race; or (2) the 

discretionary aspects of the Georgia death 

sentencing system allow subconscious racial 

biases to influence the outcome of death 

sentencing decisions; or (3) some unknown 

nondiscriminatory influence is at work, and 

accounts for these persistent disparities 

in a way no one has yet fathomed. 

No one would deny the first of these 

possibilities violates the Constitution. 

As we will discuss in Part II below, in the 

context of the Georgia capital sentencing 

system, the second does as well. We must 

first pause, however, to consider the third 

possible explanation, which the Court of 

Appeals' majority seized upon when it 

   



faulted the Petitioner's proof for 

supposedly "ignor[ing] quantitative 

differences in cases: looks, age, 

personality, education, profession, job, 

clothes, demeanor, and remorse, just to 

  

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

F.2d: 877-=(11th. Cir." 19885). With all 

respect, this remarkable assertion is wrong 

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

and as a matter of common sense. 

The factual error in the Court of 

Appeals statement is both striking and 

revealing. Striking is the fact that 

several of the precise variables the Court 

of Appeals pointed to were taken into 

account by Professor Baldus' data.® 

Revealing is the list of new variables the 

  

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



  

  

Court of Appeals conjured up: N1ookSs 

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

Not only is it unimaginable that such 

criteria could serve as legitimate 

justifications for a death sentence; they 

would be obvious proxies for race prejudice 

if they were in fact used.® For as Judge 

Clark in his dissenting opinion below 

noted, "it is these differences that often 

are used to mask, either intentionally or 

unintentionally, racial prejudice." 

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

n.24. The Court of Appeals' resort to 

these farfetched hypotheticals illustrates 

how comprehensive Professor Baldus' data 

are: No one has yet suggested any factors 

he did not take into account which could 

  

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

a0 

es CE ————



plausibly and fairly explain death 

sentencing outcomes. 

As. a matter of law, the Court of 

Appeals' error lies in its holding that 

even such thoroughness was not enough, 

demanding that statistical proof of 

discrimination eliminate such nebulous and 

speculative influences. The breadth of the 

Baldus studies--which accounted for over 

230 nonracial variables--far exceeds any 

other ever offered to meet a prima facie 

standard of proof announced by this court.’ 

And as the Court has recently reiterated, 

one cannot dismiss or rebut a sophisticated 

regression analysis--or any prima facie 

proof of discrimination, for that matter-- 

"declar[ing] simply that many factors go 

into making [the relevant decision)", 

without any "attempt ... to demonstrate 
  

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

  

  

  

  

ll  



  

that when these factors were properly 

organized and accounted for there was no 

  

significant disparity between ... blacks 

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

3000, 3010-11 n.l4 (1986).8 Yet the 

Eleventh Circuit majority did just that. 

The Court of Appeals' strain to find 

unexplained variables defies common sense 

because it ignores the social context and 

history in which the substantial racial 

discrepancies identified by Professor 

Baldus were found. The differing treatment 

of murder defendants in Georgia, based on 

their race and the race of their victim, is 

no newly-discovered phenomenon. In 

Georgia's earliest history, established law 

provided as follows: 

  

8 Accord Alexander v. Louisiana, 
405 U.S. 625, 631=32 (1972); WMiitus Vv. 

Georgia, 385 U.S. 545 (1967): Jones V. 
Georgia, 389 U.S. 24 (1967). 

  

  

  

12 

 



  

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

* * * 

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

Yet conversely, when a white person killed 

a slave: 

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

HIGGENBOTHAM, IN THE MATTER OF COLOR: RACE 

IN THE AMERICAN LEGAL PROCESS 256, 253-4 

13 

 



(1978) .°2 

This legal system--with its 

differential treatment of blacks as 

defendants and victims--was explicitly 

among the "discriminations which are steps 

toward reducing [blacks] ess o7%£0. the 

condition of a subject race," that the 

Fourteenth Amendment was enacted to 

  

  

  
  

abolish. Strauder v. West Virginia, 100 

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

South 210 (1956). 

This history, though ancient, remains 
relevant. As Judge Fay wrote in Lodge Vv. 
Buxton, 639 PF.24 1358, 1381 n.46:(11th Cir. 
1981), aff'd sub nom Rogers v. Lodge, 458 
U.S5.:613 (1982): 

  

  

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

14 

 



U.S. 664, 665 (1879).10 vet as this Court 

has too often had occasion to recognize, 

for a hundred years that noble effort 

utterly failed to overcome the entrenched 

social conditions that the antebellum laws 

reflected and reinforced. Thus, in 1944-- 

well within the lifetimes of most of the 

participants in Georgia's legal system 

today--Gunnar Myrdal observed: 

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

* * * 

  

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

  

15 

 



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

de * * 

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

* * * 

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

MYRDAL, AN AMERICAN DILEMMA, 551-553 

(1944). 

16 

 



Such deeply-rooted biases die hard. 

The lesson of Professor Baldus' data is 

that although the influence of these social 

forces may have diminished and are no 

longer openly acknowledged, they still 

weigh significantly in the balance that 

decides life and death in Georgia's 

judicial system. As the Court noted in Rose 

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

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

To pretend race prejudice has vanished 

or never existed, to conjure hypothetical 

explanations for persistent discrepancies 

that obviously reflect its influence, is to 

forget the reality that the Fourteenth 

Amendment was enacted to address, and this 

Court has long been vigilant to guard 

against. 

17 

 



II. SIGNIFICANT RACIAL INFLUENCES 

IN DEATH-SENTENCING DECISIONS-- 

CONSCIOUS OR UNCONSCIOUS=-- 
VIOLATE THE CONSTITUTION. 

The Court of Appeals' ruling goes 

beyond quibbling about hypothetical 

uncontrolled variables in the Baldus study. 

Indeed, the «court's majority said it 

accepted, for purposes of its decision, the 

validity of Professor Baldus' study, and it 

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

claims to prove." McCleskey Vv. Kemp, 
  

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

court held that proof insufficient to raise 

even a prima facie case under the Eighth or 

  

Fourteenth Amendments. It gave two basic 

reasons for this: the supposedly 

insignificant magnitude of the racial 

disparities the evidence showed; and the 

lack of direct proof of a discriminatory 

motive. We will briefly address these each 

in turn. 

18 

 



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

  

  

  

In part, the Court of Appeals seemed 

to agree McCleskey showed bias--just not 

enough bias. Absent proof of subjective 

discrimination by capital jurors or other 

decisionmakers in the sentencing scheme, it 

said statistical proof of racial bias 

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

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

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

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

  

  

  

  

  

  

  

19 

 



ce —— 

penalty than murderers of blacks. 
  

(Emphasis added.) 

That any court in this day and age 

could simply dismiss admittedly valid, 

comprehensive proof because it "only" 

demonstrated that race is an influential 

factor in capital sentencing is astounding. 

Amici have long understood that unequal 

enforcement of criminal statutes based upon 

racial considerations violates the 

Fourteenth Amendment. Such racial 

disparity, whatever its magnitude, has "no 

legitimate overriding purpose independent 

of invidious racial discrimination," Loving 

Vv. Virginia, 388 U.S. 1, 11 (1967); Yick Wo 

v. Hopkins, 118 U.S. 356 (1886); cf. Furman   

Vv. Georgia, supra, 408 U.S. 238, 389 n.12   

(dissenting opinion of Chief Justice 

Burger) . For well over 100 years, this 

Court has consistently interpreted the 

Equal Protection Clause to prohibit all 

racial discrimination in the administration 

20 

   



of the criminal justice system.ll 

While questions concerning the 

necessary quantum of proof have 

occasionally proven perplexing, no federal 

court until now has ever, to our knowledge, 

seriously suggested that racial 

discrimination at any level of magnitude, 

if clearly proven, can be constitutionally 

tolerated. Yet that is precisely the 

holding of the Court of Appeals. 

Moreover, even if the magnitude of 

discrimination were relevant, the evidence 

here demonstrates an extraordinary racial 

effect. The regression models the Court of 

Appeals focused on, for example, showed the 

increased likelihood of a death sentence, 

if the homicide victim is white, is .06, or 

  

Lk See, e.dq., Strauder wv. West 
Virginia, supra; Carter v. Texas, 177 U.S. 
442 (1900); Norris v. Alabama, 294 U.S. 559 
(1253). Turner -v. Fouche, 396 U.S. :..346 
(1970); Rose Vv. Mitchell, supra; General 
Building Contractors Ass'n, Inc. Vi 
Pennsylvania, 458 U.S. 375, 382-91 (1982); 
Briscoe v. lLaHue, supra, 460 U.S. at 337- 

    

  

  

  

  

  

  

  

40. 

 



six percentage points, holding all other 

factors constant. 753 r.24 at 886-7. 

Since the average death-sentence rate among 

Georgia cases is only .05, the fact that a 

homicide victim is white, rather than 

black, more than doubles the average 

likelihood of a death sentence (from .05 to 

.11) .12 In plainest terns, these 
  

12 1t is important to note that 
these figures, and all those Prof. Baldus 
used to express the racial disparities he 
found, are different from the raw numbers 
used to measure racial disparities in jury 
challenges. In those cases, the Court has 
generally compared the raw percentages of 
minority persons selected for jury service 
with the population as a whole. See, e.q., 
Casteneda V. Partida, supra (40% 
disparity); Turner v. Fouche, 396 U.S. 346 
(1970) (23% disparity); Whitus v. Georgia, 
supra (18% disparity). 

  

  

  

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

22 

   



percentages suggest that, among every 100 

homicide cases in Georgia, 5 would receive 

a death sentence if race were not a factor: 

in reality, where white victims are 

involved, 11 out of 100 do. Six defendants 

are thus sentenced to death, who would not 

be but for the race of their victims. 

"Stated another way, race influences the 

verdict just as much as any one of the 

aggravating circumstances listed in 

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

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

of Appeals' bland suggestion that race 

affects at most a "small percentage of the 

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

this harsh reality. No analysis true to 

the Fourteenth Amendment can condone it. 

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

  

    

  

  

  

The question Professor Baldus' data 

does not and cannot answer is whether the 

23  



A E—————————E i i 

impact of race on Georgia's death 

sentencing system is the result of 

deliberate discrimination or unconscious 

racial influences on the actors who are 

part of it. Can it be that resolution of 

this issue--on which proof may be 

impossible--is a prerequisite to relief? 

We believe not. The dispositive issue is 

whether, not why, race is a significant 

influence on sentencing decisions. 

The Baldus study demonstrates that 

race is a significant influence. The Court 

of Appeals holds that this pattern affronts 

no constitutional principles. That cannot 

be the law. If race is a significant 

factor in capital sentencing outcomes, 

whatever subjective intent lies behind this 

factor--be it conscious or unconscious--is 

constitutionally irrelevant. 

The significance of the subjective 

intent in claims of discrimination and 

cruel and unusual punishment has occupied 

24 

 



this Court's attention several times in 

recent years. See, e.d., Bazemore VV. 
    

Friday, supra; Whiteley vv. Albers, 106 
  

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

In every instance, the Court's answer has 

reflected a realistic focus on the context 

in which the challenged governmental action 

occurs. Here, that focus militates against 

a“ iholding~ that “proof ‘of ‘an Tact “of 

intentional discrimination by an identified 

decision maker should be essential to 

showing a constitutional violation. 

Most fundamentally, requiring proof of 

subjective intent in the sentencing context 

raises an impossible burden. Jurors 

"cannot be called ... to testify to the 

motives and influences that led to their 

verdict." Chicago, Burlington & OQuinevy 
  

Railway -v. Babcock, 204 U.S. 585, 593 
  

(1907). Neither is it seemly or proper to 

so question judges about the motives for 

their decisions. Fayerweather v. Ritch, 
  

25  



195 U.S5. 276, 306 (1904). And as Justice 

Marshall recently observed, "l[a]lny 

prosecutor can easily assert facially 

neutral reasons for [his actions] ... and 

trial courts are ill-equipped to second 

guess those reasons." Batson v. Kentucky, 
  

supra, 106... S.Ct, at 1728 - {concurring 

opinion). Moreover, the influence of race 

prejudice may well be unconscious, unknown 

to the decision-makers themselves. Ibid. 

"Defendants cannot realistically hope 

to find direct evidence of discriminatory 

intent." McCleskey Vv. Kemp, supra, 753 
  

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

Only last Term this Court reiterated that 

the Equal Protection Clause does not permit 

shouldering a defendant with "a crippling 

burden of proof" in order to make out a 

prima facie case of discrimination. Batson 
  

Y. -Xentucky, supra, 106 S.Ct. at 11720. 
  

There is no reason to except from that 

here. 

26 

 



The death sentence decisionmaking 

process is one controlled from stem to 

stern by the state; everything about 

capital sentencing is state action.l13 

Nowhere does the "voluntary and unfettered 

choice of private individuals", Bazemore Vv. 
  

Friday, supra, 106 S.Ct. at 3012 

(concurring opinion), intervene. At the 

same time, death sentencing decisions are 

highly discretionary, see Turner v. Murray, 
  

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

demonstrate in the following section of 

this brief, Georgia's statutory capital 

sentencing scheme does less to guide 

discretion than any other this Court has 

reviewed since Furman. 

Where official grants of discretion 

provide "the opportunity to discriminate" 

and "the result bespeaks discrimination", 

this Court has found the Constitution is 

  

  

13 Cf. Shelly v. Rramer, 334 U.S. 1, 
15 (1948); Ex Parte Virginia, 100 U.S. 667, 
669 (1879). 
  

27  



violated "whether or not it was a conscious 

decision on the part of any individual" to 

discriminate. Alexander v. Louisiana, 405 
  

U.S. 625, 632 (1972). Even though "[t]he 

facial constitutionality of the ... system 

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

selection procedure that is susceptible of 

abuse ... supports the presumption of 

discrimination raised by the statistical 

showings." Casteneda v. Partida, supra, 
  

430 U.S. at 497, 494. 

This is especially true where, as 

here, the discretionary decision is not an 

individual one, but the collective one 

involving a multitude of individuals. When 

decisionmaking responsibility is diffused, 

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

Arlington Heights v. Metropolitan Housing 
  

  

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

28 

 



such systems, for practical purposes, there 

is no difference between subjective intent 

and objective results. As Justice Stevens 

explained in Washington v. Davis, supra: 
  

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

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

It is also significant that capital 

sentencing occurs in an arena in which 

blacks have traditionally lacked the means 

to defend themselves through participation 

in the process. Cf. Rogers v. Lodge, 
  

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

opinion of Justice Stevens); Casteneda v. 
  

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

(dissenting opinion of Justice Powell). 

The legacy of past discrimination, if 

nothing else, has kept blacks from equal 

participation as prosecutors and judges, 

29  



the officials who can influence death 

penalty decisions in Georgia.l4 And one 

need not look beyond recent casebooks to 

find evidence that blacks--at least at the 

time of Warren McCleskey's trial--often 

lacked an equal voice on Georgia juries, as 

well.ld This--and the history of 

discrimination in capital sentencing this 

Court acted on in Furman--highlights the 

significance of objective disparities: 

  

14 Even today, there are no elected 
black District Attorneys anywhere in 

  

Georgia. Joint Center for Political 
Studies, Black Elected Officials: A 
National Roster 113 (1986). only 2.3% 
  

(20/865) of Georgia judges are black. 
Ibid; Joint Center for Political Studies, 
Black Judges In The United States 38-40 
(1986). At the time of Warren McCleskey's 
trial there were less than a quarter that 
number (4)--and not one in a court with 
jurisdiction over a capital case. Joint 
Center for Political Studies, Black Elected 
Officials: A National Roster 53 (1976). 

  

  

  

15 See, e.q., Bowden v. Kemp, 793 
F.2d 273 (11th Cir. 1986); Spencer v. Kemp, 
784 F.24 458 "(11th Cir. 1986); "Ross Vv. 
Kemp, 788 F.2d 1467 . (llth Cir. 1986): 
Amadeo v. Kemp, 773 F.2d 1141, 1143 (11th 
Cir. 1985): Davis v. Zant, 721 F.24 1478 
(11th Cir. 1984); Willis v. Zant, 720 F.2d 
1212, 1217-18 (11th Cir. 1983). 

  

  

  

  

  

30 

 



Evidence of historical 
discrimination is relevant to 
drawing an inference of 
purposeful discrimination, 
particularly in cases such as 
this one where the evidence shows 
that discriminatory practices 
were commonly utilized, but that 
they were abandoned when enjoined 
by courts ... and that they were 
replaced by laws and practices 
which, though neutral on their 
face, served to maintain the 
status quo. 

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

see also Bazemore v. Friday, supra, 106 
  

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

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

  

Finally, it is significant that the 

discrimination here falls in the most 

central core area to which the Fourteenth 

Amendment was directed. "Discrimination on 

the basis of race, odious in all its 

aspects, is especially pernicious in the 

administration of justice." Rose Vv. 
  

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

of racial equality in the context of 

criminal justice "not only violates our 

Constitution and the laws enacted under it, 

31  



THESE hee EEE 

but is at war with our basic concepts of a 

democratic society and a representative 

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

130 (1940). And where the criminal law 

involves the death sentence, 

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

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

(1977) . 

The fact the death penalty is involved 

here, of course, means this is an area in 

which the Eighth Amendment must play a part 

in addition to the Fourteenth. Throughout 

its jurisprudence, the Court has found the 

touchstone of Eighth Amendment analysis in 

results, not intentions. See Rhodes Vv. 
  

chapman, 452... U.S. 337,:2:364+.: {198)) 

(concurring opinion of Justice Brennan): 

32 

 



id. at 345-46 (plurality opinion).16 

"Deliberate indifference" to deprivations 

of constitutional magnitude has, in all but 

the rarest circumstances, been held 

sufficient to make out a claim under the 

Eighth Amendment. [Estelle v. Gamble, 429 
  

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

penalty cases have repeatedly charged the 

states with the responsibility, not just to 

avoid "indifference", but to positively 

insure "that general laws are not applied 
  

16 The lower federal courts have 
read this Court's decisions to mean that 
"wrongful intent is not a necessary element 
for an Eighth Amendment violation." Spain 
Y. Procunier, 600 F.2d 189, 197 (9th Cir. 
1979); see Gates v. Collier, 501 F.2d 1291, 
1300-01 (5th Cir. 1974): Rozcecki v. 
Gaughan, 459 F.2d 6, 8 (1st Cir. 1972). 

  

  

  

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

  

33  



—— 

sparsely, selectively, and spottedly to 

unpopular groups." Furman Vv. Georgia, 
  

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

of Justice Douglas); see also id. at 274 

(concurring opinion of Justice Brennan). 

"[C]apital punishment [must] be imposed 

fairly, and with reasonable consistency, or 

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

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

made it clear that departures from that 

rule are intolerable, regardless of the 

motives that created them. See Furman Vv. 
  

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

opinion of Justice White). 

  

18 Accord, Gardner v. Florida, 
supra, 430 U.S. at 351 (1977) ("[T)lhe state 
must administer its capital sentencing 
procedures with an even hand."); Godfrey v. 
Georgia, 446 U.S. 420, 428 (1980) ("If a 
state wishes to authorize capital 
punishment ic has a constitutional 
responsibility to tailor and apply its laws 
in a manner that avoids the arbitrary and 
capricious infliction of the death penalty.") 

  

  

34 

 



Everything in this Court's 

jurisprudence to date suggests that 

differential treatment by race in death 

sentencing should be the subject of the 

strictest judicial scrutiny of any 

governmental action. If, in this context, 

overwhelming, comprehensive proof of racial 

disparities--proof that excludes every 

plausible, legitimate explanation other 

than the influence of race bias--is not 

enough, where can it be? 

The answer this Court has given before 

is that it is enough to prove that a state 

has failed to break a historical pattern of 

discrimination, and that discretionary 

decisions have produced "a clear pattern, 

unexplainable on grounds other than race." 

Arlington Heights v. Metropolitan Housing 
  

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

reason to change that answer now. 

35  



— 

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

Gregg V. Georgia expressed this 
  

Court's hope that a new Georgia death 

sentencing system could eradicate the 

inequities that had led to the invalidation 

of its predecessor in Furman. Of all the 

statutory schemes reviewed by this Court in 

1972, the Georgia system differed the least 

from those struck down in Furman. But it 

was a new statute, and the Court 

understandably declined to "accept the 

naked assertion that the effort [to purge 

the system of discrimination] is bound to 

fail", 428 uU.s. at. 222 (concurring 

opinion). It is now apparent--from 

experience, not assertion--that it has. 

The reason for this must lie in the 

way the Georgia statute is written or 

enforced. The enforcement of the law, of 

course, is the primary responsibility of 

36 

 



district attorneys. In Greqgq, the Court 

refused to assume, without proof, "that 

prosecutors [will] behave in a standardless 

fashion in deciding which cases to try as 

capital felonies...." 428 U.S. ‘at 225 

(concurring opinion). The evidence in this 

case strongly suggests that they have. 

Lewis Slayton, the District Attorney 

whose office tried Warren McCleskey, 

testified in this case that the decision- 

making process in his office in capital 

cases was "probably ... the same" before 

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

Other Georgia prosecutors have candidly 

admitted that their decisions to seek, or 

not to seek, death sentences are often 

based on a variety of "factors other than 

the strength of their case and the 

likelihood that a jury would impose the 

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

225--including office resources, subjective 

opinions about the defendant, public 

37  



they yw pw 

pressure, the standing of the victims, and 

even the desire "to obtain a more 

conviction prone jury through the 

Witherspoon qualification." Bentele, The 
  

Death Penalty in Georgia: Still Arbitrary, 
  

62 WASH.U.L.Q. 573, 616-621 (1985). It is 

therefore hardly surprising that the 

outcome of these prosecutorial decisions 

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

Prof. Baldus found them a source of 

substantial disparities based on race of 

both the defendant and the victim. See 

D.Ct. Exhibit DB 95-6. 

When capital charges are pursued, the 

structure of Georgia's law gives juries 

uniquely broad and unguided discretion. 

Unlike virtually all other states, Georgia 

does not provide juries with lists of 

aggravating and mitigating factors, or any 

statutory formula for balancing them 

38 

 



against one another.l1® See Spivey wv. 
  

State, 246 S.E.2d 288 (Ga. 1978). Unlike 

most states, Georgia does not limit its 

Juries to consideration of statutory 

aggravating factors, Zant v. Stephens, 462 
  

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

factors often do not substantially narrow 

the class of persons eligible for a 

sentence of death.20 

  

19 virtually all other states' death 
penalty laws list mitigating circumstances 
(except Texas, which is unique); the vast 
majority also provide guidelines for 
balancing them against aggravating factors. 
Gillers, Deciding Who Dies, 129 U. PA. L. 
REV. .1, 102-119 (1980)... Of the four states 
that do not provide for a listing of 
mitigating factors by statute, three do by 
judicial decision. Whalen v. State, 492 
A.2d 552, 560-2 (Del. 1985); State Vv. 
Osborn, 631 P.24..187,- 197..-(Xd...:1981); 
Burrows v. State, 640 P.2d 533 (Ok. Crim. 
1982). The exception is South Dakota, 
which has had no death sentences and no 
appellate decisions. 

  

  

  

  

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

  

39  



ESS 

This discretion has not been 

controlled by the provision for special 

review by the Georgia Supreme Court, the 

major feature of the Georgia system which 

impressed this Court in Gregg, and appeared 

to distinguish Georgia's law from the pre- 

Furman statutes. Zant v. Stephens, supra, 
  

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

concurring opinion in Gregg emphasized the 

potential importance of this review: 

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

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

Gregg, that apparent protection has proven 

illusory. The Georgia Supreme Court has 

40 

 



never reversed a single death sentence 

based on a finding of passion, prejudice, 

or race discrimination. Nor has it reduced 

a murder sentence as disproportionate to 

the sentences imposed in other cases for 

comparable crimes.?21 

In light of the evidence in this case, 

that means that for thirteen years, the 

Georgia Supreme Court has presided over a 

system that demonstrably discriminates on 

the basis of race and done nothing to 

correct it. Whether this reflects a 

  

24 Since 1974--when it partly 
anticipated Coker v. Georgia, 433 U.S. 584 
(1977) by reversing a single rape death 
sentence as disproportionate, Coley Vv. 
State, 204 S.E.2d 612 (Ga. 1974)--the 
Georgia court has freed only two men from 
death judgments without finding legal 

  

  

  

error. One of them had received a life 
sentence in a previous trial. Ward v. 
State, 236 'S.E.24 365 (Ga. '1977). The 
other was a nontriggerman, whose 
codefendant received a death sentence. 
Hall v. State, 244 S.E.2d 833 (Ga. 1978). 
Although the Georgia court did not so hold 
--and three of its Justices dissented each 
time--both sentences were probably 
independently invalid under the federal 
Constitution. See Bentele, supra, 62 WASH. 
U.L.Q. at 594-5. 

  

41  



ESS 

"deliberate indifference" to race 

discrimination or--more likely--a systemic 

inability to identify it when it occurs, 

the result is the same: The hope this 

Court expressed in Gregg has not been 

realized. 

As Chief Justice Burger recognized in 

his Furman dissent (408 U.S. at 389 n.l1l2): 

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

  

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

Georgia's post-Furman statute was not shown 

to fit that description in Gregg; but it 

has been now. The discriminatory pattern 

is more complex and involves both the race 

of the defendant and the race of the 

victim. But the proof of discrimination is 

clear and compelling. 

42 

 



This wide-open statutory system has 

permitted prosecutors and jurors, 

consciously or unconsciously, to "attach[] 

the 'aggravating' label to factors that are 

constitutionally impermissible or totally 

irrelevant to the sentencing process," Zant 
  

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

race of the defendant and victim. From 

Furman to Zant, this Court has said that 

the Constitution will not’ allow such 

discriminatory factors to govern the 

allocation of death sentences. It should 

so hold now. 

43 

 



CONCLUSION 
  

The decision of the Court of Appeals 

should be reversed. 

  Respectfully submitted, 

  

WILLIAM L. ROBINSON* 

HAROLD R. TYLER and 
JAMES ROBERTSON, Cochairmen 
NORMAN REDLICH, Trustee 

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

SETH P. WAXMAN 

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

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

*Counsel of Record 

August 21, 1986 

44 | 

 



 



   



APPENDIX I 

Race of Defendant and Victin 
  

Georgia Death Sentences Currently In Force, 
Preceding Warren McCleskey's In Time.l 

Race of Race of 
Defendant Victim 

Willie X Ross black white 

Timothy McCorquodale white white 

Wiley Dobbs black white 

William Neil Moore black black 

Marcus Chenault black black 

William Mitchell black white 

James Spencer black white 

David Peek black black 

Joseph Mulligan black black 

Carzell Moore black white 

Johnny Lee Gates black white 

Son Fleming black white 

Henry Willis black white 

Bobb Redd white white 

Robert Collier black white 
  

hi Source: NAACP Lega. Defense 
Fund, Death Row U.S.A., August 1, 1986 
  

(race of defendant and status of case); Ms. 
Tanya Coke, NAACP Legal Defense Fund (race 
of victim).  



 



No. 84-6811 
  

  

IN THE 

Supreme Court of the United States 
October Term, 1984 

  

WARREN McCLESKEY, 
Petitioner, 

against 

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

Respondent. 

  

On Petition For 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 FOR THE 

CONGRESSIONAL BLACK CAUCUS IN SUPPORT 

OF THE PETITION FOR CERTIORARI 

  

  

Hon. JouN CoNYERS, JR. 
2313 Rayburn House Office Bldg. 

Washington, D. C. 20515 

*Sera P. WAxMAN 

2555 M Street, N.W. 
Suite 500 

Washington, D. C. 20037 

Attorneys for Amicus Curiae 

* Attorney of Record 

  

   





TABLE OF CONTENTS 
  

Page 

Table Of Authorities ...cvevr enna ii 

Motion For Leave To File 

Brief Amicus Curiae ..s:uvsensvs iv 
  

SUMMAYrY OF ATGQUMENnt ..svesvres orev 1 

Argument 

Neither The Eighth Amendment 
Nor The Equal Protection Clause 
Of The Fourteenth Amendment 
Allow Courts Or Juries Sys- 
tematically To Punish Black 
Defendants, Or Those Whose 
Victims Are White, More 
Severely For Similar Crimes 
Than White Defendants, Or 
Those Victims Are Blacks ..... 3 

CONCLUSION costs ss cesenssnssnninns 10 

 



  
 
  



TABLE OF AUTHORITIES 
  

Page 

Avery v. Georgia, 345 U.S. 559 
{1953) © © 0 0 0 0 0 0 0 0 0 0 0 00 0 0 0 0 0 0 000 7 

Briscoe v. LaHue, 460 U.S. 325 
(1983) © 2 0 9 0 0 0 0 0 0 0 0 0 0 0 0 0 ® oo 0 0 0 0 6 

Carter v. Texas, 177 U,S. 442 

(1900) ivnesvsvsvsvsnsnnnes Seve 6 

Castaneda v. Partida, 430 U.S. 482 
(1977) ® © 9 © 0 0 0 0 9 0 0 0 0 0 0 0 0 00 0 0 0 0 9 

Furman v. Georgia, 408 U.S. 238 
{1972) ® © 9 8 0 0 © 0 0 00° 0 0 0 0 0 0 0 0 0 0° 00 6 

General Building Contractors 
Ass'n, Inc. v. Pennsylvania, 
458 U.S. 375 (1982) sone Sees 6 

Hazelwood School District v. 
United States, 433 U.S. 299 
LI977) ose sesso nevvanessurnnne 9 

Loving v. Virginia, 388 U.S. 
(1967) vs iecivenr vores Vere iene 6 

McCleskey v. Kemp, 753 F.2d 877 

{11th Cir. 1985)(en 

DANCY oi cs esvsnseenveeees ¥i,vii,5,5 

Norris v. Alabama, 294 U.S. 587 
{1935) © © 0 0 0 © © 0 0 02 00 0 00 0 00 80 00 6 

Rose v, Mitchell, 443 U.S. 545 

(1979) © © 0 0 8 0 0 0 0 0 0 0 2 0 0 00 00 0 0 00 7 

Strauder v. West Virginia, 100 U.S. 
303 (1880) co vnsientveiosnrnnrtnrsnash 

-—iit -  



 
 

  
 



Page 

Texas Dep't of Community Affairs 
v. Burdine, 450 U.S. 248 
(1981) ® © © © © © 6 9 © 0 8 0° 0 0 0 0 0 0 0 0° 0 0 0 9 

Turner v. Fouche, 396 U.S. 3460 

(1970) © © 0 0 0 2 0 0 0 9 9 0 0 0 0 0 0 0 0B 0 00 7 

Yick Wo v. Hopkins, 118 U.S. 
356 (IBBO) senses vosaverssreen 6 

zant v. Stephens, 462 U.S. 862 
(1983) ® © 0 0 0 0 0 0° 0 0 0 0 0 00 00 0 0 0 0 00 viii 

- 311i ~  



 
 
 



No. 84-6811 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

  

On Petition For Writ of Certiorari 

To The United States Court of Appeals 
For The Eleventh Circuit 

  

MOTION FOR LEAVE TO 
FILE BRIEF AMICUS CURIAE 
  

  

The Congressional Black Caucus 

respectfully moves this Court, pursuant to 

- iy  





Rule 36.1 of its Rules, for leave to file 

the attached brief amicus curiae in 
  

support of Warren McCleskey's petition for 

certiorari in this case. The consent of 

the petitioner has been obtained. Counsel 

for respondent, however, has declined our 

request for consent, necessitating this 

motion. 

The Congressional Black Caucus ("the 

Caucus") is composed of ~all 20. black 

members of the United States House of 

Representatives. The primary function of 

the Caucus 1s to implement and preserve 

the constitutional guarantee of equal 

justice under the law for all Americans, 

particularly black Americans. 

 





The Caucus requests leave to file a 

brief amicus curiae to make plain the 
  

troubling constitutional implications 1it 

finds in. the opinion of the Court of 

Appeals, and the consequent importance to 

black citizens of the issues raised by the 

McCleskey v. Kemp case. 
  

Warren McCleskey has presented 

substantial evidence that racial discrimi- 

nation is at work in the capital punish- 

ment statutes of the State of Georgia. His 

claims, based primarily on the comprehen- 

sive studies of Professor David Baldus, 

are well-documented, and ‘the State's 

contrary evidence appears insubstantial 

and unpersuasive. 

We come before this Court, however, 

not to debate the merits of McCleskey's 

evidence, for the Court of Appeals itself 

did not decide against McCleskey by 

dismissing his factual case. Instead, it 

- yl -  





explicitly accepted, for purposes of the 

appeal, the validity of the Baldus study, 

and assumed that McCleskey v. Kemp, 753 
  

F.24: 877, 886 (11th Cir. 1985) (en hanc) 

"proves what it claims to prove." Id. 

Even so, the Court of Appeals reasoned 

that petitioner has stated no claim under 

the Eighth or Fourteenth Amendments. 

IL is this extraordinary constitu- 

tional ruling that prompts our interven- 

tion ‘as amicus curlae. Even while 
  

acknowledging substantial disparities by 

race in Georgia's death sentencing rates 

-- approaching twenty percentage points in 

the midrange of homicide cases -- and an 

overall average racial disparity exceeding 

gix percentage points, ‘the! Court of 

Appeals holds that Eighth and Fourteenth 

Amendments are unaffected. 

If this troubling opinion goes unre- 

viewed, fundamental constitutional issues 

- vii -  





long ago settled in this nation will once 

again be open to serious question. It is 

cause enough for grave concern if the 

pattern of executions now being carried 

out in this country is infected by racial 

discrimination. Yet if a federal court 

may announce that such discrimination 

makes no legal difference, 1f it holds 

that such a pattern affronts no constitu- 

tional principles, the time has come, the 

Caucus believes, for this Court to be 

heard. 

As the ultimate guardian of our 

constitutional values, this Court cannot 

afford to overlook a pronouncement, by a 

majority of the United States Court of 

Appeals for the Eleventh Circuit sitting 

en banc, that appears to condone some 

measure of racial ® discrimination in 

capital sentencing. This Court has noted 

that "Georgia may not attach the 'aggra- 

- viii -  





vating' label to factors that are consti- 

tutionally impermissible or totally 

irrelevant to the sentencing process, such 

as .,.. race," Zant vy. Stephens (11) 462 
  

U.S. 862, 885 (1983), Yet the McClesgkey 
  

opinion threatens to give de facto 

sanction to just such a practice. The 

Caucus, one of whose principal aims is to 

ensure that equal justice under law 

remains: a reality for all citizens, 

respectfully requests leave to file this 

brief amicus amicus to address these 
  

important issues. 

Dated: June 28, 1985 

Respectfully submitted, 

HON. JOHN CONYERS, JR. 

2313 Rayburn House Office Bldg. 
washington, D.C. 20515 

*SETH P. WAXMAN 

2555 M S{reet, N.W. 

Suite 500 
Washington, D.C. 20037 

ATTORNEYS FOR AMICUS CURIAE 
  

  

By: 

*Attorney of Record 

-— ix  





No. 84-6811 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

- against -~ 

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

Respondent. 

  

On Petition For Writ of Certiorari 
To The United States Court of Appeals 

For The Eleventh Circuit 

  

BRIEF AMICUS CURIAE OF THE 

BLACK LEGISLATIVE CAUCUS 
  

  

SUMMARY OF ARGUMENT 
  

The Court of Appeals, for purpose of 

Warren McCleskey's appeal, has accepted 

the validity of his statistical evidence  





demonstrating (i) that black defendants, 

or those whose victims are white, are 

substantially more likely to receive death 

sentences in the State of Georgia than are 

white defendants, or those whose victims 

are black; and (il) that these record 

disparities are not explained by any of 

over 230 other legitimate sentencing 

factors. Despite this overwhelming proof 

that race plays a part Georgia's capital 

sentencing system, the Court of Appeals 

had held that neither the Eighth nor the 

Fourteenth Amendments are implicated, 

apparently because it finds the magnitude 

of the racial influence to be relatively 

minor. Viewed as a statement of legal 

principle, this opinion by the Court of 

Appeals is astonishing; it turns its back 

on a consistent, hundred-year history of 

interpretation of the Equal Protection 

Clause. Viewed as a statement of fact, 

the opinion is equally deficient. It  





misunderstands the true magnitude and 

importance of the statistical results 

reported in the Baldus studies. Under any 

analysis, the opinion deserves review by 

this Court. 

ARGUMENT   

NEITHER THE EIGHTH AMENDMENT NOR THE 

EQUAL PROTECTION CLAUSE OF THE FOUR- 

TEENTH AMENDMENT ALLOW COURTS OR JURIES 

SYSTEMATICALLY TO PUNISH BLACK DEFEN- 

DANTS, OR THOSE WHOSE VICTIMS ARE 

WHITE, MORE SEVERELY FOR SIMILAR CRIMES 

THAN WHITE DEFENDANTS, OR THOSE WHOSE 

VICTIMS ARE BLACK 

The Baldus studies examine the dis- 

position by Georgia's criminal justice 

system of a wide range of homicides 

committed over a seven-year period from 

1973 through 1979, Baldus and his 

colleagues collected data from official 

state files on over 500 items of informa- 

tion for each case, providing a comprehen- 

sive picture of the crimes, the defen-  





dants, the: victims, and the strength of 

the State's evidence. After employing a 

variety of accepted social scientific 

methods to analyze his data -- each of 

which the Court of Appeals assumed to be 

valid for purposes of McCleskey's appeal 

-- Baldus reported that "systematic and 

substantial disparities exist in the 

penalties imposed upon homicide defendants 

in the State of Georgia based upon the 

race of the homicide victim," (Fed. Hab. 

Tr. 726-27) (Professor Baldus), and to a 

slightly lesser extent, "upon the race of 

the defendant." (Id.) Baldus found no 

"legitimate factors not controlled for in 

[his] analyses which could plausibly 

explain the persistence of these racial 

disparities.” (Id. 728). 

In short, the Baldus studies conclude 

that race continues to play a real, 

systematic role in determining who will 

receive life sentences and who will be 

 





executed in the State of Georgia. By 

assuming the truth of those conclusions, 

the Court of Appeals has sharply focused 

the underlying constitutional issue on 

this appeal: does proven racial discrimi- 

nation in capital sentencing violate the 

Eighth or Fourteenth Amendments. The 

astonishing answer of the Court of Appeals 

is that it does not. 

The Court does take lssue with the 

Baldus studies on the exact magnitude of 

the racial effect -- whether it is nearer 

six percentage points or twenty points. 

See. McCleskey Vv. Remp, 753 P.24 877, 
  

896-23 (11th. Cir. -1985)(en banc). That 

question, however, seems plainly beside 

the point. The Black Caucus has long 

understood that unequal enforcement of 

criminal statutes based upon racial 

considerations violates the Fourteenth 

Amendment. "Such distinctions, whatever 

no legitimate their magnitude, have 

 





overriding purpose independent of invidi- 

ous racial discrimination... [justifying] 

the classification,” Loving v. Virginia, 
  

388 U.S. 1, 11 (1987); Yick Wo 'v. Hopkins, 
  

118 ‘U.S. 356 (1886); cf. Furman v. Geor- 
  

gia, 408 U.S. 238, 389 n,12 (Burger, C.J., 

dissenting). 

One of the chief aims of the Equal 

Protection Clause was to ‘eliminate of 

discrimination against black defendants 

and black victims of crime. Sse General 
  

Building Contractors Ass'n, Inc. ve. 
  

Pennsylvania, 458 U.S. 375, 382-91 (1982); 
  

Briscoe vv, LaHue, 460 U.S. 325, 337-40 
  

(1983). Indeed, for well over 100 years, 

this Court has consistently interpreted 

the Equal Protection Clause to prohibit 

racial discrimination in the administra- 

tion of the criminal justice system. See, 

e,g.,, Strauder v, West Virginia, 100 U.S. 
  

303 (1880); Carter v., Texas, 177 U.S. 442 
  

{1900); Norris v, Alabama, 294 U.S. 587 
  

 





(1935): Avery v. Georgia, 345 U.8.7559 
  

(1953), Turney v. Touche, 396 U.S. 346 
  

(1970): ‘Rose ' v, ‘Mitchell, 443 U.8, 545 
  

{(-1979). While questions concerning the 

necessary quantum of proof have occasion- 

ally proven perplexing, no federal court 

until now has ever, to our knowledge, 

seriously suggested that racial discrimi- 

nation at any level of magnitude, if 

clearly proven, can be constitutionally 

tolerated. Yet that 1s precisely the 

holding of the Court of Appeals. 

Moreover, even if the magnitude of 

discrimination were a relevant constitu- 

tional consideration, Warren McCleskey's 

evidence has demonstrated an extraordinary 

racial effect. The increased likelihood 

of a death sentence if the homicide victim 

is white, for example, is .06, or six 

percentage points, holding all other 

Factors. constant. Since the average 

death-sentence rate among Georgia cases is  



  

               

   



only .05, the fact that a homicide victim 

is white, rather than black, increases the 

average likelihood of a death sentence by 

120%, ‘from .05 to ,11.\. The suggestion of 

the Court of Appeals that race affects at 

most a "small percentage of the cases," 

McCleskey v, Kemp, supra, 753 F.24 at 899, 
  

scarcely does justice to these figures. 

In plainest terms, these percentages 

suggest that, among every 100 homicides 

cases in Georgia, 5 would receive a death 

sentence 1f race were not a factor; in 

reality, where white victims are involved, 

14. out-of 100 do. Six defendants are 

sentenced to death with no independent 

explanation other than the race of their 

victims. 

Furthermore, the racial disparities 

are far more egregious among those cases 

where death sentences are most frequently 

imposed. Baldus' studies demonstrate 

that, among the midrange of cases, the 

 



   



race 'of victim has ‘a ,20, or twenty 

percentage: point impact in addition to 

every other factor considered, Such 

results simply are intolerable under our 

Constitution, especially when the stakes 

are life and death. 

We are tempted to believe that the 

Court: of Appeals’ opinion reflects, in 

part, less a conscious decision to 

tolerate racial discrimination than a 

sense that the Baldus studies are not 

sufficiently reliable. However, accepted 

at face value as the Court announces it 

has done, the Baldus studies account for 

over 230 non-racial variables, and far 

exceed any reasonable prima facie standard 
  

of proof ever announced by this Court. 

See generally, Texas Dept, of Community 
  

Affairs v. Burdine, 450 U.S. 248 (1981); 
  

Hazelwood School District v. United 
  

States, 433 U.S. 299 (1977); Castaneda v, 
  

Partida, 430 U.S. 482 (1977). 

 



   



- 10 = 

The practical effect of the McCleskey   

holding, therefore, will be to declare 

that capital punishment may be imposed and 

carried out throughout the states of the 

Eleventh Circuit =-- Georgia, Florida, and 

Alabama -- even if race continues to 

influence sentencing decisions in those 

states. We strongly urge the Court to 

grant certiorari to review the opinion of 

the Court of Appeals 

CONCLUSION 
  

The petition for certiorari should be 

granted. 

Dated: June 28, 1985 

Respectfully submitted, 

HON. JOHN CONYERS, JR. 

2313 Rayburn House Office Bldg. 
Washington, D.C. 20515  





*SETH P. WAXMAN 

2555 M Street, N.W. 

Suite 500 
Washington, D. C. 20037 

ATTORNEYS FOR AMICUS CURIAE 
  

By: 
  

*Attorney of Record 

 





CERTIFICATE OF SERVICE 
  

I hereby certify that I am a member of 

the bar of this Court, and that I served 

the annexed Motion for Leave to File Brief 

Amicus Curiae and Brief Amicus Curiae on 
  

  

the parties by placing copies in the 

United States mail, first class mall, 

postage prepaid, addressed as follows: 

John Charles Boger, Inc. 
NAACP Legal Defense Fund 
99 Hudson Street 

New York, New York 10013 

Mary Beth Westmoreland, Esq. 
132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

Martin F. Richman, Esq. 
Barrett, Smith, Shapiro 

Simon & Armstrong 
26 Broadway 
New York, New York 10014 

Ralph G. Steinhardt, Esq. 
Patton, Boggs & Blow 
2550 M Street, N.W. 

Washington, D.C. 20037  



  

«83307 BAR PRESS, Inc., 132 Lafayette St., New York 10013 — 966-3906 

(2998) 
   



  

No. 84-6811 RECEIVED 
reer E RED 

ad 28 1985 

  
  

jw x 

IN THE 

Supreme Cet of the Hite 
October Term, 1984 

      

  

WARREN McCLESKEY, 
Petitioner, 

against 

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

Respondent. 

  

On Petition For 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 FOR THE 

CONGRESSIONAL BLACK CAUCUS IN SUPPORT 

OF THE PETITION FOR CERTIORARI 

    

Hon. JouN CoNYERs, JR. 
2313 Rayburn House Office Bldg. 

Washington, D. C. 20515 

*SeTH P. WAXMAN 

2555 M Street, N.W. 

Suite 500 

Washington, D. C. 20037 

Attorneys for Amicus Curiae 

* Attorney of Record 

  

   





TABLE OF CONTENTS 
  

Page 

Table Of ‘Authorities ....ccevieisss ii 

Motion For Leave To File 

Brief Amicus Curiae ....¢veuss iv 
  

Summary of Argument ....cseeerceca, 1 

Argument 

Neither The Eighth Amendment 
Nor The Equal Protection Clause 
Of The Fourteenth Amendment 
Allow Courts Or Juries Sys- 
tematically To Punish Black 
Defendants, Or Those Whose 

Victims Are White, More 
Severely For Similar Crimes 
Than White Defendants, Or 
Those Victims Are Blacks ..... 3 

CONCLUSION sss rer srtnsassvesisvinse 10 

 



   
 

 



TABLE OF AUTHORITIES 
  

Page 

Avery v. Georgia, 345 U.S. 559 
(1953) © © 9 0 0 0 °° 0 0 9° 0 PO O00 O° SO 0 7 

Briscoe v. LaHue, 460 U.S. 2325 
(1983) © © 00 0 0 0 00 0 0 0 00 0 0 0 0 0 00 ° 6 

Carter v. Texas, 177 U.S. 442 

{1000 es cvis sn rsvvivitsosvanves 6 

Castaneda v. Partida, 430 U.S. 482 
(1977) ® © ® © © © © © ° 5 © 0 9% O° O° 0 OO 0° 6 O° 0 0 9 

Furman v. Georgia, 408 U.S. 238 
{1972) © © 0 0 © 0 0 0 0 00 09 0 0 00 0 0 0 0 00 6 

General Building Contractors 
Ass'n, Inc. v. Pennsylvania, 
458 0.8, 375 (1982) .aevessnen 6 

Hazelwood School District v. 

United States, 433 U.S. 299 
(1977) ® © © © © © 0 © 8 9 ° 4 0 0° OOP 8 0 oo 9 

Loving v. Virginia, 388 U.S. 1 
(1067) coccnvnrsvnrsnsseervane 6 

McCleskey v. Kemp, 753 F.2d 877 

{11th Cir. 1985)(en 
DANCY sve svonseveeceseness Vi,vii,s,8 

Norris v. Alabama, 294 U.S. 587 
{1935) ® © 0 © © 0 © 0 9 0 0 0 0 0 0 0° 0 00 00 00 6 

Rose v. Mitchell, 443 U.S. 545 
(1979) ® © © 2 © ® © © 6 © 6 © © O° 0&6 OS 0 0° 0 0° 0° 8 7 

Strauder v. West Virginia, 100 U.S. 
303 (1880) A se SEER Na 

-iii - 

 



   
 
 



Page 

Texas Dep't of Community Affairs 
y,., Burdine, 450 U.S. 248 
(1981) vs vectivnnnes irises “oh 9 

Turner v. Fouche, 396 U.S. 346 

(1970) ® © © 0 0 9 0 0 0 0 9 5 0 0 0S 00 0 0s 0 7 

Yick Wo v. Hopkins, 118 U.S. 
356 (188D8) cuss vrecrrcvsprnnss 6 

Zant v. Stephens, 462 U.S. 862 
CIDOB) ev se nears nrinisnsisinn viii 

- 311i ~ 

 



  
 
 

 
 

 
 

 



No. 84-6811 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

  

On Petition For Writ of Certiorari 

To The United States Court of Appeals 
For The Eleventh Circuit 

  

MOTION FOR LEAVE TO 
FILE BRIEF AMICUS CURIAE 
  

  

The Congressional Black Caucus 

respectfully moves this Court, pursuant to 

- iv ~ 

 





Rule 36.1 of its Rules, for leave to file 

the attached brief amicus curiae in 
  

support of Warren McCleskey's petition for 

certiorari in this case. The consent of 

the petitioner has been obtained. Counsel 

for respondent, however, has declined our 

request for consent, necessitating this 

motion. 

The Congressional Black Caucus ("the 

Caucus") is composed of all 20 black 

members of the United States House of 

Representatives. The primary function of 

the Caucus is to implement and preserve 

the constitutional guarantee of equal 

justice under the law for all Americans, 

particularly black Americans. 

 



 
 

 



The Caucus requests leave to file a 

brief amicus curiae to make plain the 
  

troubling constitutional implications 1it 

finds in the opinion of the  Courti:'of 

Appeals, and the consequent importance to 

black citizens of the issues raised by the 

McCleskey v. Kemp case. 
  

warren McCleskey has presented 

substantial evidence that racial discrimi- 

nation is at work in the capital punish- 

ment statutes of the State of Georgia. His 

claims, based primarily on the comprehen- 

sive studies of Professor David Baldus, 

are well-documented, and the State's 

contrary evidence appears insubstantial 

and unpersuasive. 

We come before this Court, however, 

not to debate the merits of McCleskey's 

evidence, for the Court of Appeals itself 

did not decide against McCleskey by 

dismissing his factual case. Instead, it 

 



   



explicitly accepted, for purposes of the 

appeal, the validity of the Baldus study, 

and assumed that McCleskey v. Kemp, 753 
  

r.24 877, 886: (11th Cir. 1985)(en banc) 

"proves what 1t claims to prove." Id. 

Even so, the Court of Appeals reasoned 

that petitioner has stated no claim under 

the Eighth or Fourteenth Amendments. 

It: is this extraordinary constitu- 

tional ruling that prompts our interven- 

tion as amicus curiae. Even while 
  

acknowledging substantial disparities by 

race in Georgia's death sentencing rates 

-- approaching twenty percentage points in 

the midrange of homicide cases -- and an 

overall average racial disparity exceeding 

six percentage points, the Court of 

Appeals holds that Eighth and Fourteenth 

Amendments are unaffected. 

If this troubling opinion goes unre- 

viewed, fundamental constitutional issues 

- vii -  



   



long ago settled in this nation will once 

again be open to serious question. It is 

cause enough for grave concern if the 

pattern of executions now being carried 

out in this country is infected by racial 

discrimination. Yet if a federal court 

may announce that such discrimination 

makes no legal difference, if 1it holds 

that such a pattern affronts no constitu- 

tional principles, the time has come, the 

Caucus believes, for this Court +o be 

heard. 

As the ultimate guardian of our 

constitutional values, this Court cannot 

afford to overlook a pronouncement, by a 

majority of ‘the United States Court of 

Appeals for the Eleventh Circuit sitting 

en banc, that appears to condone some 

measure cf racial ‘discrimination in 

capital sentencing. This Court has noted 

that "Georgia may not attach the 'aggra- 

-wviii -  



   



vating' label to factors that are consti- 

tutionally impermissible Or totally 

irrelevant to the sentencing process, such 

as Jo, race.h: Zant v, Stephens (11) 462 
  

U.8, 862, 885..(1983). Yeti ithe McCleskey 
  

opinion threatens toc give de facto 

sanction to just such a practice. The 

Caucus, one of whose principal aims is to 

ensure that equal justice under law 

remains . a reality :for. all -.citizens, 

respectfully requests leave to file this 

brief amicus amicus to address these 
  

important issues. 

Dated: June 28, 1985 

Respectfully submitted, 

HON. JOHN CONYERS, JR. 

2313 Rayburn House Office Bldg. 
Washington, D.C. 20515 

*SETH P. WAXMAN 

2555 M Street, N.W. 

Suite 500 

Washington, D.C. 20037 

ATTORNEYS FOR AMICUS CURIAE 
  

By: 
  

*Attorney of Record 

—ii -  





No. 84-6811 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

  

On Petition For Writ of Certiorari 

To The United States Court of Appeals 
For The Eleventh Circuit 

  

BRIEF AMICUS CURIAE OF THE 

BLACK LEGISLATIVE CAUCUS 
  

  

SUMMARY OF ARGUMENT   

The Court of Appeals, for purpose of 

Warren McCleskey's appeal, has accepted 

the validity of his statistical evidence  





demonstrating (i) that black defendants, 

or those "whose victims are white; are 

substantially more likely to receive death 

sentences in the State of Georgia than are 

white defendants, or those whose victims 

are black; and (ii) that these record 

disparities are not explained by any of 

over 230 other legitimate sentencing 

factors. Despite this overwhelming proof 

that race plays a part Georgia's capital 

sentencing system, the Court of Appeals 

had held that neither the Eighth nor the 

Fourteenth Amendments are implicated, 

apparently because it finds the magnitude 

of the racial influence to be relatively 

minor. Viewed as a statement of legal 

principle, this opinion by the Court of 

Appeals is astonishing; it turns its back 

on a consistent, hundred-year history of 

interpretation of the Equal Protection 

Clause. Viewed as a statement of fact, 

the opinion is equally deficient. It  





Aizunderstands the true magnitude and 

importance of the statistical results 

reported in the Baldus studies. Under any 

analysis, the opinion deserves review by 

this Court. 

ARGUMENT 
  

NEITHER THE EIGHTH AMENDMENT NOR THE 

EQUAL PROTECTION CLAUSE OF THE FOUR- 

TEENTH AMENDMENT ALLOW COURTS OR JURIES 

SYSTEMATICALLY TO PUNISH BLACK DEFEN- 

DANTS, OR THOSE WHOSE VICTIMS ARE 

WHITE, MORE SEVERELY FOR SIMILAR CRIMES 

THAN WHITE DEFENDANTS, OR THOSE WHOSE 

VICTIMS ARE BLACK 

The Baldus studies examine the dis- 

position by Georgia's criminal justice 

system of a wide range of homicides 

committed over a seven-year period from 

1973 through 19179, Baldus and his 

colleagues collected data from official 

state files on over 500 items of informa- 

tion for each case, providing a comprehen- 

sive picture of the crimes, the defen- 

 





dants, the victims, and the strength of 

the State's evidence. After employing a 

variety of accepted social scientific 

methods to analyze his data -- each of 

which the Court of Appeals assumed to be 

valid for purposes of McCleskey's appeal 

-- Baldus reported that "systematic and 

substantial disparities exist in the 

penalties imposed upon homicide defendants 

in the State of Georgia based upon the 

race Of the homicide victim," (Fed. Hab. 

Tr. 726-217) (Professor Baldus), and to a 

slightly lesser extent, "upon the race of 

the defendant." (Id.) Baldus found no 

"legitimate factors not controlled for in 

[his] analyses which could plausibly 

explain the persistence of these racial 

disparities.” (Id. 728), 

In short, the Baldus studies conclude 

that ‘race ‘continues "to play a ‘real, 

systematic role in determining who will 

receive life sentences and who will be  





executed in the State of Georgia. By 

assuming the truth of those conclusions, 

the Court of Appeals has sharply focused 

the underlying constitutional issue on 

this appeal: does proven racial discrimi- 

nation in capital sentencing violate the 

Eighth or Fourteenth Amendments. The 

astonishing answer of the Court of Appeals 

is that it does not. 

The Court does take issue with the 

Baldus studies on the exact magnitude of 

the racial effect -- whether it is nearer 

six percentage points or twenty points. 

See. McCleskey. Vv. Xemp,: 753. PF.24 817, 
    

896-98 (11th Cir. 1985)(en banc). That 

question, however, seems plainly beside 

the point. The Black Caucus has long 

understood that unequal enforcement of 

criminal statutes based upon racial 

considerations violates the Fourteenth 

Amendment. Such distinctions, whatever 

their magnitude, have "no legitimate 

   





overriding purpose independent of invidi- 

ous ‘racial discrimination ... [justifying] 

the classification," Loving v. Virginia, 
  

388 U.S. 1, 11-1967); Yick Wo v. Hopkins, 
  

  

118 0.8... 356 (1886); Ct. Furman v, Geor- 

gia, 408: U.8. 238, 389 n.12 (Burger, C.J., 

dissenting). 

One of the chief aims of the Equal 

Protection Clause was to eliminate of 

discrimination against black defendants 

and black victims of crime. See General 
  

Building Contractors Ass'n, Inc. Vv. 
  

bennsylvania; 458 U.S. 375, 382-91 (1982); 
  

Briscoe vv, ‘LaHue, 460 U.S. 325, 337-40 
  

(1983). Indeed, for well over 100 years, 

this Court has consistently interpreted 

the Equal Protection Clause to prohibit 

racial discrimination in the administra- 

tion'of the criminal justice system.’ See, 

e.g., Strauder v, West Virginia, 100 U.S. 
  

303 (1880); Carter v, Texas, 177 U.B. 442 
  

(1900); Norris wv. Alabama, 294 U.S. 587 
  

   





1933) Avery v. Georgia, 345 01.5. 559   

(1953); . Turner. v.,  Pouche,: 396. 0.8. 346   

(1970) Rose vy, Mitchell, "443: U.S. 545   

(1979). While questions concerning the 

necessary quantum of proof have occasion- 

ally proven perplexing, no federal court 

until now has ever, to our knowledge, 

seriously suggested that racial discrimi- 

nation at any level of magnitude, 1if 

clearly proven, can be constitutionally 

tolerated. Yet that is precisely the 

holding of the Court of Appeals. 

Moreover, even if the magnitude of 

discrimination were a relevant constitu- 

tional consideration, Warren McCleskey's 

evidence has demonstrated an extraordinary 

racial effect. The increased likelihood 

of a death sentence if the homicide victim 

is: whitey for example, sis ,06, or six 

percentage points, holding all other 

factors. constant, Since the average 

death-sentence rate among Georgia cases is  





only .05, the fact that a homicide victim 

is white, rather than black, increases the 

average likelihood of a death sentence by 

120%, from:.05 : to 11. The suggestion of 

the Court of Appeals that race affects at 

most a "small percentage of the cases,” 

McCleskey v. Kemp, supra, 753 F.2d at 899, 
  

scarcely does justice to these figures. 

In plainest terms, these percentages 

suggest that, among every 100 homicides 

cases in Georgia, 5 would receive a death 

sentence if race were not a factor; in 

reality, where white victims are involved, 

23: out Of 100 do. Six defendants are 

sentenced to death with no independent 

explanation other than the race of their 

victims. 

Furthermore, the racial disparities 

are far more egregious among those cases 

where death sentences are most frequently 

imposed. Baldus' studies demonstrate 

that, among the midrange of cases, the 

   





race of victim has a :.20, ¢0r: twenty 

percentage point impact in addition to 

every other factor considered. such 

results simply are intolerable under our 

Constitution, especially when the stakes 

are life and death. 

We are tempted to believe that the 

Court of ‘Appeals’ opinion reflects, in 

part, less a conscious decision to 

tolerate racial discrimination than a 

sense that the Baldus studies are not 

sufficiently reliable. However, accepted 

at face value as the Court announces it 

has done, the Baldus studies account for 

over 230 non-racial variables, and far 

exceed any reasonable prima facie standard 
  

of proof ever announced by this Court. 

See generally, Texas Dept. of Community 
  

Affairs v. Burdine, 450 U.S. 248 (1981); 
  

Hazelwood School District v. United 
  

States, 433 U.S. 299 (1977); Castaneda v. 
  

Partida, 430 U.S. 482 (1377).  



  

 



- 10 = 

The practical effect of the McCleskey 
  

holding, therefore, will be to declare 

that capital punishment may be imposed and 

carried out throughout the states of the 

Eleventh Circuit -- Georgia, Florida, and 

Alabama -- even if race continues to 

influence sentencing decisions in those 

states. We strongly urge the Court to 

grant certiorari to review the opinion of 

the Court of Appeals 

CONCLUSION 
  

The petition for certiorari should be 

granted. 

Dated: June 28, 1985 

Respectfully submitted, 

HON. JOHN CONYERS, JR. 

2313 Rayburn House Office Bldg. 
Washington, D.C. 20515  



 
 

 
 

 
 

 



  
*SETH P. WAXMAN 

2555 M Street, N.W. 

Suite 500 
washington, D. C., 20037 

ATTORNEYS FOR AMICUS CURIAE 

  

  

  

By: 
  

*Attorney of Record 

  

 



 
 

 
 

 



  
CERTIFICATE OF SERVICE 
  

I hereby certify that I am a member of 

the bar of this Court, and that 1 served 

the annexed Motion for Leave to File Brief 

Amicus Curiae and Brief Amicus Curiae on 
  

  

the parties by placing copies in the 

United States mail, first class mall, 

postage prepaid, addressed as follows: 

John Charles Boger, Inc. 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, New York 10013 

Mary Beth Westmoreland, Esq. 
132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

Martin F. Richman, Esq. 
Barrett, Smith, Shapiro 

Simon & Armstrong 
26 Broadway 
New York, New York 10014 

Ralph G. Steinhardt, Esq. 
Patton, Boggs & Blow 

2550 M Street, N.W. 

washington, D.C. 20037    





Done this 28 th day of June, 1985. 

  

Attorney for Amicus Curiae 
  

   



  

«E3307 BAR PRESS, Inc., 132 Lafayette St., New York 10013 — 966-3906 

(2998) 

   



No. 84-6811 
  

  

IN THE 

Supreme Curt of the United States 
October Term, 1984 

  

WARREN McCLESKEY, 
Petitioner, 

against 

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

Respondent. 

  

On Petition For 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 FOR THE 

CONGRESSIONAL BLACK CAUCUS IN SUPPORT 

OF THE PETITION FOR CERTIORARI 

  

  

Hon. JouN CoNYERS, JR. 

2313 Rayburn House Office Bldg. 
Washington, D. C. 20515 

*SeTH P. WAXMAN 

2555 M Street, N.W. 
Suite 500 

Washington, D. C. 20037 

Attorneys for Amicus Curiae 

* Attorney of Record 

  

   





TABLE OF CONTENTS 
  

Page 

Table Of Authorities ..i vce nnesess ii 

Motion For Leave To File 

Brief Amicus Curiae i .i.iss ens iv 
  

Summary of Argument cdi veers os viens 1 

Argument 

Neither The Eighth Amendment 
Nor The Equal Protection Clause 
Of The Fourteenth Amendment 
Allow Courts Or Juries Sys- 
tematically To Punish Black 

! Defendants, Or Those Whose 
: Victims Are White, More 

Severely For Similar Crimes 
Than White Defendants, Or 
Those Victims Are Blacks ..... 3 

CONCLUSION cst sss vss tssressnisvione 10 

 



  
 
 
 
 

 



TABLE OF AUTHORITIES 
  

Page 

Avery v. Georgia, 345 U.S. 559 

{ 1953) © © 2 0 6 0 0 9 0 0 0 0° 0 00 0 0 0 0 0 0 0 0 7 

Briscoe v. LaHue, 460 U.S. 325 
(1983) ® 8 0 9 ° 9 0 9% OO 0 0 00 8 eo 6 

Carter v. Texas, 177 U.S. 442 

(1900) © © © 0 0 0 060 0 0 9 0 00 0 0 0 0 0 0 0 00 6 

Castaneda v. Partida, 430 U.S. 482 
LI977) saves nesesesvovsivrnnes 9 

Furman v. Georgia, 408 U.S. 238 

(1972) ® ® © 0 4 0 °° 2 OP OSE Se ee 0 6 

General Building Contractors 
Ass'n, Inc. v. Pennsylvania, 
458 U.8, 375 (1982) seovenveva 6 

Hazelwood School District v. 
United States, 433 U.S. 299 
E3977) eee coevenninnsninvonvnne 9 

Loving v. Virginia, 388 U.S. 1} 
£1967) cv vnnores ctv rnatsntivaes 6 

McCleskey v. Kemp, 753 F.2d 877 

{11ch Cir. 1985) (en 

DANCY) ctv etosneresreseanies “Vi, vii, 5,8 

Norris v,., Alabama, 294 U.S. 587 
CI930) access voor evsssnninnns 6 

Rose v, Mitchell, 443 U.S. 545 

{1979) «viv ccseeven Cena vse snes 7 

Strauder v., West Virginia, 100 U.S. 
303 (1880) MO RRR Se ON PE LR I 

oi] - 

 



 



Page 

Texas Dep't of Community Affairs 
v. Burdine, 450 U.S. 248 

(1981) ® © © © 9% © 0 5 O° 9° 0 0 0° 0 O° 0 0 0 0 0° 0 00 9 

Turner v. Fouche, 396 U.S. 346 
(1970) © © 0 0 0 00° 0 0 0 0 0 0 0 020 0 00 0 eo 7 

Yick Wo v. Hopkins, 118 U.S. 
356 LI880) cies ssnnnsssvrnis 6 

zant v. Stephens, 462 U.S. 862 

(1983) ® © © 0 © 0 0 0 0 0° 0 0 00 00 0° 0 0s 00 viii 

- 11% =  



   



No. 84-6811 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

  

On Petition For Writ of Certiorari 

To The United States Court of Appeals 
For The Eleventh Circuit 

  

MOTION FOR LEAVE TO 

FILE BRIEF AMICUS CURIAE 
  

  

The Congressional Black Caucus 

respectfully moves this Court, pursuant to 

 



 
 

 



Rule 36.1 of its Rules, for leave to file 

the attached brief amicus curiae in 
  

support of Warren McCleskey's petition for 

certiorari in this case. The consent of 

the petitioner has been obtained. Counsel 

for respondent, however, has declined our 

request for consent, necessitating this 

motion. 

The Congressional Black Caucus ("the 

Caucus"): is composed of all. 20 black 

members of the United States House of 

Representatives. The primary function of 

the Caucus 1s to implement and preserve 

the constitutional guarantee of equal 

justice under the law for all Americans, 

particularly black Americans. 

 





The Caucus requests leave to file a 

brief amicus curiae to make plain the 
  

troubling constitutional implications 1it 

finds ©“ in: the opinion of the Court of 

Appeals, and the consequent importance to 

black citizens of the issues raised by the 

McCleskey v. Kemp case. 
  

warren McCleskey has presented 

substantial evidence that racial discrimi- 

nation is at work in the capital punish- 

ment statutes of the State of Georgia. His 

claims, based primarily on the comprehen- 

sive studies of Professor David Baldus, 

are well-documented, and the State's 

contrary evidence appears insubstantial 

and unpersuasive. 

We come before this Court, however, 

not to debate the merits of McCleskey's 

evidence, for the Court of Appeals itself 

did not decide against McCleskey by 

dismissing his factual case. Instead, it 

- vil -  





explicitly accepted, for purposes of the 

appeal, the validity of the Baldus study, 

and assumed that McCleskey v. Kemp, 753 
  

P.24:-877, 886:-{11th  Cir.: 1985){en banc) 

"proves what it claims to prove." Id. 

Even so, the Court of Appeals reasoned 

that petitioner has stated no claim under 

the Eighth or Fourteenth Amendments. 

It is this extraordinary constitu- 

tional ruling that prompts our interven- 

tion as: amicus curiae. Even while 
  

acknowledging substantial disparities by 

race in Georgia's death sentencing rates 

—-—- approaching twenty percentage points in 

the midrange of homicide cases =-- and an 

overall average racial disparity exceeding 

Six: percentage points, the Court’ of 

Appeals holds that Eighth and Fourteenth 

Amendments are unaffected. 

If this troubling opinion goes unre- 

viewed, fundamental constitutional issues 

- vii -  





long ago settled in this nation will once 

again be open to serious question. It is 

cause enough for grave concern 1f the 

pattern of executions now being carried 

out in this country is infected by racial 

discrimination. Yet if a federal court 

may announce that such discrimination 

makes no legal difference, if it holds 

that such a pattern affronts no constitu- 

tional principles, the time has come, the 

Caucus believes, for this Court to be 

heard. 

As the ultimate guardian of our 

constitutional values, this Court cannot 

afford to overlook a pronouncement, by a 

majority of the United States Court of 

Appeals for the Eleventh Circuit sitting 

en banc, that appears to condone some 

measure of racial discrimination in 

capital sentencing. This Court has noted 

that "Georgia may not attach the 'aggra- 

- viii -  





vating' label to factors that are consti- 

tutionally impermissible or totally 

irrelevant to the sentencing process, such 

as +... race," Zant v, Stephens (11) 462   

U.S. 862, 885.,(1983). Yeti the McCleskey 
  

opinion threatens to glve de facto 

sanction to just such a practice. The 

Caucus, one of whose principal aims is to 

ensure that equal justice under law 

remains: a reality for all citizens, 

respectfully requests leave to file this 

brief amicus amicus to address these   

important issues. 

Dated: June 28, 1985 

Respectfully submitted, 

HON. JOHN CONYERS, JR. 

2313 Rayburn House Office Bldg. 
Washington, D.C. 20515 

*SETH P. WAXMAN 

2555 M Street, N.W. 

Suite 500 
Washington, D.C. 20037 

ATTORNEYS FOR AMICUS CURIAE   

By:   

*Attorney of Record 

- 1X - 

 





No. 84-6811 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

  

On Petition For Writ of Certiorari 

To The United States Court of Appeals 
For The Eleventh Circuit 

  

BRIEF AMICUS CURIAE OF THE 

BLACK LEGISLATIVE CAUCUS 
  

  

SUMMARY OF ARGUMENT 
  

The Court of Appeals, for purpose of 

Warren McCleskey's appeal, has accepted 

the validity of his statistical evidence  





demonstrating (i) that black defendants, 

or those whose victims are white, are 

substantially more likely to receive death 

sentences in the State of Georgia than are 

white defendants, or those whose victims 

are black; and (ii) that these record 

disparities are not explained by any of 

over 230 other legitimate sentencing 

factors. Despite this overwhelming proof 

that race plays a part Georgia's capital 

sentencing system, the Court of Appeals 

had held that neither the Eighth nor the 

Fourteenth Amendments are implicated, 

apparently because it finds the magnitude 

of the racial influence to be relatively 

minor. Viewed as a statement of legal 

principle, this opinion by the Court of 

Appeals is astonishing; it turns its back 

on a consistent, hundred-year history of 

interpretation of the Equal Protection 

Clause. Viewed as a statement of fact, 

the opinion is equally deficient. it  





misunderstands the true magnitude and 

importance of the statistical results 

reported in the Baldus studies. Under any 

analysis, the opinion deserves review by 

this: Court. 

ARGUMENT   

NEITHER THE EIGHTH AMENDMENT NOR THE 

EQUAL PROTECTION CLAUSE OF THE FOUR- 

TEENTH AMENDMENT ALLOW COURTS OR JURIES 

SYSTEMATICALLY TO PUNISH BLACK DEFEN- 

DANTS, OR THOSE WHOSE VICTIMS ARE 

WHITE, MORE SEVERELY FOR SIMILAR CRIMES 

THAN WHITE DEFENDANTS, OR THOSE WHOSE 

VICTIMS ARE BLACK 

The Baldus studies examine the dis- 

position by Georgia's criminal justice 

system of a wide range of homicides 

committed over a seven-year period from 

1973 through 1979. Baldus and his 

colleagues collected data from official 

state files on over 500 items of informa- 

tion for each case, providing a comprehen- 

sive picture of the crimes, the defen- 

 





dants, the victims, and the strength of 

the State's evidence. After employing a 

variety of accepted social scientific 

methods to analyze his data =-- each of 

which the Court of Appeals assumed to be 

valid for purposes of McCleskey's appeal 

-- Baldus reported that "systematic and 

substantial disparities exist in the 

penalties imposed upon homicide defendants 

in the State of Georgia based upon the 

race of the homicide victim," (Fed. Hab. 

Tr. 126-27) (Professor Baldus), and to a 

slightly lesser extent, "upon the race of 

the defendant." (Id.) Baldus found no 

"legitimate factors not controlled for in 

[his] analyses which could plausibly 

explain the persistence of these racial 

disparities." (Id. 728). 

In short, the Baldus studies conclude 

that. race continues to ‘play a ' real, 

systematic role in determining who will 

receive life sentences and who will be  



    
    

   



executed in. the State of .Georgia. By 

assuming the truth of those conclusions, 

the Court of Appeals has sharply focused 

the underlying constitutional issue on 

this appeal: does proven racial discrimi- 

nation in capital sentencing violate the 

Eighth or Fourteenth Amendments. The 

astonishing answer of the Court of Appeals 

is that it does not. 

The Court does take issue with the 

Baldus studies on the exact magnitude of 

the racial effect -- whether it is nearer 

Six percentage points or twenty points. 

See McCleskey .v, Kemp, 1753 P.24 877, 
  

896-98 (11th. Cir. 1985){en banc). That 

question, however, seems plainly beside 

the point. The Black Caucus has long 

understood that unequal enforcement of 

criminal statutes based upon racial 

considerations violates the Fourteenth 

Amendment. Such distinctions, whatever 

no legitimate their magnitude, have 

 





overriding purpose independent of invidi- 

ous racial discrimination ... [justifying] 

the classification,” Loving v. Virginia, 
  

388 U.S. 1, 1} (1967); Yick Wo v. Hopkins, 
  

$180.8. 356 (1886); cf. Farman v., Geor- 
  

gia, 408 U.S. 238, 389 n.12 (Burger, C.J., 

dissenting). 

One of the chief aims of the Equal 

Protection Clause was to eliminate of 

discrimination against black defendants 

and black victims of crime. See General 
  

Building Contractors Ass'n, Inc, v, 
  

Pennsylvania, 458 U.S. 375, 382-91 (1982) 
  

Briscoe v, LaHue, 460 U.S. 325, 337-40 
  

(1983). Indeed, for well over 100 years, 

this Court has consistently interpreted 

the Equal Protection Clause to prohibit 

racial discrimination in the administra- 

tion of the criminal Justice system. See, 

e.g., Strauder v. West Virginia, 100 U.S. 
  

303 (1880); Carter v, Texas, 177 U.S. 442 
  

(1900); Norris v. Alabama, 294 U.S. 587 
  

 





£1935); Avery v. Georgia, 345 U.5. 559 
  

(1953): Tarner vv, Pouche, 396 U.S. 346 
  

{1970)r Rose vy, Mitchell, 443 U.S. 545 
  

(1979). While questions concerning the 

necessary quantum of proof have occasion- 

ally proven perplexing, no federal court 

until now has ever, to our knowledge, 

seriously suggested that racial discrimi- 

nation at any level of magnitude, if 

clearly proven, can be constitutionally 

tolerated. Yet that is precisely the 

holding of the Court of Appeals. 

Moreover, even if the magnitude of 

discrimination were a relevant constitu- 

tional consideration, Warren McCleskey's 

evidence has demonstrated an extraordinary 

racial effect. The increased likelihood 

of a death sentence if the homicide victim 

is. white, for example, is .06, or six 

percentage points, holding all other 

factors constant. Since the average 

death-sentence rate among Georgia cases is 

   





only .05, the fact that a homicide victim 

is white, rather than black, increases the 

average likelihood of a death sentence by 

120%, from .05 to .11. The suggestion of 

the Court of Appeals that race affects at 

most a "small Seroentane of the cases,” 

McCleskey v. Kemp, supra, 753 PF.24 at 899, 
  

gcarcely does justice to these figures. 

In plainest terms, these percentages 

suggest that, among every 100 homicides 

cases in Georgia, 5 would receive a death 

sentence if race were not a factor; in 

reality, where white victims are involved, 

Itz out of +100 = do, Six defendants are 

sentenced to death with no independent 

explanation other than the race of their 

victims, 

Furthermore, the racial disparities 

are far more egregious among those cases 

where death sentences are most frequently 

imposed. Baldus' studies demonstrate 

that, among the midrange of cases, the 

 





race of ivictim has ‘a '.20,'"or. twenty 

percentage point impact in addition to 

every other factor considered. such 

results simply are intolerable under our 

Constitution, especially when the stakes 

are life and death. 

We are tempted to believe that the 

Court of Appeals' opinion reflects, in 

part, less a conscious decision’ to 

tolerate racial discrimination than a 

sense that the Baldus studies are not 

sufficiently reliable. However, accepted 

at face value as the Court announces it 

has done, the Baldus studies account for 

over 230 non-racial variables, and far 

exceed any reasonable prima facie standard 
  

of proof ever announced by this Court. 

See generally, Texas Dept. of Community 
  

Affairs v. Burdine, 450 U.S. 248 (1981); 
  

Hazelwood School District v. United 
  

States, 433 U.S. 299 (1977); Castaneda v, 
  

Partida, 430 U.S. 482 (1977).  





  

- 10 ~ 

The practical effect of the McCleskey 
  

holding, therefore, will be to declare 

that capital punishment may be imposed and 

carried out throughout the states of the 

Eleventh Circuit -- Georgia, Florida, and 

Alabama =-- even if race continues to 

influence sentencing decisions in those 

states. We strongly urge the Court to 

grant certiorari to review the opinion of 

the Court of Appeals 

CONCLUSION 
  

The petition for certiorari should be 

granted. 

Dated: June 28, 1985 

Respectfully submitted, 

HON. JOHN CONYERS, JR. 

2313 Rayburn House Office Bldg. 

Washington, D.C. 20515 

 





*SETH P. WAXMAN 

2555 M Street, N.W. 

Suite 500 
Washington, D. C. 20037 

ATTORNEYS FOR AMICUS CURIAE 
  

By: 
  

*Attorney of Record 

 





CERTIFICATE OF SERVICE 
  

I hereby certify that I am a member of 

the bar of this Court, and that 1 served 

the annexed Motion for Leave to File Brief 

Amicus Curiae and Brief Amicus Curiae on 
    

the parties by placing copies in the 

United States mail, first class mall, 

postage prepaid, addressed as follows: 

John Charles Boger, Inc. 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, New York 10013 

Mary Beth Westmoreland, Esq. 
132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

Martin F. Richman, Esq. 
Barrett, Smith, Shapiro 

Simon & Armstrong 
26 Broadway 
New York, New York 10014 

Ralph G. Steinhardt, Esq. 
Patton, Boggs & Blow 
2550 M Street, N.W. 

Washington, D.C. 20037  





Done this 28 th day of June, 1985. 

  

Attorney for Amicus Curiae 
  

 



  

«§&3>307 BAR PRESS, Inc., 132 Lafayette St., New York 10013 — 966-3906 

(2998) 
   



LE a = : 15 : ; in Noy 

No. 84-6811 
  

  

IN THE 55 

re Sigpreo Got 2 Tr Bettd Buster 2 
. 

Fo
 

IP
TG
 

R
I
B
 

    

  

  

2 October Term, 1984 

WARREN McCLESKEY, : 
Petitioner, 3 

against Se 

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

> Respondent. > 

On Petition For Writ of Certiorari To The United States 
Court of Appeals For The Eleventh Circuit 

    
rps RN — sist 
or ate Ski duit r—— 

    

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND BRIEF AMICUS CURIAE FOR THE 
CONGRESSIONAL BLACK CAUCUS IN SUPPORT 

OF THE PETITION FOR CERTIORARI 

|   I 

  

Hon. Jon CoNYERs, JR. 
2313 Rayburn House Office Bldg. 

Washington, D. C. 20515 

*SEtE P. WaxMaAN 
2555 M Street, N.W. 

Suite 500 
Washington, D. C. 20037 

Attorneys for Amicus Curiae 

* Attorney of Record 

  

  

 



  

  . na a a pea RTT E : a . « 
a an cee cen - a — ee + nl, ch. cal cet. el te els lm Sn ll % Wn Wolf Wr amin ett th re sl 

TABLE OF CONTENTS 
  

Page 

Table OF AULROTIEiesS 4c vss vrevvens ii 

Motion For Leave To File 

Brief Amicus Curliae cu.eeeseeen iv 
  

Summary Of Argument .....sc000000400 1 

Argument 

Neither The Eighth Amendment 
Nor The Equal Protection Clause 
Of The Fourteenth Amendment 
Allow Courts Or Juries Sys- 
tematically To Punish Black 
Defendants, Or Those Whose 
Victims Are White, More 
Severely For Similar Crimes 
Than White Defendants, Or 
Thosas Victims Are Blacks ..... 3 

Conclusion 9.0 9. 0 & 0 0 5 PO 9 0 0 GS HO GOVT VD 10   
 



  

  wr  — — — — — tm   — UA . : ‘ -. — a ee 2 —— — Lr Ars Wo te ttn Amn. & a Bs wn 

TABLE OF AUTHORITIES 
  

  

Page 

Avery v. Georgia, 345 U.S. 559 
{ 1353) eccennsiontrnvicivonssbs ies 7 

Briscoe v, LaBue, 460 U.S. 325 
{1983 csv ernr nes Stes cs nse nso 6 

Carter v. Texas, 177 U.S. 442 
[1300) ec veencetvissvnvnnoss ole 6 

Castaneda v. Partida, 430 U.S. 482 
C1975] ) ester ensinenveveanonin : 9 

Furman v. Georgia, 408 U.S. 238 
LID372) cnet sovvn SRE a 6 

General Building Contractors 
Ass'n, Inc. v. Pennsylvania, 
458 U.5. 375 (1982) wivevenrns : 6 

Hazelwood School District v. 
United States, 433 U.S. 339 
{1977 coves voir SEER De ae o's 9 

loving v. Virginia, 388 U.S. 1 
E1267) wvnevnsvennanis Ces e tun 6 

McCleskey v. Kemp, 753 F.2d 877 
{1izh Cir. 1985) (en 
DBIIC) ti sa ssc ec tessa vi,vii,5,8 

Norris v. Alabama, 294 0.85. 587 
(1303S) eve vaes caine ie ree venitnee 6 

Rose v., Mitchell, 443 U.S. 345 
BL a BR NEA aR rr 7 

Strauder v. West Virginia, 100 U.S. 
303 { 1880) secei evict nevrvrrsannreses 6 

a —— ———— ET A A  — —p—. EL i — 
if ate gg 2d IT So =." 4 rrr, « gw 

  vr peter pr———_— d —— Yr ——— py



FR “ “ - lA an io 3s. + - . : 

  
  

Page 

Texas Dep't of Community Affairs 
Vv. Burdine, 450 U.S. 24828 

(1981) © © © 0 0 2 9 9 2 OS OO 0S Pe 0 ee 0 0 9 

Turner v, Fouche, 396 U.S. 345 
{1970) ® © 0 40 0 8.0 0 0 000 ee 00 so 7 

Yick Wo v. Bopkins, 118 U.S. 
3368 11890) ss eiiesrtonrs rns | 6 

Zant v. Stephens, 452 U.S. 862 
(1983) ® © 8 0 0 0 0 8B 0 EP 00 See 0 0 viii 

  
- iii = 

    

  WA pm 04, tw ne a J 8 "ERP » nr = ry ——— - ——— —— = rr —  



  aa. ATH a i a adhadianine Sas, Loa han Sdatnadh 
  

ha . - . 
a SH SP SS Ur)   

No. 84-6811 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

RALPH M. KEMP, Superintendent, 

Georgia Diagnostic & Classification 
Center,   

Respondent. 

  

On Petition For Writ of Certiorari 

To The United States Court of Appeals 
For The Eleventh Circuit 

  

MOTION FOR LEAVE TO 
FILE BRIEF AMICUS CURIAE 
  

  

The Congressional Black Caucus 

respectfully moves this Court, pursuant to 

rit 

  

  

   



  

  
— en tpn; 
  

  

Rule 36.7 of its Rules, for leave ro Eile 

  

the attached brief amicus curiae in 

support of Warren McCleskey's petition for 

certiorari in this case. The consent of 

the petitioner has been obtained. Counsel 

for respondent, however, has declined our 

request for consent, necessitating this 

motion. 

The Congressional Black Caucus ("the 

Caucus”) is composed of all 20 black 

members of the United States House of 

Representatives. The primary function of 

the Caucus is to implement and preserve 

the denstitutionsl) guarantee of equal 

justice under the law for all Americans, 

particularly black Americans. 

   



  
  Er Se .- 

  

The Caucus requests leave to file a 

brief amicus curiae to make plain the 
  

troubling constitutional implications it 

£inds in the opinion of the <l{ourt of 

Appeals, and the consequent importance to 

black citizens of the issues raised by the 

McCleskey v. Kemp case. 
  

Warren McCleskey has presented 

substantial evidence that racial discrimi- 

nation is at work in the capital punish- 

ment statutes of the State of Georgia. His   claims, based primarily on the comprehen- 

sive studies of Professor David Baldus, 

are well-documented, and the State's 

contrary evidence appears insubstantial 

and unpersuasive. 

We come before this Court, however, 

not to debate the merits of McCleskey's 

evidence, for the Court of Appeals itself 

did not decide against McCleskey by 

dismissing his factual case. Instead, it 

- yl - 

  Saba ge ) es ee Che aT Ty ——r 
  

TR ENTRAR cr —— Ja 4s — —_— $y  



  
  

  

explicitly accepted, for purposes of the 

appeal, the validity of the Baldus study, 

and assumed that McCleskey v. Kemp, 753 
  

F.2¢ 877, 8386 (11th Cir. .1985)(an banc) 

"proves what lt claims to prove." 1d. 

Even so, the Court of Appeals reasoned 

that petitioner nas stated no claim under 

the Eighth or Fourteenth Amendments. 

It is this extraordinary constitu- 

tional ruling that prompts our interven- 

tion as amicus curiae... . Even while 
  

acknowledging substantial disparities by   race in Georgia's death sentencing rates 

-- approaching twenty percentage points in 

the midrange of homicide cases -- and an 

overall average racial disparity exceeding 

Six percentage points, the Court of 

Appeals holds that Eighth and Fourteenth 

Amendments are unaffected. 

If this troubling opinion goes unre- 

viewed, fundamental constitutional issues 

- vii = 

  - pe ——— vt gr   

  
  I ge po em pt eg +  



    et mn ma a  — —— Te A tk oe a Sete tei. ett Se THRs Aa Bm en Sheen i EAN w——— n= 

long ago settled in this nation will once 

again be open to serious guestion. It is 

cause enough for grave concern 1f - the 

pattern Of executions now being carried 

out in this country is infected by racial 

discrimination. Yer if a federal court 

‘may announce that such discrimination 

makes no legal difference, 1f it holds 

that such a pattern affronts no constitu- 

tional principles, the time has come, the 

Caucus Delievss, for. this Court to be 

heard. 

As the ultimate guardian of our 

constitutional values, this Court cannot 

afford to overlook a pronouncement, by a 

majority of the United States Court of 

Appeals for the Eleventh Circuit sitting 

en banc¢, that appears to condone some   
measure of racial discrimination in 

capital sentencing. This Court has noted 

that "Georgia may not attach the 'aggra- 

- gil] - 

    

   



  
  

ue A N - Py : =. . ire A —— a de lr EI nn in? = 

vating' label to factors that are consti- 

tutionally impermissible or totally 

irrelevant to the sentencing process, such 

A8 .... race.) Zant vy, Stephens (IT) 452. 
  

v.85. 862, 885 (1983), Yet the McCleskey 
  

opinion threatens to give de facto 

sanction to just such a practice. The 

Caucus, one of whose principal aims is to 

ensure that equal Justice under law 

remains a rs3lity for all citizens, 

respectfully requests leave to file this 

  

brief amicus amicus to address these 

important issues. | 

Dated: June 28, 1985 

Respectfully submitted, 

HON. JOHN CONYERS, JR. 
2313 Rayburn House Office Bldg. 
Washington, D.C. 20518 

*SETH P. WAXMAN 

2555 M Street, N.W. 
Suite 500 
Washington, D.C. 20037   
  

ATTORNEYS FOR AMICUS CURIAE 

By: 
  

*Attorney of Record 

  

    

   



  

  

    

No. 84-6811 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1984 

  

WARREN McCLESKEY, 

Petitioner, 

- against - 

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

Respondent. 

  

On Petition For Writ of Certiorari 
To The United States Court of Appeals 

For The Eleventh Circuit 

  

BRIEF AMICUS CURIAE OF THE 
BLACK LEGISLATIVE CAUCUS 
  

  

SUMMARY OF ARGUMENT     

The Court of Appeals, for purpose of 

Warren McCleskey's appeal, has accepted 

the validity of his statistical evidence 

  

  

    
  RK ] ] | {  



  

  

demonstrating (i) that black defendants, 

or those whose victims are white, are 

substantially more likely to receive death 

sentences in the State of Georgia than are 

white defendants, or those whose victims 

are black: and (ii) chat theses rescord 

disparities are not explained by any of 

over 230 other legitimate sentencing 

factors. Despite this overwhelming proof 

that race plays a part Georgia's capital 

sentencing system, the Court of Appeals 

had held that neither the Eighth nor the 

Fourteenth. Amendments are implicated, 

apparently hecause it Finds the magnitude 

of the racial influence to be relatively   
minor. Viewed as a statement of legal 

Principle, this opinion by the Cour: of 

Appeals is astonishing; it turns its back 

on a consistent, hundred-year history of 

interpretation of the Equal Protection 

Clause. Viewed as a statement of fact, 

the opinion is equally deficient, Iv 

    

Cy ——— rn 
   



    
    

  

a rh ena HAL on thn 

misunderstands the true magnitude and 

importance of the statistical results 

reported in the Baldus studies. Under any 

analysis, the opinion deserves review by 

this Court. 

  

ARGUMENT 

NEITHER THE EIGHTH AMENDMENT NOR THE 
EQUAL PROTECTION CLAUSE OF THE FOUR- 
TEENTH AMENDMENT ALLOW COURTS OR JURIES 
SYSTEMATICALLY TO PUNISH BLACK DEFEN- 
DANTS, OR THOSE WHOSE VICTIMS ARE 
WHITE, MORE SEVERELY FOR SIMILAR CRIMES 
THAN WHITE DEFENDANTS, OR THOSE WHOSE 
VICTIMS ARE BLACK   The Baldus studies examine the dis- 

position by Georgia's criminal justice 

system of a wide range of homicides 

committed over a seven-year period from 

1873 through 1979, Baldus and his 

colleagues collected data from official 

state files on over 500 items of informa- 

tion for each case, providing a comprehen- 

Sive picture of the crimes, the defen- 

    

  
I Sy A ——_—1y + p——  



  

  
  

  

  

  

  a Eble tt Bm et ruts SH AAMAS at” 3. co. vst wr nah stam oe tote aE Se Sanh 

dants, the victims, and the strength of 

the State's evidence. After employing a 

variety of accepted social scientific 

methods to analyze his data =-- each of 

which the Court of Appeals assumed to be 

valid for purposes of McCleskey's appeal 

-- Baldus reported that "systematic and 

substantial disparities exist in the 

penalties imposed upon homicide defendants 

in the State of Georgia based upon the 

race of the homicide victim," (Fed. Hab. 

Pr. 726-27) (Professor Baldus), and to a 

slightly lesser extent, "upon the race of 

the defendant." (Id.) Baldus found no 

"legitimate factors not controlled for in 

[his] analyses which could plausibly 

explain the persistence of these racial 

disparities.” (Id. 238%. 

In short, the Baldus studies conclude 

that race continues to olay a real, 

Systematic role in determining who will 

receive life sentences and who will be 

  a 

 



  
  

  
Cm rn. nt et ltt Bt itl] 

executed in the State of Georgia. By 

assuming the truth of those conclusions, 

the Court of Appeals has sharply focused 

the underlying constitutional issue on 

this appeal: does proven racial discrimi- 

nation in capital sentencing violate the 

Eighth or Fourteenth Amendments. The 

astonishing answer of the Court of Appeals 

is that it does not. 

The Court does take issue with the 

Baldus studies on the exact magnitude of 

the racial effect -- whether it is nearer 

six percentage points or twenty points. 

$66 McClesKey Vv. RBemp, 753 rF.28 877, 
  

896-98 {11th Cir. 1933)(en banc). That 

question, however, seems plainly beside 

the point. The Black Caucus has long   understood that unequal enforcement of 

criminal statutes based upon racial 

considerations violates the Fourteenth 

Amendment. Such distinctions, whatever 

their magnitude, have ™no legitimate 

  

   



A Te > 
EO 
  

  

overriding purpose independent of invidi- 

ous racial discrimination ... {Justifying] 

the classifitation,” Loving v. Virginia, 
  

388 U.2.- 1, 11 (1967): Yick Wo v. Hopkins, 
  

118 U.S, 336 (1888); cf. Furman v, Geor- 
  

gia, 408 0.8. 233, 389 n.12 (Burger, C.J., 

dissenting). 5 

One Of the chief aims of the Equal 

Protection Clsuss was to eliminate of 

discrimination against black defendants 

and black victims of crime. See General 
  

Building Contractors Ass'n, Inc, Vv. 
  

Pennsylvania, 458 U.S. 375, 382-91 (1982); 
  

Briscoe v, Lafiue, 450 U.S. 325, 3137-40 
  

(1983), Indeed, for well over 100 vears, 

this Court has consistently interpreted 

the Equal Protection Clause to prohibit 

racial discrimination in the administra- 

tion of the criminal justice system. See,   8.9+, Strauder v, West Virginia, 100 u.s. 
  

303 (1880); Larter v, Texas, 177 0.8. 443 
  

(1900): Norris v,., Alabama, 2954 0.5. 537 
  

  

  

   



  

SU 

(1935); Avery v. Georgia, 345 U.S. 3539 
  

(1953); Turner v. Pouche, 396 U.S. 346 
  

{1970}; Rose wv. Mitchell, 443 0.8. 545 
  

{1979). While questions concerning the 

necessary quantum of proof have occasion- 

ally proven perplexing, no federal court 

until now has ever, to our knowlsdge, 

seriously suggested that racial discrimi- 

nation at any level of magnitude, if 

clearly proven, can be constitutionally 

tolerated. Yet that is precisely the 

holding of the Court of Appeals. 

Moreover, even 1f the magnitude of 

discrimination were a relevant constitu- 

tional consideration, Warren McCleskey's 

evidence has demonstrated an extraordinary 

racial effect. The increased likelihood 

Of a death sentence 1f the homicide victim   
is white, for example, is ,08, or six 

percentage points, holding all other 

factors constant, Since the average 

death-sentence rate among Georgia cases is 

  

    
NY PN tar t—) vege va sop ur  



  

  he . eA LT Sodan 3 - : SE 
ee —— cee on 2 © a —————— 

  

  

only .05, the fact that a& homicide victim 

is white, rather than black, increases the 

average likelihood of a death sentence by 

120%, from .08 to .11. The suggestion of 

the Court of Appeals that race affects at 

most a "small percentage of the cases," 

McCleskey v. Kemp, Supra, 753. 2.24 at $99, 
  

scarcely does justice to these figures. 

In plainest terms, these percentages 

suggest that, among every 100 homicides 

cases in Georgia, 5 would receive a death 

sentence if race were not a factor; in 

reality, where white victims are involved,   
1} out of 100. do, Six defendants are 

sentenced to death with no independent 

explanation other than the race of their 

victims, 

Furthermore, the ‘racial disparities 

are far more egregious among those cases 

where death sentences are most frequently 

imposed. Baldus' studies demonstrate 

that, among the midrange of cases, the 

  dein + bond 0 ot snc JA acu Su ee ——r— . 
  

  
  ra ——— —————



  

  
  

    

.zace Of victim has & 20, 0% twenty 

percentage point impact in addition to 

every other factor considered. such 

results simply are intolerable under our 

Constitution, especially when the stakes 

are life and death. 

We are tempted to believe that the 

Court of Appeals’ opinion reflects, in 

part, less a conscious decision to 

tolerate racial discrimination than a 

sense that the Baldus studies are not 

sufficiently reliable. However, accepted 

at face value as the Court announces it 

has done, the Baldus studies account for 

over 230 non-racial variables, and far   
exceed any reasonable prima facie standard 

  

of proof ever announced by this Court, 

See generally, Texas Dept. of Community 
  

Affairs v. Burdine, 450 U.S. 248 (1981) 
  

Hazelwood School District Vv. United 
  

States, 433 U.S. 299 (1977); Castaneda v. 
  

Parrida, 430 U.S. 482 (319877). 

     



    

  
  

  

antes Cia Bt eee me rot lb isle. 2 tl Bt tA tlt ST i ttt, stihl sir. onium? 3   

- 10 =~ 

The practical effect of the McCleskey 
  

holding, therefore, will be by declare 

that capital punishment may be imposed and 

carried out throughout the states of the 

Eleventh Circuit -- Georgia, Florida, and 

Alabama -- even if race continues to 

influence sentencing decisions in those 

states. We strongly urge the Court +o 

grant certiorari to review the opinion of 

the Court of Appeals 

CONCLUSION 
  

The petition for certiorari should be 

granted. 

Dated: June 23, 1985 

Respectfully submitted,   
HON. JOHN CONYERS, JR. 

2313 Rayburn House Office Bldg. 
Washington, D.C. 20815 

  
  

FP ps TE ——r—— v—— 

     



  

  

  

*SETH P. WAXMAN 
2555 M Street, N.W. 

Suite 500 
Washington, D. C. 20037 

ATTORNEYS FOR AMICUS CURIAE 
  

By: 
  

*Attorney of Record 

  

  
  

 



    

— i ——— <a A Ee PP ti Sort 0 Mt. 1 ated aan We. arth he” 2 Yan - Sh a Cig Eat om 
  Ce 

  

  

CERT IPICATTE OF SERVICE 

I hereby certify that I am a member of 

the bar of this Court, and that I sarved 

the annexed Motion for Leave to File Brief 

Amicus Curiae and Brisf Amicus Curiae on 
    

the parties by placing copies in the 

Onited States mail, firs: class mall, 

postage prepaid, addressed as follows: 

John Charles Boger, Inc. 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, New York 10013 

Mary Beth Westmoreland, Esq. 
132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334 

Martin FP. Richman, Esq. 
Barrett, Smith, Shapiro 

Simon & Armstrong 
26 Broadway 

New York, New York 10014 

Ralph G. Steinhardt, Esq. 
Patton, Bodds & Blow 
2550 M Street, N.W. 
washington, D.C. 204037 

  
  

  

  

i — as pa 

 



  

  

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No. 84-8811 

  

Ines 

Supreme Court of the Huited States 

Ocroser Term, 1986 

WarreNy McCrzsx=y, 
: Petitioner, 

T. 

Rarre M. K=MP, supsrintendent, 

Respondent. 

  

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE ELIVENTH CIRCUIT 

a —— 

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE 
AND BRIEF OF THE CONGRESSIONAL BLACX CAUCUS, 
THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER 

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

  

    

SErz P. Waxuaxn 
Miller, Cassidy, Larrocs & Lewin 

2885 M Street, Suits S00 
Washington, D.C. 20037 

(202) 283-8400 
Counsel for the Congressional 
Black Caucus 

Haroon R. Tyr=n, JR. and 
J AMES HOBERTSON, Cochairmen 
Norman BEDLICT, Trustee 
Worram L. Hosrmvson * 

Lawyers’ Committes for Civil 
Rights Under Law 
1400 I Street N.W., Suite 400 

Washington, D.C. 20008 

(202) 371-1212 

GROVER HANKINS, General Counsel 
NAACP Special Contribution Fund 
4806 Mount Hope Drive, Room 501 

Baltimore, MD 21215 

(301) 358-8800 

*Counsel of Record 

e
r
i
n
 
c
m
—
—
—
 

a
 

. 

 



  

  

  No. 84-6811 

*y TEE 
SUPREME COURT OF THE UNITED STATES 

i ; October Term, 1986 
    

WARREN McCLZSZXLY, 

Petiticner,’ 

v. 

RALPH M. KEMP, Superintendent, 

Respendent. 

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

  

MOTION FOR LEAVE TO FILE BRIEF AMTICT CUORIAT 
OF THE CONGRESSIONAL BLACX CAUCUS, 

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

  

The Congressional Black Caucus, the 

Lawyers' Committee for Civil Rights Under 

Law, and the National Association for the 

Advancement of Colored Pecple, respectfully 

 



   move the Court pursuant to Supreme Court 

Rule 36.3, for leave to file the attached 

brief as amici curiae in support of   

Petitioner. Petitioner has consented to 

this filing, but Respondent has refused its 

consent. 

The Congressional Black Caucus {is 

composed of all twenty black members of the 

United States House of Representatives. 

Its primary function is to implement and 

preserve the constitutional guarantee of 

equal justice under the law for all 

Americans, particularly black Americans. 

The Lawyers' Committee for civil 

Rights Under Law 1i8 a nationwide civil 

rights organization that was formed in 1963 

by leaders of the American Bar, at the 

request of President Kennedy, to provide 

legal representation to blacks who were 

being deprived of “their civil rights. 

Since then, the national office of the 

Lawyers' Committee and its local offices 

    
 



  

have represented the interests of blacks, 

Hispanics and women in hundreds of cases 

challenging state and private actions based 

on race discrimination. Over a thousand 

members of the private bar, including 

former Attorneys General, former Presidents 

of the American Bar Association and other 

leading lawyers, have assisted it in such 

efforts. 

The National Association for the 

Advancement of Colored People is a New York 

nonprofit membership corporation, with some 

three million members nationwide. Its 

principal aims and objectives include 

eradicating caste or race prejudice among 

the citizens of the United States and 

promoting genuine equality of rights in the 

operation of its laws. 

Amici have a long-standing interest in 

insuring that no one is denied equal 

justice on the basis of race. We believed 

it well-established that the unequal 

 



    

application of criminal statutes on the 

basis of race is a violation of the 

constitution. Yet in this case the Court 

of Appeals has held that a proven racial 

disparity in death sentencing does not in 

and of itself violate the Eighth and 

Fourteenth Amendments. In order to respond 

to this ruling we have asked to participate 

as amici. In our view, the holding of the 

court of Appeals threatens the principle of 

equality under the law and undermines our 

efforts to realize this fundamental 

principle. 

Because the issues raised by this case 

go beyond the interests of Petitioner 

alone, and the implications of the Court of 

Appeals' decision affect the rights of all 

Americans we are dedicated to prasetve, we 

believe our participation will be of 

assistance to the Court. 

    
 



  

For the foregoing reasons, ve , 

respectfully request that leave to 

participate as amici curiae be granted. 

Respectfully submitted, 

  

WILLIAM L, ROBINSON* 

HAROLD R. TYLER and 

JAMES ROBERTSON, Cochairmen 
NORMAN REDLICH, Trustee 

Lawyers' Committee for 
civil Rights Under Law 
1400 I Street N.W. 
Suite 400 
Washington, D.C. 20005 

(202) 371-1212 

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

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

*Counsel of Record  



    

  
 



TABLE OF CONTENTS 
  

  

  

  

Page 

TABLE OF AUTHORITIES oy a Te 11. 

INTEREST OF THE AMICT « + oo + ov 1 

SUMMARY OF ARGUMENT + + vv 0c os o's 2 

ARGUMENT Ny ie eer dR gg tg I I a 5 

I. THE EVIDENCE IN THIS CASE 

SHOWS THAT RACE REMAINS A 

DRIVING FORCE IN THE 

IMPOSITION OF CAPITAL 

SENTENCES IN THE STATE 

OF GEORGIA. . LJ LJ LJ LJ LJ * ° LJ 5 

II. SIGNIFICANT RACIAL INFLUENCES 

IN DEATH-SENTENCING DECISIONS -~- 

CONSCIOUS OR UNCONSCIOUS-- 

VIOLATE THE CONSTITUTION. . he 18 

A. Any Significant Quantum 
. of Racial Discrimination 

in Death Sentencing is 
intolerable. .. . . . . + 19   

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

  

  

  

  

  

  

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

CONCLUSION . Ld Ld . » . LJ . . . . . 4 4 

1.   
 



TABLE OF AUTHORITIES 
  

  

CASES 

  

Alexander v. Louisiana 
405 U.S. 625 (1972) .: oo, «ies. sv 12,28 

Amadeo v. Kemp 
773 F.2d 1141 (11th Cir, 1985) , . 30 

Arlington Heights v. 
Metropolitan Housing Corporation 
429 U.S. 252 (1977), . . . . ... 28,35 

Batson v. Kentucky 
06 S.Ct. 1712 (1986) . . . . ... 3,26 

Bazemore v. Friday 
108 S.Ct. 3000 (1986) . ... 12,25,27,31 

Bowden v. Kemp 
793 F.2d 273:{(31th:Cir, 1986)... « 230 

Briscoe v. LaHue 
460 U.S. 325 (1983) . . . yh. 15,21 

Burrows v. State 

640 P.24 533 (Ok, Crim. 1982). . . 39 

Carter v. Texas 

1377 U.5. 442 (1800) . . +. 0... 21 

Casteneda v. Partida 
4301.5, 482 (1977) . . . . 11,29,28,29 

Chicago, Burlington & 
Quiney Railway v. Babcock ; 
204 U.S. 885 (1907) . +». + . . .  . 25 

Coker v. Georgia 
433 U.S. 584 (1977) . oie. 8) 

ii. 

    

 



  

Coley v. State 
204 S.E.24 612 (Ga. 1974) . . . . .: 41 

Davis v. Zant 
721 F.24.1478 (11th Cir. 1984) . . 30 

Eddings v. Oklahoma 
4558 U. 5, 104 (1982) . «3 ov. 974 

Estelle v. Gamble 

429 U.S. 97 (1976) MOSER SDE 

Ex Parte Virginia 
100 U.S. 667 (1879) + + vin vs 0 0» 27 

Fayerweather v. Ritch 
135 U.S. 276 (1904). 4 '« +» » ¢iv vy 25 

Furman v. Georgia 
408 U.S. 238 (1972) + ., +» + + . passin 

Gardner v. Florida 
430 1,8, 349 (1977) 2 + 0s 0 +.32,38 

Gates v, Collier 
501 F.2d4.129) (5th-Cir, 1974) .., .. 1) 

General Bullding Contractors 
Ass'n, Inc. v. Pennsylvania 
458 U.S. 375 (1982) ..v sv « vie a2] 

Godfrey v. Georgia 
446 1.8. 420 (1980) « . . » ... . 34,39 

Gregg v. Georgia 
428 U.S, 183 (1976) . +. 4,5,36;37,40 

Hall v. State 
244 5.P.2d4 833 (Ga. 1978) « . +. 41 

Hazelwood School District 
v. United States 
433. U.8., 299 (1977) ., + v wis vai, 31 

iii,  



   
Jones v. Georgia 
189 U.8. 24 (19861) . . 

Lodge v. Buxton 
6)9 F.2d.1358 (11th Cir, 

Loving v. Virginia 
388 U.S. 1 (1967) .. . . 

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

Norris v. Alabama 
294 VU.8. 550 (1983) , 

Rhodes v. Chapman 
452 U.S. 137 (1981) 

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

Rose v. Mitchell 
443 U.S. 545 (1979) 

Ross v. Kemp 
785 F.2d 1467 (11th Cir. 1986) . 

Rozcecki v. Gaughan 
459 F.2d 6 (1st cir. 1972) 

Shelly v. Kramer 
334 U.8.:1 (1948) . . . 

Smith v. Texas 

311 U.S. 128 (1940). . 

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

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

Spivey v. State 

. 12 

1981) 14 

foi ap 

1985) . passim 

Lalli 31 

bos ieee 

10,14,25,29,31 

Lv, 37,210 

Ji 30 

ein iL 

CLAN ya ay 

aga, AY 

o ay 

. 30 

‘ile 38 246 S.E.2d 288 (Ga. 1978) 

iv. 

    

 



State v. Osborn 
£3) P.24 187 (1d. 1981) ic i... w0. 29 

Strauder v. West Virginia 
100 U.8, 664 (1879) — . . .. 5 , 14,22 

Texas Dept. of Community 
Affairs v. Burdine 
450 U.S. 248 (1981) . Ll] . . LJ LJ LJ . 11 

Turner v. Fouche 

306 U.8. 346 (1970) . ¢ « oc o 21,22 

Turner v. Murray 
106 S.Ct. 168) (1986) + .. e'i3 oo vi» 27 

ward v. State 

236 8.£.24 365 (Ga: 1977) + + » s 41 

washington v. Davis 
426 11.8, 339 (1976) vs veiaiw ve v.29 

Whalen v. State 
A492 A.20 553 (Del. 1988) . . ... . 239 

Whiteley v. Albers 
106. 8.ck. 1078 (1986) . . . . . . 25,13 

Whitus v. Georgia 
386 0.8. B45 (1967) «0.1, 22,22 

willis v. Zant 
720 F.2d 1212 (11th Cir. 1983) . . 30 

Yick Wo v. Hopkins : 

118 U.9, 186 (IB8BY 1. «Le oe 20 

zant v. Stephens ; 
462 U.8. 862 (1983). . . + «+ . 39,40,43   
 



   
RULES AND STATUTES 
  

Georgia Code Ann. §27-2534(b) (2) . 39 

OTHER AUTHORITIES 
  

Bentele, The Death Penalty in 
Georgia: Still Arbitrary 
62 WASR.U.L.Q: B73 sy + + wv Jive: 38,41) 

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

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

Gross and Mauro, Patterns of Death 
37 STAN.L.REV. 27 (1984) + + « « «6,7 

HIGGENBOTHAM, IN THE MATTER OF 
COLOR: RACE IN THE AMERICAN LEGAL 
PROCESS (1978) + vs so oo ¢ sv v ov. 13 

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

Joint Center for Political 
Studies, Black Judges in the 
United States (1986) . +. + + viv:+« 30 

MYRDAL, AN AMERICAN DILEMMA 
(1944) . . LJ . [J . . EA LJ Ld . LJ * . 16 

NAACP Legal Defense Fund 
Death Row U.S.A., August 1, 1986 . 5 

Stampp, The Peculiar Institution: 
Slavery in the Antebellum South 
(1956) . N . . . . [J . . . . . [J * 14 

yi. 

    
 



  

No. 84-6811 

IN THE 
SUPREME COURT OF THE UNITED STATES 

October Term, 1986 

  

WARREN McCCLESKEY, 

Petitioner, 

v, 

RALPH M. KEMP, Superintendent, 

Respondent, 
  

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

  

BRIEF OF AMICI CURIAE 
THE CONGRESSIONAL BLACK CAUCUS, 

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

  

  

INTEREST OF AMICI   

The interests of amici in this case 

are set out in the preceding Motion for 

Leave to File this Brief.  



SUMMARY OF ARGUMENT 
  

  

The exhaustive scientific proof in 

this case shows that race has retained a 

powerful influence on capital sentencing 

decisions in Georgia, since Furman v.   

georgia, (408. .U.S8.. 238. (1973). That 

confirms what is evident to even a casual 

observer: Just as before Furman, "a look 

at the bare statistics regarding executions 

is enough to betray much of the 

discrimination." 408 U.S. at 2364 

(concurring opinion of Justice Marshall). 

The scientific evidence in this case tests 

every possible explanation for ‘these 

apparent disparities, and shows nothing can 

explain them but the conscious or 

unconscious influence of race. It does so 

with a thoroughness and rigor which meet or 

exceed every standard this court, or any 

other court, has ever set down for such 

proof. It cannot be simply explained away 

or ignored. 

    
 



  

The Court of Appeals' suggestion that 

the discrimination this evidence showed was 

of a tolerable magnitude is inconsistent 

with everything this Court has said about 

race discrimination in criminal justice. 

It also ignores the true magnitude of the 

racial disparities here, which matched or 

exceeded those the Court has found 

intolerable in related contexts. 

The Court of Appeals' insistence on 

proof of an intentional act of 

discrimination by an identified actor 

imposes "a crippling burden of proof," 

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

(1986) on claims of discrimination in this 

context. There is no justification for 

imposing duch an extraordinary burden here: 

Death sentencing is quintessential state 

action; it involves such a range of 

discretion and such a multitude of decision 

makers that proof of 7 particular 

discriminatory act or animus is unnecessary 

 



   
and unrealistic, In such circumstances, 

the kind of strong statistical proof 

Presented here, coupled with a history of 

discrimination, sufficiently shows 

"purposeful discrimination" Ynder any 

established and realistic Fourteenth 

Amendment standard. Moreover, the separate 

requirements of the Eighth Amendment place 

on the states a duty to avoid 

discrimination in death sentencing which is 

independent of any particular actor's 

subjective intent. 

The evidence here shows that the hope 

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

has not been realized. Georgia's uniquely 

discretionary post-Furman system has not 

removed discrimination from the imposition 

of death sentences in that state. 

    

 



  

ARGUMENT 

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

Since this Court's decision in Greqq 

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

of Georgia has carried out seven 

executions. Six of the seven men executed 

were blacks convicted of killing whites; 

the victim in the seventh case was white, 

also.! If this court affirms the Court of 

Appeals! decision in this case, it appears 

that pattern will persist: Of the fifteen 

men Georgia holds under death sentences now 

in force which precede Warren McCleskey's 

in time, thirteen are black; nine of the 

  

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

 



   
thirteen had a white victim; so did both of 

the two white defendants in this group.? 

These figures are particularly 

striking when one considers that black 

people constitute a substantial majority of 

the victims of all homicides in the state 

of Georgia, and black-on-white homicides 

are extremely rare.3 Although these raw 

figures are certainly not scientific proof, 

no fair-minded observer who is aware of the 

history of race relations in this state can 

confront them without suspecting that 

racial inequities persist in the manner in 

which capital defendants are chosen for 

execution by the Georgia judicial system. 

  

2 See Appendix I. 

3 Professor Baldus! data showed 
black people were the victims in 60.7% 
(1502/2475) of Georgia homicides; and 
crimes involving black defendants and white 
victims constituted only 9.2% (228/2475) of 
Georgia homicides, during the period he 
studied. See D.Ct. Exhibit DB 63. FBI 

Uniform Crime Reports confirm these 
percentages. See Gross and Mauro, Patterns 
of Death, 37 STAN.L.REV. 27, 56 (1984). 

  

  

    

 



  

The evidence presented in this case is 

strict scientific proof; and it tragically, 

but unmistakably, confirms that Suspicion. 

From Professor Baldus' most preliminary 

measures (which showed white victim cases 

nearly 11 times more 1likely to receive 

death sentences than black victim cases, 

D.Ct. Exhibit DB 62), to his most 

comprehensive and refined (which showed 

race of victim to multiply the odds of 

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

the evidence presented here shows the 

influence of race in the Georgia system 

persists, however it is examined. All 

other observers have reached the same 

conclusions; whatever methods and data they 

have used.? 

  

4 gee Gross & Mauro, supra, n.2: 
Bowers and Pierce, Arbitrariness and 
Discrimination Under the Post-Furman 
Capital Statutes, 26 CRIME AND DELINQUENCY 

  

  

  
563 (1980). 

 



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

some or all of the actors in the Georgia 

criminal justice system empowered to make 

decisions affecting the imposition of the 

death penalty are intentionally 

discriminating by race; or (2) the 

discretionary aspects of the Georgia death 

sentencing system allow subconscious racial 

biases to influence the outcome of death 

sentencing decisions; or (3) some unknown 

nondiscriminatory influence is at work, and 

accounts for these persistent disparities 

in a way no one has yet fathomed. 

No one would deny the first of these 

possibilities violates the Constitution. 

As we will discuss in Part II below, in the 

context of the Georgia capital sentencing 

system, the second does as well. We must 

first pause, however, to consider the third 

possible explanation, which the Court of 

Appeals' majority seized upon when it 

    
 



  

faulted the Petitioner's proof for 

supposedly "ignor({ing] quantitative 

differences in cases: looks, age, 

personality, education, profession, job, 

clothes, demeanor, and remorse, just to 

  

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

Fe2d 877 (11th Cir, 19885), With all 

respect, this remarkable assertion is wrong 

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

and as a matter of common sense. 

The factual error in the Court of 

Appeals statement is both striking and 

revealing. Striking is the fact that 

several of the precise variables the Court 

of Appeals pointed to were taken. into 

  

account by Professor Baldus' data.?> 

Revealing is the list of new variables the 

  

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



    

Court of Appeals conjured up: "looks ... 

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

Not only 1s it unimaginable that such 

criteria could serve as legitimate 

justifications for a death sentence; they 

would be obvious proxies for race prejudice 

if they were in fact used.® For as Judge 

Clark in his dissenting opinion below 

noted, "it is these differences that often 

are used to mask, either intentionally or 

unintentionally, racial prejudice." 

  

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

n.24. The Court of Appeals! resort to 

these farfetched hypotheticals illustrates 

how comprehensive Professor Baldus' data 

are: No one has yet suggested any factors 

he did not take into account which could 

  

6 Even the variables that the Court 
of Appeals identified and Professor Baldus 
did take into account--job, profession, and 
education--are not wholly race neutral. 
Any disadvantages black defendants may 
suffer in these respects are likely to be 
the result of past discrimination. cf. 
Rogers v. Lodge, 458 U.S5. 613, 625-6 (1982). 
  

10 

    

 



  

plausibly and fairly explain death 

sentencing outcomes. 

As a matter of law, the court of 

Appeals' error lies in its holding that 

even such thoroughness was not enough, 

demanding that statistical proof: of 

discrimination eliminate such nebulous and 

speculative influences. . The breadth of the 

Baldus gtudies~~which accounted for over 

230 nonracial variables--far exceeds any 

other ever offered to meet a prima facie   

standard of proof announced by this Court.’ 

And as the Court has recently reiterated, 

one cannot dismiss or rebut a sophisticated 

regression analysis--or any prima facie 

proof of discrimination, for that matter-- 

"declar[{ing] simply that many factors go 

into making (the relevant decision]}", 

without any "attempt ... to demonstrate 

  

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

  

  

  

  

11 

 



    

that when these factors were properly 

organized and accounted for there was no 

significant disparity between ... blacks 

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

3000, 3010-11 n.14 (1986).8 Yet the 

Eleventh Circuit majority did just that, 

The Court of Appeals' strain to find 

unexplained variables defies common sense 

because it ignores the social context and 

history in which the substantial racial 

discrepancies identified by Professor 

Baldus were found. The differing treatment 

of murder defendants in Georgia, based on 

their race and the race of their victim, is 

no newly-discovered phenomenon. In 

Georgia's earliest history, established law 

provided as follows: 

  

8 Accord Alexander Vv. Louisiana, 
405 U.S, 628," 631-32 (1972); Whitus wv, 
  

  

Georala, 385 U.S. 545 (1967): Jones Vv. 
Georgia, 389 U.S. 24 (1967). 

  

    
 



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

* * * 

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

Yet conversely, when a white person killed 

a slave: 

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

HIGGENBOTHAM, IN THE MATTER OF COLOR: : RACE 

IN THE AMERICAN LEGAL PROCESS 256, 253-4   
 



   (1978) .° 

This legal system--with its 

differential treatment of blacks as 

defendants and victims--was explicitly 

among the "discriminations which are steps 

toward reducing . [blacks] devi ito the 

condition of a subject race," that the 

Fourteenth Amendment was enacted to 

abolish. Strauder v. West Virginia, 100 
  

  

9 See also Stampp, The Peculiar 
Institution: Slavery in the Antebellum 
South 210 (1956). 

    

  

This history, though ancient, remains 
relevant. As Judge Fay wrote in Lodge v. 
Buxton, 639 F.2d 1358, 1381 n.46 (11th Cir. 

1981), aff'd sub nom Rogers v. lodge, 458 
U.S. 613 (1982): 

  

    

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

14 

    

 



  

U.S. 664, 665 (1879) .10 Yet as this Court 

has too often had occasion to recognize, 

for a hundred years that noble effort 

utterly failed to overcome the entrenched 

social conditions that the antebellum laws 

reflected and reinforced. Thus, in 1944-- 

well within the lifetimes of most of the 

participants in Georgia's legal system 

today--Gunnar Myrdal observed: 

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

another Negro. ... 

* * * 

  

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

15 

 



  

~ For offenses which involve any 
actual or potential danger to 

  

whites, however, Negroes are 
punished more severely than 
whites.... 

* * * 

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

* * * 

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

MYRDAL, AN AMERICAN DILEMMA, 551-55) 

(1944).   
 



  

such deeply-rooted biases die hard. 

The lesson of Professor Baldus' data is 

that although the influence of these social 

forces may have diminished and are no 

longer openly acknowledged, they still 

weigh significantly in the balance that 

decides life and death in Georgia's 

judicial system. As the Court noted in Rose 

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

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

To pretend race prejudice has vanished 

or never existed, to conjure hypothetical 

explanations for persistent discrepancies 

that obviously reflect its influence, is to 

forget the reality that the Fourteenth 

Amendment was enacted to address, and this 

court has long been vigilant to guard 

against. 

 



SIGNIFICANT RACIAL INFLUENCES 

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

  

The Court of Appeals' ruling goes 

beyond quibbling about hypothetical 

uncontrolled variables in the Baldus study. 

Indeed, the court's majority said it 

accepted, for purposes of its decision, the 

validity of Professor Baldus' study, and it 

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

claims to prove." McCleskey Vv. Kemp, 
  

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

court held that proof insufficient to raise 

even a prima facie case under the Eighth or 
  

Fourteenth Amendments. It gave two basic 

reasons for this: the supposedly 

insignificant magnitude of the racial 

disparities the evidence showed; and the 

lack of direct proof of a discriminatory 

motive. We will briefly address these each 

in turn. 

18 

  

 



  

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

  

  

  

In part, the Court of Appeals seemed 

to agree McCleskey showed bias--just not 

enough bias. Absent proof of subjective 

discrimination by capital jurors or other 

decisionmakers in the sentencing scheme, it 

said statistical proof of racial bias 

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

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

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

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

  

  

  

  

  

  

  

19 

 



   penalty than murderers of blacks. 

(Emphasis added.) 

  

That any court in this day and age 

could simply dismiss admittedly valid, 

comprehensive proof because it "only" 

demonstrated that race is an influential 

factor in capital sentencing is astounding. 

Amici have long understood that unequal 

enforcement of criminal statutes based upon 

racial considerations violates the 

Fourteenth Amendment. Such racial 

disparity, whatever its magnitude, has "no 

legitimate overriding purpose independent 

of invidious racial discrimination," Loving 

v. Virginia, 388 U.S. 1, 11 (1967); Yick Wo 
  

v. Hopkins, 118 U.S. 356 (1886); cf. Furman 
  

v. Georgia, supra, 408 U.S. 238, 389 n.l2 
  

(dissenting opinion of Chief Justice 

Burger). For well over 100 years, this 

Court has consistently interpreted the 

Equal Protection Clause to prohibit all 

racial discrimination in the administration 

    
 



  

of the criminal justice system.ll 

While questions concerning the 

necessary quantum of proof have 

occasionally proven perplexing, no federal 

court until now has ever, to our knowledge, 

seriously suggested that racial 

discrimination at any level of magnitude, 

if clearly proven, cap be constitutionally 

tolerated. Yet that 1s precisely the 

holding of the Court of Appeals. 

Moreover, even if the magnitude of 

discrimination were relevant, the evidence 

here demonstrates an extraordinary racial 

effect. The regression models the Court of 

Appeals focused on, for example, showed the 

increased likelihood of a death sentence, 

if the homicide victim is white, is .06, or 

  

11 gga, e.g.,, Strauder Vv. Hest 
virginia, supra; Carter v. Texas, 177 U.S. 
442 (1900); Norris v, Alabama, 294 U.S. 559 
(1953); Turner V. Fouche, 396 U.S. 346 

(1970); Rose Vv. Mitchell, upra; General 
Building Contractors Ass'n, Inc. Vv. 
Pennsylvania, 458 U.S. 375, 382-91 (1982); 
Briscoe v. LaHue, supra, 460 U.S. at 337- 

40. 

  

  
  

  

  

  

  

  

21 

 



   eix percentage points, holding all other 

factors constant. 753 F.2a at 896-7, 

Since the average death-sentence rate among 

Georgia cases is only .05, the fact that a 

homicide victim 1s white, rather than 

black, more than doubles the average 

likelihood of a death sentence (from .05 to 

.11).12 in plainest terms, these 

  

12 1t ie important to note that 
these figures, and all those Prof. Baldus 
used to express the racial disparities he 
found, are different from the raw numbers 
used to measure racial disparities in jury 
challenges. In those cases, the Court has 
generally compared the raw percentages of 
minority persons selected for jury service 
with the population as a whole. See, e.q., 
Casteneda v, Partida, supra (40% 
disparity): Turner v. Fouche, 396 U.S. 346 
(1970) (23% disparity): Whitus v. Georgia, 
supra (18% disparity). 

  

  

  

  

Prof. Baldus' tables 1ist emaller 
numbers, because they express a different 
ratio: the comparative percentages of 
persons in different racial categories 
selected for death sentences. A comparable 
calculation using the figures in Casteneda 
(430 U.S. at 486 n.7), for example, would 
show an arithmetic difference of .26% 
rather than 40%: The odds of a person in 
the population as a whole being selected 
for a grand jury was .54% (870/158690): the 
odds of a Spanish surnamed person being 
selected was .28% (339/120766). 

  

22 

    

 



  

percentages suggest that, among every 100 

homicide cases in Georgia, 5 would receive 

a death sentence if race were not a factor; 

in reality, where white victims are 

involved, 11 out of 100 do. Six defendants 

are thus sentenced to death, who would not 

be but for the race of their victims. 

"stated another way, race influences the 

verdict just as much as any one of the 

aggravating circumstances listed in 

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

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

of Appeals' bland suggestion that race 

affects at most a "small percentage of the 

cases," 753 F.2d at B99, scarcely reflects 

this harsh reality. No analysis true to 

the Fourteenth Amendment can condone it. 

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

  

  

      
  

  

The question Professor Baldus' data 

does not and cannot answer is whether the 

23 

 



   impact of race on Georgia's death 

sentencing system is the result of 

deliberate discrimination or unconscious 

racial influences on the actors who are 

part of it. Can it be that resolution of 

this issue--on which proof may be 

impossible--is a prerequisite to relief? 

We believe not. The dispositive issue is 

whether, not why, race is a significant 

influence on sentencing decisions. 

The Baldus study demonstrates that 

race is a significant influence. The Court 

of Appeals holds that this pattern affronts 

no constitutional principles. That cannot 

be the law. If race is a significant 

factor in capital sentencing outcomes, 

whatever subjective intent lies behind this 

factor--be it conscious or unconscious--is 

constitutionally irrelevant. 

The significance of the subjective 

intent in claims of discrimination and 

cruel and unusual punishment has occupied 

    
 



  

this Court's attention several times in 

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

Friday, supra; Whiteley v. Albers, 106 
  

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

In every instance, the Court's answer has 

reflected a realistic focus on the context 

in which the challenged governmental action 

occurs. Here, that focus militates against 

a holding that proof of an act of 

intentional discrimination by an identified 

decision maker should be essential to 

showing a constitutional violation. 

Most fundamentally, requiring proof of 

subjective intent in the sentencing context 

raises an impossible burden. Jurors 

"cannot be called .., to testify to the 

motives and influences that led to their 

  

verdict." Chicago, ‘Burlington & OQuiney 

Railway Vv. Babcock, 204 'U,8, 585, 593   

(1907). Neither is it seemly or proper to 

so question judges about the motives for 

their decisions. Fayerweather v. Ritch, 
  

 



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

Marshall recently observed, "{ajny 

prosecutor can easily assert facially 

neutral reasons for [his actions] ... and 

trial courts are ill-equipped to second 

guess those reasons." Batson v. Kentucky,   

supra, 106 S.CE. at 1728 {concurring 

opinion). Moreover, the influence of race 

prejudice may well be unconscious, unknown 

to the decision-makers themselves. Ibid. 

"Defendants cannot realistically hope 

to find direct evidence of discriminatory 

  

intent." McCleskey v. Kemp, supra, 753 

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

only last Term this Court reiterated that 

the Equal Protection Clause does not permit 

shouldering a defendant with "a crippling 

burden of proof" in order to make out a 

prima facie case of discrimination. Batson 

  VY, Rentucky, supra, 106 .s.Ct. at 1720. 

There is no reason to except from that 

here. 

26 

    

 



  

The death sentence decisionmaking 

process is one controlled from stem to 

stern by the state; everything about 

capital sentencing is state action.13 

Nowhere does the "voluntary and unfettered 

choice of private individuals", Bazemore Vv.   

Friday, supra, 106 s.Ct. at 3012 

(concurring opinion), intervene. At the 

same time, death sentencing decisions are 

highly discretionary, see Turner v. Murray, 
  

106 S.Ct. 1683 (1986) and as we 

demonstrate in the following section of 

this brief, Georgia's statutory capital 

sentencing scheme does less to guide 

discretion than any other this Court has 

reviewed since Furman. 

Where official grants of discretion 

provide "the opportunity to discriminate" 

and "the result bespeaks discrimination", 

this Court has found the Constitution is 

  

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

  

  

27 

 



   
violated "whether or not it was a conscious 

decision on the part of any individual" to 

discriminate. Alexander v. Louisiana, 405 
  

U.S. 625, 632 (1972). Even though "[t]he 

facial constitutionality of the ... system 

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

selection procedure that 1s susceptible of 

abuse ... supports the presumption of 

discrimination raised by the statistical 

  showings." Casteneda v. Partida, supra, 

430 U.S. at 497, 494. 

This is especially true where, as 

here, the discretionary decision is not an 

individual one, but the collective one 

involving a multitude of individuals. When 

decisionmaking responsibility is diffused, 

[rlarely can it be said that a 
[decisionmaking] ces body 
operating under a broad mandate 
made a decision motivated solely 

. by a single concern, or even that 
a particular purpose was the 
‘dominant! or 'primary' one. 

  

Arlington Heights v. Metropolitan Housing 

Corporation, 429 U.8. 252, 265 (19771). In   

    
 



  

such systems, for practical purposes, there 

is no difference between subjective intent 

and objective results. As Justice Stevens 

explained in Washington v. Davis, supra: 
  

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

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

It is also significant that capital 

sentencing occurs in an arena in ‘which 

blacks have traditionally lacked the means 

to defend themselves through participation 

in the process. Cf. Rogers Vv. Lodge, 
  

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

opinion of Justice Stevens); Casteneda v.   

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

  

(dissenting opinion of Justice Powell). 

The legacy of past discrimination, if 

nothing else, has kept blacks from equal 

participation as prosecutors and judges,  



    the officials who can influence death 

penalty decisions in Georgia.l4 And one 

need not look beyond recent casebooks to 

find evidence that blacks--at least at the 

time of Warren McCleskey's trial--often 

lacked an equal voice on Georgia juries, as 

well.l1l5 This--and the history of 

discrimination in capital sentencing this 

Court acted on in Furman--highlights the 

significance of objective disparities: 
  

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

15 See, e.9., Bowden v. Kemp, 793 
F.2d 273 (11th Cir. 1986): Spencer v. Kemp, 
784 F.2d 458 (11th Cir. 1986): Ross Vv. 
Kemp, 785 F.2d 1467 (11th Cir. 1986): 
Amadeo v. Kemp, 773 F.2d 1141, 1143 (11th 

Cir. 1985): Davis v. Zant, 721 F.2d 1418 
(11th cir. 1984): Willis v. Zant, 720 F.2d 
1212, 1217-18 (11th Cix. 1983). 

  

  

  

  

  

  

  

  

  

30 

    

 



  

Evidence of historical 
discrimination is relevant to 
drawing an inference of 
purposeful discrimination, 
particularly in cases such as 
this one where the evidence shows 
that discriminatory practices 
were commonly utilized, but that 
they were abandoned when enjoined 
by courts ... and that they were 
replaced by laws and practices 
which, though neutral on their 
face, served to maintain the 
status quo. 

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

see also Bazemore v. Friday, supra, 106 
  

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

United States, 433 U.S. at 209-10 n.15.   

Finally, it is significant that the 

discrimination here falls in the most 

central core area to which the Fourteenth 

Amendment was directed. "Discrimination on 

the basis of race, odious in all its 

aspects, 1s especially pernicious in the 

administration of justice." Rose Vv.   

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

of racial equality in the context of 

criminal justice "not only violates our 

Constitution and the laws enacted under it, 

31 

 



   but is at war with our basic concepts of a 

democratic society and a representative 

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

130 (1940). And where the criminal law 

involves the death sentence, 

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

Gardner v. Florida, 430 U.S, 349, 2358 
  

(1977). 

The fact the death penalty is involved 

here, of course, means this is an area in 

which the Eighth Amendment must play a part 

in addition to the Fourteenth. Throughout 

its jurisprudence, the Court has found the 

touchstone of Eighth Amendment analysis in 

  

results, not intentions. See Rhodes wv. 

Chapman, 452 U,S. 337, 364 (1981) 

(concurring opinion of Justice Brennan); 

    

 



  

id. at 345-46 (plurality opinion).16 

"Deliberate indifference" to deprivations 

of constitutional magnitude has, in all but 

the rarest circumstances, been held 

sufficient to make out a claim under the 

Eighth Amendment. Estelle v. Gamble, 429   

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

penalty cases have repeatedly charged the 

states with the responsibility, not just to 

avoid "indifference", but to positively 

insure "that general laws are not applied 

  

16 The lower federal courts have 
read this Court's decisions to mean that 
"wrongful intent is not a necessary element 
for an Eighth Amendment violation." Spain 
v. Procunier, 600 F.2d 189, 197 (9th Cir. 
1979); see Gates v. Collier, 501 F.2d 1291, 
1300-01 (5th: Cir, 1974):  Rozceckl  v, 
Gaughan, 459 F.2d 6, 8 (1st Cir. 1972). 

  

  

  

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

  

a ie) 

 



   
sparsely, selectively, and .spottedly to 

unpopular groups." Furman v. Georgia, 
  

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

of Justice Douglas): see also id. at 274 
  

(concurring opinion of Justice Brennan). 

"[Clapital punishment [must] be imposed 

fairly, and with reasonable consistency, or 

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

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

made it clear that departures from that 

rule are intolerable, regardless of the 

motives that created them. See Furman v. 
  

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

opinion of Justice White). 

  

18 Accord, Gardner _ v. _ Florida, 
supra, 430 U.S. at 351 (1977) ("([T)he state 
must administer its capital sentencing 
procedures with an even hand."): Godfrey v. 
Georgia, 446 U.S. 420, 428 (1980) ("If a 
state wishes to authorize capital 
punishment it has n constitutional 
responsibility to tailor and apply its laws 
in a manner that avoids the arbitrary and 
capricious infliction of the death penalty.") 

  
  

  

34 

    
 



  

Everything in this Court's 

jurisprudence to date suggests that 

differential treatment by race in death 

sentencing should be the subject of the 

strictest judicial scrutiny of any 

governmental action. If, in this context, 

overwhelming, comprehensive proof of racial 

disparities--proof that excludes every 

plausible, legitimate explanation other 

than the influence of race bias--is not 

enough, where can it be? 

The answer this Court has given before 

is that it is enough to prove that a state 

has failed to break a historical pattern of 

discrimination, and that discretionary 

decisions have produced "a clear pattern, 

unexplainable on grounds other than race." 

Arlington Heights v. Metropolitan Housing 
  

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

reason to change that answer now. 

35 

 



  

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

Gregg Vv. Georgia expressed this 
  

Court's hope that a new Georgia death 

sentencing system could eradicate the 

inequities that had led to the invalidation 

of its predecessor in Furman. Of all the 

statutory schemes reviewed by this Court in 

1972, the Georgia system differed the least 

from those struck down in Furmai. But it 

was a new statute, and the Court 

understandably declined to “accept the 

naked assertion that the effort [to purge 

the system of discrimination] is bound to 

fail", 428 U.5. “at. 222 (concurring 

opinion). It 1s now apparent--from 

experience, not assertion--that it has. 

The reason for this must lie in the 

way the Georgia statute 1s written or 

enforced. The enforcement of the law, of 

course, 1s the primary responsibility of 

    
 



  

district attorneys. In Gregg, the Court * 

refused to assume, without proof, "that 

prosecutors [will] behave in a standardless 

fashion in deciding which cases to try as 

capital felonies...." 428 U.S. at: 225 

(concurring opinion). The evidence in this 

case strongly suggests that they have. 

Lewis Slayton, the District Attorney 

whose office tried Warren McCleskey, 

testified in this case that the decision- 

making process in his office in capital 

cases was "probably ... the same" before 

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

Other Georgia prosecutors have candidly 

admitted that their decisions to seek, or 

not to seek, death sentences are often 

based on a variety of "factors other than 

the strength of their case and the 

likelihood that a jury would impose the 

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

225--1including office resources, subjective 

opinions about the defendant, public 

 



   pressure, the standing of the victims, and 

  

even the desire "to obtain a more 

conviction prone Jury through the 

Witherspoon qualification." Bentele, The 

Death Penalty in Georgia: Still Arbitrary, 
  

62 WASH.U.L.Q. 573, 616-621 (1985). It is 

therefore hardly surprising that the 

outcome of these prosecutorial decisions 

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

Prof. Baldus found them a source of 

substantial disparities based on race of 

both the defendant and the victim. See 

D.ct. Exhibit DB 95-6. 

When capital charges are pursued, the 

structure of Georgia's law gives juries 

uniquely broad and unguided discretion. 

Unlike virtually all other states, Georgia 

does not provide juries with lists of 

aggravating and mitigating factors, or any 

statutory formula for balancing them 

38 

  
 



  

against one another.l1? See Spivey v. 

State, 246 S.E.2d 288 (Ga. 1978). Unlike 

most states, Georgia does not Limit its 

juries . to consideration of statutory 

aggravating factors, Zant v. Stephens, 462   

U.S. B62 (1983); and its broadest statutory 

factors often do not substantially narrow 

the class of persons eligible for a 

sentence of death.?20 

  

19 Virtually all other states' death 
penalty laws list mitigating circumstances 
(except Texas, which is unique); the vast 
majority also provide guidelines for 
balancing them against aggravating factors. 
Gillers, Deciding Who Dies, 129 U. PA. L. 
REV. 1, 102-119 (1980). Of the four states 
that do not provide for a listing of 
mitigating factors by statute, three do by 
judicial decision. Whalen v. State, 492 
A.2a 552, 560-2 (Del. 1985); State v. 
Osborn, 631 P.2d 187, 197 (Id. 1981): 
Burrows v, State, 640 P.2d 533 (Ok. Crim. 
1982). The exception 1s South Dakota, 
which has had no death sentences and no 
appellate decisions. 

  

  

  

  

20 gee Godfrey Vv. Georgia, supra. 
Even apart from the (b)(7) aggravating 
circumstance addressed in Godfrey, Georgia 

is one of the few states that still makes 
conviction of unintentional felony murder-- 
the crime of which William Henry Furman was 
convicted--a sufficient prerequisite for a 
death sentence. Ga. Code Ann. §27-2534(b) (2). 

  

39 

 



This discretion has not been    
controlled by the provision for special 

review by the Georgia Supreme Court, the 

major feature of the Georgia system which 

impressed this Court in Gregg, and appeared 

to distinguish Georgia's law from the pre- 

Furman statutes. Zant v. Stephens, supra, 
  

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

concurring opinion in Gregg emphasized the 

potential importance of this review: 

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

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

Greqq, that apparent protection has proven 

illusory. The Georgia Supreme Court has 

    

 



  

never reversed a &indle death sentence 

based on a finding of passion, prejudice, 

or race discrimination. Nor has it reduced 

a murder ‘sentence as disproportionate to 

the sentences imposed in other cases for 

comparable crimes.?1l 

In light of the evidence in this case, 

that means that for thirteen years, the 

Georgia Supreme Court has presided over a 

system that demonstrably discriminates on 

the basis of race and done nothing to 

correct it. Whether this reflects a 
  

21 Since 1974--when it partly 
anticipated Coker v. Georgia, 433 U.S. 584 
(1977) by reversing a single rape death 
sentence as disproportionate, Coley wv. 
State, 204 S.FE.24 612 (Ga. 1974)--the 
Georgia court has freed only two men from 
death judgments without finding legal 

  

  

  

error. One of them had received a life 
sentence in a previous trial. Ward wv. 
State, 236 S.E.2d 365 (Ga. 1977). The 
other was a nontriggerman, whose 
codefendant received a death sentence. 
Hall v. State, 244 S.E.2d 833 (Ga. 1978).   

Although the Georgia court did not so hold 
--and three of its Justices dissented each 
time--both sentences were probably 
independently invalid under the federal 
Constitution. See Bentele, supra, 62 WASH. 
U.L.Q. at 594-5. 

 



   
"deliberate indifference" to race 

discrimination or--more likely--a systemic 

inability to identify it when it occurs, 

the result is the same: The hope this 

Court expressed in Gregg has not been 

realized. 

As Chief Justice Burger recognized in 

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

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

  

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

Georgia's post-Furman statute was not shown   

to fit that description in Gregg: but it 

has been now. The discriminatory pattern 

is more complex and involves both the race 

of the defendant and the race of the 

victim. But the proof of discrimination is 

clear and compelling. 

42 

    

 



  

This wide-open statutory system has 

permitted prosecutors and jurors, 

consciously or unconsciously, to wattach(] 

the 'aggravating' label to factors that are 

constitutionally impermissible or totally 

irrelevant to the sentencing process," Zant 

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

race of the defendant and victim. From 

Furman to Zant, this Court has said that 

the Constitution will not allow such 

discriminatory factors to govern the 

allocation of death sentences. It should 

so hold how. 

43 

 



  

CONCLUSION 
  

The decision of the Court of Appeals 

should be reversed. 

August 21, 

Respectfully submitted, 

  

WILLIAM L. ROBINSON#* 

HAROLD R. TYLER and 

JAMES ROBERTSON, Cochairmen 

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

SETH P. WAXMAN 

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

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

*Counsel of Record 

1986