Press

    '“ NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

i 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

egal und 

  

August 5, 1985 

ATTENTION: Writers, Reporters and Editors 

SUBJECT: Race and the Death Penalty 

rw — — —— — — — —— — —— — — — —— —— —— —. — ——— — —. S—. —- — — — —— — — — — —r — — —_ t—.  —— o—" — —— — — —— — — — —. —— — — — —. —. — — —— 

This September, the U.S. Supreme Court will decide whether or 
not it will hear the most important capital punishment case of the 
decade: McCleskey vs. Kemp. 

The case, argued before the U.S. District Court in Atlanta 
earlier this year, has enormous Constitutional implications 
including Eighth Amendment rights which outlaw cruel and unusual 
punishment, and Fourteenth Amendment rights which guarantee equal 

justice, 

Statistical evidence, clearly demonstrating a pattern of racial 
discrimination in capital cases, is an important aspect of the case. 

In 1984, the most sophisticated and comprehensive study to 
date, conducted by Daniel Baldus, the nation's leading authority on 
legal use of statistics, unmistakably shows significant sentencing 
disparities: in Georgia a black who kills a white is eleven_times 
more likely to be executed than a white who kills a black. 

The high court's decision to hear the case may be the last 
opportunity in this century to have a full airing of the issues. 
Feature stories and editorial coverage of the connection between 
race and the death penalty is encouraged. 

Arguments and supporting statistical data on McCleskey and the 
issues it raises are assembled in the enclosed information kit. 
Additionally, attorneys in the case are available to discuss 
background and details. 

Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by itand shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

Tha 
NAACP 
Legal 

Defense & 
Educational | 
Fund, Inc. 

 



   
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

egal 

POST-FURMAN DISCRIMINATION IN CAPITAL SENTENCING 

by Richard Brody 

  

One of the most conspicuous historical facts about the use of 
the death penalty in the United States 1s racial discrimination. 
Over half of the nearly 3,800 people who were lawfully executed in 
this country since 1930 were black, not to mention the great 
majority of the thousands of victims of lynch mobs, This pattern of 
discrimination was one of the main problems that led the Supreme 
Court to declare in 1972, in the landmark case of 
Furman vs. Georgia, that all death penalty laws then in effect in 
America were unconstitutional. Now, thirteen years later, thousands 
of people have been sentenced to death under new, post-Furman death 
penalty laws, and it has become clear that at least one aspect of 
capital punishment in this country has not changed: It is still 
permeated by racial discrimination. 

Blacks and other minorities continue to bear the brunt of 
capital punishment: they constitute nearly half of the prisoners on 
death row and 35 percent of those executed since Furman were black 
-- and, judging from the death row population, that figure will go 
up. In addition, it has now become apparent that there is a second 
type of racial discrimination in the use of the death penalty: 
discrimination by the race of the victim. Ninety-five percent of 
those executed since Furman were convicted of killing white people; 
in the same period, almost half of the homicide victims in this 
country were black. Several detailed studies have shown that this 
vast disparity is not caused by chance or by any legitimate factors, 
but by racial discrimination, 

Professor David Baldus and his colleagues have completed a 
massive investigation into capital sentencing in Georgia. Baldus 
compiled detailed files on over a thousand murder prosecutions, from 
1973 through 1979 gathering information on hundreds of facts about 
each case: the seriousness of the crimes, the nature of the 
evidence, the background of the offenders, etc. He found strong 
evidence of discrimination against black defendants, and he found 
overwhelming evidence of discrimination by the race of the victim. 
Those defendants who were convicted of killing white victims were 
ten times as likely to be sentenced to death as those convicted of 
killing blacks. This disparity cannot be explained on any basis 
other than race -- no matter how many other factors were taken into 
account, killers of whites were several times more likely to be 
sentenced to death than killers of blacks.* 

=i MORE: == 

Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

POST-FURMAN DISCRIMINATION/2 

This type of discrimination is not restricted to Georgia. 
Other researchers have found it elsewhere in the south, and 
throughout the country. In 1980, Dr.'s William Bowers and Glenn 
Pierce found discrimination by race of defendant and by race of 
victim in capital sentencing in Florida, Georgia, Texas and Ohio, 
from 1973 through 1977. More recently, a large-scale study by 
Professor Samuel Gross and Robert Mauro looked at all reported 
homicides from 1976 through 1980 in eight states: Georgia, Florida, 
Illinois, Oklahoma, North Carolina, Mississippi, Virginia and 
Arkansas. In each state Gross and Mauro found the same strong 
pattern of discrimination by race of victim that Baldus found in 
Georgia -- killers of whites were much more likely to receive death 
sentences than killers of blacks. And in each state, as in Georgia, 
this disparity could not be explained by the legitimate 
considerations that the researchers examined: the commission of 
another felony in the course of the homicide, the killing of two or 
more victims, the relationship of the victim to the killer, the use 
of a gun, etc.** 

Social .scientists have ‘argued that this pattern of 
discrimination by the race of the victim can be explained by the 
fact that our society values black lives less than white lives. But 
actions speak louder than words. If we insist on keeping such an 
extreme penalty as death, and we then reserve it almost exclusively 
to punish those who kill whites, explanations are beside ‘the point: 
that means that our society values the lives of blacks less than the 
lives of whites. 

* Baldus' basic findings are summarized in Table 1: 

TABLE 1 

Georgia Death Sentencing Rates by 
Defendant/Victim Racial Combination 

All White-=Victim All Black=Victim 

Cases _11%_(108/973) Cases _1%_(20/1502) 

Black Defendant - 22% Black Defendant - 1% 
White Victim (50/228) Black Victim (18/1438) 

White Defendant - 8% White Defendant - 3% 
White Victim (58/745) Black Victim (2/64) 

-— MORE -- 

 



  

POST-FURMAN DISCRIMINATION/3 

** Gross & Mauro's basic findings are summarized in Table 2: 

TABLE 2 

Race and the Death Sentence in Eight States 

Number of criminal homicide cases in which negligence was not a 
factor and there were known suspects at least 15 years old, and the 
number of times the death penalty was invoked in these cases. 
Multiple homicides are counted as a single incident. Unless 
otherwise noted, totals are from 1976-1980. In states where the 
death penalty was instituted later than January 1976, the date of 
the legislation is given. 

WHITE VICTIMS BLACK VICTIMS 

Death Death 
Homicides Penalty Percent Homicides Penalty Percent 

Fla. 1,803 114 6.3% 1,683 14 0.8% 

Ga. 773 67 8.7 1,345 12 0.9 

I11. (1) 1,214 35 3.0 1,866 10 0.5 

Okla. (2) 581 40 6.9 252 3 1.2 

N.C, (3) 850 21 2.5 966 4 0.4 

Miss. 208 17 8.2 639 5 0.8 

Virg. (4) 646 15 2.3 742 4 0.5 

Ark. 396 13 3.3 398 2 0.5 

(1) July 1977 
(2) August 1976 
(3) June 1977 
(4) May 1977 

kkk % 

\ 

Richard Brody is director of research, capkiia1 punishment, NAACP Legal 
Defense and Educationaly Inc. 3 

Cini 

# # # 

 



        
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.    egal efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

CONTACT: RICHARD BRODY CONTACT: FREDA EISENBERG 
212/219-1900 212/736-5050 

THE SENTENCING SCHEME OF POST-FURMAN CAPITAL STATUTES 

The capital punishment statutes presently in force in thirty- 
seven states have been shaped, in part, in response to a series of 
U.S. Supreme Court decisions on the death penalty, beginning in 
1972. Prior to that time, state capital statutes normally afforded 
juries unbridled discretion in assessing whether or not to sentence 
a defendant to death. Furthermore, the statutes then in place did 
not divide the jury's determination of guilt from the decision on 
sentence. Thus, a jury was free to return a verdict of guilty and 
at the same time assign any one of a wide range of sentences, 
ranging from relatively modest prison terms all the way to the death 
penalty, without any separate deliberation on the appropriate 
sentence, Such unbridled sentencing discretion helped produce 
systems under which defendants were sentenced to death in an 
arbitrary manner, with little to distinguish those who received the 
death penalty from those who did not. The lack of sentencing 
guidelines or clear control over the sentencing process permitted 
other improprieties, such as rampant racial discrimination. 

In 1972, in Furman_vs. Georgia, five Justices of the U.S. 
Supreme Court held that the capital statutes then in force produced 
a system that was arbitrary and discriminatory, and therefore 
unconstitutional. The Court held that a system that operated to 
produce death sentences by chance and caprice, rather than by 
rational sentencing criteria, did not conform to the Eighth 
Amendment to the U.S. Constitution, which forbids "cruel and unusual 
punishment." 

In response to Furman, many states enacted new capital 
statutes. Some states enacted laws mandating that all persons 
convicted of first degree murder receive a death sentence, hoping to 
eliminate arbitrariness and discrimination by eliminating discretion 
in the sentencing process, However, the Supreme Court struck down 
these laws in 1976, holding that a sentencer must be able to 
consider the individualized character and background of each 
defendant as well as the circumstances of the offense in deciding 
whether to impose a death sentence. 

The Supreme Court did approve in 1976 another type of 
sentencing statute enacted in the wake of Furman, the so-called 
"guided discretion" statute. Such statutes are characterized by 
bifurcation of trial -- a division of the trial into a guilt-or- 
innocence and a sentencing phase -- and the introduction of explicit 
sentencing standards. 

ww. MORE =- 
Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

POST-FURMAN SENTENCING SCHEME/2 

Under a bifurcated system, an indicted defendant is brought to 
trial for murder. The issue at the first gquilt-or-innocence phase 
of the trial is whether the state has proven every element of the 
crime beyond a reasonable doubt, If the jury finds the defendant 
guilty of capital or first-degree murder (depending on the term each 
state uses for its most serious degree of homicide) and the state 
asks for the death penalty, the defendant then moves to a sentencing 
trial. 

The issue at the sentencing phase of the trial is what 
punishment should be imposed. Sentencing trials under guided 
discretion statutes typically involve the presentation of evidence 
by the prosecution in support of certain statutory "aggravating 
circumstances" and the presentation of evidence by the defense in 
mitigation of sentence. The purported aim of statutorily defined 
aggravating and mitigating circumstances is to allow the sentencer 
some discretion between the death penalty and a life sentence, yet 
at the same time to control the basis upon which a judge or jury may 
sentence a defendant to death. In this way, the sentencer's 
discretion is "guided" in the hope of avoiding the arbitrariness 
condemned in Furman. 

Statutory aggravating circumstances usually include such 
considerations as whether the murder was committed in the course of 
another felony, such as armed robbery, burglary or kidnapping; 
whether the murder victim was a police officer; whether the murder 
was for pecuniary gain; whether the murder was committed by a person 
under sentence of imprisonment; or whether the murder was 
"especially heinous, atrocious and cruel." 

Statutory mitigating circumstances often include the absence of 
a history of prior criminal activity; evidence that the crime was 
committed while the defendant was under extreme mental or emotional 
disturbance; evidence that the defendant was the less culpable 
accomplice in a capital offense; or that the capacity of the 
defendant to appreciate the criminality of his actions was 
significantly impaired. The Supreme Court has ruled, however, that 
the defense may not be limited to statutorily defined factors in 
mitigation, but must be allowed to present a wide range of material 
it feels will help the jury determine the proper sentence. Such 
evidence frequently includes factors from the defendant's past, the 
special circumstances of the particular crime, or any information 
which would lead a sentencer to decide that the death penalty was 
inappropriate in the particular case. 

-- MORE -- 

 



  

POST-FURMAN SENTENCING SCHEME/ 3 

Unlike the trial on guilt, evidentiary rules are typically 
relaxed during the sentencing proceeding, with regard to evidence 
both in aggravation and in mitigation. In addition, parties may 
present character witnesses, members of the defendant's family, or 
other similar witnesses. Once the jury has been presented with 
evidence in aggravation and mitigation, and after the prosecution 
and defense have made their closing arguments, the sentencer must 
then decide which aggravating and mitigating circumstances are 
supported by the evidence presented. It then decides upon sentence. 

In some states, such as Florida, juries are explicitly 
instructed to weigh the aggravating circumstances against the 
mitigating circumstances. If aggravation "outweighs" mitigation, 
the jury must impose death. In other states, such as Georgia, the 
jury is simply instructed to decide whether the death penalty or a 
life sentence is appropriate in light of the factors it finds to be 
present in aggravation and mitigation. Under either statutory 
scheme, the law ostensibly limits and channels the sentencer's 
discretion through the influence of the aggravating and mitigating 
circumstances. 

Texas has a slightly different system, whereby the relevant 
aggravating circumstances are incorporated into the definition of 
the crime, and therefore are determined at the guilt-or-innocence 
phase. If the jury finds one of these circumstances to be present, 
it may convict the defendant of capital murder. The case then moves 
to a sentencing phase where the sentencer is presented with evidence 
to aid it in answering two questions: whether the defendant 
committed the offense intentionally; and whether the defendant will 
"constitute a continuing threat to society." If the sentencer 
answers both questions affirmatively, it must sentence the defendant 
to death. 

In most states, a jury decision on the death penalty is binding 
upon the judge. However, in the states of Florida, Alabama and 
Indiana, the jury's decision is treated as a recommendation; the 
trial judge makes the final decision between the death penalty and 
life in prison. In the state of California, trial judges are 
allowed to overrule a jury recommendation of death in favor of a 
life sentence but are not permitted to change a jury verdict of life 
in prison and impose a death sentence. 

-- MORE -- 

 



  

POST-FURMAN SENTENCING SCHEME/4 

After conviction and sentence of death, many state statutes 
provide for a mandatory appeal to the highest state court. This 
appeal typically involves questions as to the sufficiency of the 
evidence used at all stages of the proceeding, challenges to the 
conviction and sentence based upon criminal and capital case law, as 
well as constitutional challenges to the statute in part or as a 
whole. In addition to reviewing the conviction and sentence on 
legal grounds, some statutes mandate the state supreme court to 
review the death sentence for appropriateness in light of the 
evidence. This examination can also take the form of a 
proportionality review, whereby the state supreme court is mandated 
to ensure that the particular death sentence comports with sentences 
handed down in cases of a similar nature. 

* % % *% 

It is important to note that the U.S. Supreme Court, in 
reviewing the consitutionality of the "guided discretion" statutes, 
approved only the facial validity of the new laws. That is to say, 
the Court has said that these statutes gppear to satisfy the mandate 
of Furman on their face, but it has not ruled as to whether, in 
their actual operation, these statutes have actually eliminated the 
arbitrariness and discrimination condemned by Furman. Indeed, the 
McCleskey vs. Kemp case, reporting the findings of Professor David 
Baldus' two comprehensive studies of the guided discretion system in 
Georgia, is the first full-scale test of the new statutes in 
practice. It presents the Court not with arguments relating to the 
facial adequacy of Georgia's procedures, but instead with a 
comprehensive review of the results these new procedures have 
produced. McClesky asserts that these studies show, despite all the 
statutory procedures meant to channel discretion and produce non- 
arbitrary results, that the system is still yielding death sentences 
tainted by racial discrimination and arbitrariness. 

 



        
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

  

egal efense und 99 Hudson Street, New York, N.Y. 10013¢ (212) 219-1900 

CONTACT: Richard Brody CONTACT: Freda Eisenberg 
212/219-1900 212/736-5050 

RACE AND THE DEATH PENALTY 

The Pattern of Uneven Justice 

A battery of studies unequivocally link executions with the 
race of defendants and the race of victims: 

o Of the 44 death row inmates executed since 1977, 41 had 
white victims. 

o 3,859 people have been executed since 1930: 54.6 

percent have been black or members of other racial 
groups. For the crime of rape, 455 have been executed, 
405 bave been black. 

o In Georgia alone, of the 366 defendants executed since 
1930, 298 have been black. 

0. In a 1973 study of 1,265 cases from the states of 
Florida, Georgia, Louisiana, South Carolina and 
Tennessee in which the race of the defendant and the 

sentence are known, nearly seven times as many blacks 
vere sentenced to death as were whites. Of 882 blacks 
convicted of rape, 110 were sentenced to die. Among 
442 whites convicted of the same crime, only 9 received 
a death sentence. 

© In a 1984 study of Georgia sentencing, capital 

defendants who kill white victims are 10 times more 
likely to receive the death sentence than are those who 
kill black victims. Among those indicted for killing 
whites, black defendants receive death sentences three 
times as often as white defendants. 

o In South Carolina, over a four year period, prosecutors 
in murder trials involving white victims and black 
killers sought the death sentence in 38 percent of the 
cases. When the killer was white and the victim was 
black the figure drops to 13 percent. 

-- MORE -- 
Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 

was founded by it and shares its commitment to equal rightss LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

THE PATTERN OF UNEVEN JUSTICE/2 

In Texas, a Governor's judicial council found that 75 

were sentenced to die, Only a third of those with 
private attorneys received the death penalty. 

In Florida, between 1972 and 1977, black offenders who 

kllled whites were four times more llkely to be 
sentenced to death than those who murdered blacks, 
Blacks who killed whites were five times more likely to 
receive the death penalty than whites who killed 
whites. If all offenders were sentenced at the same 
rate as blacks who killed whites, 887 persons would 
have been sentenced to die. 

 



NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense ) 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

CONTACT: RICHARD BRODY CONTACT: FREDA EISENBERG 
212/219-1900 212/736-5050 

  

INFORMATION VALID THROUGH 
SEPTEMBER 1382 

RACE AND THE DEATH PENALTY 

An Historical Perspective 

For the first two hundred and fifty years of colonial and U.S. 
national experience, racial prejudice, discrimination and the persistent 
belief in the inferiority of blacks and other minorities worked itself into 
the legal and political fabric of the land. 

Colonial courts considered the killing of a slave by a white owner as 
little more than a minor offense. The murder of a white by a black, in 
contrast, was a heinous capital crime. The nation's governing document, 
the Constitution, counted black men as 3/5ths of their white counterparts. 

Well before the Civil War, Southern States had adopted separate "slave 
codes," harshly regulating the civil and criminal conduct of blacks. Penal 
laws prescribed different punishments for blacks and for whites for the 
same crime. The severity of sentences depended not only on the race of the 
defendant, but on the race of the victim as well. 

Sentencing disparities were widest in capital cases such as murder and 
rape. White offenders, for example, convicted of raping a white woman 
faced a prison term from two to twenty years. For the same crime, black 
defendants faced a mandatory death sentence. The rape of a black woman by 
a white man, however, was punished by a fine or imprisonment at the 
discretion of the court. Such different punishments were rarely 
questioned. 

After the Civil War, "black codes" persisted throughout the South 
despite changes in the law brought about by the Emancipation Proclamation, 
the Civil Rights Act of 1866 and the Fourteenth Amendment. While slavery 
was ended, disparities and blatant discrimination continued in both civil 
and criminal cases. Prevailing attitudes were summed up in a 1907 Georgia 
Court of Appeals ruling in a civil suit brought for calling a white man 
black: 

"It is a matter of common knowledge that, viewed from a 
social standpoint, the Negro race is, in mind and 
morals, inferior to the Caucasian. The record of each 
from the dawn of history denies equality." 

we MORE  w- 

Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by itand shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

AN HISTORICAL PERSPECTIVE/2 

In the century following the War Between the States, civil law in the 
South segregated the races. In criminal cases, sentencing differences 
based on race also continued. The rights of black defendants, especially 
those charged with capital offenses, were widely disregarded in the courts. 
Public pressure and the threat of extra-legal lynchings and mob action 
usually destroyed all pretenses of a fair trial in inter-racial cases: the 
more brutal the crime, the greater the public pressure. 

Today, institutionalized and systemic racial prejudice remain facts of 
life in capital cases. Between 1930 and 1967, blacks, while never more 
than 12 percent of the U.S. population, constituted over 53 percent of all 
executions. For the crime of rape over the same period, blacks constituted 
405 of 455 executions. This disparity is not explained by the higher 
incidence of black crime generally. 

A variety of statistical and legal studies, some dating from the 
1940's, dramatically demonstrate how race effects sentencing for capital 
offenses. A report on indictments, convictions and sentencing in selected 
counties in Georgia, North Carolina and Virginia in the 1930's conducted by 
Guy Johnson, for the first time revealed that the race of the yictim as 
well as the race of the offender is amajor factor contributing to sentence 
disparities in capital cases. 

Black defendants convicted of killing whites were dealt with more 
harshly than white defendants who killed whites, black defendants who 
killed blacks or white defendants who killed blacks. The largest 
differences occurred between cases of black offenders/white victims and 
white offenders/black victims, with black offenders, on average, receiving 
the most severe punishments and white offenders receiving lesser sentences. 

A similar study published in the late 1940's by Harold Garfinkel 
traced the effects of discrimination in the courts as capital cases moved 
through the judicial process in ten districts in North Carolina. 1t 
documented black offender/white victim and white offender/black victim 
cases and concluded that at each successive stage, from indictment to 
sentencing, race tended to be a stronger factor in determining the actions 
of the court. Other reports in the 1950's and 1960's enhanced and 
corroborated the evidence. 

As research techniques became more sophisticated, new studies helped 
legal authorities focus on specific aspects of inbred institutional 
discrimination. A study of sentencing patterns in Texas during the 1970's 
showed that, where a black or Chicano killed a white, 65 percent of the 
defendants were tried for murder while only 25 percent of whites who killed 
blacks or Chicanos faced the death penalty. 

-- MORE -- 

 



  

AN HISTORICAL PERSPECTIVE/3 

Recently, David Baldus, one of the nation's leading authorities on the 
legal use of statistics, conducted what many consider to be the definitive 
study on the issue. He researched Georgia's sentencing procedures and 
found significant disparities in capital cases, again based on race of 
offender and race of victim, 

The study tested over 230 possible sentencing factors other than race, 
such as the existence of a previous criminal record, the use of force in 
committing the crime, and alcohol or drug abuse, in an attempt to find an 
explanation for why black and white offenders received different 
punishments. He found none. 

Rather, he statistically illustrated that race plays an important role 
in determining which of Georgia's capital defendants will live and which 
will die. Specifically, defendants who kill white victims are ten times 
more likely to receive a death sentence than those who kill black victims. 
Among all persons indicted for the murder of whites, black defendants 
receive the death penalty nearly three times as often as white defendants: 
22 percent to 8 percent. 

Baldus' findings are an integral part of a key capital punishment 
case, McCleskey vs, Kemp, which the U.S. Supreme Court may hear next year, 
The Court will make its decision whether or not to rule on these important 
issues this fall. It is a unique opportunity for a full legal airing and 
discussion of the issues. 

 



Ay 

) Seid 

- 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense x. 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

CONTACT: RICHARD BRODY CONTACT: FREDA EISENBERG 
212/219-1900 212/736-5050 

  

INFORMATION VALID THROUGH 
SEPTEMBER 1985 

RACE AND THE DEATH PENALTY 

Landmark Battles In The Courts 

FURMAN VS. GEORGIA 

In June, 1972 the United States Supreme Court ruled in its 
landmark decision in Furman. vs. Georgia, that capital punishment, as 
administered under 40 then-existing statutes, violated 
constitutional protections against cruel and unusual punishment. It 
found that judges and juries, without standards or procedures, were 
imposing death sentences in an "arbitrary," "capricious," "uneven" 
and "discriminatory" fashion -- that the death penalty law, though 
fair on its face, reflected gross racial bias. 

The court, however, stopped short of declaring capital 
punishment unconstitutional. It suggested that states, to remove 
the random nature and racial bias in sentencing, draft new 
legislation which would set standards for use of the death penalty 
and restrict the discretion of judges and juries in sentencing. 

Such legislation was adopted in over 30 states. In Louisiana 
and North Carolina, for example, lawmakers mandated the death 
sentence for certain crimes, eliminating any discretion in 
sentencing, Other states, including Florida, Georgia, and Texas, 
passed "guided discretion" statutes in an attempt to control the use 
of judicial discretion. Typically, guided discretion statutes spell 
out specific aggravating or mitigating circumstances that must be 
considered before an offender is sentenced to die. 

In Georgia, if a jury finds at least one aggravating 
circumstance which is written into the law, it may recommend death. 
In Florida, juries must weigh aggravating circumstances against 
mitigating circumstances before recommending death. In Texas, for a 
crime to qualify as a capital offense, a jury must find a defendant 
guilty of at least one of five types of aggravated murder explicitly 
outlined in the law. To hand down a death sentence, the jury must 
answer additional questions of aggravation. In all three states, 
death sentences receive an automatic appellate review, 

ww MORE. w= 

Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by itand shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

LANDMARK BATTLES IN THE COURTS/2 

GREGG VS. GEORGIA 

In July 1976, the U.S. Supreme Court in Gregg vs, Georgdia 
struck down the mandatory death penalty laws in Louisiana and North 
Carolina ruling that some judicial discretion was necessary to 
ensure "individualized" justice. At the same time, the Court upheld 
the validity of "guided discretion" as a way to eliminate racial 
bias and arbitrary sentencing. 

McCLESKEY VS. KEMP 

Despite Georgia's revised sentencing procedures for capital 
cases, Warren McCleskey, sentenced to death for murdering a police 
officer while taking part in a robbery, brought his case before 
federal courts and demonstrated that changes in the law had failed 
to end enormous disparities in sentencing of blacks and whites. 

He demonstrated that race continues to play an important part 
in determining which of Georgia's capital defendants will live and 
which will die. To prove the point, David Baldus, a professor of 
law, developed the most far-reaching study of the issue of race and 
the death penalty to date. Baldus' studies revealed strong 
statistical disparities in capital sentences in homicide cases, 
based upon the race of the victim, After isolating over 230 
sentencing factors Baldus found that race was a chief reason for the 
disparities. 

The U.S. Court of Appeals in Atlanta did not quarrel with the 
study's factual findings, but ruled against McCleskey arguing, in 
part, that proving sentencing disparities was not enough to declare 
McCleskey's death sentence unconstitutional. The Court reasoned 

being used by judges, jurors or prosecutors when sentencing. 

The case has been appealed to the U.S. Supreme Court which, in 
the fall, will decide whether or not to hear it. For the first 
time, the Court will have the opportunity to squarely address 
whether the new "guided discretion" statutes, which 
Furman vs. Georgia promulgated, have eliminated "capriciousness" 
and "discrimination" in sentencing. 

 



ys 

Xe... nn. ) 

CONTACT: RICHARD BRODY CONTACT: FREDA EISENBERG 
212/219-1900 212/736-5050 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 Hudson Street, New York, N.Y. 10013 (212) 219-1900    

RACE AND THE DEATH PENALTY 

Death Row, USA 1985 
May 1, 1985 

Total Number of Death Row Inmates: 1513 

Race of Inmates Number of Inmates Percentage of Total Inmates 

Black 627 41.44 

White 773 51.09 

Hispanic 87 5.75 

Native American 18 1.19 

Asian 5 +33 

Unknown 3 .20 

Sex of Inmates 

Male 1494 98.74 

Female 19 1.26 

ww’ MORE www 

Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by itand shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

DEATH ROW, USA/2 

Jurisdictions with capital punishment statutes: 37 

Sentences were imposed in 32 of these jurisdictions. Jurisdictions 
underlined have statues but did not impose sentences. 

Jurisdiction Sentenced Inmates by Race 
to Die 

Alabama 74 50B; 24w 

Arizona 59 6B; 45W; 6H; 2NA 

Arkansas 25 8B; 1l6W 1H 

California 168 61B; 74W; 25H; 4NA; 3A 

Colorado 1 1w 

Connecticut 

Delaware 5 38; 2W 

Florida 227 83B; 133w;. 11H 

Georgia 113 54B; 59W 

Idaho 14 13W; 1H 

Illinois 72 41B; 23W; 8H 

Indiana 29 14B; 15% 

Kentucky 24 6B; 18W 

Louisiana 38 20B; 16W; 20 

Maryland 21 138; TW; INA 

Mississippi 40 21B;  19w; 

Missouri 34 178; _ 15W; 1NA 10 

Montana 4 1B; 3W 

(B=Black; W=White; H=Hispanic; NA=Native American; A=Asian; U=Unknown) 

-- MORE -- 

 



  

DEATH ROW, USA/3 

Jurisdiction Sentenced Inmates by Race 
to Die 

Nebraska 13 2B; 10W : 1NA 

Nevada 28 7B: 19; 2H 

New_Hampshire 

New Jersey 13 6B; TW 

New Mexico 5 1B; 2W; 2H 

North Carolina 43 26B; 15W; 1H 1NA 

Ohio 37 16B; 20W; 1H 

Oklahoma 43 9B; 30W; 4NA 

Qregon 

Pennsylvania 72 37B; 33W; 2H 

South Carolina 37 19B; 18wW 

South Dakota 

Tennessee 48 17B; 30W; INA 

Texas 193 72B; 91W; 3NA 

Utah 4 3B; 1wW; 

Vermont 

Virginia 27 15B; 11w; 1A 

Washington 6 1B; 4W; 1A 

Wyoming 3 3W 

(B=Black; W=White; H=Hispanic; NA=Native American; A=Asian; U=Unknown) 

ww MORE wee- 

 



  

DEATH ROW, USA/4 

Jurisdictions Without Capital Punishment Statutes: 

Alaska 

District of Columbia 
Hawaii 
Iowa 

Kansas 
Maine 
Massachusetts 

Michigan 
Minnesota 
New York 

North Dakota 
Rhode Island 
West Virginia 
Wisconsin 

 



    

CONTACT: 

Date 

1/17/77 
5/25/79 
10/22/79 
3/9/81 
8/10/82 
12/7/82 
4/22/83 
9/2/83 
11/30/83 
12/14/83 
12/15/83 
1/26/84 
2/29/84 
3/14/84 
3/16/84 
3/31/84 
4/5/84 
4/5/84 
5/10/84 
6/20/84 
7/12/84 
7/13/84 
9/7/84 
9/10/84 
9/20/84 
10/12/84 
10/30/84 
10/30/84 
11/2/84 
11/8/84 
12/12/84 
12/28/84 
1/4/85 
1/9/85 
1/11/85 
1/16/85 
1/30/85 

   egal efense 

RICHARD BRODY 
212/219-1900 

RACE AND THE DEATH PENALTY 

   und 
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

CONTACT: 

Executions in the United States 

Since 1977 

Defendant State 

Gary Gilmore UT 
John Spenkelink FL 
Jesse Bishop NV 
Steven Judy IN 
Frank Coppola VA 
Charlie Brooks TX 
John Evans AL 
Jimmy Lee Gray MS 
Robert Sullivan FL 
Robert Wayne Williams LA 
John Eldon Smith GA 
Anthony Antone FL 
John Taylor LA 
James Autry TX 
James Hutchins NC 
Ronald O'Bryan TX 
Arthur Goode FL 
Elmo Sonnier LA 
James Adams FL 
Carl Shriner FL 
Ivon Stanley GA 
David Washington FL 
Ernest Dobbert FL 
Timothy Baldwin LA 
James Henry FL 
Linwood Briley VA 
Thomas Barefoot TX 
Ernest Knighton LA 
Velma Barfield NC 
Timothy Palmes FL 
Alpha Otis Stephens GA 
Robert Lee Willie LA 
David Martin LA 
Roosevelt Green GA 
Joseph Carl Shaw SC 
Doyle Skillern TX 
James Raulerson FL 

~- MORE -- 
Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

Race 

E
E
 
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U
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U
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W
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S
S
 

S
S
U
E
S
 
S
S
W
w
E
S
S
 

E
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FREDA EISENBERG 
212/736-5050 

Race of Victim 

N
Y
 
N
S
 

E
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R
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EXECUTIONS IN THE UNITED STATES/2 

Executions Since 1977, con't. 

Date Defendant State Race Race of Victim 

2/20/85 Van Roosevelt Solomon GA B Ww 
3/6/85 Johnny Paul Witt FL Ww Ww 
3/13/85 Stephen Peter Morin TX Ww W 
3/20/85 John Young GA B Ww 
4/18/85 James Briley VA B W 
5/15/85 Jesse de la Rosa TX H Ww 
5/29/85 Marvin Francois FL B B 

1930 - 1970 

United States Nationwide: 
Black White Other Total 

for murder: 1,630 1,664 40 3,334 

for rape: 405 48 2 455 

for other offenses: 
(armed robbery, 
kidnapping, etc.) 31 39 0 : 70 

for all offenses: 2,066 1.7251 42 3,859 

Northeast: 

for murder: 177 422 7 606 

for rape: 0 0 0 0 

for other offenses: 
(armed robbery, 
kidnappping, etc.) 0 2 0 2 

for all offenses: 177 424 7 608 

(The Northeast includes: Connecticut, Maine, Massachusetts, New Hampshire, 
New Jersey, New York, Pennsylvania, Rhode Island and Vermont.) 

-- MORE -- 

 



  

EXECUTIONS IN THE UNITED STATES/3 

Black White Other Total 

North Central: 

for murder: 137 254 2 393 

for rape: 7 3 0 10 

for other offenses: 

(armed robbery, : 
kidnapping, etc.) 0 0 0 0 

for all offenses: 144 257 2 403 

(The North Central area includes: Illinois, Indiana, Iowa, Kansas, 
Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota 
and Wisconsin.) 

South: 

for murder: 1,23] 585 8 1,824 

for rape: 398 43 2 443 

for other offenses: 
(armed robbery, 
kidnapping, etc.) 30 9 0 39 

for all offenses: 1,659 637 10 2,306 

(The South includes: Alabama, Arkansas, Delaware, District of Columbia, 
Florida, Georgia, Kentucky, Louisana, Maryland, Mississippi, North 
Carolina, Oklahoma, South Carolina, Texas, Tennessee, Virginia and West 
Virginia.) 

West: 

for murder: 82 393 21 496 

for rape: 0 0 0 0 

for other offenses: 
(armed robbery 
kidnapping, etc.) 1 12 0 13 

for all offenses: 83 405 21 509 

(The West includes: Alaska, Arizona, California, Colorado, Hawaii, Idaho, 
Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.) 

-- MORE -- 

 



  

EXECUTIONS IN THE UNITED STATES/4 

Black White Other Total 

Federal: 

for murder: 3 10 2 15 

for rape: 0 2 0 2 

for other offenses: 
(armed robbery, 
kidnapping, etc.) 0 16 0 16 

for all offenses: 3 28 2 33 

UNITED STATES: TOTAL NUMBER OF EXECUTIONS 1930-1970: 3,859 

Year Executions 

1930 - 1934 176 

1935 - 1939 891 

1940 - 1944 645 

1945 - 1949 639 

1950-=- 1954 413 

1955 - 1959 304 

1960 - 1964 181 

1965 7 

1966 1 

1967 2 

1968 - 1970 0 

 



  

New York City 

CORSTITUTION 

ATLANTA, GA. 
M-215,000 

OCT-16-78 

“Death Or Not? 
A Georgia court has convicted another 

man of murder and convicted him to die in 
the electric chair. Warren McClesky, an ex- 
convict, was found guilty last Thursday by a 
Fulton County Superior Court jury of mur- 
dering Atlanta police officer Frank R. 
Schlatt during an armed robbery last May. 
Execution date was set for Nov. 27. But that 
‘won't be the date McClesky pays for his 

~ crime; under Georgia law, he’s eititleq to an 
: aomatic appeal. ’ 

: That automatic appeal is as No man 
should be sentenced to’death ‘and the sen- 
tence carried out in haste. There should be 
sufficient time to assure careful study of the 
sentence, such as there ‘should. be a careful 
trial in errjving at the sentence. | ; 

i 

‘But there's a time, however, when 
enough is enough. The U.S. Supreme Court 
has. ruled the Georgia death penalty law is 
constitutional. A number of persons ‘have 
been convicted under the law, but no sen- 
tences have been carried out. Death Row at 
Reidsville is crowded. Officials say. it likely 

are. carried out, if ever. 

The main reason is appeals. And appeals 
and appeals and appeals. When one avenue 
of appeals is exhausted, attorneys for the 
condemned embark on another avenue. The 
delays have climbed into years.” 

The murderers of six members of the 
~ Alday family in south Georgia five years ago 
have used numerous ‘appeals to avoid their 
death sentence. Earlier this month, the U.S. 
Supreme Court turned down another appeal 
by two of the Alday murderers. But one 

- legal expert said they have several other 
steps they may take, Another said, “Actually, 
the legal process can be SEE 8 ou seem- 

- ingly forever in capital cases.” =: 

Well, we are not eager beavers to: - 
anyone, even cold-blooded killers who have 

- no respect for the lives of other humans, put 
to death. But we either have a death penalty 
law, or we don’t. If there need be modifica- 
tions in the law to stop some of the far-out 
appeal processes, then the General Assembly 
should face that duty. And if there are some 
judges allowing ‘their personal leanings to. 

. interfere with the judicial process, then they 
will be many months before any, executions ; are violating the majority opinion of the pub- 

lic in Support of capital punishment. 

  

  

vp ko 
Luong ? a  



  

  
  

\; 

Policeman’s 

Killer Gets 

A Life Term 
By George Rodrigue 

Constitution Stall Writer 
liber- 

A Fulton Superior Court jury de 

t two hours Thursday be- 

Be to sentence Os Mew 

Miller to the electric chair for the July 

19 murder of Atlanta police Sgt. Jimmy 

fore declining 

Richardson. 
The six 

It or innocence. 
have pleaded guilty to 

Miller Fold bay bad the state not 

alty in the case, ac- wanted the death pen 2 y gton, one of 
the murder charge 

the defendant's lawyers. 
Glenn L. Adams of 

still faces a murder 
with the shooting. 

the killing of Richardson. 
i the armed-robbery and If convicted on Miller could receive 

kidnapping counts, 
additional life sentences. 

i , a 10-year veteran of the 

a and head of its Afro 

American Patrolmen’s League, was gw 

ned down after stopping Miller an 

another man as they drove a car along 

McDaniel Street in southwest aus ; 

The 33-year-old police officer ha 

to use a pay telephone near a 

gas station at Whitehall and McDaniel 

streets when the two men began arguing 

i See CONVICT, Page 14¢-A | 

//22/8/ 

stop 

  

Continued From Page 1-A § 

with the station attendant and her son, then 
sped away. 

Richardson stopped the vehicle less than 
two blocks from the station. He did not know 

. that the car had been stolen two hours carlier 
from Phillip Allen and Debra Cleveland, and 
he did not know that one of the car’s occu- 

m———— TITER I RR IR 

—Convict— 

men and six women ave 

iller, 22, life in prison after convicting 

of murdering Richardson. They bad 

deliberated for about 3 1, hours over his 

752 Iris St S.W. 

charge in connection 

Both Adaiy and 

iller face kidnapping and armed-ro 

es in the abduction of a young 

Atlanta couple about two hours prior to 

  
  

pants had shot Allen in the shoulder as the 
young man tried to sprint to safety. 

Miler testified that Adams shot Richard- 
son after the officer began questioning Adams. 
But ballistics evidence showed that a long-bar- 
reled revolver fired the three fatal bullets, and 
several witnesses swore that they saw Miller 
running from the murder scene carrying a 
long-barreled weapon. Two witnesses said the 

  
a T. 

car's passenger fired those shots, and Miller 
admitted that he was the passenger. 

After Miller was convicted of murder 
Thursday morning, Assistant District Attorney 
Russell Parker reminded the jurors of testi. 
mony that Richardson had begged for his life, 
and said the death penalty was warranted be- 
cause Richardson’s killers kept firing at him. 
Miller, Parker said, was the triggerman. 

 



  

THE WICHITA EAGLE-BEACON       Op-Ed Page 

  

Friday, October 14, 1983 

. 

- 

38 
  

WASHINGTON The case 
against capital punishment rests, in 
the end, on the belief that the pro- 

cess of carrying out the death pen- 
aity degrades the society and dis- 
torts the law. Anyone who doubts 
the strength of that case should 
think about three scenes enacted in 

this country late on the night of Oct. 
4. 

In Huntsville, Texas, James D. 
Autry was taken from his death row 

arms, ready to administer a dose of 
poison. Autry’s fear, his perspira- 
tion, his uttered thoughts were ob- 
served and reported. 

OUTSIDE, A CROWD of people 
shouted for his death whenever 
television lights were turned on. 
“Kill him, kill him, kill him,” they 
chanted. 

In the Supreme Court building in 
Washington, Justice Byron R. White 
waited for a last-minute application 
for a stay of execution. The applica- 
tion, written on three sheets of a 
yellow pad, made a new argument 
related to another case due to be 
heard by the court. Shortly after 

    

  

  
  

midnight White granted the stay. 
Charles Dickens could not have 

4 improved on the ghastliness of the 
cell in the penitentiary and 

strapped to a wheeled cot. Intrave- 
nous tubes were connected to both | 

Texas scenes. In 1840 he saw a 
crowd waiting ‘for an execution, | lived. But there is not even rough 

‘have stopped in all the countries of 
Western Europe. It is also the ines- 
capable lesson of the recent history 
in those of our states that have cap- 
ital punishment. 

FAIRNESS WOULD mean at 
‘least a rough ‘sense that the death 
‘penalty was imposed for similar 
‘reasons in different cases: reasons 
having to do with the nature of the 
crime and the criminal’s record, not 
his race or the accident of where he 

screaming and laughing. He wrote | justice in decisions on who shall live 
that no one could imagine “a sight : 
so inconceivably awful ... I am sol- : 

pleted shows that race is still a big 

: je. 
A massive study recently com- 

emnly convinced that nothing that | 
iniquity could devise could work 
such ruin as one public execution.” 

SUPPORTERS OF the death pen- 
alty argue that the opponents are . 
bleeding hearts who waste sympa- | 
thy on brutal killers. They argue | 
also that executions would have a 
deterrent effect if lawyers did not | 
put so many obstacles in the way. ° 

But there is no way to administer 
the death penalty fairly in human 
terms, efficiently in the use of legal 
resources, effectively in terms of 
deterrents, That is why executions 

m
m
 

i 

  

factor. it was done by David Baldus, 
professor of law at the University of 
Iowa. He went into it doubting the 

    
  

murder or manslaughter brought by 
prosecutors between 1973 and 1979 
in Georgia, a key state in the legal 
history of capital punishment. He 
weighed more than 500 factors, in- 
volving the strength of the evi. 
dence, the character of the defen. 

  

relevance of race, but the figures 

us 1,200 cases of 

a = iT r 

  
Associated 

Autry: ‘Kill him, kill him ...", 

dant, the nature of the crime and so 
on. 

HE FOUND THAT the death pen- 
alty is least predictable in Georgia 
in cases with some aggravating fac- 

  

    

tors but not extreme brutality. 
There the discretion of prosecutors 
and juries is crucial, and race tells. 

A black person who kills a white) 
in such cases is 3.7 times as likely 
to be sentenced to death in Georgia 
as a white who kills a white, Baldus 

  

  found. Prosecutors are also more 
likely to press for the death penalty 

ond the issué of race, there is 
the question whether judges impose 
death sentences in lke circum- 
stances. The Supreme Court, when 
it upheld the death penalty in 1976, 
assumed that appellate judges 
would assure “proportionality” in 

  

- reviewing sentences, but many ex- 
~ perts say they have not. That is the 
issue that the court will examine 
this term — and that was raised at 
the last minute, in the Autry case. 

WHY COULDN'T legal objections 
to executions be raised in a more 
orderly way? One answer is that 
there are not enough competent 
lawyers for the people on death row 
in this country: not nearly enough. 
In states with dozens awaiting ex- 
ecution, such as Florida and Geor- 

Pog. 

  

w x p Ad 

Ugly Lottery: The Case Against Capital Punishment 
gia, a few desperate lawyers work 
on the cases, 

There are now 1,230 Americans 
on death row. That appalling num- 
ber makes it certain that the Su- 

preme Court and other courts, state 
and federal, will continue to be del- 

uged by petitions in capital cases. 
. There is no way to dispose of those 

{ legal papers summarily. Human 
lives are at stake, and not all of the 
convicted persons are brutes. Every 
once in a while one turns out to be 
innocent. Many have been treated 
unfairly. a 

Nor, finally, is there any way to 
make administration of the penalty 
more humane. The process de- 
grades not just the Dickensian 
crowd outside but all of us. If there 
were a way to be sure that justice 
had been done to those 1,200 prison- 
ers, would we want to kill them all 
in a week? A month? If not, capital 
punishment will remain what it is: 
an ugly lottery that deters no one 
and soils our national character. 

New York Times News Service    
   



  

  

esse THE ATLANTA CONSTITUTION, Tues., Feb. 7, 1984 ..17-A 
  Joe Dolman 

  

Courts are making it tough 
on death penalty opponents 
For opponents of the death penalty, it has been a 

nasty several weeks. We put our money on two horses — 
call them Proportionality and Baldus. One collapsed and 
the other is faltering. Meanwhile, 
the public acceptance of executions 
appears to be growing, a fact that 
cannot be lost on the federal judici- 

It is an ill wind that is blow- 
ing from the courts. 35 

Consider, first, the undoing of. 
Proportionality.» The name is: short- 
hand for an important question 
that was recently put before the 
U.S. Supreme Court: Should the 
States be ‘required to review each 
death sentence to ensure that it is in line (or proportional) 
with other sentences for similar crimes? 

After all, the argument reasonably goes, the court 
has said in years past that the death penalty should not be 
applied randomly, capriciously or arbitrarily. How can you 
tell what kind of an application you're imposing without a 
review? Many states, like Georgia, demand such a check 

already. Shouldn't all states? 

Had the Supreme Court agreed, two states in particu- 
lar — Texas and California, with hundreds of condemned 
inmates between them — would have been required to 
build this new bias-detector into their process. Some 
executions there might have been prevented and virtually 
all would have been delayed. 

  

The court would have none of it. “Any capital sen- 
tencing scheme may occasionally produce aberrational 
outcomes,” shrugged Justice Byron White. The opinion 
seemed to suggest that if the court were held to the letter 
of a very strict standard, executions would be next to 

.~, impossible — and whoa! The court never meant to make it 
~fhat tough. Scratch Proportionality. 

That brings us to Baldus. Baldus is actually David 
Baldus, a University of Iowa law professor who came to 
Georgia and devised a death-penalty study whose scope 
and depth surpass anything previously done. The study was 
interpreted to show that the Georgia death penalty is 
applied in a racially discriminatory manner. 

Specifically, it says that the murder of a white person 
is far more frequently punished by death sentence than the 
murder of a black person. U.S. District Judge Owen For- 
rester summarized the Baldus contention this way: “That 
white life is more valuable than black life — and, as a 
practical matter, that the Georgia sistem) allows for a 
double standard of sentencing.” 

Baldus and his people studied more than 1,000 Geor- 
gia homicides and cataloged some 230 factual circum- 
stances in each. Any way they cut it, they arrived at the 
same conclusion: The application of the law shows a racial 
bias. As one death penalty opponent put it: “It proved 

what common sense told us was true.” 

So their research was introduced on behalf of one 
Warren McCleskey, a black man accused of fatally shoot- 
ing a white Atlanta police officer in the face during a 1978 
furniture-store robbery. McCleskey, sentenced to die, 
asked Judge Forrester for a new trial. 

Forrester, by all accounts a capable and diligent 
judge, bore a heavy burden in this case. Had he ruled in 
favor of the Baldus study, he would have thrown every 
capital case in Georgia with a white victim — which is to 
say, the vast majority — into a state of limbo. The case 
could have kicked off a major new legal assault on the 
death penalty. 

But never mind. Forrester threw anti-execution law- 
yers a curve when he (A.) granted McCleskey a new trial 
— on procedural problems arising from his first trial and 

(B.) proceeded to chew the Baldus study into very tiny 
pieces and scatter them over the legal landscape. 

While the Baldus study is not dead — it can be rein- 
troduced in other cases — it is certainly limping now. For- 
rester devoted some 90 pages of his 133-page McCleskey 
ruling to the study and — with dizzying methodological 

rebuttal to Baldus — concluded that “the petitioner has 
failed to carry his ultimate burden of persuasion.” 

Forrester found another explanation for the study's 
outcome: The black-victim cases that Baldus scrutinized 
contained more mitigating circumstances than the white- 
victim cases. Well, who knows? Statistics ad methodology 
are for someone else to argue. 

But this fact remains: Each death SE case boils 
down to a series of highly arbitrary judgments, and there 
is no “fair” way for the state to take someone's life with 
absolute assurance it is doing the right thing. And a death 
penalty carried out cannot be retracted. 

Yet moral arguments don’t carry much weight in the 
courts these days, and numbers are turning out to be, well, 
ist a slew of dehatahle numbers We are in far 2 long 

 



      

  

By Hal Straus 
Staff Writer 
  

In a sense, lawyers for convicted 
murderer Warren McCleskey won 
two weeks ago. 

They convinced U.S. District Judge 
J. Owen Forrester to overturn their 
client's death sentence and grant him 
a new trial. 

But for opponents of the death 
penalty, that was a silver lining 
around a very dark cloud. 

The reason: Forrester granted the 
new trial on a small, subsidiary argu- 
ment put forth by the lawyers. He re- 
jected the conclusions of a detailed 
statistical study, five years in the 
making, intended to prove that the 
death penalty in all cases is unconsti- 
tutional. 

i iL ii i... i, i i i a I i 

“Obviously, I'm overjoyed for War- 
ren,” said Patsy Morris, who moni- 
tors death penaity appeals in Georgia 
for the American Civil Liberties 
Union. “But when you think of the 
thousands of hours of work the law- 
yers put into the case, and the thou- 
sands of hours preparing the study, 
you have to be disappointed. 

“Hopefully, we’ll win on appeal.” 
At the heart of McCleskey’s case 

were two studies prepared by Univer- 
sity of Iowa Professor David Baldus 
that purported to show that capital 
punishment is unconstitutional be- 
cause it is more likely to be imposed 
on murderers whose victims are 
white than on murderers whose vic- 
tims are black. 

McCleskey, who is black, was con- 

victed of killing a white Atlanta po- 

lice officer. 
In a victory for death penalty 

opponents, Forrester agreed last fall 
to admit the studies into evidence in 
the McCleskey trial, and held a week- 
long evidentiary hearing on them. 

It was the first time a federal 
judge had agreed to consider the 
studies, and the case has been 
watched closely by those on both 
sides of the capital punishment issue 
ever since. 

Using complex statistical models, 
the studies took more than 2,000 
actual murder and manslaughter 
cases and, according to proponents, 
showed that race of victim was a sig- 
nificant factor in imposition of the 
death penalty in Georgia. 

Forrester, in no uncertain terms, 
disagreed. 

..SUNDAY, FEBRUARY 12, 1984 The Atlanta Sowrnal AND CONSTITUTION _____ 7-C 
  

In an 85-page portion of his opin- 
ion, the judge concluded that the data 
for the studies were incomplete, that 
the state had successfully rebutted 
the study’s conclusions and that the 
Georgia death penalty, in fact, is 
being applied relatively fairly. 

He also suggested that the types of 
models used by Baldus were insuffi- 
ciently precise to invalidate the death 
penalty. 

“Testimony by all of the experts, 
and the court’s own analysis of the 
data, put to rest in this court’s mind 
any notion that the imposition of the 
death penalty in Georgia is a random 
event unguided by rational thought,” 
Forrester said in his opinion. 

He also wrote that Baldus’ 
“method is incapable of producing 
evidence on whether or not racial 

factors played a part in the imposi- 
tion of the death penalty in any par- 
ticular case.” 

Although Forrester’s verdict will 
be reconsidered by the U.S. 11th Cir- 
cuit Court of Appeals and, possibly, 
the U.S. Supreme Court, Georgia 
Attorney General Mike Bowers says 
he believes it will stand. 

“Our lawyers did a fine job of 
rebuttal. It's a very significant deci- 
sion. It is a very strong opinion,” he 
said. 

Even Ms. Morris conceded that 
Forrester’s opinion will be tough to 
overcome. 

“Forrester is fair, articulate, intel- 
ligent and a fine judge. It makes it 
harder,” she said. 

  

McCleskey ruling little help to execution opponents 

Judge Owen Forrester 
Reiected study intended to 
prove that the death penalty 

is unconstitutional. 

  
    

 



   
  IVICLIU SLETICS gE i 

East Paces-Lenox 5 rn ia i wy 
bridge OPENS SOOM || 10 fir pins idie ws Sel 

After more than a year of work, the new bridge. 
on Lenox Road behind Lenox Square is scheduled to 
open in mid-November. 

The announcement, from the state Department of 
Transportation, should bring cheers from motorists 
with yearlong memories of traffic bottlenecks at the 
intersection of East Paces Ferry and Lenox roads. 
Bridge construction caused especially nasty. tie-ups 
during last year's Christmas shopping season. 

“It's our present to Christmas shoppers,” » DOT 
transportation engineer Charles Britt said of the an- 
nouncement. 

“This Christmas there should definitely be an im- 

  

6 Lewis has been able to." 
convince (black) bourersh as. 

well as the masses that, * = © 
notwithstanding the rd that 

he is white, he is colorblind i in 

his approach. He will extend 
d 

provement, but the bridge in and of itself won't get J justice equally 0 whites an : 
rid of the long delays along the rest of Lenox,” said : Enipy, *% o 
Israel Mac. director of Atlanta’s Bureau of Traffic to. blacks 9 SEE Li na 
and Transportation. he . 

A new bridge was needed for two reasons: The rig : — Leroy Johnson 
old wooden trestle span that had stood more than 20 : i SE gti 
vears was not designed to carry the amount of traffic Stadium executive director EE Hl : GE EG Git 

using it. And MARTA's rapid rail tracks necessitated tora : gs Feo 
a bridge nearly twice as long. : ; : i 

Although bridge construction is nearly complete, 
nearby construction on MARTA's Lenox Square rail 
station will’ continue. It should not pete traffic, . 
flow, however, traffic oifjcils § Jad Frama 7 | Lewis Slaton: His colorblindness is sincere 

          
  

W.A. BRIDGES JR./Staff 

Slaton shares a joke with Judge Clarence Cooper at the Gate City Bar Association banquet 

  
   # 3 Fr   

  

      

Suid dd / Pir , bs £4 § 0 ra 

Gwinnett/! ioneer honored By Greg Witcher ton County have become mostly black, sprawling network of black friends, em- “His \oice, like sandpaper on fa" ‘pine’ : 

As Gwinnett County voters prepare to choose (wo Staff Writer reflecting the changing demographics of = ployees, colleagues and grand jurors that hoard, owes its rasp to the prosecutor's 
Slaton has developed such a strong base 
of political support in-the black com- 
munity. 

“Lewis has been able.to convince 

the area. Bul Slaton has been re-elected 

four times since 1965, each time without 

any opposition. 

long-term ‘affinity for Kool cigarettes. ~ + 
Slaton says attending social events ~ 

— black or white — as often as he does 

new commissioners in a special election, the county is 
also getting ready to celebrate the life of one of its 
first leaders, Elisha Winn, 

Voters League in 1962 was breaking 
To meeting of the Georgia Negro 

up, and Lewis R. Slaton was saying 
v 

Sunday, will honor the pioneer in whose home the first 

restored by the Gwinnett Historical Society, is north 
of Dacula. The first sessions of Gwinnett Superior 
Court were held in Winn’s barn. 
«The fair will take place at the Winn house. Thers 
will be handicraft exhibits, displays, music and clog- 
ging. Proceeds will benefit the restoration effort. 

Jon McDaniel, publicity chairman for the fair, 
said 4,000 people attended last year and $3,500 was 
raised to help preserve Gwinnett County’s birthplace. 

The home is on Hog Mountain Road. Admission is 
$1. 25 for adults and free for children under 12. 

Stoekbridge/ Flashing signs 
Who says you can’t get action at city hall? 
At the September meeting of the Stockbridge City 

Council, resident Judy Neal said she thought the city 
wasn't doing enough to enforce its ordinance against 
portable: flashing signs. She said she had heard many 
developers don’t come to Stockbridge because “it’s too 
junky." 

The Elisha Winn Fair, scheduled for Saturday and . 

Gwinnett elections were held in 1819. The house, being 

goodbye to about two dozen people. They 
had been total strangers an hour before, 
but as he shook hands at the door, Slaton 
remembered each name, and in several 

- cases, a personal detail or two. 

Leroy Johnson, a veteran black politician 
who currently serves as executive direc- 
tor of the Atlanta-Fulton County Stadium 
Authority. 

“What he did was to create allies, 
and they went back to their homes and 
churches and communities and they 
talked about Lewis Slaton.” 

Slaton was an assistant city attorney 
then, running for a Superior Court judge- 
ship in Fulton County against incumbent 
Sam Phillips McKenzie. He lost. But 
Lewis Roger Slaton was cementing black 

. support into a political base that today . 
appears all but impregnable. : 

duced as 

Members of the voters league 
“remembered the white man who only rhetoric. 
remembered their names...” says: 

In explaining his staying power, 
some compliment Slaton for an abun- 
dance of political foresight, for seeing the 
county’s political future and preparing 

for it at a time when campaigns were 
still being waged. and won with white- 

Others, like Atlanta City Council 
President Marvin - Arrington, suggest 
foresight is just part of the answer. The - 
district attorney does not simply cover ¢ 

- his black political bases, says Martin Lu- 
ther “Daddy” King Sr. He is a white man 
“who feels right at home with blacks.” 

This past weekend, Slaton attended a 
Gate City Bar Assocation banquet honor- . 
ing R.E. Thomas, a founding member of 
the black attorney’s group. He was intro- 

“our own” Fulton County 
district attorney by toastmaster Donald 
Hollowell, regional “director of the Equal 
Employment Opportunity Cornmission. 

It has been through his representa- 
Slaton, 60,'is serving his 19th year as 

Fulton's chief prosecutor. During his ten- 
tion of blacks during an 18-year criminal 
law practice in Atlanta before he became 

(black) leaders as well as the masses 
that, notwithstanding the fact that he is 
white, he is colorblind in his approach,” 
says Johnson. “He will extend justice 
equally to whites and to blacks.” : 

There is. little doubt the role he 
played in the highly publicized trials of 
‘convicted murderers Wayne B. Williams 
last year and Marcus Wayne Chenault in 
1974 enhanced Slaton’s political stature, 

But his presence at mostly black so- 
cial functions has done as much as politi- 

. cal savvy to ingratiate the district attor- 
ney with his black constituents. 

Atlanta Mayor Andrew Young says 
he occasionally. runs into Slaton on Sun-: 
days at churches where he is delivering 
guest sermons. Fulton Superior Court 
Judge Isaac Jenrette, who is black, says 
Slaton not only goes to many black func- 
tions, but the district attorney is likely to 
know as many or more people there than 
he does.’ ms 

“Everbody thinks it’s politics, but 

cannot help but be tiring sometimes. But 
he says he still goes, out of respect and a 
commitment to the friendships involved. 

“I don’t go to a funeral the day be- 
fore an election, because people might 
‘say it’s political,” he says. “But I might 

. I have a circle of go the day after. . 
friends. They die and they marry, or 
their children get married.” 

Weddings, funerals, banquets, 
churches, parties and lectures. Rain or 
shine, election year or not, Slaton is 
everywhere. 

Consider his Labor Day weekend. 
“I went to two things this weekend, 

a wedding and a funeral, on the same 
day,” says Slaton. “Manchion Garrison 
who used to work in this office (as an 

“investigator), his daughter got married. 
And you know Rubie (Riley) back here,” 
he says, pointing toward the indictments 
section of his office where Mrs. Riley is a 
supervisor, “her mother’s funeral was in -- 
Douglasville. ” 

See SLATON, Page 2-E ure, the governments of Atlanta and Ful- district - attorney, coupled with his I've been doing it for years,” says Slaton. Since the meeting, City Marshall Rip Gardner has 
personally visited each business with an offending 
flashing sign. He said they have all complied with his 
request, returning calm to Stockbridge. 

      

School officials make certain students’ beef is OK 
protein-rich food, a juice or fruit, milk and 

cereal or bread. Lunches must include two 
ounces of protein-rich food, three-fourths 
of a cup of fruit or vegetables, one serving 
of bread and one-half pint of milk. 

In many cases, Huie said, Atlanta 

schools are exceeding the requirements, 
“both in nutritional value and in portion 
size. 

A sample elementary school menu 
consists of sliced baked ham, glazed sweet 
potatoes, tossed salad, a roll, pineapple 
chunks and milk. The same basic menu 
would be served in the middle and high 
schools, except students there would be 

" offered an additional entree choice, per- 
haps barbecue ribs on a bun, and an extra 
vegetable, french fried potatoes, for exam- 
ple. 

Gwinnett/Teachers’ pay ‘By Beverly Barnes 
Staff Writer 

For the next few weeks, Atlanta pub- 
lic school children will not be able to enjoy 
a favorite lunch item. £ : 

Hamburgers have been taken off the - 
system’s lunch menu until 55,000 pounds of 
ground beef delivered to the school sys- 
tem’s warehouse last Wednesday can be in- 
spected by the U.S. Department of Agricul- 
ture for contamination. 

Federal authorities fear the beef, 
shipped to Atlanta from Cattle King Pack- 
ing Co. Inc. of Denver, may have been 
packaged under unsanitary conditions. 
They have instructed Atlanta and any 
other school systems receiving the poten- 
tially unsafe beef not to use it inl it is in- 
spected. 

y \ 2X d HEATER As an added precaution, Schoo) au- 

: gh ea thorities have suspended use of any previ- 

The Gwinnett County ‘Board of Education has 
unanimously endorsed the concept of merit pay for 
teachers. But Georgia “is a long way away” from 
instituting a performance-based pay schedule, said 
Superintendent Alton Crews. 

“If public education' expects to receive new 
money, we have to have a major restructuring of the 
way we reward teachers,” he said. 

Crews sought the board's recommendation to 
present to the personnel subcommittee of the Gover- 
nor's Education Review Commission. Crews is chair- 
man of the subcommittee. 

Merit pay would require state fending because 
the local contribution to salaries, 20 percent, “is not 
much to play with,” he said. “I am not overly optimis- 
tic it will come to pass,” he said, “but because a hing 
is difficult to do is no reason not to bry." i Th hool e schools serve close to 56,000 

lunches daily, at a cost of 45 cents for ele- 
s damien Amd rnmbo Cam 

  
ranbavey cab anl 4, 

  

P AMIBIA CUA ©     mn = ‘ ?or~ v  



  

    pmzsrcians will vote | 

~ Monday on latest 
ASO contract offer 

By John Lancaster and Renee D. Turner 
Staff Writers po 

The Atlanta Symphony Orchestra Association decided 
Sunday night to vote Monday morning on the latest con- 
tract offer presented by orchestra management, union 
officials said Sunday. 

The vote on the proposal will be taken although “no- 
body likes it,” Michael Moore, Players Association vice 
president, said. “We'll see if they’ve worn us down or not.” 

About 82 of the union's 91 members showed up for a 
meeting called by the membership to discuss the proposal 
to end the 3-week-old strike, said union spokesman Warren . 
Little. He said the membership was not familiar enough 
with the proposal to vote Sunday night and decided to call 
a business meeting for 10 a.m. Monday. The vote will be. 
taken after questions are answered about the contract. 

All union members were given copies of the proposed 
contract, Little said. A majority of those voting will be 
enough to ratify the contract, he said. : 

Earlier Sunday evening, Little compared negotiating - 
with symphony executives to “pushing a lame elephant 
through the swamp.” 

Little, who is chairman of the orchestra committee of 
the players’ association, said of Saturday night's salary 
offer, “If that's a major step forward, then these people 
must have helped Hitler’s military campaign in Russia.” 

Man drowns in Chattahoochee 

A 30-year old Atlanta man drowned in the Chattahoo- 
chee River Sunday afternoon, apparently after suffering a 
drop in body temperature after swimming, a Fulton 
County medical investigator said. 

Fulton and Cobb County rescue units recovered the 
body of Norman Ray Reaser, 30, of 27384 Caldwell Road 
N.E. at 6:42 p.m. about 20 yards downstream from the 
diving rock near river post 405, said Sgt. Gene Horton, 
investigator for the Fulton County Medical Examiners of- 

Mayor Andrew Young 

  

  there too. 

    
CHURCH VISITS 

  

_ teachers, 

Continued From Page 1-E 

administrators and 
professionals. 

Frank Winstead, the DeKalb -adminis- 

trator who designed the DeKalb middle 
school proposal and was principal of Cobb 

support 

County’s first middle school years ago, 
~ said DeKalb would need to hire six new 
teachers for every middle school. 

Winstead said middle schools must be 
“flexible” and have a broad curriculum be- 
cause students at such schools are under- 
going crucial changes in their lives. 

“My favorite kid is the 7th-grader, but 
they'll drive you nuts. I heard somebody 
say the other day, ‘If you give a 7th-grade 
boy enough time, he’ll tear up an anvil! 
They're funny. They're moody. They don't 
give their teachers much positive feed- 
back,” said Winstead. 

“I'm a middle school advocate only if 

Continued From Page 1-E 

The district attorney was the only 
white to attend the funeral about 25 
miles west of Atlanta, but he hastens 

to add, “I wasn’t the only one there 
from the office; (Fulton Assistant 
District Attorney) Mel Jones was 

“Mel said to me, ‘I didn't expect to 
see you here.’ But I didn’t expect to 
see Mel there either, and I said to 
him. “You're liable to see mie most 
anywhere. He said, ‘You're right 
about that.’ ” : ; 

It was not the first time this year, 
or in recent years, the Coweta County 

* native has been the guest — some- 
times the only white guest — at 

mostly black gatherings. : 
~ When Clement Strickland, Slaton’s 

tailor for. 18 years, died in January, 

— Middle 

  

funeral. 

his widow invited the district attor- 
ney to say.a few words at the 

In June, Slaton attended the lavish 
wedding of the daughter of bondsman 
James A. “Alley Pat” Patrick. The 
next month, Alma Prater, a former 
grand juror in Fulton County, gave 
Slaton an engraved letter opener and 
a note pad as a gift after he spoke to 
a group of students in a criminal jus- 
tice class she was attending. 

And on the same sweltering day in 
. August, Slaton went to two wedding 
and a class reunion. 

He first attended the wedding for a 
small gathering of family and close 
friends of the daughter of one of 10 

black investigators on his staff, Rob- 
“ert McMichael, then went to the wed- 
ding of one of eight black assistant 

  

up). 

‘staff long before affirmative action 
programs came into vogue. 

According 

munity continues to grow, He is, she 
says, “a ball that rolls and rolls and 
gathers all kind of yarn and length.” 

district attorneys in his office, Savan-- 
nah Potter, and later showed up for 

; his 44th class reunion at Russell High 
School in East Point (wh.re he grew 

Clarence Cooper, a Fulton County 
Superior Court judge who was Geor- 
gia’s first black prosecutor, points out 
Slaton was employing blacks on his 

to Dorothy © Bolden, 
founder and director of the National 
Domestic Workers Union, Slaton has 
been socializing with blacks so long 
his sincerity cannot be doubted. If 
anything, his interest in the com- 

  

  

we can afford it and are committed to it,” | | 
he added. - 

Gwinnett’s McGarity said DeKalb’s 
plan might be too idealistic. : 

Gwinnett’s middle schools house con- 
siderably more students than would De- 
Kalb’s, and Gwinnett’s teachers have only 
one period, rather than two, for counseling. 

“I learned a long time ago you have 
to come down out of your ivory tower. 
Most people would like to drive Cadillacs, 
but most people have to drive Chevrolets. 
You should have a practical program that 

is effective,” McGarity said. 
He said Gwinnett draws DeKalb stu- 

dents in or nearing middle-grade age be- 
cause parents want their children to be in 
middle schools. : 

“They need to change one way or 
another,” he said. “To leave it the way it is 
is the worst thing.” 

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THE NEW YORK TIMES, WEDNESDAY, JULY 24, 1985. 

  

  

  

  

  

a piano, a hat, a halo and a 
of paper with square holes. 
vere constructed from al- 
-y type of paper and card- 
aginable, museum officials 
aeronautical engineer sub- 
airplane made of a 1040-EZ 
ncome tax form, but it did 
n aloft into the finals. 

es’ Party 
International Democrat 

n, a two-year-old organiza- 
of moderate-to-conserva- 

cal parties from countries 
: world, will hold its second 
onference at the Shoreham 
week, with the Republican 
_ommittee as host. 
ticipation by the convales- 
ident Reagan remains un- 
ut Vice President Bush is 
share the platform with 
nister Margaret Thatcher 
at a dinner tomorrow, and 
of Defense Caspar W. 

ir will speak earlier that 
uncheon. Among the inter- 
ssues the leaders are ex- 
:xplore are possible moves 
Torism and the Reagan Ad- 
on’s proposed space-based 
fense system. 
on to the Republican Party 
nservative Party of Eng- 
mion includes the Liberal 
Australia, Prime Minister 
‘roney’s Progressive Con- 
Party of Canada, the Rally 
public of France, Chancel- 
t Kohl’s Christian Demo- 
on of Germany and Prime 
Yasuhiro Nakasone’s 

:mocratic Party of Japan. 
‘or admission will be par- 
ilar philosophy from Bel- 
sia, France and Jamaica. 
iocratic Party in this coun- 
vited to send observers to 
t but declined. 

al Farewell 

people talk about leaving 
a will, but friends have 

een surprised to learn that 
Wharton actually did it. 
fuly 4 of cancer after 42 
1 reporter and editor for 
>ss International, leaving 
s that, instead of a funeral, 
party be held at the Na- 

s Club. The party is set for 
ning, and invitations are 
ded to, among others, all 
1 alumni of U.P.I. and 
: it, which takes in a good 
:apital press community. 

Marjorie Hunter 
Warren Weaver Jr. 

Supreme Court 

Charting the Crucial Course 
Of Capital Punishment 

By LINDA GREENHOUSE 
Special to The New York Times 

WASHINGTON, July 23 — With the 
death row population and the pace of 
executions both mounting, the next 
Supreme Court term could 
be the most important in a 
decade for the future of 
capital punishment. 

Cases presenting two 
key issues reached the 
Court before the summer 
recess began this month. 

            

   

  

  
                

  

            

The Court adjourned with- 
out taking any action, but there is a 
good chance the Justices will accept 
one or more of the cases for review 
soon after the new term begins in Oc- 
tober. 

One case challenges racial dispari- 
ties in the imposition of the death pen- 
alty in Georgia, the state with the 
fourth largest death row population 
(113 inmates). Two other cases raise 
the question of whether the way 
jurors are chosen in capital cases 
creates juries that are inherently 
likely to be sympathetic to the prose- 
cution. 

Specialists on the death penalty 
view these cases as presenting the 
last remaining generic challenges to 
the way capital punishment has been 
carried out since the Supreme Court 
in 1976 permitted the states to resume 
executions. 

Individual death sentences will con- 
tinue to be appealed, no matter how 
the Supreme Court acts on these 
cases. But if the Court decides 
against the defense — seemingly a 
predictable outcome, given the 
Court’s current mood — future appel- 
lants will essentially be limited to ar- 
guing that a miscarriage of justice oc- 
curred for a particular reason in their 
particular case. The era of broad- 
based challenges to the death pen- 
alty, each one determining the fate of 
large groups of inmates, will for the 
most part be over. 

In the last few years, a Supreme 
Court grown increasingly impatient 
with death penalty appeals has fore- 
closed a number of such generic ap- 

. A recent decision has made it 
more difficult, for example, to chal- 
lenge the adequacy of legal counsel. 
The Court also ruled that state su- 
preme courts need not review each 
death sentence to see whether it is in 
line with the sentences meted out for 
similar crimes elsewhere in the state. 
Another decision rejected a challenge 
to the use of psychiatric speculation 
on whether a defendant presents a fu- 
ture danger to society. In addition, 

  

  

    

several procedural decisions have ac- 
celerated death penalty appeals by 
shortening the time from sentencing 
to execution. 

Partly as a result, executions are 
now becoming rather routine. There 
were two executions in 1982, five in 
1983, 21 last year-and 15 so far in 1985. 
There are now 1,550 inmates on death 
row, the number growing by about 150 

_ a year. 
Any statistical overview of capital 

punishment inevitably leads to race. 
Forty-seven people have been exe- 
cuted since 1977, 28 of them white, 17 
black and two Hispanic. What is more 
striking than the race of those exe- 
cuted is the race of their victims. Al- 
though blacks and whites are the vic- 
tims of homicide in roughly equal 
numbers, 43 of the 47 people executed 

  

These cases may 

be the last generic 
challenges to how 
the death penalty 
is carried out. 

  

since 1977 had been convicted of mur- 
dering whites, as were 77 percent of 
those remaining on death row. 

Those figures provide the context 
for the study of race and the death 
penalty in Georgia that is at the heart 
of the case now before the Court. 
David Baldus, a law professor at the 
University of Iowa, studied every 
Georgia murder conviction from 1973 
to 1978. Those who killed whites, he 
found, were 11 times more likely to 
receive the death penalty as were kill- 
ers of blacks. 

Professor Baldus then identified 
230 factors, such as the quality of the 
evidence and the defendant’s back- 
ground, that figure in’ a sentencing 
determination. He focused on those 
murders that were neither the most 
nor the least egregious, the “‘mid- 
range cases’ in which the greatest 
jury discretion was exercised. Exam- 
ining these cases according to the 230 
variabies, he concluded that defend- 
ants were 20 percent more likely to be 
sentenced to death if the victim was 
white. 

Using these statistics, the NAACP 
Legal Defense and Educational Fund 
Inc. challenged the Georgia death 
penalty in the name .of Warren 
McCleskey, a black man sentenced to 

death for killing a white Atianta po- 
lice officer in the robbery of a furni- 
ture store. The appeal was based on 
both the Eighth Amendment’s prohi- 
bition against cruel and unusual pun- 
ishment and the 14th Amendment’s 
guarantee of equal protection. 

The United States Court of Appeals 
for the 11th Circuit rejected the chal- 
lenge in a 9-to-3 decision. The court 
said it assumed the study to be valid, 
but it held that the data failed as a 
matter of law to establish a constitu- 
tional violation because there was no 
proof that the racial discrimination 
was intentional. 

The Legal Defense Fund’s appeal, 
McCleskey v. Kemp, argues that the 
statistics should speak for them- 
selves; that it is both legally irrele- 
vant and factually impossible to 
prove whether the discrimination 
was intentional. 

The other issue before the Court is 
equally far-reaching. In a 1968 death 
penalty landmark calied Witherspoon 
v. Illinois, the Court permitted prose- 
cutors to remove from death penalty 
cases those jurors whose opposition to 
capital punishment would prevent 
them from giving the state's case a 
fair hearing. The Court explicitly left 
unresoived the other side of that coin: 
whether the very process of ‘‘death- 
q ”” a jury tended to create a 
panel likely to favor the prosecution 
orm the question of guilt or innocence. 
There was not enough evidence one 
way or the other, the Court said. 

Since 1968 a number of social sci- 
ence studies have indicated that 
jurors who do not object to capital 
punishment are more likely to view 
other criminal justice questions from 
a prosecution perspective. In recent 
months, two Federal courts of ap- 
peals have reached opposite conclu- 
sions on the constitutional implica- 
tions of these findings 

In an Arkansas case, the Eighth 
Circuit ruled that the process of weed- 
ing a jury of death penalty opponents 
deprived a defendant of the Sixth 
Amendment right to trial by-a fair 
cross-section of the community. The 
Fourth Circuit rejected that argu- 
ment in a case from North Carolina. 
The conflict between the circuits sig- 
nificantly increases the chance that 
the Supreme Court will take either 
the Arkansas state appeal, Lockhart 
v. McCree, or the appeal by the North 
Carolina inmate, Keeten v. Garrison. 

Both the racial issue and the jury 
cases challenge the premise under 
which the Court permitted capital 
punishment to resume: that careful 
attention to procedure would assure a 
basic level of fairness. Whether the 
Court has the appetite to examine 
that premise in light of experience is 
the real question for the next term. 

  

Cn p—— ET mg —— - —— EL 

     



  

Page 8-A The Athens Observer Thursday, July 10, 1986 
  - 

  

  
The Athens Observer 

Observations 
  

  

Death penalty racist? 
The U.S. Supreme Court has agreed to hear arguments in a case from 

Georgia that argues this state’s application of the death penalty has been 
racist in effect. Warren McClesky, a black, was sentenced to death in the 
killing of Frank Schlatt, a white Atlanta police officer. The very impor- 
tant point his appeal raises is whether a black convicted of killing a white 
is not more likely to go to the electric chair in this state than a person 
convicted in a case where the racial facts are different. 

[he statistical evidence offered by McClesky’s attorneys indicate that 
our state’s judicial system has not applied the death penalty in an impar- 
tial manner. Seven years’ worth of cases were analyzed, and the results 
show that blacks who kill whites are three times more likely to get the 
chair than whites who kill whites. In general, the death penalty was ap- 
plied 11 times more often in cases where a white person was the victim, 
compared to murders in which the deceased was black. 

Of course, certain factors will have to be taken into account. Domestic 
Killings, where the race of murderer and victim are almost always the same, 
are viewed differently by juries than cases of killing a stranger, such as 
McClesky did when he shot Officer Schlatt during a robbery. A com- 
parison of the penalties given blacks versus whites in non-domestic kill- 
ings would be useful. 

) 
The statistics compiled by McClesky’s lawyers may demonstrate an in- herent racial bias to the operation of the death penalty and convince the Supreme Court to view capital punishment in a new light. Whatever the 

outcome, the strongest argument against the death penalty will be not one derived from statistics, but from a simple moral fact: every human life is precious, and should be preserved. Warren McClesky is a cold-blooded 
thug, which is why he doesn’t understand this precept. What is the state’s 
excuse? 

  

  

 



  

ATLANTA CONSTITUTI( 
For 118 Years, The South's Standard Newspaper 

  
ita Constitution TUESDAY, JULY 8, 1986 
  

Death penalty 
challenge goes 
to high court 

By Tracy Thompson 
Staff Writer 

The U.S. Supreme Court announced Monday that it 
would hear the appeal of Georgia death row inmate 
Warren McCleskey, in a case that death penalty foes 
say is their last major constitutional 
challenge to capital punishment 
laws. 

McCleskey, who is black, was 
sentenced to death for killing a 
white Atlanta police officer — ra- 
cial factors that lie at the heart of 
his appeal. In it, his lawyers have 
asserted by the use of statistical ev- 
idence that Georgia's death penalty 
statute is unconstitutional because it 
is imposed more frequently against 
convicted murderers whose victims 
are white. 

If that argument persuades a majority of the court, 
it could open the door to legal challenges against death 
penalty statutes across the country. 

The incident that sparked what could become a ma- 
jor Supreme Court ruling on the death penalty began as 
a holdup on May 13, 1978, at a Marietta Street furni- 
ture store. 

Four robbers, including McCleskey,; entered the 
store, located in an industrial section of Atlanta. A 
store employee tripped a silent alarm at Atlanta police | 
headquarters, which dispatched Patrolman Frank R. 
Schlatt to respond to the call. 

Only moments earlier, however, the holdup had | 

See McCLESKEY, Page 4-A 

  
  

    
McCleskey # 

  

  

    

| 

  

McCleskey i 
  

From Page 1-A 

been halted by the sound of a pass- 
ing siren" — an ambulance that the 
robbers mistakenly assumed was a 
police car responding to their pres- 
ence, : 

As store employees huddled in 
the rear, the robbers hid among the 
furniture in the front of the store. 
Schlatt, who arrived with his siren 
off a few seconds after the ambu- 
lance passed, walked straight into 
the ambush. He was shot in the 
head as he walked up the center 
aisle of the store. 

One-of the four men arrested in 
the robbery later testified against 
his three, ép-defendants.-in exchange - 
for a 20-year sentence. Two of.-the 
robbers were convicted “of murder 
and sentenced to life. McCleskey, 
convicted of being. the gunman, re- 
ceived the death sentence: 

, On Monday, Georgia ‘Attorney 
General: Mike Bowers. declined to 
comment on: the court’s annoupce- 
ment except to say, “Obviously, the 
court considers it to be an impor- 
tant case, which we have since its 
inception.” 

The court’s announcement Mon- 
day said that it will hear oral argu- 
ments by McCleskey’s lawyers at 
the beginning of the court’s fall 
term. 

Death penalty foes here wel- 
comed. the, news. of the court’s deci- 
sion te review the appeal, which has 
been..awaiting action by the court 
since, May 1985. Patsy Morris; a lo- 
cal spokeswoman for the American 
Civil Liberties- Union, noted that. 
there have been several recent Su- 
preme Court rulings. oti. affirmative :- 
action that hinged gn-statistical evi- 
dence to prove unequal Taga) treat : 
ment.’ 

McCleskey's case uses similar 
types of statistical evidence, she 
said. “That appears to mean that 
the Supreme Court is interested in 
at least taking a direct look at race- 
of-victim studies,” she added. 

McCleskey’s appeal centers on a 
study done by University of Towa 
professor David Baldus, which ex- 
amined Georgia murder cases over 
a seven-year period. After taking 
into account 230 factors that might 
explain. why a death sentence was 
imposed, -Baldus concluded that 

OL LVL bed Va Dadar nr 

* kk kk 
  

aggravating circumstances, were 
five times more likely to receive 
the death penalty than those con- 
victed of killing blacks. 

Baldus studied all Georgia mur- 
. der convictions from 1973-78 and 
found that 22 percent of blacks who 
killed whites got the death penalty, 
compared with 1 percent of blacks 
who killed blacks, 3 percent of 
whites who killed blacks and 8 per- 
cent of whites who killed whites. 

Attorneys for the state of Geor- 
gia assert that Baldus’ study is tech- 
nically flawed and that its conclu- 
sions are not reliable. They also 
argue that even if the conclusions 
are valid, Georgia’s law is still con- 
stitutional because there is no proof 
that juries actually intend to dis- 
criminate against blacks. 

So far, a federal district court 

and the 11th US. Circuit Court of 
Appeals have rejected McCleskey’s 
appeal, agreeing with all or part of 
‘the state's argument. 

The Supreme Court last consid] 
ered racial discrimination in the im- 
position of the death penalty in 
1972, when it struck down capital 
punishment laws in several states 
as being arbitrarily administered. 
Among the arguments advanced by 
death penalty foes in 1972 was the 
contention that black defendants 
were sentenced to death more often 
than whites. 

The court never ruled specifical- 
ly on the race issue. However, four 
years later, it upheld several re- 
written death penalty statutes that 
were designed to give juries objec- 

_ tive criteria for imposing death sen- 
tences. 

; In thelr. appeal, MeClesker's at- 
torneys maintain that whether the 
defendant is black or white, juries 
display racial prejudice by imposing” 
the death penalty more often ‘when 
the victim is white. 

- The case is the last of a series 
of constitutional challenges to the 
death penalty raised in the courts 
since 1976. Over the same period, 
61 people have been executed, and 
the number of inmates under sen- 
tence of death now stands at more 
than 1,500. 

The most recent legal defeat for 
death penalty foes came last May, 
when the court rejected a challenge 
to the way jurors are selected for 
capital trials. In that case, an Ar- 
kansas prisoner contended that the 
exclusion of jurors opposed to the 
death penalty from his ria] resulted 

i Nirv thar wag nramInnsan 

-r 

 



  

Covers Dixie Like the Dew 

  

  

MONDAY EVENING, JULY 7, 1986 
  

  

High court wi 

in last-ditch ¢   

| hear Georgian’s appeal 

nallenge to death penalty 
  

By Tracy Thompson 
Staff Writer 
  

— racial factors which lie at the heart 

McCleskey, who is black, was sentenced to 
death for killing a white Atlanta police officer See McCLESKEY 

appeal. In it, his lawyers have asserted by the 
use of statistical evidence that Georgia's death 
penalty statute is unconstitutional because it is 

The U.S. Supreme Court announced tcday imposed more frequently against convicted mur- 
that it would hear the appeal of Georgia death derers whose victims are white. 
row inmate Warren McCleskey, in a case that 
death penalty foes say is their last major con- 
stitutional challenge to capital punishment laws. 

If that argument persuades a majority of 
the court, it could open the door to legal chal- 

  

of his 

  

4hw 
  

    
‘McCleskey 
FROM 1A 
  

lenges against 
death penalty statutes across the 
country. 

| Georgia Attorney General Mi- 
| chael Bowers declined to comment 
| on the court’s announcement except 

to say, “Obviously, the court consid- 
ers it to be an important case, 

which we have since its inception.” 
McCleskey was convicted of the 

May 13, 1978, slaying of Atlanta po- 
lice Officer Frank Schlatt, who was 

shot in the head when he interrupt- 
ed a robbery in progress at a furni- 
ture store. 

The court’s announcement today 
said that it will hear oral argu- 
ments by McCleskey’s lawyers at 
the beginning of the court’s fall 
term. 

Anti-death penalty activists here 
welcomed the news of the court's 
decision to review the appeal, which 
has been awaiting action by the 

  

court since May 1985. 
Patsy Morris, a local spokesman 

for the American Civil Liberties Un- 
ion, noted that there have been sev- 
eral recent affirmative action cases 
decided by the court which centered 
on the use of statistical evidence to 
prove unequal racial treatment. 

McCleskey’s case uses similar 
types of statistical evidence, she 
said. “That appears to mean that 
the Supreme Court is interested in 
at least taking a direct look at race- 
of-victim studies,” she added. 

McCleskey’s appeal centers on a 
study done by University of Iowa 
professor David Baldus, which ex- 
amined Georgia murder cases over 
a seven-year period, taking 230 
variables into account. Baldus con- 
cluded that those convicted of kill- 
ing whites were five times more 
likely to receive the death penalty 
than were those convicted of killing 
blacks. 

The state of Georgia has assert- 
ed that Baldus’ study is technically 
flawed and that its conclusions are 
not reliable. The state also argues 

  
  

that even if the study's conclusions 

are valid, Georgia's law is still con- 
stitutional because there is no proof 

that juries actually intend to dis- 
criminate against blacks. 

So far, a federal district court 

and the 11th U.S. Circuit Court of 

Appeals have rejected McCleskey’s 

appeal, agreeing with all or part of 
the state’s argument. 

The Supreme Court struck down 

the death penalty in 1972, but rein- 

stated it in 1976. Since then, 61 peo- 

ple have been executed. There are 
now over 1,500 inmates on death 
row across the country. 

Last May, the court rejected a 

broad constitutional challenge to 

capital punishment laws, in an Ar- 

kansas case which raised the issue 
of whether excluding jurors opposed 
to the death penalty from capital 

trials results in a jury that is more 

likely to convict than acquit. 
That case and McCleskey’s ap- 

peal have been considered by death 

penalty foes to be the two remain- 

ing constitutional challenges to capi- 

tal punishment statutes. 

  

 



25 CENTS 

egan as a holdup on May 13, 

including McCleskey, en- 
cated in an industrial sec- 

ployee tripped a 
police headquarters, 

1978, at a Marietta Street furniture store. 

See COURT, Page 4-A 

Four robbers, 
tered the store, lo 

which dispatched Patrolman Frank R. Schlatt 

tion of Atlanta. A store em 

to respond to the call. 

silent alarm at Atlanta 

death penalty b 

hallenge 

penalty statutes across 

ajor 

it could open the door to legal chal- 

The incident that sparked what could be- 

If that argument persuades a majority of 

come a major Supreme Court ruling on the 

the court, 

lenges against death 
the country. 

idence that Georgia's 
s unconstitutional be- 

TUESDAY, JULY 8, 1986     Death penalty foes say it’s last m 

ficer — racial factors that lie at the heart of 
his appeal. In it, his lawyers have asserted by 
the use of statistical ev 
death penalty statute i 
cause it is imposed more frequently against 
convicted murderers whose victims are white. 

For 118 Years, The South’s Stendard Newspaper 

y, in a 
is their lasf 

ppeal of Georgia 

ge to capital pun- 

Staff Writer 

By Tracy Thompson 

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The US. Supreme Court announced Mon- 

McCleskey, who is black, was sentenced 
to death for killing a white Atlanta police of- 

day that it would hear the a 

Convicted Atlanta cop killer gets high court hearing 

death row inmate Warren McCleske 
case that death penalty foes say 
major constitutional challen 
ishment laws. 

 
 

Copyright © 1986 The Atiznta Constitution     
 



   
55 LW 3030 The United States LAW WEEK 7-22-86 
  

  

   
    

  

     

  

workers’ compensation case wiiere die process is 
at issue? (2) Should order dying 
vail when there is unresolved 
and equal protection provide 
tion? (3) Did court use sui 
denying petition without det 

  
where the 

statutes 

circumstances in case? (4) Did s 
Process Clause when it did not follow its own 
adopted rules in settling instant dispute, when 
workers’ compensation statutes called for full and 
fair hearing and basic exercise of statutes? 

Appeal filed 6/37/55, by Mary E. Bracy, pro 
se, of Milwaukee, Wis. 

Case In 5000 Series 
Recently Granted Review 

Criminal Law and Procedure 

84-6811 McCLESKEY v. KEMP 

Capital punishment—Racial bias—Statistical 
evidence, 

Ruling below (CA11l (en banc) 753 F2d 877, 
36 CrL 2429): 

Proof of disparate impact alone is insufficient 
to invalidate capital sentencing system, unless 
disparate impact is so great that it compels con- 
clusion that system is unprincipled, irrational, 
arbitrary and capricious such that purposeful 
discrimination—i.e., intentional use of race as 
factor in sentencing—can be presumed to perme- 
ate system; statistical evidence purporting to 
show that among cases involving intermediate 
levels of aggravating factors murders involving 
white victims were 20 per cent more likely to 
result in death sentence than those involving 
black victims cannot support challenge to entire 
sentencing system; statistical evidence showing 
that on average killings involving white rather 
than black victims are six per cent more likely to 
result in death sentence is insufficient to over- 
come presumption that Georgia death sentence 
process is operating in constitutional manner; 
defendant's habeas corpus petition fails to state 
claim here because, except for statistical evi- 
dence, he presents no evidence that tends to 
support conclusion that race of his victim in any 
way motivated jury to impose death sentence in 
his case. 

Questions presented: (1) Is proof of specific 
intent or motive to discriminate necessary ele- 
ment of Eighth Amendment claim that state has 
applied its capital statutes in arbitrary, capri- 
cious, and discriminatory manner? (2) To make 
out prima facie case under Fourteenth Amend- 

0148-8139/86/30+.50 

ment, must capital inmate alleging discrimination 
in state’s application of its capital statutes present 
statistical evidence *“‘so strong as to permit no 
inference other than that the results are a product 
of racially discriminatory intent or purpose”? (3) 
Does proven disparity in imposition of capital 
sentences, reflecting systematic bias of death- 
sentencing outcomes against black defendants 
and those whose victims are white, offend Eighth 
and Fourteenth Amendments irrespective of its 
magnitude? (4) Does 20-point racial disparity in 
death-sentencing rate among that class of cases in 
which death sentence is serious possibility so 
undermine evenhandedness of capital sentencing 
system as to violate Eighth or Fourteenth Amend- 
ment rights of death-sentenced black defendant 
in that class of cases? (5) Must capital defendant 
proffer evidence sufficient to prove that he was 
personally discriminated against because of his 
race in order to obtain evidentiary hearing on 
allegations that he has been subjected to state 
death-sentencing statute administered in arbi- 
trary or racially discriminatory manner? 

Petition for certiorari filed 5/28/85, by John 
Charles Boger, Julius L. Chambers, James M. 
Nabrit III, Deval L. Patrick, and Anthony G. 
Armstrong, all of New York, N.Y., Robert H. 
Stroup, of Atlanta, Ga., and Timothy K. Ford, of 
Seattle, Wash. 

In forma pauperis and certiorari granted 
7/7/86. See 54 LW 3866. 

ALL 

ho! 

ney 
rate / 
Po 

 



2-C La 8 8.8 

  

he Atlanta Zoanrnal 
* AND Ld 

PR? PO 

or THE ATLANTA CONSTITUTION 
ARW)   

James M. Cox, Chairman 1939-1957 — James M. Cox, Jr., Choirman 1957-1974 
  

Jay Smith, Publisher 

Jim Minter, Editor Minor J. Ward, President 

Durwood McAlister Glenn McCutchen. . 
Journal Editorial Page Editor Managing Editor   The Sunday editorial page is prepared by the editorial 

board of The Atlanta Journal 

  

Let's change attitudes 
and keep death penalty 

oes of the death penalty will ask the U.S. Supreme 
Court to strike down the Georgia statute on grounds 
that the murderers of whites are more likely to get 

death than murderers of blacks. Their target — the death 
penalty — is misguided. Their real target should be the soci- 
etal racial attitudes, no matter how entrenched, from which 
such injustices come about. aE 

Racial bias is central to an extensive study of Georgia 
death penalty cases by University of Iowa Professor David 
Baldus. The study found that 22 percent of blacks who killed 
whites got the death penalty, while 1 percent of blacks who 
killed blacks got death. Just 3 percent of whites who killed 
blacks were sent to the electric chair, the study says, and 8 
percent of whites who killed whites. 

Let's assume Baldus' conclusions are accurate, his finding 
of clear racial value distinctions valid. Let's also assume what 
we readily know: Those racial biases occur across the sentenc- 
ing spectrum. They apply not only in capital cases, but in 

- non-capital murder cases, rape cases, probably even to a black 
~ who gets five years for ripping off the Benz of a Buckhead 
businessman. 

So why stop at the death penalty? Why not acknowledge 
the full spectrum of abuses, and lessen penalties for man- 
slaughter, rape, and car theft where racial bias is suspected? 

We won't argue that race never enters into the thought 
processes of jurors. But so, too, are jurors’ deliberations affect- 
ed by age, the relationship of assailant and victim, gender, 

+ and social class. Even if Baldus is correct that juries are more 
« cager to convict killers of whites, they are equally eager to 
+ convict the killer of, say, a heart surgeon over an alley bum. 
» If we could demonstrate consistent jury bias in favor of the 
surgeon, as Baldus has in favor of whites, would we lessen his 
assailant’s penalty to “compensate” {or jurors’ tendency to im- 
pose a stiffer sentence? 

Foes of the death penalty know full well those abuses ex- 
ist. But they're prepared to draw the line on death because it 
is death. Tt is final. 

But just as there are cases where a murderer deserves life, 
there exist egregious crimes where the murderer deserves 

death. That sentiment is mirrored in our laws and ¢itizens. 
Our biggest legal duty, then, is to protect against those abuses. 
Georgia's death penalty statute and a legal system that toler- 
ates endless appeals provide that protection. 

And our biggest societal duty is to get to work changing 
altitudes about the “value” of a victim's life. The bum’s life is 
as valuable as a surgeon's; a black’s is as valuable as a white’s. 

Jurors’ — society's — values on lives need changing, not 
Georgia's death penalty statute. 

  

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THE ATLANTA CONSTITUTION 
For 118 Years, The South’s Standard Newspaper 

  

Copyright © 1986 The Atlanta Constitution MONDAY, JULY 21, 1986 25 CENTS 
  

  

  

Mike Bowers, soldier of law 
Admirers see crusader; others cite ambition 

By Jane O. Hansen 
Staff Writer 

Right outside the state attorney 
general's office hangs the creed 
Mike Bowers says he lives by. 

Sewn in simple cross-stitch, the 
Battalion Orders from the U.S. Mili- 
tary Academy at West Point de- 
scribe the character of “the inflexi- 
ble soldier who does his duty 
faithfully, notwithstanding it occa- 
sionally wars with his private feel- 
ings.” 

Bowers’ own staff, whose praise 
of him borders on hero worship, say 
he runs the elected office of attor- 
ney general with the dispatch of a 
four-star general, a reflection of his 
West Point education. 

“He marshals his resources and 
considers his plan of action and 
then executes with a great deal of 
vigor,” says Senior Assistant Attor- 
ney General Patrick McKee. 

But lately that headstrong, tena- 
cious approach has been getting 
mixed reviews. 

    44 
My perception of Mike 
Bowers is he is com- 
pelled to do what he 
thinks is right. 

— Tom Moreland 

Transportation Commissioner 
EASIER ET RESET Sea 

While supporters hail the state's 
attorney general as a fearless cru- 
sader against corruption, Bowers’ 
critics charge that his aggressive 
style reflects inexperience, political 
ambition, and at times: vindictive- 
ness. 

One thing is certain: Bowers in 
his first full term has shown no re- 
luctance to take on the big boys of 
state government. Among his tar- 
gets have been a Georgia Supreme 
Court justice, the speaker of the 
House, the labor commissioner, and 
the chairman of the Public Service 
Commission. 

  

“My perception of Mike Bowers 
is he is compelled to do what he 
thinks is right,” says Transportation 
Commissioner Tom Moreland, who 
has gained an important ally in 
Bowers on such issues as the Presi- 
dential Parkway. 

Detractors contend that Bowers 
is motivated less by unselfish valor 
and more by an unspoken desire to 
run for governor in 1990. 

And while Bowers is unopposed 
in his 1986 re-election bid, they say 

his knight-in-shining-armor image 
has been tarnished by a. series of 
bungled cases — including the 
state's defeat in the Jan Kemp trial, 
a thwarted attempt to nail Supreme 
Court Justice George T. Smith for 
wrongdoing, and his failure in a 

‘case against House Speaker Tom 
Murphy to prevent lawyer-legisla- 
tors from representing clients who 
are suing the state. : 

- “1 haven’t heard of anything 

See BOWERS, Page 4-A 

  

    
  

  

; ,——_——— : 2 JOHN SPINK/Staft 

Attorney General Mike Bowers and his wife, Bette Rose, at a re- 
cent dinner at his church, where he spoke to a singles group. 

   



  

THE ATLANTA CONSTITUTION 
  

1986 ,.. Monday. July 21, 
natn mas aril cnn: srt sp m— 

  

Bowers 
From Page I-A 

he's won, except prosecuting some- 
body ctifminal that a first-year law 
student could have probably con- 
victed,” says Murphy, perhaps Bow- 
ers’ severest critic. 

Today, Bowers is once again 
.steering a controversial investiga- 
tion that is likely to generate criti- 
cism if it does not yield significant 
results. 

In response to media reports 
last spring, Bowers and the Georgia 
Bureau of Investigation opened a 
probe into alleged wrongdoing with- 
in the Georgia State Patrol. 

The investigation centers on re- 
ports of widespread ticket-fixing by 
troopers. But the eight-pérson GBI 
investigative team has spent more 
than two months examining virtual- 
ly every aspect of State Patrol op- 
erations, from promotions to the re- 
ceipt of free lodgings, food and 
clothing by patrol officials. 

Murphy, a longtime ally of the 
State Patrol commander, Col. Hugh 

Hardison, already has charged that 
the investigation has been fueled by’ 
politics, an allegation that Bowers 
denies. 

  

Neglecting legal homework | 

Murphy and other Bowers crit- 
ics say that in his fervor to root out 
wrongdoing, the attorney general 
has often neglected to do his legal 
homework. Among the ‘examples 
they, cite: 

Hm Last October, Somes aggres- 
sively — and publicly — pursued 
charges that Supreme Court Justice 
George T. Smith had written an 
opinion’ improperly influenced by 
state Rep. Denmark Groover. 

Smith, a former House speaker 
and lieutenant governor, was 
cleared of any wrongdoing by the 
Georgia Judicial Qualifications 
Commission. 

Smith had voted against Bowers 
in a court decision that temporarily 
halted construction of the Presiden- 
tial Parkway. He also had opposed 
Bowers in a ruling that cleared the 
way for state legislators to own 
nursing homes receiving Medicaid 
payments. And Smith sided with his 
friend, Murphy, when Bowers tried 
to get the House speaker removed 
as attorney for a pharmacist sued 
by the state. 

“Sounded like it was sort of a 
vendetta against Justice Smith,” 
says Murphy. 

To ‘he suggestion that he held a 
grudge against Smith, Bowers will 
only say, “Never entered my mind.” 

MW Bowers last year threatened 
Public Service Commissioner Mac 
Barber with a bribery indictment 
unless he resigned. At the time, the 
GBI was investigating $800 .in.cam- 

paign contributions that ‘Barber re- 
ceived from two officials with a 
trucking company regulated by the 
PSC. 

Barber stepped down in Febru- 
ary 1985, although he insisted that 
he had done no wrong. Eventually, 
the state Campaign and Financial 
Disclosure Commission cleared him 
of any impropriety, and he is now 

  

  
File 

Mike Bowers in his office adorned with law books, family photos, 
a Bible, a gavel and a baseball autographed by Pete Rose. 

running for his old PSC seat. 
“I don’t apologize. I think it was 

right,” says Bowers of his handling 
of the case. 

®m In 1982, Bowers sought to in- 
dict Ford Spinks, chairman of the 
Public Service Commission, for sell- 
ing tractor equipment to the state. 
Bowers argued that the law prohib- 
ited state officers from doing busi- 
‘ness with the state. But the DeKalb 
County grand jury refused to hand 

“down afi indictment.’ 

  

  

TET —l 

    

| 

Kemp trial work criticized 
Critics also say- Bowers’ short- 

comings as a litigator were appar- 
ent in the Jan Kemp trial. 

Dr. Kemp, a University of Geor- 
gia professor, won a $1.08 million 
settlement from the state after con- 
vincing a jury that she was fired 
from her job for protesting prefer- 
ential treatment of athletes. The de- 
fense was handled by Hale Almand, 
a private attorney hired by the at- 
torney general's office. 

“I have known Michael for some 
time, and I personally have a good 
deal of respect for him,” says state 

Sen. Paul Coverdell, the state’s GOP 
chairman. “But I think he’s had 
some problems in litigation.” 

Bowers bristles at the charge 
that he or his staff of some 70 at- 
torneys have anything less than a 
stellar record in more than 6,000 : 
cases they have going at any’ one 
time. =: : 

“That deals with my folks and it 
really hacks me off,” he says. 

Like a proud football coach, he 
runs off a set of statistics aimed at 
discrediting his critics. For a one- 
year period that ended May 31, he 
says, his staff won 2,602 cases and 

lost only 146. 
“Their work is absoluiely first 

class,” concurs Chief Judge John C. 
Godbold of the 11th U.S. Circuit 
Court of Appeals. “They don't win 
them all, but they present them in a 
highly professional and skilled man- 
ner.” 

It is safe to say that Bowers’ 
primary critics are ‘those he has 
targeted for investigation. 

“He'll never be popular with the 
politicians, but I think he'll always 
be popular with the people,” says 
former state Attorney General Ar- 
thur Bolton, Bowers’ self-described 
“hero” and mentor. 

In his latest cause, Bowers is 
stumping the state against drug 
abuse, calling it “the biggest single 
legal problem in this country to- 
day. ” 

He is also a champion of the 
death penalty, boasting of Georgia's 
ranking fourth in the nation in the 
number of people it has sent to the 
electric chair since the Supreme 
Court reinstated capital punishment. 

His image is straight-arrow 

«in another era, Michael J. Bow- 

    

 



  

  

ers would have a crew cut. A man 
of boyish good looks, he could not 
convey a more straight-arrow, Boy 
Scout image if he tried, which he 
says he doesn’t. 

“It makes me want to throw up 
when you start talking image and 
all that,” Bowers said recently, re- 
laxing in an office adorned only 
with law books, photos of his wife 
and three children, a Bible, 4 gavel 
and a baseball autographed by Pete 
Rose. 

“I'm just what I am, and I don't 
mean that arrogantly,” Bowers said. 
“But I'm 44 years old, and I'm not 
going to try to be something I'm 
not. I'm too old.” 

Yet the public image is some- 
times at odds with the private man. 

Despite the Boy Scout image, 
Bowers smokes incessantly and 
swears freely. And although accessi- 
ble to the public, he zealously 
guards his privacy. 

He and his wife of 23 years, 
Bette Rose, socialize mostly with 
boyhood friends and Stone Mountain 
neighbors. Bowers avoids fraterniz- 
ing with government officials, who 

at any time could become the focus 
of an investigation. 

“We lead a very quiet, sedate 
life,” he says. “We don’t do anything 
wild and exciting.” 

One weekend a month, the attor- 
ney general dons another hat to 
serve in the military reserve as a 
colonel and deputy chief of staff in 
Georgia's Air National Guard. “It’s 
relaxation in the sense that it's a 
different pace and a different set of 
concerns,” he says. 

But his primary escape comes 
Saturday mornings, when he travels 
alone to his farm in Jackson Coun- 
ty. “I read, I walk and just like to 
be left alone,” he says. “I think we 
all need some time by ourselves to 
recharge our batteries, to think, just 
to be calm and quiet.” 

Bowers’ critics say he’s too 
aloof. “He doesn’t identify with the 
common man,” says one Capitol in- 
sider. ““He’s not the kind of guy 

"you'd go out for a drink with.” 
Bowers sees it ditierently. “I 

think of myself as private, not 
aloof,” he says. “Part of it is the 
nature of the job. You have to be 
very careful in this job about get- 
ting close to people.” 

Finds some work unpleasant P 

As it is, says Bowers, he has 
found some of his work to be per- 
sonally unpleasant. When his investi- 
gation of Justice Smith was closed, 
he went to Smith and told him he 

was sorry he had been forced to 
conduct it. 

And Bowers says he would have 
preferred to avoid a recent investi- 
gation of University of Georgia ath- 
letics and remedial studies — a 
probe that was undertaken after the 
Kemp trial and yielded little new 
information. He felt compelled to 
pursue it, he says, in light of new 

information revealed by one of the 
"defendants. 

He calls the whole Kemp epi- 
sode “a very sad professional expe- 
rience, because I knew so many of 
the people, and I'm a graduate.” 

Bolton, who began grooming 
Bowers as his successor soon after 
the 31-year-old came to work for 
the state fresh out of the UGA Law 
School, calls the job of attorney 
general “a lonesome office.” 

“You have to be mean to be the 
attorney general,” Bolton says. “The 
worst thing you could have in Geor- 
gia is an attorney general who nev- 
er has any friction with the gover- 
nor’s office or the state department 
heads or the Legislature. If that 
happens, you'd better beware and go 
see what's really going on.” 

Yet Bolton agrees that Bowers 
is inflexible at times. “His strong 
point is his courage and his ability 
to make decisions,” he says. “But I 
think one of his faults is that he’s 
probably too rigid. And he has nev- 
er really practiced in the private 
sector.” 

Bolton discounts the rumor that 
Bowers is interested in running for 
governor in 1990. The race would 
cost a candidate $3 million, Bolton - 
estimates. 

“I couldn’t conceive of Mike 
Bowers being willing to make com- 
mitments or concessions for any 
group that would raise anything like 
that kind of money,” he says. 

But again, opinions of what 
Bowers will do are mixed. “Yeah, I 

think he’d like to be governor,” says 
McKee, a friend as well as a mem- 
ber of Bowers’ staff. 

Bowers says he has no plans to 
run for governor. Pressed, he ad- 
mits he does not know what he'll be 
doing in four years. “The only thing 
I can tell you is as long as I'm in 
this office, I'm going to try to run it 
as apolitically as I possibly can. 

“Duty, honor and country — I'm 
not trying to play an image,” he 
says. “I just happen to believe in 
that. You do your duty, come what 
may, no matter how rough it is, no 
matter how hard it is on your pri- 
vate feelings.” 

Bowers smiles. “You do that 
and let her rip.” 

  

  
 



  

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

  

i. nn. x. 
QONTACT: Brad Rodney/Freda Eisenberg 

212/736-5050 

SUPREME COURT TO HEAR MOST SIGNIFICANT CAPITAL PUNISHMENT CASE OF DECADE 

NEW YORK, September 16, 1986--The most significant capital punishment case of the 

decade will be argued before the U.S. Supreme Court on October 15. 

The case, McCleskey vs. Kemp, in which the NAACP Legal Defense and Educational Fund 

represents the defendant Warren McCleskey, will decide if the state of Georgia applies the 

death penalty in a racially discriminatory Banner, At issue is whether the U.S. Court of 

Appeals for the Eleventh Circuit applied inappropriate legal standards of proof when it 

decided against McCleskey in his claim of racial discrimination. 

McCleskey's claim is supported by evidence which shows that during the period from 1973 

to 1980, blacks were the victims in approximately 61 percent of the homicide cases in the 

state of Georgia; however, among the cases in which a death sentence was imposed, 87 percent 

involved white victims. Further, the evidence demonstrates that those accused of killing a 

white person are nearly 11 times more likely to be sentenced to death than those accused of 

killing a black person; blacks who kill whites are 22 times more likely to get the death 

penalty than blacks who kill blacks, and whites who kill whites are 9 times more likely to 

sentenced to death than whites who kill blacks. 

Moreover, even after taking into account at least 20 other major sentencing factors, 

such as whether the victim was a police officer, or the defendant had a prior record, or the 

homicide occurred during an armed robbery =-- even then, defendants are 4.3 times more likely 

to be sentenced to death for killing whites than for killing blacks. 

- MORE - 
Contributions are deductible for U.S. income tax purposes 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget. 

 



  

-2 - 

The race-of-victim disparities were revealed in an exhaustive study of death 

sentencing procedures in Georgia over a 7-year period conducted by the leading expert in the 

field. The results of the study were not challenged by the Eleventh Circuit; rather, the 

court applied standards to the factual findings that the NAACP Legal Defense Fund asserts 

"depart radically from the settled teachings of the [Supreme] Court.... [and] have no 

justification in policy or legal principle." LDF's brief goes on to state that evidence 

presented by McCleskey "exceeds every standard announced by [the Supreme] Court for proof of 

discrimination under the Equal Protection Clause" of the Fourteenth Amendment. Citing a 

long line of Supreme Court precedents, the brief contends that "discrimination proven in the 

present case cannot be defended under any level of Fourteenth Amendment scrutiny. 

Systematically treating killers of white victims more harshly than killers of black victims 

can have no constitutional justification." 

The heart of McCleskey's evidence, though not all of it, is the study conducted by 

Professor David G. Baldus, one of the nation's leading experts on the legal use of 

statistical evidence. He and his colleagues examined in exhaustive detail the procedures 

and disposition of 2,484 homicides that occurred in Georgia from 1973 to 1980, subjecting 

each to over 230 factors that might play a part in determining who in Georgia was sentenced 

to death. He found strong evidence of discrimination against black defendants and 

overwhelming evidence of discrimination against blacks based on the race of the victim. In 

the 4-year history of the McCleskev litigation, no one on either side of the case has been 

able to identify any factor or combination of factors that explains the disparities other 

than race. 

The Supreme Court has agreed to hear a second death penalty case on October 15 that 

raises similar issues. In Hitchcock vs. Wainwright, a case out of Florida, the Court may 

decide when a federal court is obligated to hold an evidentiary hearing on claims of racial 

discrimination in capital sentencing. The defendent in Hitchcock was denied an evidentiary 

hearing despite his offer to produce strong evidence of racial discrimination in the state 

of Florida's sentencing procedures. 

 



   

  

Macon Telearaph = News 
  
OUR 160th YEAR — No. 289 ©Macon Telegraph Publishing Co. 1986 MACON, GEORGIA, THURSDAY MORNING, OCTOBER 16, 1986 HOME EDITION 6 SECTIONS — 52 PAGES — 25¢ 

  

  

  

Case betore Supreme Court 
could be last key challenge 
to death penalty in the U.S. 

If Warren McCleskey’s chal- 
lenge is successful, death pen- 

alty laws in other states are 
sure to come under similar 
attacks. 

By Aaron Epstein 
Knight-Ridder Newspapers 

- WASHINGTON — Supreme Court justices 
listened Wednesday to what may be Ihe last 
sweeping legal challenge to capital punishment 
in the United States — a statistically based 
claim that racial bias plays a key role in deter- 
mining which murderers go to death row and 
which do not. 

John Charles Boger, a staff attorney for the 
NAAC P Legal Defense Fund, cited i con- 
cluding that, in Georgia, killers of whites are 11 
times more likely to receive the death pen- 
alty than those who kill blacks. When whites are 
murdered, black defendants are sentenced to 
death nearly three times as often as white 
defendants, according to the studies. 

And that means, the Legal Defense Fund 

argued in a legal'brief, that ‘our society values 
the lives of blacks less than the lives of 
whites.” 

The studies, which examined 2,484 homicide 
cases in Georgia from 1973 to 1979, amount to “a 
powerful indictment of the system” and suggest 
that “old habits” of race prejudice “survive ... 
into the current century,” Boger told the jus- 
tices. 

Four of the court’s nine members — Chief 
Justice William H. Rehnquist, Sandra Day 
O'Connor, Lewis H. Powell Jr. and Antonin 
Scalia — appeared skeptical. 

O’CONNOR, referring to the case as ‘“‘curi- 
ous,” asked Boger whether he wanted to reduce 

the discretion of juries so that the death penalty 
would be imposed on more defendants than it is 
now. 

Boger said there should be wide discretion, 
but it should not be based on racial factors. 

He said his client, Warren McCleskey, “was 
sentenced to death because he killed a police 
officer during a robbery (of a furniture store in 
Atlanta in 1978). But he was also sentenced to 
death because he was black (and his victim was 
white).” 

(See COURT, page 9A) 

= 

A 

LL 

  

From 

  

  

‘Don’t you have to show that this 
particular jury (in McCleskey’s case) 
discriminated?’ asked Rehnquist. 

“What we have is a pattern (of dis- 
crimination),” Boger replied. 

“Not a pattern by this jury,” the 
chief justice observed. 

But Boger insisted that to prove 
unconstitutional race discrimination, 
the court need only conclude that “it is 
more likely than not that discrimina- 
tion exists (in the Georgia system).” 

TWO LOWER COURTS sided with 
the state in McCleskey’s case. A fed- 
eral appeals court concluded that the 
studies, even if accurate, failed to 

show that McCleskey was a victim of 
intentional discrimination. It was not 
enough to show that the death penalty 

in Georgia has disparities based on 

the race of the victim and the crimi- 
nal, the appeals court said. 
Mary Beth Westmoreland, an assis- 

tant attorney general in Georgia, 
argued Wednesday that the statistics 
are inaccurate and incomplete, do 
not prove racial discrimination and 
have little relevance to individual 
murder cases. 
McCleskey was sentenced to death, 

she said, because is crime involved 
several aggravating factors — hos- 
tages were taken during a furniture 
store robbery, and two shots were 
fired at the police officer with an obvi- 
ous intent to kill — and there was no 
evience to support a life sentence. 
Homicide cases involving white vic- 

tims are more consistently linked w 
other serious offenses than are the 
killings of black victims, Westmore- 
land said. She said, for example, that 
whites frequently are killed during 
armed robberies, while the killings of 
blacks often arise from inherently 
less dangerous incidents, such as per- 
sonal disputes. 
Westmoreland, responding to a 

question from Justice John Paul Ste- 
vens, acknowledged that, in theory, 
the proportion of blacks sentenced to | 
death for killing whites could become | 
so great that only racial discrimina- | 
tion could have been the cause. But, | 
she added, ‘this is far from that | 
situation.” 

“A COMMUNITY’S expession of 
moral outrage cannot be quantified 
(or) put into an analysis of this sort,” 
she declared. 

    

Macon Telegraph and News, Thurs., Oct 16, 1986 9 0 - 16, A   
  

The studies, sy ; » Supervised b iver- = of Iowa professor David Lhe Vi the help of law Students, found it only two of 17 killers of police officers in the Atlan ; ta area f Jeo penal trial. One was a 8 % a e other, whose victim was a CK officer, was sentenced to life imprisonment. 
I ————— 

 



  

  
Sunday, October 12, 1986 Macon Telearaph = News Page 

  
@ Insight 5C 

e Editorial 6C 

® Classifieds 12C 

al 

Metro/ State 
Sectior 

  

  

High cour to hear challenge to state’s death penalty 
Those who killed whites were 

11 times more likely to face 

death than those who killed 

blacks. 

By Thomas Wagner 
The Associated Press 

ATLANTA — In what could be the most 
important challenge to capital punishment in 
a decade, lawyers for a death-row inmate will 

argue this week before the us. SRR : 
Court that people who killed whites were sen- 
tenced to death in Georgia far more often 
than the killers of blacks. 

The case, claiming unequal arptication of 
the law, relies on a statistical study alleging 
systematic racial bias in Georgia’s judicial 
system, and the challenge is being watched 
closely by other Southern states with large 
death-row populations. 

The case has also attracted the attention of 
legal experts, who wonder .if the Supreme 
Court on Wednesday will give statistics the 

  

same weight in a criminal case as it has given 
them in some civil-discrimination cases. 
“This is not just a death-penalty case,” said 

David Bruck, a South Carolina lawyer who 
represents death-row inmates. ‘“‘Above all, 
it’s a civil-rights case.” 

GEORGIA ATTORNEY GENERAL 
Michael Bowers denies the claims in the 
appeal, saying, “There has been absolutely no 
extra effort to prosecute killers of whites.” 

Southern prosecutors interviewed by The 
Associated Press insisted their states’ capi- 

Ld 

tal-punishment procedures have been made 
““race-neutral”’ since the Supreme Court 
declared Georgia's former statute unconstitu- 
tional in 1972. 

Attorneys for Warren McCleskey, a black 
man sentenced to die for the 1978 murder of a 
white Atlanta policeman during a robbery, 
say that Georgia courts violated his constitu- 
tional Tight to equal protection of the law 
and subjected him to cruel and unusual pun- 
ishment. 
The proof, they say, is the disparity 

between sentences for those who kill whites 

and those who Kill blacks in Georgia. 
The case relies on a study by David Baldus} 

a law professor at the University of Iowa, whl 

examined every Georgia murder conviction 

from 1973 to 1978. He found that those who 

killed whites were 11 times more likely to 

receive the death penalty than were those 

who killed blacks. 
In Georgia, the jury must weigh aggravat-] 

ing and mitigating circumstances before 
deciding to sentence a convicted murderery t 
death or life in prison. 

(See PENALTY, page 2C) 

    
  

 



NEAT a 

  

  
oa Ames 

Penalty From page 1C 
a   

  

such as the quality of evidence and the 
defendant's background, that figure 
in a sentencing decision. 

He also eliminated cases in which 
extreme violence or other aggravat- 
ing circumstances virtually ensured a 
death sentence, as well as those with 
overwhelming mitigating circum- 
stances which ensured a life sen- 
tence. 
Examining the remaining cases, 

those in which the greatest jury dis- 
cretion was exercised, he found that 
defendants were 20 percent more 
likely to be sentenced to death if 
the victim was white.: 

Although no comparable nationwide 
study has been completed, 60 of the 66 
people executed in the United States 
since 1977, or 91 percent, were con- 
victed of murdering whites, according 
to state authorities. 

“THIS IS ONE of the most impor- 
tant, broad-based challenges to the 
death penalty that the Supreme Court 
has heard,” said Robert Remar, pres- 
ident of the American Civil Liberties 
Union in Georgia. 
“The case challenges the very 

underpinings of the 1976 Gregg vs. 
Georgia Supreme Court decision, 
which said that procedural protec- 
tions that had been written into the 
death-penalty statutes of Georgia and 
other states protected defendants 
against capricious and discriminatory 
rulings. 
“The McCleskey case says there’s 

discrimination even in who is being 
chosen to be prosecuted in death-pen- 
alty cases, and that even when juries 
are equipped with these standards, 
the result is one of discriminatory 
application. 

“In a nutshell, the case says proce- 
dures can’t change basic human 
nature,” he said. 

Bowers, the Georgia attorney gen- 
eral, said in a telephone interview that 
the U.S. District Court found Baldus’ 
statistics ‘‘flawed,” and the 11th U.S. 
Circuit Court of Appeals concluded in 
rejecting McCleskey's appeal in 1985 
that “even if the statistics are accu- 
rate, legally they cannot be said to 
prove the point.” 
Bowers said the case was ‘‘impor- 

tant to us in Georgia because if it goes 
against us we may have no death 
penalty at all. 

“If this procedure for challenging 
the death penalty were to be upheld, 
obviously the case could have impli- 
cations nationwide.” 

  

So Baldus identified 230 factors, OF THE 66 people executed since 
1977, all but six were put to death in 
Alabama, Florida, Georgia, Louisi- 
ana, Mississippi, North Carolina, 
South Carolina, Texas and Virginia. 

That fact did not escape the atten- 
tion of attorneys for the NAACP Legal 
Defense and Education Fund Inc. who 
are representing McCleskey and who 
prepared a 59-page brief that places 
his case in a broad, historical con- 
text. 

The brief traces racial discrimina- 
tion in courts to pre-Civil War days 
when it says most Southern states 
maintained separate ‘‘slave codes 
that harshly regulated the criminal 
and civil conduct of black persons.” 
Prosecutors in Southern states 

strongly denied in interviews that rac- 
ism causes prosecutors or juries to 
value a white life more than a black 
life in death-penalty cases. . 

“The statutes are race-neutral, and 
in my nine years of dealing with these 
cases, I have found nothing to indicate 
there has been any discriminatory 
application of them,” said Marvin 
White, an assistant attorney general 
in Mississippi. 
“What they're challenging is the 

procedures the prosecutors are using 
in deciding whether to seek the death 
penalty. We've found that solicitors in 
this state make decisions in a racially 
neutral way already,” said Mark Dil- 
lard, a spokesman for South Carolina 
Attorney General Travis Medlock. 

“In the past, and I think the McCles- 
key case bears this out, there's no 
statistical data to support that 
(claim),” said Edward Carnes, an 
assistant attorney general in Ala- 
bama. 

Assistant Attorney General Paula 
Offenhauser in Texas, where the 
death row held 234 inmates as of Oct. 
1, said that if the Supreme Court rules 
in McCleskey’s favor, “You're going 
to see... a whole lot of people trying to 
find a study.” 

Legal experts declined to predict 
how the Supreme Court would rule in 
the McCleskey case or to estimate 
how many of the more than 1,700 
inmates on the nation’s 33 death rows 
might be affected. 
However, many experts predicted 

the decision would tum on the court’s 
reaction to Baldus’ data. 
“Typically what the court wants 

shown is the actual evidence of the 
intent to discriminate against the 
defendant himself,” said Hugo Bedau, 
a philosophy and criminology profes- 
sor at Tufts University near Boston 

  

  

  

Warren McCleskey 

Appeal before Supreme Court 

who edited the book ‘“Death Penalty 
in America.” : 
“This case does not argue that 

McCleskey was personally the victim 
of discrimination by the prosecutor or 
the jury or the trial court or the appei- 

late courts.” 

IN THEIR Supreme Court appeal, 
| McCleskey’s lawyers argue that the 
Baldus statistics should speak for 
themselves. His study also concluded 
that blacks convicted of killing whites 
receive the death penalty three times 

~ as often as whites do. The lawyers say 

  

it is impossible to prove whether the 
~ discrimination was intentional and 
that the issue is legally irrelevant. 

If the justices adopt the 11th Cir- 
~ cuit's reasoning, they will effectively 

close the door on other statistical 
challenges to criminal laws, said 
Samuel Gross, a law professor at 
Stanford University and an authority 
on the use of social-science data in 

litigation. 

  

 



  

Macon Telegraph & News, Sun., Oct. 12, 1986 
  

Death -row minister sees merit to claims of racism 
By Strat Douthat 
The Associated Press 

ATLANTA — During the past three years 
the Rev. Murphy Davis has said goodbye to 
seven friends, all of whom died suddenly, in 
the Georgia electric chair. 

“It’s the strangest feeling,’”’ says the 
woman known as the Angel of Death Rov. 
“It’s not at all like when somebody dies of a 
natural illness. In this case they are there one 
day, in apparent good health, and the next 
day they're simply gone. I'll never get used to 
it. 

An ordained Presbyterian minister and 
director of Georgia's Southern Prison Min- 
istry, Davis has been making regular, weekly 
visits for a decade to the convicted murderers 
or death row at the Georgia Diagnostic and 
Classification Center in Jackson, 50 miles 
south of Atlanta. 

One of the prisoners she visits is Warren 
McCleskey, whose appeal before the U.S. 

sy 

  

Supreme Court on Wednesday is considered 
crucial by death-penalty foes. 
McCleskey, who is black, was convicted of 

killing a white policeman during a 1978 
Atlanta furniture store robbery. 

He contends his constitutional rights are 
being violated because Georgia’s method of 
meting out the death penalty is weighted 
against those who kill white people, especially 
blacks who kill whites. 
McCleskey’s appeal is based on a statistical 

study of Georgia homicide arrests and trials 
which concluded that defendants accused of 
killing white victims in the state are much 
more likely to receive a death sentence than 
are those accused of killing blacks, and that 
blacks convicted of killing whites receive the 
death penalty three times as often as do white 
defendants. 

Davis describes the figures as ‘“‘another 
window toward understanding racism and 
class hatred.” 

GEORGIA OFFICIALS deny the conten- 
tions, but John Siler, chief spokesperson for 
the state Department of Corrections, said of 
Davis, “She has her viewpoint, which is well 
respected, although she’s in the minority.” 

Siler added: ‘‘She’s professional, she’s sin- 
cere and she is a good advocate for the prison- 
ers. 

_ “In fact, she’s been the one, consistent 
element in their behalf and even has claimed 
the bodies and arranged for the burial of a 
couple of them.” 

Davis quotes more statistics: Between 1924 
and 1964, 76 percent of the 376 people executed 
in Georgia were black. 
“That was the main reason the Supreme 

Court struck down the Georgia law,” she 
says, referring to a 1972 decision that put a 
moratorium on U.S. executions until capital 
punishment laws were rewritten. 
Since December 1983, when Georgia 

resumed executions, six of the seven prison- 

ers put to death in the state have been biack. 
“That’s 86 percent,” Davis says. “The situa- 
tion is even more pronounced than it was 
before.” 
Georgia Attorney General Michael Bowers 

says he can see no such thing. He calls it “pure 
coincidence” that six of the seven prisoners 
executed in Georgia were black. 

“If all of our attempts to carry through the 
death penalty had occurred I'm sure it 
wouldn’t have been that way,” adds Bowers, 
who says he has a gut feeling that capital 
punishment deters criminals. 

Davis is unconvinced. In the last 10 years 
almost half of all U.S. homicide victims have 
been black, she says, and yet 60 of 66 execu- 
tions in that period were in response to the 
killing of whites. 
“Looking at these figures, it’s clear whose 

lives are valued in this society,” she says. 
But the attempt to prove bias is not the only 

reason why the McCleskey appeal is impor: 

tant, she argues. 
‘“He’s gotten himself turned around. He's a 

real, serious Christian now,” she says. ‘“He’s 
part of a group of fundamental Christians on 
G-4. They take care of the cell block. Among 
other things, they have a ‘poor fund’ that's 
designed to see that the poorest prisoners can 
get what they need at the commissary.” 

Prosecutors tend to sneer at such ‘“‘jail- 
house conversions,” she says. ‘‘But the 
guards down at the prison aren’t laughing. 
They know what that group of Christians is 
doing down there, and they know they them: 
selves benefit from it.” 

Davis sadly acknowledges that the tide of 
public sentiment is running against her. 

“It is not always an easy task to affirm that 
even a murderer is a child of God,” she says, 
“but we know that it is true. Therz is no act, 

.no matter how vicious, that entirely blots out 
that identity. 

 



  

Telegraph + NewS loa -B 

  

To lawyers, death-row inmates 
  

are more than just criminals 
By Martha Waggoner 

The Associated Press : 

RALEIGH, N.C. — Velma Barfield, John Rook and 
James Hutchins are known by the public as killers exe- 
cuted by the state of North Carolina. But to their attor- 
neys, the death row inmates were individuals with their 
own personalities. ; 

“In the process of being someone’s lawyer, there is no 
way not to get to know that person as a human being 
with a mind and emotions,” said Roger Smith, a Raleigh 
attorney who handled part of Hutchins’ appeal. 

“I saw Hutchins laugh and cry and be thoughtful and be 
regretful,” he said. “I heard him talk about his child- 
hood, his fatherhood, his children. He told me how to cook 
special dishes. He told me about hunting and, fishing. 
When you get to know a person, then to observe your 
fellow citizens put that person to death is devastating.” 
Jimmy Little of Raleigh, now a lawyer with the Public 

Staff of the state Utilities Commission, represented 
Barfield and witnessed her execution. 

“No one said a word in there (the witness room), but 
still I knew from their statements that most of them 
were there because they wanted to see her die, and they 
didn’t even know her really. They may have thought 
they did, but they didn’t,” he said. 

SINCE THE death penalty was reinstated in North 
Carolina in 1977, three people have been put to death at 
Central Prison. All of them chose lethal injection over the 
gas chamber. 

Hutchins was the first to die. He was executed March 
16, 1984, for Killing three law enforcement officers in 
Rutherford County. 

Less than eight months later, Barfield was executed on 
Nov. 2, 1984, for the poisoning death of her. fiance. 
She also was implicated in the poisoning death of her 
mother and two elderly Robeson County residents. 

Most recently, John Rook was executed Sept. 19 for the 
rape and murder of a Raleigh nurse. 
Behind those names are the attorneys who fought the 

courts, the governor and death-penalty supporters in a 
futile attempt to save their clients’ lives. 

“You go through a death-penalty case, you get into the 

—— Rl 

guts of the judiciary, into the guts of the executive branch, 
and you see all the machinery of the state focused on one 
specific goal,” Little said. “It’s a powerful sight to see, 
and you realize the importance of a lawyer to a client 

when you're the only person standing in the way of that . 
process.” 
SMITH SAID he got to know Hutchins one-on-one, 

something he thinks society avoids with condemned pris- 
oners. 

In an execution, “we do something as a group that very 
few of us could do as an individual,” Smith said. “There 
are only a couple of hundred of people in the state who 
could kill. Acting together, 6 million of us can Kill with 
very little impact on us as individuals.” 

That ability to keep executions away from the public’s 
sight and a lack of understanding of the judicial system 
lead many to support the death penalty, Little said. 

“I can understand support of the death penalty when it’s 
not a very real thing,” he said. “They don’t know the 
disparity in the enforcement of the laws, and they don’t 
understand the often whimsical nature of prosecution, 
and they genuinely think the appellatefcourts will throw 
out the cases when the defendant was unfairly convicted. 
And if the courts don’t catch it, the governor surely 
will. 
“What they don’t realize is that neither the courts nor 

the governor is immune to the fact that 75 percent say 
they support capital punishment,” he said. 

David Rudolf of Durham, Rook's attorney, said there 
aren't many people who will face those kinds of odds. 
He said he hired a full-time investigator to dig up evidence 
of Rook’s abuse during childhood to show why a man 
could rape Ann Marie Roche, beat her with a tire iron, cut 
her with a fishing knife and run over her with a car. 

“You can’t expect every attorney to be able to do that,” 

he said. 
Polls have shown that many people support the death 

penalty because they believe it deters violence. But 
Smith worries that it begets more violence from the very 
people who support it. : 

“We are fooling ourselves if we think we are pulling it 
off with no harm to ourselves,’’ he said. “We are 
slowly becoming numb. People who are numb are more 
likely to do individual harm to one another.” 

 



  

Tuesday, October 21, 1986   Letters and Commentary | Page 7A 
Macon Telegraph = News 

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WHI TEs 
Jp BLACKS     

    DIG (12a Re UND 1 aE   
  UNEQUAL OPPORTUNITY TAADIAVMENIT 

 



  

  
    

  

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. : THE BOSTON GLOBE MONDAY, JANUARY 19, 1987 15 
  

  

  
By Ethan Bronner 
Globe Staff 

he test case itself, McCleskey v. Kemp, 
has an unspectacular, almost banal 
ring to it. Warren McCleskey, a black 
man, was sentenced to die for his part 
in a 1978 armed robbery of the Dixie 
Furniture Company in Atlanta, Geor- 
gia, and for the murder of white police 
officer Frank Schlatt during the course 
of the hold-up. McCleskey confessed to 

participating in the robbery but insisted he had not 
fired the shots that killed Schlatt. The jury, 11 
whites and one black, didn’t believe him. 

What makes the case noteworthy is that anti- 
death penalty campaigners seized on it in an effort to 

  

I force the Supreme Court to reexamine the system of 

, 

| legal executions, a system they say is so fraught with 
"discrimination, so filled with injustice that, apart 
“from other moral considerations, it shows we are in- 
Sb of executing people fairly and should aban- 
“don the practice. 

#241 They say their evidence shows that, despite rigor- 
“gus guidelines established in the 1970s regarding 
“how and when death can be meted out as a punish- 
“ment, the law is almost unfailingly unfair in practice 
rand violates the equal protection clause of the 14th 

“amendment. They say the growth of legal con- 
vistraints has reduced the numbers of executions — 
“i'only 68 people have been put to death in the past 
““decade while the death row population has mush- 
“roomed to more than 1,800 — but reduced them in a 
“way that has increased the random application of 
+ the penalty. 

“The present capital punishment system in this 
“7¢ountry has been the executioner’s last best chance 

to establish that the death penalty may be routinely 
‘administered in a fashion that is fair and racially 
iand politically equitable,” said David Bruck, a South 
:Carolina attorney active in death penalty cases. “Yet 
‘a steadily-growing volume of research indicates that 
_race, especially the race of the victim, plays an im- 
portant part in determining whether a murderer will 
find himself on death row.” 

* The case before the court résts on several studies 
“in recent years, the most impressive of which was 
carried out by Prof. David Baldus of the University of 
"Iowa. One of the nation’s leading experts on the legal 
use of statistical evidence, Baldus found that killers 
"of white people were 11 times likeli€r to be sentenced 
{lp death In the state of Georgia than killers'of black 

ple. He also found that 22 percent of black defen- 
dants in Georgia who murdered whites were sen- 
“tenced to death, while three percent of whites who 
‘murdered blacks faced a capital sentence. 
~__ Baldus examined nearly 2,500 murders and 
_ manslaughers in Georgia during the 1970s. He found 
that, among the 128 cases in which a death sentence 
“was imposed, 108 or 87 percent involved white vic- 
tims. He also examined more than two hundred var- 

..iables, such as previous records and the circum- 
stances of the homicide. But no matter what mitigat- 

Ang circumstances were considered, killers of whites 
“were still more than four times likelier to receive the 
death penalty than killers of blacks. 

His findings, while more exhaustive than any pro- 
duced for other sections of the country, are consis- 
ftent with what is known of nationwide patterns. 
While almost half of all homicide victitrs in this 
country were black, of the 68 people executed since 
1977 in the United States, 92 percent had killed 

...whites. Further, 42 percent of those on death row are 
black, four times the percentage of blacks in the gen- 

+ eral population. 
. Ironically, it was partly because of discrimination 
that the court, in its 1972 Furman v. Georgia deci- 
sion, struck down the death penalty. Justice Potter 

Stewart said, “If any basis can be discerned for the 
uselection of these few sentenced to die, it is the consti- 
<tutionally impermissible basis of race.” 

Mounting evidence of unfairness in the system 
‘has done little to dampen public enthusiasm for the 
“death penalty. A Media General-Associated Press poll 

< released last week showed that 86 percent of Ameri- 
cans support the death penalty. The poll of 1,200 
_.Americans showed that even though half the respon- 
dents thought the penalty was wielded unfairly from 
case to case, 83 percent of those respondents still 
supported it. This contradicts the pattern of the 
1950s and 60s when the rise of the civil rights move- 

»ment led to a steep drop in popularity for the death 
penalty. In 1966, only 47 percent favored it. 
#17 Those who support the death penalty say society 
“must have the right to final punishment. “It seems to 
me intolerable that a person who took it upon him- 

_ self to shorten someone else's life can live out his own 
life,” said Ernest van den Haag, a law professor at 
Fordham University. “The numbers in McCleskey 
mean little. They must prove intentional discrimina- 
tion." 

The United States is the only industrial democra- 
cy in the world that executes criminals in peacetime. 
Among the NATO nations, only the United States 
and Turkey have operable death penalties. Since 
1975, Canada, France, the Netherlands and Austra- 
_Jia have abolished the death penalty. Among indus- 
_.trialized nations, only the United States and South 
Africa practice capital punishment. 

  FRRSRE I oi FC TERNEEEER LS SEE RIGIEGERSs 

Second Look 

  

“We live in a culture that is in a very bad mood,” 
said Henry Schwarzschild, head of the American Civ- 
il Liberties Union’s Capital Punishment Project. “It 
believes macho toughness can solve its problems. 
Even when you present to people the evidence that 
executions do not deter murderers, they say, ‘I don’t 
really care whether executing does any good. The 
fact of the matter is the son of a bitch deserves it.’ *’ 

Other experts point to the enormous frustration 
most Americans feel over the high rate of violent 
crime in this country, where nearly 20,000 homi- 
cides are committed a year. 

“People don't feel protected,” said Charles Ful- 
wood of Amnesty International. ‘‘People feel a sense 
of hopelessness and futility about what to do with 
criminals, especially violent ones. So reasonable, de- 
cent, well-informed people arrive at a belief in the | 
death penalty. The problem is there is a tremendous 
amount of misunderstanding about it. People believe 
it is a deterrent but hundreds of studies have consis- 
tently failed to show any deterrent character to it.” 

Northeastern University Professor William J. 
Bowers, regarded as the country’s leading expert on 
deterrence, said his research shows that states that 
practice the death penalty — Massachusetts is not 
among them — have a higher rate of violent crime 
than those that do not. There is also evidence that in 
the days after an execution, homicide goes up slight- 
ly in the area. 

What most distresses death penalty abolitionists 
is that public opinion matters a great deal to the 
court on this issue. When in its 1976 Gregg v. Geor- 
gia decision, the court allowed the newly-drafted 
death penalty laws to stay on the books — laws the 
authors said were aimed at reducing the arbitrary 
and discriminatory practices of the past — the court 
cited public opinion and the newly-written laws in 
three dozen states. 

Then-Chief Justice Warren Burger wrote for the 
majority, “It is now evident that a large proportion of 
American society continues to regard [capital pun- 
ishment] as an appropriate and necessary criminal 
sanction. The most marked indication of society’s 
endorsement of the death penalty for murder is the 
legislative response to Furman ... All of the post- 
Furman statutes make clear that capital punish- 
ment itself has not been rejected by the elected repre- 
sentatives of the people.” 

Supporters of McCleskey view their effort as his- 
toric, as one of the last constitutional challenges to 
legal execution. 

“It is only the large constitutional issues that 
have stayed executions in big numbers and we're 
running out of them,” said the ACLU’s Schwartzs- 
child. “A defeat would be very substantial. It could 
lead to a slow but steady increase in executions.” 

Joseph Ingle, director of the Southern Coalition on’ 
Jails and Prisons, said that eight cases in Louisiana 
depend on McCleskey. 

The pace of executions has already followed a 
steady, albeit slow, increase. After Gilmore, there 
were none in 1977 and two in 1979: But in each of 
the past two years there were 18. 

Analysts are not unanimous, however, that a de- 
feat for McCleskey would lead to more executions. 
Some believe the court could reject the case on nar- 
row grounds, adding further confusion. They say 
that so many other challenges to the practice of ex- 
ecution are still wending their way through the. 
courts — the lack of attorneys, the execution of juve-' 
niles and the retarded — that the system will remain 
clogged for years. 

Most striking is that recent efforts to construct a 
genuinely fair system of execution, a system with 
mandatory appeals and rules for jurors and 
allowances for mitigating factors have only produced 

  

‘Blacks are more likely to be executed 
«5 @ Ninety-two percent of those executed in the 
-»United States since 1976 had killed whites while al- 
most half of all homicide victims were black. 

© @ A study in eight states between 1976 and 1980 
“showed that killers of whites were between four and 
eight times likelier to receive the death penalty than 
‘were killers of blacks. 
Af 1( 

«+» @ A 1983 study of Georgia sentencing showed that 
capital defendants who killed whites were up to 11 
times likelier to receive the death penalty than were 
\those who kill lacks. f 

©3921 people have been executed since 1930; 54 

percent have been black or members of other minor- 
ity groups. Four hundred, fifty-five were executed for 
rape; 405 of them were black. 

® 37 states have death penalties, including Con- 
necticut, Vermont and New Hampshire. But only 12 
have actually carried out executions since 1976: Flor- 
ida, Utah, Nevada, Indiana, Virginia, Texas, Ala- 
bama, Mississippi, Louisiana, Georgia, North Caroli- 
na and South Carolina. 

® Four states, Florida, Texas, Louisiana and Geor- 
Jie: Secount for 75 i Bi of all executions since 

  

fewer — and hence more arbitrary — executions. Com-: 
pelling evidence shows that the few who make it all 
the way to execution are poor, uneducated or mental- 
ly impaired. 

New York University psychiatrist Dorothy Otnow 
Lewis and Yale University neurologist Jonathan Pin- 
cus examined 15 men chosen because their execu- 
tions were imminent. They found that 12 had neuro- 
logical impairment, five of them major impairments 
and seven of them moderate impairments. Special- 
ists estimate that between 15 and 20 percent of those 
on death row are mentally retarded. Some 37 people. 
who had committed crimes while under the age of 18 
are also on death TOW. 

10re than, 1 800 people on death row, 

Ten years ago, on January 17, 1977, Gary Gilmore sat strapped to a wooden chair, 3 
calmly faced a Utah firing squad and muttered, *““Let’s do it.”’ His death marked the 
resumption of legal executions in this country. The death penalty had been struck 
down by the US Supreme Court in 1972, but in July 1976 the court reversed itself and 
executions began again. Now, by taking a case that will be decided in the coming 

days or weeks, the Supreme Court has held that this is an issue urgently requiring a 

Capital punishment: The Supreme Court reconsiders 
Illustration by Bruce Maddocks 

  
four times that of a decade ago. Florida has set up an 
office to handle death appeals. Texas has built a fac- 
tory for death row inmates. 

Abolitionists believe the system will either choke 
itself or that a greatly increased number of execu- 
tions will so distress Americans that they will 
change their views and join the rest of the civilized 
world. They point to studies showing that it is more 
expensive to execute someone, with all the legal ma- 
neuvering required, than to keep him in prison for 
life. 

“Death row is so backed up that we would need to 
execute several a day to clear it,” said Mount Holyoke 
sociologist Richard Moran. ‘‘Are Americans repaisd 
for more than 100 executions a month? I doubt it.” 

  

  

TISEMENT 

  

‘When clerks make 

A federal District Court judge earns 
$81,100 per year. 

Many major New York City law firms 
pay their brand-new, fresh-from-law- 
school attorneys $65,000. 

Those new hires who have spent a 
~ year clerking for a judge get $75,000. 

Those with two years of clerking are 
paid $85,000. 

In other words, after clerking for two 
years, young lawyers may_earn more 
money_than the very judges for whom 
they clerked. That, we submit, is dra- 
matic evidence that the federal salary 
structure is out of whack and desper- 

ately needs realignment. 
That's precisely: the sort of injustice 

the nine-member presidential Commis- 
sion on Executive, Legislative and Judi- 
cial Salaries has been trying to address. 
The commission recently concluded 

unanimously that salary relief for the top 
officials in government, including judges, 
is “essential.” The commission has rec- 
ommended a pay scale for federal 
judges ranging from $130,000 to 
$175,000 for the Chief Justice of the U.S. 
Supreme Court. Also proposed by the 
commission were raises for the legis- 
lative and executive branches as well. 

Now, President Reagan, like other 
Presidents before him, has scaled back 
the panel's recommendations, although 
he agreed that raises were long overdue. 
Under the President's proposal, federal 
District Court judges would get a 10 per- 
cent pay hike, to $89,500. He also said he 
would consider additional salary adjust- 
ments later in his term. 

The new pay scales will take effect 

unless both Houses of Congress reject 
them within 30 days, and then override a | 
possible veto. We urge them to go along 
with the President—and we urge Mr. 
Reagan and the Congress alike not to let 
reconsideration of an additional raise slip 

between the cracks. 
For the problem of inadequate pay for 

  

  

  

  2D 

then judges need a pay raise 

Mobil 

more than judges, 

the judiciary has been festering for along 
time. More judges have resigned from 

the federal bench in the last 15 years 
than at any time in history, and the 
overwhelming majority of them did so 
because they felt they could no longer 
adequately support their families on 
what they earned—particularly in view of 

what lawyers in private practice are mak- 
ing. Many cited the cost of educating 
their children; one distinguished judge 
told the Chief Justice his resignation had 
been forced by the incurable disease 
of “maltuition.’ 

Most federal judges are willing to 
make the sacrifice a lifetime appoint- 
ment to the bench entails, in spite of the 
fact that partners in major law firms 
earn, on average, more than twice a Dis- 

trict Court judge's salary. In the words of 
one federal judge: ‘Judges don’t expect 
to get rich on the bench. But they do 
expect to get, in real terms, what the job 

paid when they took it.’ 
But even that expectation hasn't been 

met. Purchasing power of District Court 

judges declined by 36 percent between 
1969 and 1986. In order to have kept pace 
with inflation, these judges would be 

earning $123,815 today. 
But while individual judges may either 

make great personal sacrifices or resign, 
it is the nation that is the real victim of 
inadequate judicial pay. Recruiting to the 

bench has become increasingly difficult, 
and unless the problem is resolved, the 
nation eventually may settle for a federal 
bench consisting only of the indepen- 
dently wealthy and the mediocre. 

Almost two years ago, when the cur- 

rent commission began its work, we sug- 
gested in this space that to deny the 
judiciary an adequate pay scale, even in 
times of budget deficits, was to be 
penny-wise and pound-foolish. America 
needs an independent, capable judiciary 
just as badly as the jurists need an ade- 
quate wage.     ©1987 Mobil Corporation 

    
 



   
16 THE BOSTON GLOBE MONDAY, JANUARY 19, 1987 

  

  

  

  

The Boston Globe 
Founded 1872   

WILLIAM O. TAYLOR, Chairman of the Board and Publisher 

JOHN P. GIUGGIO, Vice Chairman 

RICHARD C. OCKERBLOOM, President 

DAVID STANGER, Senior VP & General Manager 
ARTHUR KINGSBURY, VP & Treasurer 

MILLARD G. OWEN, VP Marketing & Sales 

FRANK E. GRUNDSTROM JR., VF Human Resources 

JOHN S. DRISCOLL, Executive Editor 

MARTIN F. NOLAN, Editor, Editorial Page 

THOMAS F. MULVOY JR., Managing Editor 
ALFRED S. LARKIN JR., Deputy Managing Editor 

HELEN W. DONOVAN, Deputy Managing Editor 

S. J. MICCICHE, Assistant Executive Editor 
ROBERT L. HEALY, H. D. S. GREENWAY, Associate Editors 
  

Publishers 

CHARLES H. TAYLOR, 1873-1922 

President 

JOHN I. TAYLOR, 1963-1975 

WILLIAM O. TAYLOR, 1922-1955 

Editor 

L. LL. WINSHIP, 1955-1965 

WM. DAVIS TAYLOR, 1955-1977 

Editor 

THOMAS WINSHIP, 1965-1984 

  

From freedom’s dream to reality 
Americans have witnessed significant im- 

provements in race relations since Martin Lu- 
ther King's call for justice in a speech in 
Washington in 1963. Yet recent events indi- 
| cate that there is still much to be done before 
‘King’s dream is fulfilled and freedom rings 
“from every village and every hamlet, from ev- 
‘ery state and every city.” 

It has been almost two decades since King 
was assassinated, but his work and his teach- 

ings have been an inspiration in keeping the 
movement for civil rights alive. Much of the 
dream has been realized. 

Segregated lunch counters are a bad mem- 
: ‘ory.-School systems around the nation are be- 
' ing desegregated. Police and fire departments 
-are hiring and promoting minorities. The Vo- 

| ting Rights Act is still law, despite efforts by 
the Reagan administration to kill or under- 
mine it. More than 6000 blacks hold elected 
‘offices, including some powerful chairman- 
“ships in Congress. This is a good start toward 
| building the kind of America King envisioned. 

Despite all the good that has been done, an 
: ugly hatred, manifested in acts of racial vio- 
‘lence, persists. In New York, blacks are at- 

' tacked by whites. In the Boston area and else- 
where, Indochinese refugees are the victims of 
' ‘assaults by bigots. In the Midwest and West, 
' ‘neo-Nazis and other bigots spew their anti- 
'- Semitic and anti-black vituperations. 

Although few techniques can claim genu- 
“ine novelty in the ancient art of marketing, 

_ some of the revivals almost look new after long 
periods of disuse. Perhaps ‘that explains why 
the appearance of ‘‘save 33 percent’ or similar 

. lines on the labels of some common household 
items has caught the eye of those who wonder 
whether under the right circumstances the 
savings might be the start of a major trend. 
“The ‘save 33 percent’ turns out to be 
‘based on the manufacturer’s assertion that 
the customer is getting 33 percent more prod- 
“uct for the same price — in one case, 13's 
‘ounces instead of 10 ounces. 

That seems like a good idea, but the manu- 
«facturers, or their marketing arm, are missing 
a chance to save their customers even more, as 
Aa great economist once pointed out to his son 
at'their dinner table in Cambridge. 

Today, the nation will hold its second cele- 
bration of King's birthday with parades, radio 
broadcasts and other uplifting events. Repli- 
cas of the Liberty Bell and church bells will be 
rung at noon in all 50 states, in keeping with 
the theme of this year’s observance, “Living, 
the Dream: Let Freedom Ring.” 

If freedom is to be a reality for all Ameri- 
cans, the dream must be lived every day. 
Americans must not condone, by silence, the 
increasing acts of racial violence; they must 
unite against the bigots and hate-mongers. 

Freedom should not be something that is 
talked about on Martin Luther King's birth- 
day and forgotten the rest of the year. Ameri- 
cans have fought and died in the cause of free- 
dom, and it can be preserved only by vigi- 
lance. No American is really free if all are not | 
free to walk, to live and to work in any neigh- 
borhood, city or state in this nation. 

The major battles in the struggle for civil 
rights have been won. The gains have been 
tremendous. Now, it is time to give meaning to 
the laws that have been enacted and to make 
sure that the clock is not turned back. 

Slowly and softly the bells of freedom and 
equality are beginning to sound. All citizens, 
as well as religious, civic and political leaders, : 
can best honor the memory of Martin Luther 
King by commiting themselves to working for 
the change that will ensure that King’s work 
and his death were not in vain. 

‘Mind’s-eye savings 
“Dad, I saved 50 cents today,” the son said 

over his mashed potatoes. A 
“How did you do that?” 
g, walked home instead of taking the bus.” 
“Good. But why didn’t you save three dol- 

lars?” 

“Three dollars? How could I have saved 
three dollars?” 

“You could have walked home instead of 
taking a taxi.” 

The basic wisdom of that advice has al- 
ready penetrated the halls of marketing. It can 
be only a matter of time before consumers will 
be saving far more, as manufacturers offer 
13%s ounces instead of eight ounces, or six, or 
even four ounces — at the same price. When 
the concept takes over in full swing, everyone 
will surely be rich. 

Glossary: ‘colorization’ 
..col-or-i-za-tion: Now you see me on tee- 

vee. Middle English colour, from Old French; 
from Latin color. 

Eighteen months ago, if this word existed 
‘at ‘all, it was in the minds of the technicians 
‘who were devising and perfecting the tech- 
“nique. 

Now, the process is listed as the hit of the 
entertainment year — by audiences, if not by 
critics, or purists — and the word has been 

...cited by Lake Superior State College's Unicorn 

-+0f the Hunters: 

Hunters Group, which annually puts out a 
New Year's Dishonor List of words. Sniffs one 

“It's bad ‘enough that Ted 
‘Turner damages classic films. His disrespect 
for the language is equally reprehensible. He is 

“simply coloring films." 
Ted Turner does have a certain reputation 

for strong and salty language — one gained as 
the America’s Cup skipper in 1977 and perpet- 
uated as owner of the Atlanta Braves. Wheth- 
er he deserves a rap on ‘colorization is an- 
other matter. 

- The adding of “‘-ization” is a common way 
of making a process out of a noun. It is as old 
‘as the Greeks, who added “-iz” and the verb 
ending “-ein.” Thus, from Hellen, meaning 

‘Greek, came the verb hellenizein, meaning to 
become culturally Greek, and from ostrakon, 
the piece of pottery used as a ballot, came os- 
trakizein, ‘to send into exile” — which the 
Greeks could do to a politician and from which 
English gets “ostracize.” 

In English, the process has been in use 
since Shakespeare's time, and the list includes 
‘everything from Americanize to Vietnamiza- 
tion, from computerize to personalize. 

The process is widely used in business and 
technology, government and the social sci- 

~ ences. It is abhorred by conservative word crit- 
- ics; indeed, many of the ““-ize” verbs are no im- 
provement over the original -— 
one particularly gross example. It is annoying 

“flavorize” is 

to be told something is being “prioritized,” for 
one would much rather it be given immediate 

“dtténtion. On the ther hand, “winterize” is 
useful and is acceptgl without complaint — ex- 

x 

cept over the cost of carrying out the process 
on a drafty old house. 

The common-sense editors of “Success 
with Words,” a style and usage guide, note 
that “many of these coinages in “‘-ize” may 
seem, to some people, unnecessary, irresponsi- 
ble or nasty. But our language is democratic. 
No matter who first invents or promotes a 
word, it takes its chance on its merits and is 
judged by the community at large.” 

That is the standard by which to judge 
“colorization.” The alternative to identifying 
an old film as “‘colorized” is to describe it as 
“color-added.”’” The process would be “‘color- 
additive,” which sounds like something the 
Food and Drug Administration should be 
monitoring. 

The verdict has to be that whatever the 
merits of the process, the word has caught on. 

The still dubious should consider that 
“colorization” may not be any worse than the 
usage ‘Smith will do the color,” meaning that 
an announcer named Smith is going to back 
up the play-by-play of the Super Bowl with 
colorful anecdotes about the players. In Eng-. 
land, that person is sometimes known as the 
“colorcaster’’; in the trade, he is sometimes 
derided as a “color babbler.”’ At least he is not 
— or not yet, anyway — a “‘colorizationist.” 

  
Chris Demarest illustration 

  

  

  
        

WHAT Do You SAY To CHARGES Your 
PoLICIES ENCOURAGE RACISM 2 

  

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WAPPY BIRTHDAY TO You / 

\ARFEY BIRTHDAY TO You. / 

      

  

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NAPPY EIRTADAY, DEAR MARTI 
   

      

  

   
        

  

LETTERS TO THE EDITOR 
  

Another Hellman myth 
A Globe piece reporting the 

reaction to William Wright's 
iconoclastic biography, “Lillian 
Hellman,” contained an inaccu- 
racy (“Hellman still stirs con- 
troversy,’’ Jan. 10). 

He quoted ‘‘a famous Hell- 
man remark’ during testimony 
before the House Committee on 
Un-American Activities (HUAC) 

s “I don’t cut my friends to fit 
this year’s fashion.” 

Hellman never made that 
statement during her HUAC tes- 
timony. The accurate quota- 
tion, contained in a letter from 
Hellman to HUAC chairman 
John S. Wood, dated May 19, 
1952, is as follows: ‘lI cannot 
and will not cut my conscience 
to fit this year’s fashions, even 
though I long ago came to the 
conclusion that I was not a po- 
litical person and could have no 
comfortable place in any politi- 
cal group.” 

The more dramatic but apo- 
cryphal account of Hellman 
staring down the committee 
with a defiant and articulate af- 
firmation of loyalty to others   

  

  

  

  

  
Globe file photo 

Lillian Hellman 

persecuted by HUAC serves to 
perpetuate yet another myth 
concerning this remarkable 
and complicated woman. 

It appears that the wire ser- 
vice reporter responsible for the 
article did not read, or read. 

carefully, Wright's book. If she 
had, the error would not have . 
found its way into print. 

} CRAIG HAVEL 
Cambridge     

Gun control to limit crime is a flawed measure 

If Peter Thoms (Letters, Dec. 
29) loved gun-control laws for 
their intrinsic beauty, however 
poor his taste, we could not fault 
his logic. Thoms clearly intends to 
be taken seriously, though, in 
claiming that gun control will re- 
duce criminal violence. 

Let us make the most favorable 
assumptions and see whether gun 
control would make the US like 
England, the favorite example of 
low crime and few guns. Let us 
simply postulate absolute prohibi- 
tion and perfect enforcement, 
avoiding all messy questions of 
methodology. 

Our hypothetical US with no 
guns at all thereby improves upon 
England, Japan and even the 
USSR, as even there an occasional 
civilian is allowed to go hunting or 
to practice for the Olympics, and 
the police are armed. 

Let us also assume that any 

murderer who used a gun could 
not have committed the crime 
without it. Finally, let us not con- 
sider any increase in crime due to 
lack of self-defense. If we could 
beat the gun lobby and do all that, 
wouldn't that clean up the coun- 

try? 
According to The Economist, 

the US has ‘no more than its 
share of crazies.” According to 
statistics published in Time, our 
murder rate is about three times 
that of England and double that of 
Japan, 
only those crimes where guns 
were not used. 

As long as we refuse to recog- 
nize that violent crime in general 
and murder in particular have be- 
come part of our culture, and as 
long as we depend upon peripher- 
al measures like gun control to 
deal with them, we will live in 
danger. 

I suggest that before Thoms re- 
sumes his campaign to disarm ev- 
eryone he should spend a few 
nights in BHA housing, where, ac- 
cording to your Page 1 article on 
the same date, the criminals have 
taken over. 

As Sen. Edward Kennedy has 
told his fellow senators, people are 
“cowering behind triple-locked 
doors, and the elderly live in fear- 
ful isolation.” Kennedy added that 
we cannot tolerate that situation, 
and that he does not intend to in- 
terfere with our right to have guns 
for self-defense. I heartily agree. 
RICHARD W. HATZENBUHLER 

Deering, N.H. 

“Per se’ violates the presumption of innocence 
The Globe's Jan. 8 editorial 

‘‘Drunken-driving law road- 
blocks’ avoids the primary issue. 
It is quite true that “any person 
who gets drunk and gets behind 
the wheel of a car deserves to have 
his license taken away at once,” 
and it is also true that driving is 
not a right, but rather a privilege. 

What the editorial misses is 
that the presumption of innocence 
is central to the American sense of 
justice and that the new law pre- 
sumes guilt rather than inno- 
cence. Privilege or not, the imme- 

Reagan's thin grasp 
of the Constitution 

How can President Reagan ad- 
vocate mandatory drug testing of 
people who are not already sus- 
pected of criminal behavior? He 
does it easily. 

When it comes to the Constitu- 
tion of the United States (in par- 
ticular the Fourth and Ninth 
Amendments), Ronald Reagan 
just says no. 

LEONARD A. EPR EIN 
Haverhill (a 

diate loss of a license is a punish- 
ment which the law administers 
prior to the trial of the crime and 
based primarily on the decision of 
one, possibly fallible enforcement 
officer and his possibly fallible 
equipment. This is a step, albeit 

small, in the direction of a police 
state. 

The new drunken-driving law 
is a Band-Aid for a larger problem: 
a judicial system that works too 
slowly. Without the new law, but 
with the current system, a person 
caught driving drunk can contin- 
ue to drive, and therefore continue 

to put others at risk, for months 
or years before the system catches 
up to him. 

A better solution to this prob- 
lem would be to hasten and im- 
prove the judicial process so that 
trial and punishment are swift, 

sure and severe for those who are 
proved guilty, whether for drunk- 
en driving or drug dealing, and so 
that absolution is quick for those 
who are innocent. 

CHARLES D. ASHLEY-ROLLMAN 
Andover 

How CouLD T EVER HAVE 
OPPOSED THIS HOLIDAY 2 

  

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Funds withheld 
from housing court 

Michael Dukakis should ex 
plain why he has never requested 
funds for Housing Court Chief 
Justice George Daher’'s adminis- 
trative budget. 

Could it be because Daher in- 
curred Senate President Bulger’s 
wrath by refusing to hire Sonny 
McDonough'’s son? 

This charade has been going 
on since 1982. 

Bulger's don’t-get-mad-get- 
even philosophy is passe. ; 

It’s time Dukakis shows 
whether he is willing to stand up 
to Bulger and demand the Hous- 
ing Court be funded by the Legis- 
lature. 

Nobody who plays Bulger’s 
games can be seriously considered 
asa presidential candidate. 

* GEORGE A. PARSONS 
Allston Sl 

Roslindale condo lottery. 
In response to a letter to the 

.editor, I wish to set the record 
straight about a condominium lot- 
tery held in Roslindale on.Nov. 30. 

Letter writer Bill Peterson said 
I promised that all 108 condos 
would be sold for under $100,000 
to Roslindale residents only. This 
is not true. The city requested that 
10 percent of the development, or 
10 condos, be sold for under 
$100,000, but because of pressure 

from City Councilor Thomas Men- 
ino, 1 agreed to enter 30 condos 
into a lottery. 

I would have gladly limited all 

applicants to Roslindale residents 
only; however, that would have 
been discrimination. 

As for valuable land being de- 
veloped, Peterson is correct. With, 
out the help from the elected offi, 
cials, this valuable land would 
now be the site of a new factory. 

Don’t wonder how much of a 
kickback this administration re- 
ceived from this ‘‘parasite’’; it re- 
ceived nothing. Instead, this 
‘“‘parasite’’ gave $1.5 million back’ 
to the community. What did Bill 

Peterson give? 
VINCENT MARINO 

Roslindale : i 

Robbed in-the big city 
On Jan. 5, this country boy 

visited the big city. The occasion 
. was a physical examination, per- 

formed at the New England Medi- 
cal Center, located on Harrison 
Avenue. } 

I was charged $6 per hour to 
park in the adjacent parking ga- 
rage. I call that highway robbery. 

JOSEPH JOHN MEDEIROS 
Milford 

  

When writing . . 
-To be published, letters must 

be signed, and include address 
and telephone number for verifi- 
cation. Letters should be 200 
words or less; all are subject to 
condensation. 

Address: Letters to the Editor, 
The Boston Globe, Boston 02107. 

of? 
Affiliated Publications, Inc. 

135 Morrissey Boulevard 
Boston, Mass. 02107 

617-929-3300 
Parent company of the 

Globe Newspaper Company 
617-929-2000 

  

WILLIAM O. TAYLOR 
Chairman of the Board 

JOHN P. GIUGGIO 

President 

ARTHUR KINGSBURY 

Treasu§er       
  

  

  

 



   

  

  

  
  

SECTION B "The Allania Zournal «es FRIDAY, JULY 10, 1987 
  

Judges now can order prostitutes to take AIDS tests 
  

By Steve Harvey 
Staff Writer 
  

Georgia judges now can require 
convicted prostitutes to be tested 
for the AIDS virus under a new ap- 
plication of powers granted to the 
state Department of Human Re- 
sources (DHR) by the Georgia 
Health Code. 

DHR officials implemented the 
mandatory testing Thursday, but 
judges probably won't begin order- 

ing the tests until guidelines on the 
procedure are mailed out next 
week, said Jane Carr, deputy direc- 
tor for the DHR’s community health 
section. 

Mrs. Carr said the mandatory 
testing requirement falls under the 
DHR’s “broad authority to protect 
the public health by preventing the 
transmission of communicable 
diseases.” 

However, Ken South, executive 
director of AID Atlanta, criticized 
the procedure. 

  1 
People seem to think that if you lock up all the peo- 
ple who test positive, you can Stop AIDS. That's a 
horrible myth. 

— Ken South, executive director of AID Atlanta 

  

er, Georgia becomes one of the first 
states to require prostitutes to be 
tested for AIDS, according to Wil- 
liam Darrow of the national Centers 
for Disease Control. He said Flori- 

“People seem to think that if 
you lock up all the people who test 
positive, you can stop AIDS. That's 
a horrible myth,” he said. 

As a result of DHR’s new pow- 

da, for example, implemented a 
similar testing program last year. 

Under the new regulation, DHR 
will begin keeping a file of the 
names and test results of convicted 
prostitutes so that judges can refer 
to the records if a prostitute is 
brought back to court after a con- 
viction, Mrs. Carr said. 

She said DHR would probably 
pay for the testing in some cases. 
She estimated that as many as 500 
prostitutes in Georgia would be test- 
ed for AIDS each year once the pro- 

cedure is implemented. 
The new regulation does not re- 

quire judges to order the testing, 
she said. 

Mrs. Carr said tests for ac- 
quired immune deficiency syndrome 
cost about $10 at many county 
health facilities, “but I don’t think 
cost is a major factor here.” 

The Georgia Task Force on 

  

See AIDS 6B» 
  

  

Woman 

escapes 

abductor 
By Gayle White 
Staff Writer 

  

  

An Oklahoma woman abducted 
from her home July 7 is back there 
today after escaping from her al- 
leged abductor at a truckstop out- 
side Madison, Ga., late Thursday 
night, FBI and GBI officers said. 

- Betty Swearingen, 52, of Okmul- 
gee, Okla., bolted from a car as it 
pulled into a service station at I-20 
and US. 441 between Madison and 
Eatonton about 11 p.m. and 
screamed that she needed help, said 
GBI special agent Roy Harris. 

A truck driver who heard Ms. 
Swearingen called police, Harris 
said. 

Police nationwide are searching 
for the man who escaped in Ms. 
Swearingen’s car, a 1986 dark 
brown Nissan Sentra with Oklahoma 
license plate OMO868, Parker said. 

The man is believed to be 
armed with a .22 caliber rifle stolen 
rom Ms. Swearingen’s house, Par- 

  

  

  

  

                  

  

              

    

  

  

        

    

  

  

              

  

  
  

  

    

    

  

  

   
   

      

    

  

    

  

   

McCles 

      

ey given 

stay; his rights 
possibly violated 
  

By Tracy Thompson 
Staff Writer 
  

A federal judge ordered an in- 
definite stay of execution Thursday 
for Warren McCleskey, ruling that 
the Georgia death row inmate’s at- 
torneys had unearthed evidence of a 
possible violation of his constitution- 
al rights while he was in the Fulton 
County Jail for the May 1978 mur- 
der of an Atlanta police officer. 

McCleskey had been scheduled 
to die next Tuesday. Last April, his 
case spawned an important U.S. Su- 
preme Court ruling upholding the 
constitutionality of Georgia's death 
penalty despite statistical evidence 
that shows the penalty is imposed 
more often on those who kill whites. 

U.S. District Judge J. Owen For- 
rester’s ruling came late Thursday 
afternoon after a two-day hearing in 
which a former Fulton County depu- 
ty sheriff testified that Atlanta po- 

lice detectives told him to put an 
informer in a jail cell next to 
McCleskey’s. 

Retired Deputy Sheriff Ulysses 
Worthy, who testified on Thursday, 
said that the detectives hoped 
McCleskey would say something to 
help their investigation of a May 
1978 robbery of the Dixie Furniture 
Co. on Marietta Street. McCleskey 
was accused of killing Atlanta po- 
lice Officer Frank Schlatt during 
that robbery. 

In 1964, the U.S. Supreme Court 
ruled that using an informer to elic- 
it a confession from an accused 
criminal who was represented by a 
lawyer violated the accused’s Sixth 
Amendment right to counsel by sub- 
jecting him to questioning outside 
his lawyer’s presence. 

  

See STAY 6B» 

    
  

  

o
f



   2 
-B 

Vik 

@ 

we 

The Atlanta Journal Friday, July 10, 1987 , 
  

  

By Diane R. Stepp 
Staff Writer 
  

In their first formal meeting 
since voters approved Cobb’s first 
bus system, county officials asked 

MARTA Thursday to link the two 
systems, enabling riders to pay one 
fare for connecting service between 
Cobb and Fulton County. 

MARTA officials remained non- 
committal to Cobb’s overtures but 
agreed to study how such a system 
might work. 

“We need the details of what 
Cobb wants to do. We will study 
those and see how it impacts on 
MARTA,” said George Ivey, chair- 

man of MARTA’s long-range plan- 
ning committee, which will make a 
recommendation to the transit agen- 
cy’s full board. 

“This meeting is not intended to 
solve any questions today but is in 
the spirit of cooperation,” said 
MARTA Chairman David Chesnut, 
who had agreed to the meeting if 
the transit issue passed in last 
month’s referendum. Voters gave a 
narrow 51.5 percent approval of the 
bus system. 

At the outset of the talks, Cobb 
Commission Chairman Earl Smith 
told MARTA officials,“We will have 
differences. I know you wanted us 
to be a part of MARTA, but we are 
going in a different direction.” 

He said linking the two systems 
would provide greater benefits for 
passengers traveling between Cobb 
and downtown Atlanta and for Ful- 
ton riders who would come to Cobb 
to shop or work. 

Smith estimated 8 percent of, 

the projected 1 million first-year 
riders of the Cobb transit system 
would be commuting to destinations 
in Fulton. “There would be benefits 
for the city of Atlanta, Fulton and 
DeKalb,” he said. 

Technical details concerning 
Cobb buses’ access to MARTA rail 
stations, fare transfers, division of 
revenues and Cobb’s liability in us- 
ing MARTA facilities will be ad- 
dressed in a written proposal due in 
coming weeks, said Smith. 

In asking for MARTA’s coopera- 
tion, Smith said the county still 

must convince Cobb commuters to 
leave their cars and take the buses. 
“We’ve got to have something to 
sell,” he said, adding that a major 
promotional campaign by the coun- 
ty would include promotion of 
MARTA. 

Smith asked for MARTA’s help 

Cobb asks MARTA for bus-rail link 
in getting the local bus system 
started. “We need as much help as 
you can give us. We are asking to 
borrow your expertise. There are a 
lot of areas you're experienced in 
that we are not,” he said. 

Cobb is developing proposals for 
bids for a private firm to operate 
the system. Whether Cobb chooses 
to buy or lease buses could affect 
the targeted Jan. 1 start-up date by 
as much as two or three months, 

Smith said. 
Smith said he was confident 

Cobb could reach agreement with 
the International Amalgamated 
Transit Union, which represents 
MARTA drivers, over job protec- 
tions that would allow the release 
of $5.2 million in federal funding 
for the project. 

“Good luck,” commented 
Chesnut. 

  

  

Going after the big one 
Randy Clay (left) and Walter Rabern bait their hooks 

with worms at Lake Avondale in hopes of catching 

something worth talking about when they go back 

      

STEVE DEAL/Staff 

home. Randy lives in Melborne, Fla., and Walter lives 

in Snellville. They both have grandparents in Avon- 

dale Estates and became friends on earlier visits. 

  

STATE REPORT 

Tax earns 

$5 million 
over needs 

in Gwinnett 
Government complex 
assured with 1% levy 

By Scott Vaughan 
Staff Writer 

  

  

A special 1 percent sales tax 
to fund a new Gwinnett County 
government and court complex 
will end Sept. 30, having raised 
an estimated $5.4 million more 
than is needed for the Lawrence- 
ville facility. 

Based on sales tax collections 
through April, county officials 
expect to raise the $56.5 million 
needed to build the complex this 
month, leaving August and Sep- 
tember for collections above that 
amount. In 1986, August and Sep- 

tember provided $5.4 million for 
the project. 

Funds for the 400,000-square- 
foot building have accumulated 
more rapidly than officials ex- 
pected when they gathered in 
August 1985 for ground-breaking 
ceremonies off U.S. Highway 29. 
At the time, voters had just ap- 
proved the special sales tax 
which, according to state law, 
would be discontinued when   funding was obtained ar at the 

Prices in this ad good Friday 

and Saturd ay July 10 & 11, 1987 only. 
  

  

  
  

  

     



  

  

    
United Press International 

  

OPPOSE EXECUTION: At Capitol Hill news conference Thursday are (front row, from left) the Rev. 

Joseph Lowery; Rep. John Conyers (D-Mich.); Coretta Scott King; and (back row, from left) 

McCleskey's daughter, Carla; Del. Walter Fauntroy (D-D.C.); and Len Rose of Amnesty International. 

FROM 1B Stay 
  

The informer placed in the cell 
next to McCleskey’s, Offie Evans, 
was one of the state’s main wit- 
nesses against McCleskey at his 
1978 trial. Attorneys for McCleskey 
said they had tried earlier to es- 
tablish that Evans was planted in 
the cell next to McCleskey’s by po- 
lice, but had no success — until 
last month. : 

Last month, however, they filed" 
a freedom of information request 
with attorneys for the city of At- 
lanta in a search for other docu-! 
ments relating to McCleskey’s 
case. City attorneys turned over a 
21-page statement from Evans de- 

tailing how he won McCleskey’s 
confidence, as well as incriminat- 
ing statements McCleskey made to 
him while they were jailhouse 
neighbors. 

Evans’ statement does not ex- 
plicitly say he was planted in the 
cell next to McCleskey’s by police. 
But John C. Boger, McCleskey’s at- 
torney, maintained after Thurs- 

day’s hearing that the statement 
“proved a serious constitutional vi- 
olation.” 

After granting McCleskey’s re- 
quest for a stay, Forrester said he 
would take the case under advise- 
ment until mid-August, when he 
might hold another hearing. 

The statement paints .a vivid 
I-picture of conversations that took 

place between McCleskey and Ev- 
ans as they spoke through vent 
holes between two solitary confine- 
ment cells in the Fulton County 
jail in July 1978. 

While the robbery was in prog- 
ress, McCleskey told Evans, he saw 
“the police walk in the store. But 
the police didn’t act like he was 
coming in for no robbery.” 

In fact, Schlatt was answering 
a silent burglar alarm that store 
employees had pressed during the 
robbery. But when McCleskey saw 
the police officer put his hand on 
his gun, “He said that he knowed 
right then it was going to have to 
be [Schlatt] or McCleskey,” Evans’ 

statement continued. “McCleskey 
said that he panicked; he just 
shot.”   

  

  
 



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. i 

GRANULES   FOR CONTROL 
OF FIRE ANTS  



  

    
  

   Snitches for the Law: Debate Rages 
Over Prosecutors Use of Informants 

By Edwin Chen 
Los Angeles Times 

They lie. They cheat. They can 
be manipulative and devious dou- 
ble-crossers. Many of them are rob- 
bers, rapists, kidnappers, even kill- 
ers. 

They are, in the words of a well- 
known longtime prosecutor, “out- 
right conscienceless sociopaths to 
whom truth is a wholly meaningless 
concept.” 

They may be universally de- 
- spised, but frequently they are the 
‘best thing going in the governments 

© war on crime. 
They are snitches, or infor- 

mants, who provide crucial testimo- 
ny to help prosecutors put others 
behind bars — usually getting le- 
nient treatment, perhaps even mon- 

‘ey, as a quid pro quo. 
Were it not for them, there un- 

doubtedly would be fewer convicted 
felons behind bars. Prosecutors, in 
short, cannot live without them in 

many cases. 
But defense lawyers say the age- 

old but murky practice of using in- 
formants to help the state prosecute 
criminals raises the specter of inno- 
cent people being framed. 

“There are just so many reasons 
for informants to lie,” said John Ir- 
win, an author and sociology profes- 
sor at San Francisco State Universi- 
ty, who has studied the role of 
informants in criminal prosecu- 
tions. 

The practice of using infor- 
mants always has been controver- 
sial. But it is coming under new de- 
bate in light of a recent incident in 
Los Angeles, where a Los Angeles 
County Jail inmate demonstrated 
for authorities that he could obtain 
inside information about a crime to 
concoct a “confession” that could 
be used against the suspect in that 
crime. 

That demonstration, by Leslie V. 
White, has touched off an unprece- 
dented review by the office of Los - 
Angeles County District Attorney 
Ira Reiner of all murder prosecu-: 
tions in the last 10 years in which 
an informant provided key testimo-: 
ny. In the interim, Mr. Reiner also 
has ordered top-level reviews of all 

  

  

requests by the county’s 800 prose- 
cutors to use an informant. 

To many reform-minded critics, 
the renewed debate is long overdue 
— and all the more so because, 
some say, the practice seems to be 
escalating sharply. 

“There’s no question about it,” 
said criminal defense lawyer and 
Harvard law professor Alan M. 
Dershowitz. “Informing has become, 
if not an honorable trade, a mass 
occupation.” 

  

All too often, prosecutors 
simply have no choice but to 
use informants. In many in- 
stances, prosecutors would 
have no case without an in- 

~ formant’s testimony, for one 
- simple reason: Typically it is 
the informant who played a 
lesser role in a crime and 

‘thus knows its details. 

  

Informants are being used “pro- 
miscuously to obtain information 
about the most trivial and the most 
serious of crimes,” Dr. Dershowitz 
said. “They manufacture crime in 
order to sell their product. They lie 
about crime in order to give their 
employers what they think he wants 
to hear.” 

To be sure, not all informants. 
are shady : characters. As Dr. 
Dershowitz acknowledged in an in- 
terview, “Informants serve a good 
purpose, too, like when a good or- 
ganization is trying. to monitor the 
Klan or the Nazis. And the civil 
rights movement was helped enor- 
mously by the use of informants 
during the 1960s.” 

The problem is that the use of 
informants remains “a very unregu- 
lated and lawless area of the law,” 
Dr. Dershowitz contended. 

Ill-defined? Perhaps. Lawless? 
No, says Gary Mullins, executive di- 

"rector of the California District At- 
torneys Association. 

“I don’t know that there should 
be a hard-and-fast policy,” Mr. Mul- 

lins said. “My guess is that there's a 
general community of understand- 
ing out there among the prosecu- 
tors. 

Dr. Dershowitz said there 
should be specific guidelines and 
standards to govern the use of infor- 

judge on the U.S. 9th Circuit Court 

mants. To allow prosecutors to de- 
cide on a case-by-case basis wheth- 
er to use an informant is 
insufficient, he said. 

Prosecutors concede that infor- 

mants generally make less than ide- {, 
al witnesses. Stephen S. Trott, a for- 
mer senior Los Angeles County 
prosecutor and more recently U.S. 
associate attorney general, has 
called snitches “the scum of the 
earth.” 

Widely regarded as an expert 
on the use of informants, he de- 

clined to be interviewed for this 
story, citing his current job as a 

of Appeals. But he did not object to 
having his numerous speeches and 
papers on the topic quoted. To use 
an informant is to wade into a “wa- 
tery and treacherous domain,” he 
has written. The practice, he added, 
is “an endeavor loaded with un-   marked pitfalls for the unwarv.” | 

“Informant testimony is always 
extremely suspect,” said Mary Bro- 
derick, an attorney with the Nation- 
al Legal Aid and Defender Associa- 
tion in Washington. “People in 
custody are always looking for ways 
to get out. There are some prosecu- 
tors so eager to get a prosecution 
that they’ll ignore unmistakable 
signs of deception.” 

But all too often, prosecutors 
simply have no choice but to use in- 
formants. In many instances, they 
would have little or no case were it 
not for an informant’s testimony — 
for one simple. reason: Typically it 
is the informant who played a less- 
er role in a crime and thus knows 
its intimate details. 

Successful government cases 
that have relied at least in part on 
the testimony of informants include 
the prosecutions of Charles Manson, 
the Watergate conspirators, the 
Hillside Strangler in California, the 
Walker-Whitworth espionage ring 
and the insider-trading scandals on 
Wall Street. 

  

       
  



  

A4 Thurspay, OCTOBER 16, 1986 Tre WASHINGTON PosT 
  

Supreme Court Takes Up Beath-Penalty Question 
Georgia's Sentencing System Alleged to Discriminate Against Blacks 
  

By Al Kamen 
Washington Post Staff Writer 
  

The Supreme Court, hearing ar- 
guments in the most important 
death penalty case in a decade, was 

told yesterday that Georgia's sen- 

tencing system is unconstitutional 
because it is racially discriminatory. 

No longer is the issue whether 
the penaity itself is cruel and unusu- 

al punishment. The court answered 
that question 10 years ago when it 

reinstated the death penalty and 
said it could be used if states estab- 
lished fair procedures to decide who 

should be executed. 
Yesterday's argument invoived 

whether Georgia’s procedures, sim- 
ilar to those in many of the 37 
states with death-penaity laws, are 
sufficiently fair and unbiased. 

Laywers for Warren McCleskey, 
a black convicted in 1978 of shoot- 
ing a white Atlanta policeman dur- 

ing a furniture-store robbery, ar- 

gued that Georgia had “failed the 
test” to eliminate racism from its 

* sentencing procedures and that the 
state must rewrite its law. 

McCleskey’s attorney John 

Charies Boger said a statistical 
anaiysis of Georgia death sentences 
imposed between 1973 and 1979 

showed that blacks accused of kill- 
ing whites are nearly 11 times more 

likely to receive the death sentence 
than those who kill blacks. Blacks 
who killed whites were sentenced 
to die three times more often than 
whites who killed whites, the study 
also said. 

The study weighed more than 

200 other factors, such as the kill- 

er's background or weight of the 
evidence, and concluded that the 
death penalty was four times more 

likely when the victim was white. 

The study focused on “mid- 

range” cases, eliminating the most 

violent and the least violent, where 

jury discretion is greatest. The mid- 

range includes cases such as that of 

McCleskey, in which an armed rob- 

bery became a homicide. Even 

there, the study said, the death pen- 
ality was substantially more likely if 

the victim was white. : 

Other studies throughout south- 
ern states, including Texas, reach 
similar conclusions. These states 
inciude half of the nation’s 1,800 

death-row inmates. 

Chief Justice William H. Rehn- 
quist and Justice Byron R. White 

questioned Boger sharply about the 

validity of the study, which showed 

that only McCleskey, among 17 

convicted murderers of police of- 

ficers in Fulton County, had been 
sentenced to die. 

“It’s such a curious case,” Justice 
Sandra Day O'Connor toid Boger, 
“because what's the remedy? Do 

you want the court to execute more 

people” so McCleskey would not 

appear to be singled out? “Or do you 
want the court to order the aboli- 

tion of the death penalty altogeth- 
er?” 

Boger said that Georgia's law 
should be rewritten to eliminate its 

disproportionate impact on blacks 

convicted of killing whites. 

“Don’t you have to show that this 

particuiar jury would have dealt dif- 

  

ferently [with McCleskey] had the 
victim been black?” Rehnquist 

asked. “Or that this particular pros- 
ecutor discriminated?” 

Boger argued that intentional 
discrimination was the oniy conclu- 
sion that could be drawn from the 
data. 

O'Connor said Boger seemed to 
be arguing that the court was 
wrong in 1972 when it suggested 
that judges and juries should have 
more discretion in order to elimiate 
bias and that now “we should allow 
less discretion.” 

Boger said the court need only 
declare that “Georgia has failed the 
test” and must revise its law. 

But Georgia ‘Assistant Attorney 
General Mary Beth Westmoreland 
said the law needs no revision. 

The study upon which Boger re- 
lied was invalid, she argued, and she 
questioned whether any study com- 
paring homicides could be valid. 
“Each case is unique,” she said. 
“You can’t find two cases sufficient- 
ly similar” in all respects to show 
racial disparities, she said. 

McCleskey, she added, “was try- 
ing to indict the entire Georgia 
criminal justice system, [but] we 
contend there is no intentional dis- 
crimination. 

“The question is whether there 
was intentional discrimination 
{against McClesky] by this jury and 
this prosecutor,” she said, adding 

that there was none. 

The jury’s verdict in this and oth- 

er cases, she said, is the way “the 

community is expressing its moral 

outrage at a particular offense.” 

Under close questioning by Jus- 
tice John Paul Stevens, Westmore- 

land said that theoretically, “there 

could come a time when no other 
conclusion [but racial prejudice] 
could be drawn” from a statistical 
study of sentencing, “but that is not 

this kind of case.” 
Asked by Stevens why murderers 

of blacks did not receive the death 
penaity as often, Westmoreland said 
the “white-victim cases” were “sys- 
tematically worse” involving more 

rapes and robberies. “Black-victim” 

cases invoived more family disputes 
or “barroom brawls,” she said. 

Death-penalty opponents have 
said McCleskey's case is perhaps 
the last broad challenge to the 
death penaity. 

In 1972, the Supreme Court 
struck down state death-penaity 

laws, saying that they gave too 
much discretion to judges and juries 

in deciding who shouid live and die. 
Some justices in the majority felt 
that racism tainted the system and 

that a disproportionate number of 
blacks were sentenced to die. 

In response, 37 states passed 

new laws with such procedural safe- 

guards as sentencing guidelines and 
automatic appeals. 

The court revisited the issue in 

1976 and pronounced itself confi- 

dent that the new laws, including 

Georgia's, had made the death pen- 
alty fair and substantially eliminated 

racism. 

Opponents of the penalty said 
they see the Georgia case as a fall- 

back position, given the high court’s 

rejection of arguments that the pen- 

alty is not a “cruel and unusual’ 

punishment banned by the Eighth 
Amendment. 

They acknowledge that the death 
penaity could be imposed for mass 
murderers, or murders involving 
torture. But death-penalty oppo- 
nents want the state, in more typ- 

ical murders, to prove the death 

sentence is not racially motivated. 

A federal appeals court in Atlanta 

voted 9 to 3 last year to reject 

McCleskey’s argument. While dis- 
puting the study’s analysis, that 
court said that, even if the findings 
were valid, there was no proof that 

racial bias was intentional. 

General statistics, the court said, 
cannot be used to determine wheth- 
er the sentence given a particular 

individual was improper. 
McCleskey’s lawyers argue that 

the standard of proof required by 

the appeals court is impossible to 

meet and not required by the high 

court ‘in any other case relying on 

statistical evidence. 

The high court is expected to 
issue its ruling by next summer. 

  

    

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A38 THE NEW YORK TIMES, FRIDAY, OC1 UBER 17, 1986 
  

Che New Pork Times 
Founded in 1851 AY 

\ 
  

ADOLPH S. OCHS, Publisher 1896-1935 \. 
ARTHUR HAYS SULZBERGER, Publisher 1935-1961 

ORVIL E. DRYFOOS, Publisher 1961-1963 

ARTHUR OCHS SULZBERGER, Publisher 

® 
A.M. ROSENTHAL, Executive Editor 

SEYMOUR TOPPING, Managing Editor 

ARTHUR GELB, Deputy Managing Editor 

JAMES L. GREENFIELD, Assistant Managing Editor 

® 
MAX FRANKEL, Editorial Page Editor 

JACK ROSENTHAL, Deputy Editorial Page Editor 
® 

LANCER. PRIMIS, Exec.V.P, General Manager 

RUSSELL T. LEWIS, Sr.V.P, Circulation 

J.A. RIGGS JR., Sr.V.P, Operations 

HOWARP BISHOW, V.P,, Employee Relations 
ERICH G. LINKER JR., V.P, Advertising 

JOHN M. O'BRIEN, V.P, Controller 

ELISE J. ROSS, V.P, Systems   
    

Killers of Whites, Killers of Blacks 
By refusing to strike down capital punishment 

as unconstitutional, the current Supreme Court ma- 

jority opens itself to some difficult questions about 
the death penalty. Foremost is the claim that, in 
many states, the decision to execute is corrupted by 
racism. ; 

For example, in Georgia a convicted murderer, 

white or black, is between 4 and 11 times. more 
likely to be sentenced to death if the victim is white 
than if the victim is black. Among people convicted 
of killing whites, blacks have a much greater 
chance than whites of being ¢ondemned to death. As 
John Charles Boger of the NAACP Legal Defense 
Fund told the Court the other day, it is as though 
Georgia still obeyed pre-Civil War laws setting ra- 
cial criteria for executions. 

That’s an ugly condition for the law of a society 
still laboring to cleanse itself of racism. How can 
the Court continue to live with and administer a sys- 
tem so suspect? One way would be simply to ignore 
discrimination. Another would be to impose on con- 
demned prisoners such a high burden of proof that 
their challenges fail and executions can proceed as 
usual. Another, evident in the Court this week, is di- 
versionary argument over whether the discrimina- 
tory death penalty odds are 11 to 1 or only 4 to 1 or 
somewhere in between. 

Georgia argues that the crime, not the victim’s 
race, governs its death decisions. Whites are more 
often victims of outrageous murders than blacks, 

argued Assistant Attorney General Mary Beth 

Montgomery. If so, then an impressive statistical 
study allowing for such factors is wrong. Even 
among killers of policemen, Atlanta juries con- 
demned only 1 of 16 convicted men between 1973 
and 1979. Whites were the victims of all seven Geor- 
gia men who have been executed — six of them 
blacks, - ~*~ 

The obvious evidence seems damning and 
statistical evidence doesn’t help the state. Thus it’s 
reasonable that it should now be up to the death pen- 
alty’s advocates to offer a nonracial explanation. In- 

- stead, Chief Justice William Rehnquist would add to 
the abolitionists’ burdens with some unusual rules. . 
By his test, the prisoner challenging a death sen- 
tence might prevail only by proving that his particu- 

lar jury was motivated by racial bias. The existence 
of those old discriminatory state laws was once 
proof enough of bigotry. But just try getting-a big- 
oted juror to admit his prejudice today. 

The Supreme Court has the raw power to an- 
nounce impossible legal standards of proof. It has 
the discretionary authority to focus on the little pic- 
ture. But failing to assign a proper burden to the 
state won't change the ugly big picture. Requiring 
the prisoner to prove specific racism would do noth- 
ing to purge the racism now inherent in the death 

penalty. The states may be able to devise a nonra- 
cial way to carry it out, in which case a better 
course would be to stop executions until they do. If 
that’s too hard, the racist burden on capital punish- 
ment is too heavy to bear. 

  

  

 



By Rita Ciolli 
Newsday Washington Bureau 

Washington — Statistics showing 
that killers of whites in Georgia are 
more likely to be condemned to death 
than killers of blacks are a “powerful 
indictment of the system,” the Su- 
preme Court was told yesterday in a 
case presenting one of the last major 
challenges to capital punishment. 

The justices, aggressively question- 
ing Jack Boger, a lawyer with the 
NAACP Legal Defense Furd in Man- 
hattan, seemed skeptical about the 
study and whether it gave them 
enough evidence to rule that Georgia's 
death penalty statute was unconstitu- 
tional. It was 14 years ago that the 
Supreme Court struck down an earlier 
version of that state’s capital punish- 
ment law because a disproportionate 
number of blacks were being executed. 

The NAACP Legal Defense Fund 
claims that its study, which focuses on 
the race of the victim, found that 
blacks who kill whites were 11 times 
more likely to be sentenced to death 
than blacks who killed other blacks. 
Boger said the study shows that “old 
habits and racial attitudes” are still a 
factor in Georgia's justice system. 

University of Iowa law professor Da- 
vid Baldus studied 1,000 murder cases 
in Georgia from 1973 to 1978. Baldus 

: took 200 factors into consideration, 
3 such as plea bargaining and inclina- 

    

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Ga. Death Penalty 
Racially Biased, 
High Court Told 

tion of the prosecutor to ask for a 
death sentence. He found that killers 
of blacks were condemned to death 
about one-tenth as often as killers of 
whites. 

Chief Justice William Rehnquist's 
first question was who paid for the 
study. Boger that a private foundation 
had given his group money for Baldus’ 
expenses. 

Justice Antonin Scalia said the dis- 
parity in sentencing didn’t necessarily 
prove discrimination. “What if a study 
showed that naturally shifty-eyed peo- 
ple had a disproportionate number of 
convictions, are you going to come 
back and make the same argument?” 
he asked. 

Boger said the study had to be un- 
derstood in the context of racial dis- 
crimination in the state. “This is not 
some statistical fluke. We have a cen- 
tury-old pattern in Georgia of animos- 
ity and residual racial prejudice,” he 
said. 

Mary Beth Westmoreland, arguing 
for the state, said its new statute was 
working properly. “If anything, the 
evidence presented in this case shows 
the system works. The Georgia death 
penalty system is working as it 
should,” she said. The state argues 
that intent, more than statistics, is 
necessary to prove racial bias. 

The Legal Defense Fund is using the 
case of Warren McClesky, who is 
awaiting execution for killing a white 
police officer during an armed robbery 
of an Atlanta furnityre store in 1978. 
Boger told the justices the study found 
that in another case a black who killed 
a black police officer during an armed 
robbery in Atlanta was given only a 

life sentence. 

Westmoreland countered that 
McClesky’s firing of two shots, a fatal 
one in the officer's eye and a second 
one at his heart, could have given a 
jury enough reason to sentence him to 
death. She also told the justices that 
McClesky had taken seven hostages, 
had three prior armed robbery convic- 
tions and was overheard bragging in 
jail that he would have shot “twelve 
more” pelice officers if they had come 
into the furniture store. “These facts 
support the death pénalty,” sHe said. | 

ul   

  

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DARLY Nfws Monday, November’ 8; 
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—— 

  
  

  
  

      
 



  

SATURDAY. OCTOBER 18. 1986 
  

  

id 

Cie Washington Post 

A Blow to the Death Penalty 
death penalty this week. On Wednesday, 
the Supreme Court heard arguments in a 

Georgia case challenging the imposition of capital 
punishment on grounds that it is disproportion- 
ately used in cases invoiving white, rather than 
black, victims. The case is the last major legal 
attack on the penalty and will determine the fate 
of hundreds on death row. If abolitionists do not 
win a victory here, future challenges will be on a 
case-by-case basis. A court decision is not expec- 
ted for many months. 

Across the street in the Capitol, though, death 
penalty opponents scored an important victory 
against surprising odds. The major drug bill, intro- 
duced only weeks ago and rushed through under 
election-eve pressure, does #nof contain a death 
penalty provision. Credit goes to a strong bipartisan 
coalition on the Senate side whose members refused, 
three times, tc accept a House provision on this 
issue. In recent vears it had been assumed that a 
federal capital punishment law could be passed in the 
Senate but would never get to the floor in the House. 

14 OURTS AND CONGRESS focused on the 

The Senate, in fact, did pass a bill in 1984 by a 2-to-1 

reported a new version, but it was not scheduled for 
margin. Earlier this year, the Judiciary Committee 

a floor vote. On the House side, the corresponding 

Judiciary Committee had kept a bill bottled up for 
years. But last month, the drug bill was considered 
by the House without having been approved by any 
committees, and a capital punishment provision 
proved to have wide support on the floor. 

Time was on the side of Senate opponents. They 
threatened to filibuster the drug bill—which would 
have killed it this week—and managed to defeat a 
cloture motion by a vote of 58-38, two short of the 
required 60. While this indicates a lessening of 
support for capital punishment in the Senate, there 
is still a majority in favor, and the issue will surely 
return next year. : 

Experience on the drug bill, though, should give 
opponents hope. At one point or another during its 
six-week journey from drawing board to statute 
book, the bill was a vehicle for all sorts of terrible 
anti-civil liberties amendments. Changes in the 
exclusionary rule, restrictions on the Freedom of 
Information Act, limitations on habeas corpus, the 
use of the military for law enforcement and the 
death penalty were all considered. Not a single one 
is in the final bill. The American Civil Liberties 
Union, which incidentally is involved in every major 
court challenge to capital punishment, fought a good 
fight. So did those legisiators who held the line and 
carried the day.   

 



NEW YORK LAW JOURNAL—Wednesday, June 3, 1987 
  

McCleskey v. Kemp 
- By Mordecai Rosenfeld 

HERE IS A QUAINT theory of cosmology that is too 
thin even to have a name, and until the Supreme 

Court's opinion in McClesky v. Kemp it had no 
known adherents. The theory is that we have all been 

placed on Earth just this instant, complete with all our 
memories and associations. 

I first heard mention of that philosophical argument 
long ago, during a college lecture (assuming, that is, that 
the theory is not valid). It was a time before computers, 

and it seemed unlikely that any deity, no matter how 
accomplished, could mesh billions of memories so per- 
fectly that not one person would be out of synch. 

That lecture comes to mind on occasion, especially if 
I've done something particularly dumb. It is comforting 
to think that perhaps I haven't done anything dumb at 
all, but had only been placed in this world a moment ago, 
complete with the memory of having done something 
dumb. 

* x2 

Although the Theory of Instantaneousness would ex- 
culpate me, it presents problems for others. It would, for 
instance, cause havoc with the criminal justice system, 
for it would be blatantly unconstitutional to imprison a 
man who was not even in existence when the crime had 
been committed, all the more so since the crime itself 
was only in society's collective mind. And religion would 
need new interpretations, because the Theory would 
erase Man's free will and the record of his moral choices; 
hence the very concept of Good and Evil would disap- 
pear. And worst of all by far, conscience would disappear, 
for nobody could ever be responsible for anything. 

Despite these somewhat negative implications, the 
Theory, which had been dormant for centuries (unless it 
is valid) received its first written endorsement ever 
when the United States Supreme Court decided 
McCleskey. : 

The key to McCleskey is its proclaimed lack of any link 
to the past; that key is hidden in footnote 20. By way of 
background: in order to prove that the death sentence, as 
imposed by Georgia, was racially biased, the defense 
went beyond the mere statistical evidence that showed 
that a black who killed a white was seven times more 
likely to receive capital punishment than if their roles 
had been reversed. Counsel's point was to demonstrate 
that that 7-1 ratio was not an aberration, was not out of a 
vacuum. And so it was shown that when the Georgia 
Legislature re-enacted the death penalty in 1972 (to com- 

  

The essays of Mordecai Rosenfeld, a member of the 
New York Bar, appear on this page from time to time.     
  

ply with the Supreme Court's new criteria) it did so in the 
context of a long and dishonorable history of “legal” 

racial bias. 
* = 

It was noted that, in the Nineteenth Century, Georgia 
even had a dual system of criminal law: If a black women 
was raped, punishment was discretionary and doubtful, 
but if a black man raped a white woman, the death 
sentence was mandatory; a black person who committed 
an assault with intent to murder was subject to capital 
punishment, but the identical crime by a white against a 
black (even a “free” black) was officially classified as 
“minor.” Although some statutes had to be altered in 
deference to the Thirteenth and Fourteenth Amend- 
ments, attitudes never varied. Desegregation was fought 
long after the decision of Brown v. Board of Education in 
1954, and Martin Luther King’s challenges were resisted 
long after his death in 1968. It was apparent to everyone, 
including Georgia legislators, exactly how the “new” 
capital punishment law would be applied. Why should 
anything after 1972 have changed the way the law had 
been applied for the two centuries prior? 

But if the Supreme Court had agreed with that analy- 
sis, it might have been required to find Georgia's capital 
punishment statute to be unconstitutional, because then 
it would have been a statute with “a racially discrimina- 
tory purpose.” Rather than reach such a conclusion, the 
Court simply dismissed the cumulative evidence of two 
centuries with the bland wave of a footnote (footnote 20): 
“But unless historical evidence is reasonably contempo- 
raneous with the challenged decision, it has little proba- 

tive value.” 

x 2% 

If we parse that sentence it means that there is no such 
thing as “historical evidence” because once such history 
is limited to “contemporaneous” events it is, ipso facto, no 
longer history. The Court's existentialist footnote means 
that the only things that count are the things that are 
here and now. It is as if the law had been put on this 
Earth this instant, out of the void, in strict compliance 
with the Theory of Instantaneousness. It would have no 
responsibility for the past and no conscience. 

But even if the Supreme Court is correct that the law 
and its ancient statutes and old precedents and brown- 
buckram books (with dust and missing pages) and files 
and reports and opinions and founding partners’ por- 
traits (in ornate frames) were all just put here this mo- 
ment, it would still not justify McCleskey and a racially 
skewed capital punishment ratio of 7-1. It would mean, 
rather, that the Court, too, was only a millisecond old, 
and that it had a lot to learn about the Constitution. 

  

 



 
 

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3 

’ The New York Times, March 23, 1987 
  

Page Al2 

  

  
— 

“High Court to Decide Whether Death, 
    

  
ee 

Penalty Discriminates Against Blacks 
  

By KENNETH B. NOBLE 

*. ATLANTA, March 19 — On the 
evening of May 13, 1978, four men en- 
.tered the Dixie Furniture Store here, 
osecured the showroom by forcing 
everyone to lie face down on the floor, 
,and as they searched for cash, one of 
them shot and killed a police officer. 

~~" Three of the men were sentenced to 
varying prison terms for the crime, 
while another, Warren McCleskey, was 
convicted of murder and sentenced to 

. “death. : 
Like most of those now on Georgia's 

death row, Mr. McClesky is black, and 
--his victim was white. He is extraordi- 
nary only in that his appeal is the first 

to be heard by the United States Su- 
preme Court based on the contention 
that Georgia’s death-sentencing pro- 
cess is unconstitutionally infected by 
Jacial discrimination. 

.=. * Race of Victim Called Crucial 

* _*To accept the full implications of Mr. 
McClesky’s argument, however, the 
“Court, which is expected to rule as soon 
- as this week, might have to throw out 
the capital sentencing system not only 
in Georgia, but also in many other 
states. 
~ Mr. McCleskey’s sentence, handed 

“down by a jury of 11 whites and one 
black, is viewed by opponents of the 

eodeath penalty as perhaps the last 
«broad-based challenge to the way the 
* penaity is imposed in most states 
_ afd the last opportunity to save many 
«0fdhe 1,874 convicts now on death row. 

Special to The New York Times 

Supreme Court acts on the case. But if 
the Court decides against Mr. McCles- 
key, future appellants will essentially 
be limited to arguing that a miscar- 
riage of justice occurred in their 
particular cases. 

Mr. McCleskey’s lawyers argued 
that blacks who killed whites were by 
far the most likely convicts to be sen- 
tenced to die. 

Bitter Dissent Provoked 

“Race is the pre-eminent factor in 
deciding who lives and who dies in capi- 
tal punishment cases, particularly here 
in the death belt states,” said Steven B. 
Bright, an attorney with the Southern 
Prisoners Defense Committee, which 
represents indigent capital defendants. 
“When you Kill the organist at the 

Methodist church who is white, you're 
going to get the death penalty, but if 
you kill the black Baptist organist, the 
likelihood is that it’ll be plea bargained 
down to a life sentence,” Mr. Bright 
said. 

This argument has provoked in- 
creasingly bitter dissent from support- 
ers of the death penalty. Daniel J. 
Popeo, general counsel of the Washing- 
ton Legal Foundation, a conservative 
public interest law organization, called 
Mr. McClesky’s case “a concocted ef- 
fort on the part of the anti-death pen- 
alty lobby to block the enforcement of 
the law.” 

“If there wasn’t this excuse to block 
the death penalty, they’d manufacture   = Individual death sentences will con- 

tinue to be appealed, no matter how the 

ov J 

    

    
. Associated Press 

Warren McCleskey, who is on 

death row in Georgia for killing a 
police officer in a robbery. 

another,” Mr. Popeo said. ‘‘The bottom 
line is that they’re running out of legal 
stalling tactics.” 

Attack on the South 

The case has also disturbed some 
civic leaders here, who see it as an- 

‘other in a long history of unwarranted 
' attacks on the South’s criminal justice 
| system. 

“This part of the country, and Geor- 
gia in particular, is certainly not free 
from taint, but to say that, today, Geor- 
gia’s criminal justice system is per- 
meated by racial discrimination, is ab- 
solutely inaccurate,” said Michael 
Bowers, Georgia's Attorney General. 

The appeal by the NAACP Legal De- 
fense and Educational Fund Inc. in 
McCleskey v. Kemp, is based on both 
the Eight Amendment’s prohibition 
against cruel and unusual punishment 
and the 14th Amendment’s guarantee 
of equal protection. 

Mr. McCleskey’s argument that his 
sentence was tainted by racial dis- 
crimination is not based on allegations 

\ ) 

Ed 

Associated Press 

‘Michael Bowers, Georgia’s Attor- 
ney General, said it “is absolutely 
inaccurate” to say the state’s 
criminal justice system is per- 
meated by racial discrimination. 

  
  

| 
  

of discriminatory acts by a prosecutor 
or judge, but on statistics. 

Since the Supreme Court first upheld 
some revised death penalty laws in 
1976 after striking down all existing 
death penalty laws four years edriier, 
there have been 70 executions: 1 in 
1977, 2 in 1979, 1 in 1981, 2 in 1982, 5 in- 
1983, 21 in 1984, 18 in 1985, 18 in 1986 and 
2 so far this year. 

Nearly All Murdered Whites 

Forty two of those executed, or 60 
percent, were black; 26 were white and 
2 were Hispanic. 

. What is more striking, however, than 
the race of those executed is the race of 
their victims. Although blacks and 
whites are the victims of homicide in 
roughly equal numbers, about 95 per- 
cent of those executed since 1977 have 
been convicted of murdering whites, as 
were 69 percent of those remaining on 
death row. | 

Those figures provide the context for 
an independent study of the death pen- 
alty in Georgia that is at the heart of 
the case now before the Court. David 
Baldus, a law professor at the Univer- 
sity of Iowa, studied the 2,484 homi- 
cides that occured in Georgia from : 
1973 to 1979. : 

In those cases, 1,665 defendants were 
black and 819 were white. Blacks were 
the “victims of homicides in about 61   a

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—
   
 



  

percent of the cases, whites in 39 per- 
cent. 

The Baldus study did not find that 
black defendants overall were more 
likely to get the death sentence than 
white defendants. But it did find that of 
the 2,484 murders in Georgia, blacks 
who had killed whites were sentenced 
to death at three times the rate of 
whites who killed blacks. 

Professor Baldus identified 230 fac- 
tors, such as the viciousness of the 
crime, the quality of the evidence and 
the defendant’s criminal background, 
that figure in a sentencing determina- 
tion. He focused on those murders that 
were neither the most most nor the 
least notorious, the “midrange cases” 
in which the greatest jury discretion 
was exercised. 

He concluded that in the 128 cases in 
‘which a death sentence was imposed, 
22 percent of black defendants who had 
killed whites were sentenced to death, 
compared to 3 percent of white defend- 
ants who had killed blacks, 8 percent of 
whites who had killed whites and 1 per- 
cent of blacks who had killed blacks. 

" Court Leery of Social Science 

Still, Mr. McCleskey faces a formida- 
ble obstacle in his effort to overturn his 
conviction based on statistics: the his- 
torical reluctance of judges to use so- 
cial science as a basis for legal prece- 
dent in criminal cases. Courts have ac- 
cepted arguments based on such statis- 
tics in cases involving employment and 
housing discrimination, for example, 
but the Supreme Court has never ap- 
plied such analysis to criminal law. 

Judge Owen Forrest, a United States 
district judge who rejected Mr. 
McCleskey’s sociological argument in 
a 1984 ruling, said: ‘‘As a general 
proposition, the scholarly literature 
suggests that it is troublesome”’ to base 
decisions largely on such statistics “in 
that the law can be made to change as 
new studies or new scientific develop- 
ments come about.” 

The United States Court of Appeals 
for the 11th Circuit also rejected Mr. 
McCleskey’s challenge in a 9-to-3 deci- 
sion in 1985. The court said it assumed 
the Baldus study to be valid, but held 
that the data failed as a matter of law 
to establish a constitutional violation 
because there was no proof of deliber- 
ate racial prejudice by an identifiable 
source. 

In oral arguments last October be- 
fore the Supreme Court, a lawyer for 
the state of Georgia hypothesized that 
the apparent racial disparities could be 
explained by the generally more ag- 
gravated nature of murders with white 
victims. 

Mary Beth Westmoreland, an assist- 
ant Georgia attorney general, said the 
statistics did not necessarily prove dis- 
crimination because blacks were more 
often killed in ‘‘family disputes, lover 
disputes,” bar fights and the like, 
whereas whites were more often killed 
in robberies and other situations more 
likely to provoke ‘‘the moral outrage of 
the community”’ and the jury. 

An underlying theme throughout the 
various arguments has been Georgia's 
singular role in the nation’s long debate 
over capital punishment. In a 5-to-4 
decision, the Supreme Court halted ex- 
ecutions in 1972 because it found that 
judges and juries were imposing death 
sentences in an ‘‘arbitrary,” ‘‘capri- 
cious,” and ‘discriminatory’ fashion. 
That landmark decision, Furman v. 
Georgia, came in a Georgia case. 

Four years later, in a momentous   

decision that restored the constitu- 
tional underpinnings of death penalty, 
the Court ruled in Gregg v. Georgia 
that capital punishment is constitu- 
tional if imposed according to strict 
procedural safeguards. 

To opponents of the death penalty, 
the fact that blacks and other minori- 
ties continue to bear the brunt of capi- 
tal punishment is evidence that little 
has changed since the Furman and 
Gregg decisions. 

Bryan Stevenson, an attorney for the 
Southern Prisoners Defense Commit- 
tee, noted that the Supreme Court said 
in its Gregg decision that it would not 
bar the death penalty without strong 
proof that its use was discriminatory. 
“Now we're back, and we're saying, 

here’s the proof that racial discrimina- 
tion is as pervasive and invidious now 
as it was, and has always been,” Mr. 
Stevenson said. 

    

  
 



  

The Denver Post/ Tuesday, April 28, 1987 
  

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STATEMENT OF JULIUS L. CHAMBERS, DIRECTOR-COUNSEL OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., REGARDING THE U.S. 

SUPREME COURT RULING IN MCCLESKEY V. KEMP 

WASHINGTON, D.C., April 23, 1987 =-- The Supreme Court 

yesterday, in a 5-4 ruling, rejected compelling evidence that 

race discrimination is unconstitutionally affecting the 

administration of capital punishment. The Court has tacitly 

acknowledged that an undeniable pattern of racial bias exists in 

Georgia, yet with the same voice told us that we must first point 

to our victimizers and name them by name, or maybe take our claim 

to the legislatures. 

That ruling, however, regrettable, does not sway the 

NAACP Legal Defense Fund's commitment to fighting a system that 

is arbitrary and unjust. Our commitment to this issue has not 

changed, because the reality of racism in the criminal justice 

system in Georgia and elsewhere, has not changed. The evidence 

of racially biased application of the death penalty is real, it 

is persistent, and it is pervasive. As the four dissenting 

Supreme Court Justices have noted, no court decision that 

sidesteps the issue can wish that reality away. The Legal 

Defense Fund will therefore continue to direct our efforts to 

scrapping a racist institution. 

Contributions are deductible for U.S. income tar purposes 

NAACF LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

egal efense und 99 Hudson Street, New York, N.Y. 10013 (212) 219-1900 

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it 
was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board. program. staff, office and budget. 

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We are gratified, and our resolve further strengthened, 

by the fact that so many of our distinguished colleagues in the 

civil rights and anti-death penalty communities have come here 

today to similarly pledge a renewed commitment to this effort. 

The Legal Defense Fund, the organizations and individuals 

represented here today, and, I believe, the majority of 

Americans, think that lesser standards of equal protection under 

the law for some cannot be tolerated, whether they be black 

children in the schools, employees in the workforce, or criminal 

defendants in the courts. We will continue to work towards the 

day when black life in no longer undervalued. 

* * * * 

END 

Contact for further information: 

Freda Eisenberg 212/736-5050 

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COURT, 5-4, REJECTS 
RACIAL CHALLENGE 
TODEATH PENALTY 

‘FOES’ HOPES DASHED 
Justices Are Not Swayed 

by Study Citing Role 

of Victims’ Color | 

  
    

  

  

By STUART TAYLOR Jr. 
Special to The New York Times 

WASHINGTON, April 22 — The Su- 
preme Court, dashing the hopes of op- 
ponents of the death penalty, ruled 5 to 
4 today that a state's capital punish- 
ment system was constitutional de- 
spite the fact that killers of white peo- 
ple are far more frequently sentenced 
to die than killers of blacks. 
"The Court upheld Georgia's death 

penalty system against a challenge by . 
a black man convicted of killing a white | 
policeman in a 1978 robbery. The con- 
demned man cited — and the Supreme 
Court majority assumed as valid — a 
study showing sharp racial disparities 
in the sentencing of Killers in Georgia, 
showing in particular that capital pun- | 
ishment was far more likely in cases | 
‘involving black killers of white victims. 

Foes’ Last Broad Challenge 

It was the most important death pen- 
alty case since 1976, when the Court up- . 
held new state laws that reinstituted 
capital punishment, four years after 
the Justices had struck down all death rd 
penalty laws as “arbitrary and capri- 
cious’ in a decision that turned in part 
on racial disparities. 

The Court’s decision today provoked 
bitter dissents that accused the ma- 
jority of distorting established legal 
principles to avoid overturning numer- 
ous death sentences. The ruling ended 
what death penalty opponents had 
‘called their last sweeping constitu- 
| tional challenge to capital punishment. 

Vast Difference in One Vote 

It will speed the pace of executions 
somewhat, experts said, although the | 

immediate effect may not be dramatic 

because many of the nearly 1,900 con- | 

victs on death row have not yet ex- 
hausted their appeals on various issues 

unrelated to today’s decision. 

Justice Lewis F. Powell Jr. wrote the 
majority opinion, joined by. Chief Jus- 
tice William H. Rehnquist and Justices 
Byron R. White, Sandra Day O'Connor 

    

  

  

 



    

  

THE NEW YORK TIMES, THURSDAY, APRIL 23, 1987 
  

Justices Reject Challenge to Death Penalty Based on Victims’ Race 
  
  

Continued From Page Al 
  

and Antonin Scalia. Justices William J. 
Brennan Jr, Thurgood Marshall, 
"Harry A. Blackmun and John Paul Ste- 
'vens dissented. 
' Had the dissenters won one more 
vote, it would have clouded hundreds of 
death sentences around the country, 
not just that of Warren McCleskey, the 
defendant in the Georgia case. 

Studies have found that racial dis- 
parities in death sentencing are com- 
mon in other states as well. But defend- 
ants who had hoped for broad invalida- 
tion of death sentencing systems be- | 
cause of such disparities must now 
base their appeals on more particular- 
ized objections to their individual sen- 
tences. 

Writing for the majority, Justice 
Powell said Mr. McCleskey’s argu- 
ments ‘‘basically challenge the validity 
of capital punishment in our muitira- 
cial society’ and ‘‘the principles that 
underlie our entire criminal justice 
system,” especially the discretion of 
criminal prosecutors to decide when to 
seek the death sentence and of juries in 
deciding when to impose it. 

That discretion is certain to lead to" 
disparities, the Justice wrote. But to 
show unconstitutional racial discrimi- 

     
4 ; Associated Press 

Warren McCleskey was defend- 
ant in the Supreme Court case. 
  | 

nation in death sentencing, he said, a 
defendant ‘‘must prove that the deci- 
sion makers in his case acted with a 
discriminatory purpose’’ by producing 
evidence specific to the case; a gener- 
alized study showing statistical dis- 
parities was not enough. 

Dissenters See ‘Intolerable’ Risk 

Justice Brennan, joined by the other 
three dissenters, said ‘‘the risk that 
race influenced McCleksey’s sentence 
is intolerable by any imaginable stand- 
ard,” and suggested that the decsion 
amounted -to “complete abdication of | 
our judicial role.” 

He said the statistics showed that “a 
majority of defendants in white-victim 
crimes would not have been sentenced, 
to die if their victims had been black.” 

  
. | the criminal justice process, we would 

'} claiming they were treated harshly be- 

‘| right — of this Court to determine the 

gravaumng and mitigating factors likely 
to influence sentencing decisions in the 
2,484 cases studied — the researchers 
considered, for example, whether the 
killing resuited from a family dispute 
or happened in the course of a robbery. 
But killers of whites were still more 
than four times as likely to get the 
death sentence than killers of blacks. 

While 60 percent of Georgia homicide 
victims are black, all seven people put. 
to death in Georgia’s electric chair 
since the 1976 decision upheld the 
state’s death penalty law were con- 
victed of killing white people; six of the 
seven murderers were black. 

Mr. McCleskey, after being con- 

rejected them by assuming the validity 
of the Baldus study, which found that 
even when the type of murder was 
taken into account, the racial dispari- 
ties persisted. 

/ In attacking the majority’s logic, 
| Justice Brennan stressed the ‘“‘irrele- 
vance’ of Justice Powell’s observation 
that Mr. McCleskey had not proved the 
influence of race on his particular 
death penalty. 

He said the Court’s prior death pen- 
alty decisions had been based on fac- 
tors showing ‘‘the risk of imposition of 
an arbitrary sentence, rather than the 

  

" that McCleskey’s sentence was influ- 
enced by racial considerations.” 
“Warren McCleskey’s evidence con- 

fronts us with the subtle and persistent | 
i influence of the past,’”” Justice Brennan | 
said after reviewing the nation’s his- | 
tory of racial discrimination. 

‘‘His message is a disturbing one to a 
society that has formally repudiated 
racism, and a frustrating one to a na- | 
tion accustomed to regarding its des- | 
tiny as the product of its own will. | 
Nonetheless, we ignore him at our: 
peril, for we remain imprisoned by the 
past as long as we deny its influence-in   victed of shooting the policeman to 

proven fact of one,” and that the evi-| the present.” 

Justice Blackmun, also joined by the |   dence “‘relentlessly-documents the risk {   
| 

  

death during a furniture store robbery, 
was sentenced to death by a jury of 11 
whites and one black. 

Justice Powel assumed the validity 
of the Baldus study, but he termed it 
“clearly insufficient to support an in- 
ference that any of the decision makers 
in McCleskey’s case case acted with 
discriminatory purpose.” 

Disparity Termed Inevitable 

In rejecting Mr. McCleskey’s argu- 
ments that Georgia’s death sentencing 
system violated both his 14th Amend- 
ment right to equal protection of the 
laws and his Eighth Amendment right 
not to be subjected to ‘“‘cruel and un- 
usual punishment,” Justice Powell 
wrote: 

‘“At most, the Baldus study indicates 
a discrepancy that appears to corre- 
late with race,” adding that ‘‘apparent 
disparities in sentencing are an inevi- 
table part of our criminal justice sys- 
tem,” and that the study ‘‘does not 
demonstrate a constitutionally signifi- 
cant risk of racial prejudice affecting 
the Georgia capital-sentencing pro- 
cess.” 

‘Because discretion is essential to 

demand exceptionally clear proof be- 
fore we would infer that the discretion 
has been abused,” Justice Powell said. 

He said that if the Court upheld Mr. 
McCleskey’s claim, it might encourage 
widespread challenges by others 
claiming all manner of racial and sex- 
ual disparities in all kinds of sentenc- 
ing decisions, or even by defendants 

cause of such traits as physical unat- 
tractiveness. 

Issue for the Legislature 

Justice Powell also stressed the limi- 
tations of the judicial role: “It is not 
the responsibility — or indeed even the 

appropriate punishment for particular 
crimes.” 

Noting that ‘the elected representa- 
tives of the people in 37 states and the 
Congress have enacted capital punish- 
ment statutes’’ conforming to stand- 
ards the Court has laid down since 1976 
for avoiding” arbitrary sentencing, he 
said, ‘“McCleskey’s arguments are 
pest presented to the legislative 
bodies.” 

John Charles Boger, a lawyer with   Noting that overt racial discrimina- 
tion was once written into the criminal 
laws of Georgia, where killing a black 
slave was not considered a serious 
crime, he said the study showed the 
persistence of more subtle racism, and 
that “we remain imprisoned by the 
past as long as we deny its influence in 
the present.” \ 

Justices Blackmun and Stevens also 
wrote separate dissents. ; 

The statistical study, by Professor 
David C. Baldus of the University of 
Iowa and others, showed that 11 per- 
cent of all those charged with killing 
white victims in Georgia and 22 per- 
cent of the blacks accused of killing 
whites were sentenced to death, as 
against 1 percent of those charged with 
killing blacks. 

These raw statistics were then ad- - 

the NAACP Legal Defense and Educa- 
tional Fund who represented Mr. 
McCleskey, said today: ‘The racial 
discrimination, in our judgment, exists 
and will continue, and an opinion can’t 
wish it away. So we will continue to 
fight against this injustice in whatever 
forums are available tous.” 

In oral arguments in the case, Mary 
Beth Westmoreland, a lawyer for the 
state, said the racial disparities in 
death sentencing could be explained by 
the fact that blacks were more often 
killed in “family disputes, lover dis- 
putes,” barroom fights and the like. 
Whites, she said, are more often killed 
in robberies and other crimes more 
likely to provoke ‘‘the moral outrage of 
the community.” ~——u——— 

rguments in today’s decision, McCles-       justed to take account of dozens of ag- 

  

Justice Powell did not rely on such 

ey v. Kemp, No. 84-6811. He implicitly 

—— 

B13 
  

other three dissenters, said that under 
the Court's traditional analysis of 
claims of unconstitutional racial dis- 
crimination;s‘“McCleskey has demon- 
strated a clear pattern of differential 
treatment according to race that is 
‘unexplainable on grounds other than 
race.’ ” 

Asserting that “the most disturbing 
aspect” of the majority opinion was its 
concern that upholding Mr. McCles- 
key’s argument would lead to further 
constitutional challenges, Justice 
Blackmun said that that was ‘no rea- 
son to deny McCleskey his rights.” 

Justice Stevens said in a separate 
dissent, joined by Justuce Blackmun, 
that the racial disparities shown by the 
Baldus study were “constitutionally in- 
tolerable.” But he disputed the majori- 
ty’s “fear that the acceptance of 

  

McCleskey’s claim would sound the 
death knell for capital punishment in 
Georgia.” 

He said the Baldus study showed 
“that there exist certain categories of 
extremely serious crimes for which 
prosecutors consistently seek, and 
juries consistently impose, the death 
penaity without regard to the race of 
the victim or the race e nder. 

“If Georgia were tg'narrow class 
fe death-eligible de to those 

tegories,’”’ Justice Stevens spina. 
of arbitrary and diserimina- 

ory )Jimpositighi—ef-the-deatif-penalty 
ould be significantly decreased, if not 

  
eradicated:  — 

Justices-Brennan and Marshall, who 
did not join the Stevens dissent, have 
long held that all use of the death pen- 
alty is unconstitutional.   

  

    
  

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Death Penalty Rulings: Opening New Era for 

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By STUART TAYLORJr. 
Special to The New York Times 

WASHINGTON, April 23 — For oppo- 
ments of the death penalty, who lost two 
-mportant Supreme Cour: rulings this 
week, both by § to 4, the best, if some- 
what bleak, hope of saving many of the 
=auon’s 1,900 death row prisoners is to 

continue procedural chal- 
lenges in case-by-case 

_News trench warfare. At a news 
Analysis conference here today, 

black leaders and other 
opponents of capital pun- 

:shment strongly denounced the deci- 
sion Wednesday. It upheld Georgia's 
Jeath penalty despite strong evidence 
that the race of the victim and of the 
defendant influences its use. 

They condemned the ruling as a 
capitulation to racism and public hys- 
teria about crime and vowed not to be 
deterred by the Court's rejection of the 
last, sweeping, unresolved constitu- 
tional challenge that held forth the 
praspect of overturning hundreds of 
death penalties wholesale. 

The pace of executions is likely to 
rise steadily despite their best efforts, 
some opponents acknowledged, given 
the state of the law and public opinion. 
"Blt courts in individual cases will 
continue to overturn the sentences of 
dozans, perhaps hundreds, of those on 
death row, on grounds ranging from: 
ineffective assistance of counsel to 
violations of fair-trial rights and rul- 
ings that their crimes were not heinous 
enough to warrant execution.   Florida Sentence Overturned 

.On Wednesday, in fact, the Supreme ! 
Court unanimously overturned a Flor- | 
ida‘ murderer's death sentence because 
the trial judge had improperly in- 
striicted the jury not to consider all the 
mitigating evidence he cited, such as 
his poar background and history of in- 
h=img gasoline fumes. 
..<tus ruling, Hitchcock v. Dugger, 
way overshadowed by this week's two 
ober death penalty decisions, which 
were stunning setbacks for opponents 
olihe penalty. 
=I the first of these, in Eison v. Ari- 
3saa, the Court ruled Tuesday that de- 
fegdants who play a major role in rob- 
beries and other felonies in which 
death results may be sentenced to 
death if they act with freeing disre- 
gard for human life.” 
~ Fhe decision sharply cut back a 1982 
Wing, widely viewed as outlawing the 

ath penalty for defendants who do 
joL personally kill or intend to kill, and 
e-4ikely to prompt legislatures and      

  

prosecutors to seek the death penalty 
against defendants they have consid- 
ered exempt from it since 198% 

The decision Wednesday, in McCles- 
key v. Kemp, was even more-tmpor- 
tant, although perhaps less unexpect- 
ed. The majority held that strong 
statistical evidence that Killers of 
whites, especially black killers, are far 
more likely to be executed in Georgia 
than killers of blacks did not prove un- 
constitutional discrimination against a 
black man condemned for killing a 
white policeman. 

Policing the Limits 

While these two decisions showed the 
ourt is committed to allowing broad 
se of the death penalty, the Florida 
ecisions showed it is also apparently 
etermined to continu licing the 
mplex limits it has plac -use of 
e penalty over the past 15 years. 
Opponents of the death penalty, in- 

cluding representatives of the National 
As tion for the ® Advanesment of 

  
Liberties “i i Amnesty AA 
al, several religious groups and law-   

makers, said at the news conference to- 
day that they would step up their fight 
against the penalty in the courts, the 
Congress: state legislatures and the 
arena of public opinion. 

But unless and until there is a change 
in the membership of the Court or in 
public opinion — which has moved 
strongly in favor of the death penalty 
over the past 20 years — the pace of ex- 
ecutions is likely to rise steadily as de- 
fendants exhaust their appeals. 

_Opponents of the penalty disagreed 
in interviews today omhow fast that 
would happen, however, with some pre-| 
dicting no immediate change from the 
current _raté of just under 20 a year. 
The m simistic speculated there 
might SE Cums tions in 
1988 and a steady rise toward-200 a 
year in the 1990's. 

At a time when the number of Povple 
on death row is rising by more 0 
a year, it would take Gr ay 

dispose of the 
current-backlog of 1,900-But most legal 
experts agree that the pace is not ex- 
pected to rise that rapidly. 

  

Appeals 
  

  

 



  

  

Among the many issues raised in 
death row appeals are a few that the 
Court has not before faced. 

For example, the Court has agreed to 
decide in the pending case of mp- 
son v. ida whether states may exe- 
cute persons who were under 18 years 
old when they committed the crimes 
for which they were sentenced to death. 
Abou 35inmates fit that description. 
Another constitutional issue, which is 

not likely to produce a sweeping Su- 
preme Court decision but which has 
been raised by a great many defend- 
ants, is that their sentences resulted 
from their trial lawyers’ incompe- 
tence. phowre 
—*Ninety-nine percent of death row in- 
mates are indigent and receive-jeusy 
legal representation,’ Tanya Coke, re- 
search director on capital punishment 
for the NAACP Legal Defense and 
Educational Fund Inc. said in an inter- 
view after today’s news conference. 

She and other experts noted that 
many of the death row prisoners were 
represented at trial by court-appointed 
lawyers who were paid only a_small 
fraction of their private rates, spent lit- 
———————————————— ttre, A 

    

tle time on the case and failed to assert 
defenses—that might have made a dif- 
ference. 

| Many inmates have also been unable 
. to find lawyers willing to handle their|| 
appeals. : 

Effect of 1972 Decision 

The procedural requirements for im- 
position of the death penalty on which 
many pending appeals hinge grew out 
of the Court's 1972 decision striking 
down, by 5 to 4, all existing death pen- 
alty laws. 

It was based largely on the ground 
that the broad discretion of prosecu- 
tors, judges and juries had led to **wan- 
ton” arbi ** execution of a 
small fraction of murder defendants no 
more culpable than others who were 
spared. Some members of the majority     also said then that the sentencing pro- 
cess was infected by racism. 

In 1976, after many states had re- 
written their death penalty statutes, 
the Court upheld some, including Geor- 
gia’'s, that contained special safe-   guards to guide the discretion of sen- 
tencers by requiring a separate sen- 
tencing hearing in which the prosecu- 
tion introduces evidence of ‘‘aggravat- 
ing"’' factors and the defense introduces 
evidence of ‘mitigating’ factors. 

Since 1976, the Court has clarified |   

and tinkered with these rules in numer- 
ous cases, sometimes extending them 
in ways that clouded the legality of sen- 
tences imposed under the new laws. 
This has had the effect of prolonging 
the lives of many inmates fcr years, as 
they raised multiple claims of error In 
the protracted appellate process. 

But now that many defendants ai. 
close to exhausting their appeals and 
most of the novel legal issues that 
arose in the wake of the 1972 and 1976 
decisions have been resolved, the time 
between death sentence and execution 
is likely to be shorter. | 

“There 1s every reason to fear that, 
the number of executions will continue 
to rise very steadily,’ Henry Schwarz-, 
schild, head of the American Civil 

i Liberties Union's Capital Punishment 
Project, said in an interview today, 
while stressing that he did not expect. 

n immediate ‘‘bloodbath.”’ 
He and some others at today’s news 

onference said one of the ironies of the 
McCleskey decision was that the proof 

arbitrary racial disparities that the f 

a: found insufficient to invalidate 
eorgia’s death sentence was far more 

concrete than that which the Court in 
1972 cited in striking down every death 

nalty law in the nation. 
  

Patents: Saturday in Business Day 

 



  

      

  

Capital 

Punishment 

Law Upheld 
High Court Rejects 

 Georgian’s Claim of 

Race Discrimination 

  

By Al Kamen 
Washington Post Staff Writer 

The Supreme. Court, deciding 
what could be the last broad-based 
constitutional challenge to the 
death penalty, yesterday rejected 
arguments that a state’s capital 
punishment system must be struck 
down because of statistics that sug- 
gest it is racially discriminatory. - 

  

The 5-to-4 opinion written by 
Justice Lewis F, Powell Jr. said sta- 
tistical discrepancies in sentencing 
are an inevitable part of the crim» 
inal justice system and that without 
stronger proof of discrimination, 
the court will not strike down laws _ 
or invalidate sentences. Death pen- = 
alty opponents, he suggested, 
should take. their case to the state 
legislatures, not the courts. 

He was joined by Chief Justice 
| William H. Rehnquist and. Justices 

' Byron R. White, Sandra Day 0.Con- 
nor and Antonin Scalia. Justices 
William J. Brennan Jr., Thurgood 
Marshall, Harry A. Blackmun and 
John Paul Stevens dissented, 

Death penalty opponents, who 
have been striving for a decade to 
come up with a successful consti- 
tutional challenge to death penalty- 
statutes, were despondent about 
the ruling, saying that it appeared 
the high court was closing the door | 
to any major challenges. 
“Jack Boger, an attorney with. Hes a ot 
NAACP Legal Defense and” Educa" 
tional Fund Inc., who represented 
the defendant in yesterday’s case, 
said the court “would -only accept 
direct evidence in [his] case. That is 
beyond the power of lawyers to 
present” because it would require 
“breaking the sanctity of the jury: 
room and entering the minds of the 
jurors to see if they were motivated 
by race.” That standard. of proof * - 
cannot be met, he said, * “short of a 
confession by the jurors.” 

Death penalty advocates, such as 
Washington Legal Foundation gen- 
eral counsel Daniel J. Popeo, hailed 
the ruling as a “message from the 
court that due process does not 
mean endless process.” Popeo said 
he hopes the decision will speed 
executions and “block further ridic- 
ulous novel legal appeals by people 
who are guilty of murder. These 
people are murderers.” 

Yesterday’s ruling invoived a 
challenge to Georgia’ s procedures, 
similar to those in many of the 37 
states with death penalty laws. 
Warren McCleskey, a black man 
convicted in 1978 of shooting a 
white Atlanta policeman during a 
robbery, argued that Georgia's law- | 
was unconstitutional because it 

See COURT, A14, Cok 1 

  

a
 

wi ashing ton 

As THURSDAY, Arnis. 23, 1987 

Post 

  

THE | WASHI? 
  

"Court Upholds Georgia Death Penalty, 
i 
L 
L 

k 
  

COURT, From Al 

to eliminate ra racism from its. 
procedures, : 

    

  

    
   
   

publicized statistical study by 
rsity of Iowa law Prof. David . 

. showing that those who 
ilf whites in Georgia are nearly 11 : 

as likely to receive the death: 
pesalty as those who kill blacks. 
Bits who killed whites were sen- 

to die three times more of-. 
. | than whites who killed Whites: 
thd study also found. ~~ « 

court, assuming the statis-    
   
    

    

    

    

    

ess did not prove that Geor-, 
gials laws violate the constitution’s 
guarantee of equal protection or its 

hk Amendment ban. on cruel 
wilstal yunishanent, : ot po 

Sentencs 

say was nk enough 10 rk 
wn Georgia's law, he wrote, = 
Mc! Sleskiog; Powell - said, had 

ers no evidence specific to his 
; case that would support an in~ 

fe that racial ‘considerations 
eda part ifs lis sotence Pow- 

owell said the high court ho 
ntly attempted to “eradi-.. 

cafe racial prejudice from our crim- 
inal" justice system” and indicated 
that the court will continue to try to. _ 
ensure fair and impartial sentencing 
pri unap iu on a case-by-case 

; > Sttitical ike ad sweepirig' 
arguments against the death pen- 

“ alty “are best presented to the leg- 
, islative bodies,” Powell said. “It is 

based his arguments on a,” not the responsibility—or indeed 
even the right—of this court to de- 

«termine the appropriate punish 
_.ment for particular crimes, / 

“It is the legislatures, the elected 
. representatives. of the people that 
are constituted to respond to the 

© will and consequently the moral val- 
ues of the people. Legislatures also: * 
are better qualified to weigh and 

’ 
  

were, valid, said the study nev- gn 

  

“Apparent 
disparities i in 
sentencing are an 
inevitable part of ; disparities in 

- ing are an inevitable part of our 

our criminal Justice 
ion,” 

Justice Lewis E Powell Jr. 

evaluate the results. of’ “statistical : 
“studies in terms of their own local 

conditions,” hesaid. 
“Because” discretion is essential 

‘to the criminal jiistice: process,” 
- Powell said, “we would demand ex~ 

i ceptionally “clear proof before we 
would infer that the: discretion has 

abused.” 
Another leading death penilts i 

fopponent, South Carolina attorney. 
David—T. Bruck, said the ruling, ki 

(while significant, will have no “ap- 
preciable short-term effect” on the 

# number of people executed. {The 
¥ 3 ¥ 

x pi | Lee ES 

  

= “knowledge,” Brennan said, 

Rejects Race-Discrimination Argument 
vast ‘majority of death penalty ap- 
peals. involve issues unrelated to 
system-wide race discrimination.” 

Brennan, joined by Marshall, 

ad
i   

Blackmun and Stevens in dissent, 
said the “risk that race influenced 
McCleskey’s sentence is intolerable 
by any imaginable standard.” 
© “When confronted with evidence 
“that race more likely than not 
plays... 
ing system,” Brennan said, “it is 
plainly insufficient to say that the . 
importance of discretion” for judges 

 ~and juries prevents the court from 
acting. 

“Surely the majority would ae 
“that if | 

striking evidence indicated that oth« 
.€r minority groups, or women, of 
‘even persons with blond hair, were 

_ disproportionately sentenced to 
“death, such a state of affairs would 
be repugnant to deeply rooted cons 
ceptions. of fairness. The prospect 
that there may be more widespread 
‘abuse than McCleskey documents | 
‘may be dismaying, but it does not 
justify complete abdication of our: 
judicial role.” 

a role in a capital sentenc-. 

4 

! 
1 

R
S
P
R
 
S
E
T
 

IN 
RE

 A
R
E
S
 

: 
3 

* 

0 

5 

Stevens, also writing indepen | 
dently, said the studies demon- 
strate a “strong probability” that 
McCleskey’s sentencing jury “was 

. influenced by the fact that McClew: 
skey is black and his victim was: 

, white, -and that this same [sen- 
-.tence} would not have been gener= 
.ated if he had killed a member of his 
own. race. This sort of disparity is 
“constitutionally intolerable. It fla- | 
grantly violates the court’s prior 
‘insistence that capital punishment 
be imposed fairly ... or not at 
all,” ” he said. bie 4   
  

 



  

   
  

J TE i Lm 5 Ba va A NR oR aT a EH SRR 3 Be SORE Je es Re TE a So a RAN snl LR eT 35 

  

  

Court rejects .. 
death penalty 
bias challenge 
Discrimination 
by race not proven, 
justices decide 

By Lyle Denniston 
Washington Bureau of The Sun 

WASHINGTON — The Supreme 
Court, splitting 5-4, threw out the 
last broad challenge to the death 
penalty yesterday — a claim that it 
is unconstitutional because it is ra- 
cially biased against anyone who 
murders a white and especially 
against blacks who kill whites. 

The court ruled that a death sen- 
tence is unconstitutional because of 
race bias only if there is proof of 
intentional discrimination against 
an individual in a given case. 

Such specific discrimination can- 
not be proved by statistics about 
how often the penalty is imposed in 
general when the victim is white, the 
majority declared. 

[ The court treated the test case as 
| a “basic challenge to the validity of 
capital punishment in our muitira- 

| clal society.” Lawyers had regarded 
& the case as the most important con- 
| cerning the death penaity since the 

justices reinstated death as a consti- 
tutional sentence in 1976. 

Axe oho it 

The claim of across-the-board bi- 
as in capital punishment cases,’ 
based on statistical studies, has 
been raised so often around the 
country that uncertainty about it 
has helped slow the pace of actual 
‘executions. With the issue now set- 
tled, the pace could quicken unless 
lawyers are able to 
sons to obtain postponements of ex- 

It is unclear how many of the 
1,874 convicted murderers now on 
death row would be affected directly 
by the ruling. However, of the 69 
executed in the 11 years since the 
court reinstated the penalty, all but 
seven were sentenced to die for kill 

whites. 
The NAACP Legal Defense Fund, 

which took the case to the Supreme 
Court, described the as “dev- 
astating,” but a spokesman for the 
fund added: “Most folks on death 
row have other issues they've raised, | 
and it has been on those other issues 
that they have been . We 
don't expect the flow of people 

the to be different.” 
In the Georgia case that led to 

yesterday's ruling, studies based on | 
the sophisticated science of:“econo-. | 
metrics” showed that those 

«of murdering whites were d; 

semorTE jn ci + 
a 3 ra id 

  

nd other rea- { 

tered into some 
=. The court's’ genior justice, ; 
liam J. Brennan Jr., said in one of 
he three dissenting opinions that 

  

EXECUTE, from 1A 

as likely to get a death sentence as 
those charged with killing blacks. It 
also showed that blacks accused of 
murder were 1.1 times as likely to be 
sentenced to death as others. 

Thus, the study indicated overall, 
in the court majority's words, that 
blacks “who kill whites have the 
greatest likelthood of recetving the. 
death penalty.” 

The majority said it did not dis- 
pute that the study was correct sta 
tistically, but it said it was not con- 
vinced this proved that “racial con- 
siderations actually enter into ih ‘ 

+ Georgia may execute McCleskey, 
who had offered no specific evidence 

sentencing decisions in bt 
Statistics at: most may show only a 
“likelihood that a: £ faclor eng 

ons." 

study proves "there was a signifi- 
on pe 7.10 that race would play a 
prominent role in determining” 
whether blacks accused of kiliing 
whites would live or die. 

The court “finds no fault in a sys- 
tem in which lawyers must tell their 
clients that race casts a 
ow on: the capital sentencing pe 
cess,” ‘Justice Brennan wrote. 
said that those “painful with 
‘tions will serve as the most eloquent 
dissents of all.” TE 

; Defense lawyers. increasingly 
: have used the rase-bias question a. 

issue in the Georgia test case: in 
| hopes of striking down states’ entire 

death penalty schemes. They con- 
ceded it was the last systematic 

-Salitngs available. Without that, 

Wile 

shad-. 

«4 the attorneys are left only with spe- 
cific challenges, one case at a time. 

The statistical approach to mea- 
race as a factor in death cases 

was déveloped mainly by a Universi- 
ty of Iowa law professor, David Bal- 

"dus: It was first used in its fullest 
form in the case of Warren McCles- 
key, a black man sentenced to die 
for killing a white Atlanta police offi- 
cer, Frank Schiatt, on May 13, 

"1978. The officer, answering an 
alarm set off during an armed rob- 
bery of the Dixie Furniture Store in 
Atlanta, was shot dead, allegedly by 
McCleskey. 

Yesterday, the court ruled that 

that the prosecutor, jury or judge 
had acted with bias against him per- 

. Justice Lewis F. Powell Jr., who 
wrote the opinion, said there is “a 

and unchallenged expla- legitimate 
“nation” for the high court’s finding: 
“McCleskey committed an act for 
which the U.S. Constitution and 
Seongia) laws permit imposition of 
the death penalty.” 
~.. The opinion said that McCleskey 
“cannot prove a constitutional viola- 
tion by demonstrating that other de- 

fendants who may be similarly situ- 
ated did not receive the death penal- 
ty. . .« McCleskey must prove that 
the decision-makers in his case act- 
ed with discriminatory purpose.” ] 

* 4 "Referring directly to the “Baldus 
study” used in that case, Justice 
Powell said that "at most” it indicat- 
ed “a discrepancy that appears to 
correlate with race.” But, he added, 
apparsuL discrepancies i gente. 

deans {ids a3 SEER 71 Lg vib “Tr CHET Re LPTs A 

op ays en 
( 2 alt mye.) 

  

  
¢ white. Even the majority conceded 
| that risk existed for McCleskey, he 3 
| noted. hl 

THURSDAY, APRIL 23, 1987 

Death penalty discrimination rejected : 
ing are an inevitable part of our ! 
criminal justice system. ... We de- 
cline to assume that what is unex: 
plained is invidious.” : 

The majority said that “the very 3 
heart of our criminal justice system” 
is “the traditional discretion that * 
prosecutors and juries necessarily 3 
must have.” 

Saying that the court over the | 
years had “engaged {n unceasing ef- 
forts” to wipe out racial prejudice in. | 
criminal cases, Justice Powell said 
that now “it is the jury that is a crim 
inal defendant's fundamental pro- | 
tection of life and liberty against race i 
or color prejudice.” 0 

The court said that if it ruled as | 3 
McCleskey had asked on the consti-.: 
tutional issue, it would soon be faced | 
with a similar challenge to every oth | 
er kind of penalty and to claims of | 
bias in sentencing based on sex, eth- | 
nic background or even certain 
physical characteristics. “There is no 
limiting principle,” the opinion said.. 

Justice Powell suggested that the 
issues raised about race as a statisti, 
cal factor in death cases should be 
taken to legislatures, not to the. 
courts. “Legislatures are better quali~ 
fied to weigh the results,” he said. | 

The Powell opinion in the case of § 
McCleskey vs. Kemp (No. 84-6811} | 
was supported by Chief Justice Wil- | 
iam H. Rehnquist and Justices San- 
dra Day O'Connor, Antonin Scalig 
and Byron R. White. % 

Two other members of the court 5 
joined Justice Brennan in filing dis- 1 
senting opinions. They were Jus: | 
tices Harry A. Blackmun and John ¢ 
Paul Stevens. They, along with dis | re 
senting Justice Thurgood 8 
supported each other's opiniotis ast 
various combinations. 35H B 

Justices Brennan and ! 
repeated their oft-stated view that | 
the court should strike down the: 
death penalty iri all circumstances. 

P
p
a
 
a
s
i
n
 

Fo S
EA
R 

EL 
4 

    

   

  

   

In his opinion, Justice Brennan: y 
said the court had never before res: . 
quired that those challenging death 
ie systems prove they wereuny: 
constitutionally arbitrary in general y 
or in any ‘given case, but only te: i 
show there was a “risk” that would v 
be the result. Hé said the Baldus' 
study indicated there was such a 
risk that race would be decisive in : 
deciding who does or does not get the 
death penalty, particularly in inter- | 
racial murders in which the victim is = 

3s 

In Georgia, Mr. Brennan ‘sald. 
seven people have been executed * 
since 1976. All seven were convicted | 
of killing whites, and six of the seven 
executed were black. 4 5 

“Consi the race of a defend- 
ant or victim in deciding if the death 
penalty should be imposed is com- 
pletely at odds with the concern that 
an individual be evaluated as a ; 
unique human being,” the senior 

wrote. _ 
Looking back to the nation’ 8 his. ! 

tory of racial prejudice, Mr. Brennan an 3 
said, “We cannot pretend that . 
have completely escaped the grip of 4 
an historical legacy spanning centu- 4 
ries. Warren McCleskey's evidence 
confronts us with the subtle and 
persistent influence of the past... .: 
We ignore him at our peril, for we 
remain imprisoned by the past as 
long as we deny its influence in the 3 p 
present.” 6 

FH ambi 4         
nd id Be PRTRY Sr nT Pretaie ide 
BE LT a ak x Ge A Eh El 

 



  

   Death laws 
ruled valid 
despite bias 
High court 
discounts 

statistics 
By AARON EPSTEIN 
Herald Washington Bureau 

WASHINGTON — The Supreme 
Court, handing a devastating de- 
feat to foes of capital punishment, 
ruled 5-4 Wednesday that murder- 
ers may be put to death despite 
statistical evidence that racial bias 
often determines which killers go 
to Death Row. 

The decision swept aside what 
some civil rights leaders have 
described as the last broad legal 
attack on the death penalty. By 
effectively disposing of the racial 
discrimination claims of many 
Death Row prisoners, the ruling is 
likely to accelerate the pace of 
executions among the 1,875 in- 
mates currently condemned to 
death in 37 states. 

“It will expedite their progress 
towards the knock of the execu- 
tioner on their cell doors — but I 
don’t think there will be any 
bloodbath resulting from it,” said 
Henry Schwarzschild, director of 
the American Civil Liberties 
Union's capital punishment proj- 
ect. 

By the narrowest of margins, 
the justices upheld Georgia's death 
‘penalty statute and procedures in 

  

‘Executions 
By Race 
Since 1976, when the ay 
- Supreme Court 
reinstated the death 

penalty nationwide, there 
have been 70 executions. 
Here is a breakdown, by 
race, of those who have 

  

  

  

       

been executed. i 
ud % 

Bia Blocks 42] 760 
Anglos : 28] ar 

5 Hispanics a 2 3 
    SouRcE: y 5 Deseret of Justice 

  

the face of sophisticated research ’ 
showing that people who murder 
whites are 11 times more likely to 
receive the death penalty than 
those who kill blacks. 

And when blacks are murdered, 
black defendants are sentenced to 
death nearly three times as often 
as white defendants, according to 
a study of almost 2,500 homicide 
cases in Georgia from 1973 to 
1979. 

Justice Lewis Powell Jr., a 

moderate whose vote appeared to 
determine the outcome, accepted 
the validity of the study by 
University of Iowa professor Da- 
vid Baldus. But Powell concluded 

Please turn to DEATH / 19A 

| 
  

  

Executions upheld despite bias 
  

DEATH / from 1A 

in his 38-page majority opinion: 
“At most, the Baldus study 

indicates a discrepancy that ap-- 
pears to correlate with race. 
Apparent disparities in sentencing 
are an inevitable part of our 
criminal justice system. ... 

“In light of the safeguards | 
designed to minimize racial bias in 
the process, the fundamental value 
of jury trial in our criminal justice 
system and the benefits that 
discretion [by prosecutors, judges 
and juries| provides to criminal 
defendants, we hold that the 
Baldus study does not demonstrate 
a constitutionally significant risk 
of racial bias affecting the Georgia 
capital-sentencing process.” 

Furthermore, Powell said, the 
study failed to prove that racial 
discrimination had, in any way, 
infected the case before the-court 

~ — that of Warren McCleskey, a 
black man condemned to death for 
murdering a white police officer 
during a furniture store robbery in 
Atlanta in 1978. 

“We hold that the Baldus study 
is clearly insufficient to support an 
inference tha e decision- 
makers | cCleskey’s case-acted 

. with—discriminatory — purpose,” 
Powell said. His opinion was 
supported by Chief Justice Wil- 

~ liam Rehnquist and, Justices Byron 
White, Sandra Day O'Connor and 
‘Antonin Scalia. 

Prosecutors, leaders of conser- 
vative groups and other supporters 
of the death penalty were elated. 

“I think this decision says that 
pollsters, demographers, statisti- 
cians and sociologists cannot pos- 
sibly replace an individual judge or 
jury,” said Daniel Popeo, general 
counsel for the Washington Legal 
Foundation, which filed a brief 
opposing McCleskey. 

The decision provoked impas- 
sioned responses from the four 

TALLAHASSEE — (AP) — 
e U.S. Supreme Court ruling 

that permits the death penalty 
ven if applied in a. racially 

fhe manner will not open 
the execution floodgates in 

of the issue say, — 
Florida has(_ 268 people on 

Death Row, including four 
women. There are 98 blacks, 
167 whites and four others. 

Since/ 1976, when the death 
penalty ‘Was reinstated nation- 
wide, (16 people have been 
executed in Florida — 10 
white, six black. None was a’ 
woman. 

Their victims included 14 
whites and 10 blacks. 
Larry Spalding, a state-paid 

lawyer who represents inmates 
in death appeals, said Wednes- 
day's opinion in McClesky vs.   
[ors lawyers on both sides - 

No speedup in otis 
foreseen by Florida experts 

Kemp, however, would elimi- 
nate many of the stays of 
execution that inmates” had 
been able to get after the 
governor signed thelr death 
warrants. 

“When a death warrant was 
signed, the first issue you 
looked for was a McClesky 
issue,” Spalding said. “You 
were virtually assured of a 
stay.” 

Carolyn, Snurkowski, direc- 
tor of criminal appeals for the 
state attorney “general's office; 
said-she did not foresee a major 
impact because the race issue 
has been raised several times in 
Florida cases, and the state has 
always won. 

She said she did not consider 
the ruling as necessarily the: 
last major death penalty case.     

dissenters — William Brennan Jr, 
Thurgood Marshall, Harry Black- 
mun and John Paul Stevens — and 
opponents of the death penalty 
throughout the nation. 

Brennan, calling McCleskey’ S 
evidence “far and away the most 
refined data ever assembled. on 
any system of punishment,” casti- 
gated the court majority for failing 
to recognize the risk of racial 
influences. 

Blackmun criticized the majority 
for minimiz ry of 
racial discrimination in Georgia 
and the “lack of guidelines for a 
prosecutor's critical decisions on 
when to seek a murder indictment, 
when to accept guilty pleas, when 

1 

to accept deals with defendants 
and when to seek the death 
penalty. 
“Stevens said McCleskey's evi- 

dence demonstrated “a strong 
probability that ... the [Atlanta] 
community's outrage ... was in- 
fluenced by the fact that McCles- 
key is black and his-vietim was 
white, and that this same outrage 
would not have been generated if 
he had killed a member of his own 
race. This soft of disparity is 
constitutionally intolerable.” 

“It’s a significant decision that 
should shock the conscience,” the 
ACLU’s Schwarzschild said. “The 
Supreme Court says, ‘We do not 
dispute the evidence that the death 

. nal penalties. 

penalty is used in racially discrimi- 
natory ways, but, constitutionally 
speaking, we don’t care.’ Now 
that's pretty shocking.” 

Powell, in rebuffing McCles- 
key's claim that his punishment 
was unconstitutionally discrimina- 
tory, cruel and unusual, also made 
these points: 

® The history of racially dis- 
criminat ws in Georgia was 
undeniable, but “we cannot accept 
official actions taken long ago as 
-evidence of current intent.” Bren- 
nan ‘replied that ‘we remain 
imprisoned by the past as long as 
we deny its influence in the 
present.” 

® Judges, juries and prosecu- 
tors must be p itted a wide 
range range ofcdiscretion in sen- 
.tencing. Discretion produces un- 
predictable results but builds hu- 
man judgments into the criminal 
justice system and often benefits 
defendants, Powell said. Discre- 
tion must not include decisions 
pased « on race, Brennan replied. 
: gal safeguards amply pro- 
sort I iminal justice system 
against abuse of discretion 
through race prejudice, Powell 
said. Yet, Brennan countered, “it is 
the very effectiveness of those 
safeguards that [the Baldus study| 
calls into question.” 

® If McCleskey's claim were 
upheld, there would be no end to 

ire challenges to various crimi- 
There. could be 

claims of discrimination against 
other minorities and women, or 
bias based on the physical appear- 
ance of the defendant or the 
victim, Powell said. 

. @ Courts deal with individual 
ca ; legislatures are better able 
t weigh the impact of statistical 
studies on local conditions. Replied 
Brennan: “Those whom we would 
banish from society often 
speak in too faint a voice to be 
heard above society’s demand for 
punishment.”  



  

THE WALL STREET JOURNAL THURSDAY, APRIL 23, 1987 3 
  

  

  

Top Court Rejects 

Major Challenge 

To Death Penalty 

By STEPHEN WERMIEL 
Staff Reporter of Tue WALL STREET JOURNAL 

WASHINGTON — The Supreme Court, 
rejecting a major challenge to the death 
penalty, refused to accept statistical evi- 
dence of possible racial bias in death sen- 
tences as proof that an individual defen- 
dant's rights were violated. 

Opponents of the death penalty have 
said the case may be the last broad chal- 
lenge to the constitutionality of the death 
penalty in many states. 

In a 5-4 decision, the high court upheld 
a death sentence, imposed under Georgia's 
capital-punishment law, against a black 
man convicted of killing a white policeman 
in Atlanta during a robbery. 

The high court reviewed a University of 
lowa law professor's statistical study of 
more than 2,000 Georgia death-penalty 
cases in the 1970s showing that defendants 
who killed white victims were 11 times 
more likely to be sentenced to death than 
those who killed blacks. Even allowing for 
other factors, the study said, those who 
kill whites are at least four times more 
likely to be sentenced to death. When the 
defendant was black, the disparity in- 
creased, the study showed. Georgia offi- 
cials denied that the state’s death penalty 
discriminates on the basis of race. 

In an opinion written by Justice Lewis 
Powell, the court said the general evidence 
in the study wasn't proof that the death 
sentence imposed in the specific case of | 
Warren McCleskey in 1982\wa$ based on, 
gr motivated by, racjal discrimination. 
| The ruling is significant well beyond the 
Georgia case. The study on the Georgia 
death penalty is one of (hree| recent sur- 
veys done by professors ¢ id the coun- 
try. Together, these studies suggest there 

is a racial disparity in death sentences un- 
der the laws of 10 states accounting for 
more than half of the nearly 1,900 death 
row inmates in the U.S. 

Had the Supreme Court found the statis- 
tical evidence proved that the Georgia law 
worked in an unconstitutional manner, it 
would have cast considerable doubt on the 
validity of the laws of those 10 states, as 
well as the other 22 states in which in- 
mates are awaiting execution. 

Law enforcement and conservative 
groups praised the ruling. “Had this case 
gone the other way," said Daniel Popeo, 
general counsel of the Washington Legal 
Foundation, a conservative public interest 

  
group, ‘‘it would have opened a Pandora's 
box of statistical and sociological chal- 
lenges to every criminal conviction across | 
America, not just for capital punishment.” 
Mr. Popeo, who filed a friend-of-the-court 
brief in the case, said the Georgia statisti 
cal study was inconclusive. “There are sta- 
tistics that go both ways,” he said. 

John-Boger, a lawyer with the NAACP 
Legal Defense and Educational Fund Inc. 

in New York, which represents McCleskey 
and many other death row inmates, called 
the ruling a ‘‘serious defeat’ for lawyers 
who have been attacking the fairness of 
the death penalty. 

Since the Supreme Court upheld some 
state death-penalty laws in 1976, after in- 
validating earlier laws in 1972, capital-pun- 
ishment foes have mounted a series of 
challenges—some focusing on details of 
specific cases or state practices, others 
making broader attacks on the fairness of 
many state death-penalty laws. 

The effort rejected by the high court 

    

major piece of litigation that might have 
struck down many states’ laws in toto. . . . 
ICS Tair to say we don't Tiave any other 
major challenges at this time." : 
But-he-said the legal-defense tund will 

press state legislatures to recognize that 
there is racial bias in their death-penalty 
systems and to change their laws. He also 

  

lenges that may-atfectfive or 10 cases at a 
tin gn 

McCleskey based his challenge on the 

Mth Amendment's guarantee of “equal 
protection—of-the-taws™ and on the Eighth 
Amendinent’s prohibition agamst “cruel 
and unusual punishment.” 

Justice Powell's opimon rejected both 
grounds. The court said that violations of 
the 14th Amendment must mvolve ann: 

tent to discriminate, and that there was no 

  
—evidence of this in McCleskey's case. 

The high court also said that “apparent 
disparities in sentencing are an inevitable 

Please Turn to Page 21, Column 

  

| High Court Rejects 
Race-Bias Challenge 
To the Death Penalty 

Continued From Page 3 
part of our criminal justice system’ and 
the Constitution doesn’t require that a 
state eliminate every “demonstrable dis- 
parity.” Many disparities, the court said, 
stem from the discretion the system gives 
to judges and juries. ‘Discretion . . . offers 
substantial benefits to the criminal defen- 
dant,” the court said. 

If the justices accepted the argument in 
the McCleskey challenge, the court said, 
judges might face studies showing bias 
based on other factors that influence a 
jury, such as “the defendant's facial char- 
acteristics, or the physical attractiveness 
of the defendant or the victim." 

Justices William Brennan, Harry Black 
mun and John Stevens wrote dissenting 
opinions, and the first two were joined by 
Justice Thurgood Marshall. The dissenters 
said the majority had turned its back on 
evidence of racial discrimination. The 
McCleskey message, Justice Brennan said, 
“Is a disturbing one to a society that has 

  

—
 

  formally repudiateg-racism.” 

  

  

 



  

A30 
    

Ele New Pork Times 
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-~ ADOLPH 8.0CHS, Publisher 1896-1935 

: ARTHUR HAYS SULZBERGER. Publisher 1935-1961 

We ORVIL E.DRYFOOS. Publisher 1961-1963 

  

Apri 24. 7347 

  

THE NEW YORK TIMES, 

+ ARTHUR OCHS SULZBERGER. Publisher 
LJ 

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- 

Discrimination in Death? Yes, 5-4. 
How does the Supreme Court respond to evi- 

dence that American justice values the life of a 
white murder victim more highly than a black vic- 
tim? It doesn’t make any difference. 

The Court admitted as much Wednesday in a 
decision that assumes the accuracy of data showing 
that Georgia hands down the death sentence at least 

four times as often when the victim is white. Chal- 
lenged to decide whether any defendant, black or 
white, should be executed und h a system, a 

5-to-4 majority delivered a sheckin sponse: So 
discriminatory a result is not necessarily racist, 

and therefore it’s perfectly constitutional. 

Although Warren McCleskey killed a policeman 
during a holdup, his was the only one of\16 such 
cases in Atlanta to draw a death sentence during a 
recent seven-year period. He and many of the na- 
tion's 1,900 death row inmates have had reason to 
wonder what role race played in their trials. Ac- 
cording to the Supreme Court, they must prove that | 
race is the reason that the prosecution asked for 
death or that the jury decreed it or that the judici- 
ary upheld it. a 
“When Georgia's legal system was all white by 

taw, that might have-been easy to prove. But to re- 
guire such proof now is to require he mpessipe 

Capital punishment procedures in Georgia, and 
many states, have long been tainted by racism. For 
the Court to ignore the obvious evokes the infamous 
189¢ Plessy v. Ferguson decision. ‘‘Separate but 
equa!” is discriminatory only if blacks choose to see 
it that way, the Court said then. What the Court says 
now, in the face of telling eyidence that the victim’s 

race ofien is decisive in capital cases, is, well, that’s 

justath : 
~ Using Georgia's own criminal! files, the NAACP 

. Legal Defense Fund found first that the capital sen- 

tencing rate for white-victim cases was(.11 times 
that for black victims. Even allowing for 230 other | 
variables, the death sentence was(four times more | 
likely to be imposed when the victim was white. In- 
stead of demanding an explanation from the state, 

Justice Lewis Powell, writing for the majority, of- 

fered his own. 
_Discrepancies are inevitable, he said. “Piscre- 

tion is essential to the criminal justice process. ... 
We would demand exceptionally clear proof before 
we would infer that the discretion has been abused.” | 
Justice Powell even threw in an argument that 
sounded merely facetious when Justice Antonin | 

Scalia raised it during oral argument: Why, the 
next thing you know, ugly people will charge dis- 
crimination too. \ 

‘‘Death is different,” the Court has repeatedly 
acknowledged. The death penalty is final and thus 
requires special safeguards. Yet Justice Powell - 
worried that if the McCleskey challenge were up- 
held, someone would then try to apply the principle | 
to lesser crimes or the length of prison sentences. 

Justice William Brennan, in a dissent that Jus- 

tice Powell had the grace to call eloquent, spoke 
with more relevance of America’s efforts to purge a 
racist past: 

‘““We cannot pretend that in three decades we 
have completely escaped the grip of an historical 
legacy spanning centuries. Warren McCieskey’s 

evidence confronts us with the subtle and persistent 
influence of the past. His message is a disturbing 
one to a society that has formally repudiated rac- | 
ism. ... Nonetheless, we ignore him at our peril, for | 
we remain imprisoned by the past as long as we | 
deny its influence in the present.” | 

Death ds’different, and, given the chances of | 
grisly error, wrong. But even people who favor ic 

tal puni ent should cringe as long as (death 
means i Shin 
NL 

 



  

  

ABROAD AT HOME 
Anthony Lewis 

Bowing 
: To 

— Racism 
BOSTON 

ican society since World War Il 
: T= great achievement of Amer- 

has been to turn away from the 
racism that marked our history. Un- 
fairness of all kinds remains. But we 
.have made extraordinary progress in 
ending official racism: the expres- 
sion in law of racial hatred and fear. 
, That record is what makes the Su- 
preme Court’s recent decision on 
race and capital punishment so dis- 
‘tressing. Confronted with powerful 
evidence that racial feelings play a 
large part in determining who will 
live and who will die, the Court chose 

to close its eyes. It effectively con- 
doned the expression of racism in a 
profound aspect of our law. 
"The evidence was a study of 2,484 
murder cases in Georgia: an un- 

usually large and sophisticated study. 
Prof. David Baldus and others 
weighed hundreds of factors that 
might influence sentencing decisions, 
but one factor made the great differ- 
nce. Killers of white people were 

(our umes as likely as killers of 
blacks to be sentenced to death. 

“The correlation that the Baldus 
study shows between ra death 
sentencing in Georgia is two-and-a-half 
times greater than the proven correla- 

- tion between cigarette smoking and 
heart-disease.” A South Carolina law- 
yer who works on capital cases, David 
-Brueck, wrote that last fall, when the 
Supreme Court started to consider the 
case that raised the issue — the case of 
Warren McCleskey. 

“If this case involved race dis- 
crimination in the way Georgia hires 
prison guards or assigns first graders 
to public schools,” Mr. Bruck said, 

n“Georgia would almost certainly 
| lose. Ordinary civil rights lawsuits 

| rarely Inve ve evidence of race dis- 
crimination as detailed and as power- 
tu! as the data on which McCleskey's 
case is based.” 

But Warren McCleskey lost. A 5-to- 
"4 majority of the Supreme Court, as- 
suming the validity of the Baldus 
study and its findings, nevertheless 
heid that there was no violation of Mr. 
McCleskey’s constitutional rights. 

Justice Powell, writing for the ma- 
jority, said Mr. McCleskey had noi 
proved that racial} prejudice played a 
part in his particular case. And only 
that, not statistical proof of general 
and massive sentencing disparities 
based on race, could show & violation 
of the Constitution. 

“Af most,” Justice Puwell 3aid, 
“the Baldus study indicates a dis- 
crepancy that appe EE correlate 

- with race. Apparent discrepancies in 
sentenc an inevitable part of 
our crimin ystem.”’ 

The reasoning was so unrelated to 
- the facts, so unconvincing, that the 
" opinion sometimes seemed cynical 
For an individual defendant to prove 
that racial feelings figured in his sen- 
tence would be almost impossible. 

The Court’s 
death penalty 
decision goes 
against our 
history. 

  

  

  
  

But Justice Powell is the opposite 
of cynical. He searches achingly for 
constitutional justice. So one must 
find another explanation, and he 

| really provided it. 
“McCleskey challenges decisions at 

the heart of the state's criminal justice 
system,” he wrote. In other words, to 
“confront the reality of racial influence 
on death sentences would risk disturb- 

ing the system too much. 
When the Supreme Court decides 

for the state in such a case, it passes 
on only the constitutionality of the 
challenged practice, not its rightness 
or wrongness. But the Court ines- 
capably gives it an aura of legitima- 
cy. That is why the implications of the 
McCleskey decision are so disturbing. 

But perhaps here, -as in so many 
other instances, the last word will 
prove to be the dissenters’. There was 
a kind of serenity in their opinions, an 
appeal to history without shrillness. 
Justice Brennan's opinion especialiy: 
I found it the most impressive liter- 

lary document to come from this 
Court in a long time. 

Over the last three decades, Justice 
Brennan said, this country has taken 
‘“honorable steps’’ against racism. 

‘‘But we cannot pretend that we have 
completely escaped the grip of an his- 
torical legacy spanning centuries. 

“Warren McCleskey’s evidence con- 
fronts us with the subtle and persistent 
influence of the past. His message is a 
disturbing one to a society that has for- 
mally repudiated racism, and a frus- 
trating one to a nation accustomed to 
regarding its destiny as the product of 
its own will. Nonetheless, we ignore 

him at our peril, for we remain impnis- 
oned by the past as long as we deny its 
influence in the present. J 

“It 1s tempting to pretend that-mi- 
norities on death row share a fate in no 
way connected to our own, that our 

treatment of them sounds no echoes 
beyond the chambers in which they die. 
Sucn an illusion 1s ultimately corro- 
sive, for the reverberations of injustice 
are not so easily confined. ... The way 
in which we choose those who will die 

| reveals the depth of moral commit: 
ment among the living ™ C 

AY 
rn 

/ 1 Lie 

af2s x7 

 



  

Racial Challenge Rejectea 

NYT 

Court Stands Behind the Death Penalty 

McCleskey v. Kemp as their best hope since 
the Supreme Court allowed states to resume 

executions a decade ago. For Warren McCleskey of 
Georgia's death row, and in effect for hundreds of 
others, the NAACP Legal Defense and Education 
Fund argued that the sentencing process was in- 

fected with racism and therefore unconstitutional. 
Last week the Supreme Court, in a 5-to-4 decision, 
disagreed. 

The Justices did not quarrel with the premise of 
racial disparities. The majority accepted as valid a 
study showing that, other things being as equal as 
statisticians could make them, someone who had 

killed a white person in Georgia was four times as 
likely to receive a death sentence as someone who 

had killed a black. For a black convicted of killing a 
white, as Mr. McCleskey was, the probability was 
especially high. Other studies show similar dispari- 
ties in other states. : 

But Justice Lewis F. Powell Jr.’s opinion for the 
majority asserted that the exercise of discretion, 
even with ragged results, is ‘essential to the crimi- 
nal justice process.” General statistics are not 
enough to show abuse of that discretion, he wrote; 
to establish a constitutional 
violation, a defendant ‘‘must 

Occ of the death penalty had viewed appeared to expand the pool of defendants subject 
to the death penalty. The same majority — Justice. 
Sandra Day O'Connor writing the opinion this time, 
joined by Chief Justice William H. Rehnquist and 
Justices Powell, Byron R. White and Antonin Scalia 
— said it was sometimes permissible to impose the 
death penalty on an accomplice in a crime resulting 

in murder, even if the accomplice neither commit- 

ted the killing nor intended to kill. Holding that 
‘‘reckless disregard for human life’ could be suffi- 
cient, the Court undercut a 1982 decision that had 

led prosecutors and courts to view many defendant- 
accomplices as exempt from the death penalty. 

Both decisions-drew—strong dissents from Jus- 
tices William J. Brennan Jr., Thurgood Marshall, 
Harry A. Blackmun and John Paul Stevens. In 
McCleskey, they termed the racial disparities “*ab- 
horrent’’ and “intolerable’”; Justice Brennan, who 
has long said thal any execution constitutes cruel 
and unusual punishment, wrote that even if that 

were not so, Georgia's death penalty was evidently 
being administered with ‘precisely the type of risk 

of irrationality” that the Court deplored when it 
struck down the state's predecessor statute in 1972. 

That decision, which put an end to all executions 

in the United States for five 
v years, rested largely on the   

prove that the decision makers 
inlhis/case acted with discrimi- 
natory purpose.” 

That is hard to do,” hard 

say they can only rely on other 
strategies, one case at a time, Protection Clause, 
.as the nation's death-row popu- 
lation approaches 2,000 and the McCleskey must 
possibilities for appeal grow 
dimmer. “We have a lot 
backed up on death row,” said prove that the 

“Pavid Whitmore, legal director 
for the New Orleans chapter of decision makers in 
the American Civil Liberties 

Union. *I don't know what we his case acted with 
can do." Daniel Popeo of the 

conervaiVE = Washington cliscriminatory Legal Foundation put it an- 
other way: ‘lI don't think ’ 
there're many novel, ridicu- purpose.... 

From the majority opinion of 
Justice Lewis F. Powell Jr. 

| lous arguments left to try and 
| block the enforcement of 
| criminal justice in America.” 

/ And just the day before the 
'McClesky decision, the Court 

“To prevail under 
"enough that defense lawyers the Equal 

  

Justices’ conclusions that 
prosecutors, judges and juries 
had such wide berth that capi- 
tal sentencing had become 
“wanton” and ‘‘arbitrary,"” 
especially for blacks. 

Mr. McCleskey’s case is in 
most respects unexceptional. 

He was convicted in 1978 of 
shooting a police officer during 
a robbery in an Atlanta furni- 

ture store, and he was sen- 
tenced under procedural guide- 
lines approved by the Supreme 
Court that year. He had lost 
two round of appeals in the 
state courts when the NAACP 
Legal Defense and Education 

Fund took over his case. Now, 

according to Tanya E. Coke of 

the fund's capital punishment 
project, there will be other ap- 
peals; last week's decision, she 

said, was “not the end of the 
line for Mr. McCleskey."” 

LAURA MANSNLLRUS 

v/ac [87 p-€/ 

 



  

VY T (ass p31 
31 

  

IN THE NATION 
Tom Wicker 

Making 
Inequity 

Acceptable 
> 3 really a ‘po entially i irrelevant 

— whatéver that may 
— that in the state of Geor- 

gia a 1973 to 1978 those who mur- 
dered white people were i! times 
more likely to receive the death pen- 
alty than those who killed blacks? 

Is is true that American society 
‘does not reject the death penalty as 
es excessive’ for persons who 

ay have been accomplices in a mur- 
der Si who did not actually pull the 
trigger or plunge in the knife? 
. That's what the Supreme Court has 

“concluded in two death penalty deci- 
sions handed down on consecutive 
days. The more important, reached by 
a 5-to-4 vote, held that Georgia's capi- 
tal punishment law was not unconsti- 
tutional, even though statistics showed 
that its effect was racially biased. The 
other, by the same five-justice majori- 
ty, broadened the circumstances in 
which courts may order the death pen- 
alty even for persons who did not actu- 
ally commit a murder. 

This Court thus showed, if there 
had been any doubt, that a majority 
of its members have no misgivings, 
constitutional or otherwise, about 
capital punishment as administered 
in the United States today. Its two re- 
cent decisions, taken together, seem 

likely to expand the discretion the Su- 
preme Court allows state courts in or- 
dering people put to death. 

Justice Sandra Day O'Connor, who 
wrote the decision making it easier to 
execute persons who did not them- 
selves actually commit a murder, 
relied heavily on the fact that\37 states 
have capital punishment laws; but 
only 11 of them specifically forbid the 
death - penalty for accomplices in 
crimes where there was a substantial 

S
—
—
—
 c
e
 

m
a
n
 

likelihood that someone might be mur- 
dered. This suggests, Justice O'Connor 
wrote, that society does not reject the 
death penalty as ‘‘grossly excessive’ 
for accomplices to murder. 

That reasoning suggests that the 
number of states that legislate in a 
certain fashion can determine what is 
or is not constitutional, and that con- 
stitutionality itself is dependent on 
what may be secietally acceptable, or 
at least not considered-‘grossly ex- 
cessive.” 

The majority opinion written by Jus- 
tice Lewis Powell in the Georgia case 
eemed particularly tortured in its 
easoning and callous in its language. 

Not only did it dismiss the question of 
racial bias, as demonstrated in an ex- 
tensive statistical study by David Bal- 
dus of the University of lowa Law 
School, as “a pafentially irrelevant 
factor” in Georgia's administration of 
capital punishment; it also argued 
that the Baldu demon- 

strated a ‘constitutionally significant 
risk of racial’ bias.” 

What is ‘constitutionally signifi- 
cant risk’ may seem more of a value 
judgment than supposedly ‘‘strict 
constructionist’’ judges are expected 

to allow themselves. And many 
Americans may feel that a situation 
in which white lives are routinely 
given higher value by the courts than 
black lives provides not just a ‘‘con- 
stitutionally significant risk’’ but the 
demonstrable fact of racial bias. 

But the majority opinion asserted 
that the statistical results of the Bal- 
dus study reflected only ‘apparent dis- 
crepancies” that were “inevitable” in 
sentencing procedures. ‘‘We decline to 
assume,” Mr. Powell wrote, “that 
what is unexplained is invidious.” 

Unexplained? What more explana- 
tiomthan racial bias is needed when the 
killers of white people so often receive. 
the death penalty, and killers of black 
people do not, in a pattern too stable to 
be accidental? And the pattern _is-not 
confined to Georgia; The Associated 
Press-reported in its account of the 
case that about 95 percent of all death 
row inmates had been convicted of kill- 
ing whites, though blacks are more 
often the victims of murder. 

And if “discrepancies” are inevita- 
ble in criminal justice sentencing 
procedures, is not that in itself an ar- 
gument against capital punishment? 
An execution;-after-all, cannot be un- 
done, no matter if, the day after the 
switch is pulled or the gas pellets 
dropped, a ‘‘discrepancy”’ in the sen- 
tencing procedure is proved. 

Exultant law enforcement officials 
quickly proclaimed that the Georgia 
decision disposed of the last “‘broad- 
based’ attack on capital punishment. 
But that's only for the moment. 

As an earlier Supreme Court decided 
in 1972, the death penalty is not being 
administered so that it falls equally on 
the rich and the poor, the white and the 
black, the high and the low, the popular 
and despised, the well and the poorly 
represented Nor can it be adminis- 
tered fairly, any more now than in 
1972; no court ruling or legislative act 

. since then has changed that fact, these 
latest only lending inequity a spurious 
acee ceptability. Nor can any change it in 

| the future — which is why another Su- 
preme Court, another day, finally will 

| eliminate from American life this sad 
[ vectioenfanearlier time 
{ ¢ 

burn the Ans 

 



  

THE ATLANTA CONSTITUTION Prides, April 2.4, 1987 
  POS PRE Sn 

— 

[or] 

  

EV 

\ 

' 
\ 

&F
 

—
-
 

a
d
 

=~
 

a
 

— — 

i on ik ais 

Jes 
:- x 94 bluow}ziur 

plans 
hy sirshan dpe . 

~ By Scott Shepard 
wou Jourpal- Contiiuiian Washingiep Bureqy. , 

: "WASHINGTON: — Civil rights and religious 
} ups outraged: atthe Supreme Court's decision up- 
holding Georgia's death penalty, vowed Thursday to 
wage a id campaign to outlaw capital punish- 

o 

Ris In a sakerany released 
Mon, ‘the: National, Rainbow Coalition Inc., the Rev. 

Jesse Jackson sald the court's ruling “licensed racism 
"'In the application of the death penalty.” 

. Jackson, | expected to seek the Democratic presi- 
"dential nomination next year, said the “only response 

» must be to ol the system that harbors such injus- 
tion. 

Shy "Jackson's fitment was released at the Washing- 
ton office of the American Civil Liberties Union 

“~(ACLYY during a news conference with death penalty 
‘opponents and civil rights activists. 

3: Rep. John Lewis. (D-Ga)), appearing briefly at the 
Th > 
‘news conference, sald the court's ruling should be 

viewed! “with a sense of righteous indignation.” He 
, ‘said the ruling ‘showed ‘that “the scars and stains of 

packs; Inbpdded in the psyche of our judicial sys- 

wT Conyers (D-Mich.) sald the ruling 
meana there js a need to “re-examine what the role of   : * Congress should be" in capital pun hment 

NTE TF Vor Le Pa fad £05, L 
: my 

—
 n
e
 

ar
 

his political organiza- 

. y _p 

e J Jackson calls ruling racist, 
drive tol ban death penalty’ 

Conyers, chairman of the judiciary subcommittee 
~ that has jurisdiction in death penalty issues, said Con- * 

gress “has been silent too long.” But now it “can and 
should get involved.” 

In a 5-4 decision Wednesday, the Supreme Court” 
ruled that Georgia's capital punishment system was 
constitutional despite statistical evidence that the - 
death penalty was applied in a racially discriminatary - 
manner. 

Death penalty opponents Lad considered the Geor- 
gla case to be their best chance of saving hundreds of 
the nearly 1,900 men and women on death rows. 

Although they conceded that the court's ruling A 
a setback, they rejected the suggestion that it was 
their last hope. 

“Our hopes are quite intact,” said Henry Schwartz-, 
child, director of the ACLU's Capital Punishment Pro- 
ject. “This was our latest challenge, not our last.” 

Willlam Robinson, executive director of the Law- 
yers Committee for Civil Rights Under Law, sald his 
group was disappointed by the court's ruling. “But we 
did not fall into a deep abyss of despair.” 

Robinson predicted another constitutional chal- 
lenge of the death penalty in the next decade. 

tion for the Advancement of Colored People said his - 
group will “continue to direct our efforts to scrapping - 
a racist Institution.” 

  
LLANE i 

1 -_ . 

andl 

lel’ 

Julius Chambers, director-counsel of the Legal De- 
fense and Educational Fund of the National Associa- - 

 



   

  

a 

htete 

" THE ATLANTA CONSTITUTION 
For 118 Years the South’s Standard Newspaper 
  

James M. Cox, Chairman 1950-1957 — James M. Cox Jr, Chairman 1957-1974 
  

Jay Smith 
Publisher 

Bill Kovach Minor J. Ward 
Editor President 

Tom Teepen 
Editorial Page Editor 

Glenn McCutchen 
Managing Editor 

Jim Minter 
Senor Editor. 

PAGE 22-A, FRIDAY, APRIL 2%, 1987 
  

Injustice? Never mind, couri says 
Georgia has taken the nation full circle. 

A Georgia case in 1972 prompted the U.S. 
Supreme Court to rule, 5-4, that the nation’s 
death-penalty laws were applied capriciously 
and unconstitutionally. At the time, it was 
widely believed the decision marked the 
start of a momentous change. It seemed all 
but certain that the United States would at 
last joirr other Western democracies and 
abandon its electric chairs, firing squads, 
gallows and gas chambers. 

But this week, in another Georgia case, 
in another 5-4 decision, the Supreme Court 
demonstrated just how false those hopes had 
been. Don’t confuse us with facts, the court 
said in so many words: Even if studies 
prove the existence of gross racial dispari- 
ties in the application of the death penalty 
— look, nobody promised absolute fairness. 

It is an appalling decision. 

Justice Lewis F. Powell, writing for the 
majority, put it this way: “Apparent dispari- 

; ties in sentencing are an inevitable part of 
our criminal-justice systenr ... Where the 
discretion that is fundamental to our crimi- 
nal process is involved, we decline to as- 
sume that what is unexplained is invidious.” 

But what is nexplained in this case? Its 
invidious aspects 
court in painstaking detail. 

Some background: Warren McCleskey, 
who is black, was sentenced to death for 
murdering a white Atlanta police officer 
during a 1978 holdup. McCleskey had based 
his appeal in part on a massive study by 
University of Iowa Law Professor David 
Baldus. Baldus examined every murder con- 
viction in Georgia between 1973 and 1978 
and found that killers whose victims where 

ere laid out before the 

white were 11 times likelier to get the death 
penalty than Killers whose victims were 
black. : 

Does race account for this disparity? 
Common sense says yes. The state's crimi- 
nakjustice system is run by whites. Prosecu- 
tors who make crucial decisions about 
whether to seek death sentences are white. 
It has not been uncommon in Georgia (and 
elsewhere) for all-white juries to decide 
cases that have heavy racial overtones. 

What's more, had evidence shows that 
race accounts for such sentencing disparity. 
Baldus isolated 230 separate factors that in- 
fluenced sentences. Again and again, racism 
emerged as the only possible explanation for 
“what is invidious.” The court had a choice. 
It could take a deep breath, acknowledge 
the obvious and overturn hundreds of death 
sentences. Or it could shrug off what it had 
seen and let the penalty stand. Sadly, it 
ciose the latter course, bs : 

By its reasoning, inherent unfairness in 
the system no longer ma Unless a spe- : 
cific defendant can show discrimination by a*- 

specific official, he has Bi = 

In the 1972 decision, Justice William 
Brennan wrote: “These death sentences are 
cruel and unusual in the same way that be- . 
ing struck by lightning is cruel and unusu- 
al.” Since then, people like Baldus have 
shown us much about why the lightning 
strikes where it does. Interestingly, the 
court makes little effort to deny that broad- 
based injustices exist. 

Rather, it instructs us to ignore them. 
This is cowardly advice that deméans the 
court and the American public alike. 

S
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“Thursday, 
April 

2
3
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1
9
8
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- part of our criminal-justice systenk 

      

(, 
BY 

EG 

  

ny way, 
£ 

y sig. 

tainted the case before the court 

bl 
L 

nificant risk of racial bias affecting 
the Georgia capital-sentencing proc- 
ess.” 

in a 

“In light of the safeguards de. 
signed to minimize racial bias in the 
process, the fundamental. value of. 
jury trial in our criminal justice sys 
tem, and the benefits that discretion 
[by prosecutors, judges .and juries} 
provides to criminai defendants, we 
hold that the Baldus study does not 
demonstrate a constitutional 

Furthermore, Powell said, the 
study had failed to prove that racial 
discrimination had,” 

The. 
Philadelphia 

Inquirer 
 
 

~ 
Death p

e
n
a
l
 
upheld 

* 

          

e
o
t
R
T
.
 

front 
T
A
L
 

Wo. 
oe 

# . “Actorflingly, 
we 

fold 
that 

the 
Bal: 

dis’ 
stady 

is-clearly- insufficient 
t
o
 

1 
- 

support 
a
n
:
 
inference 

that 
a
n
y
 of t

h
e
 

docisibhamakers’in 
McCleskey's 

cage’ 
acted 

with 
discriminatory 

purpose,” 
said 

Powell. 
His 

opinidfriwas’ 
sop- 

p
o
r
t
e
d
:
 by 

Chief 
J
u
s
t
i
c
e
’
 Willian’ H. 

Rehngirist) 
and 

Justices 
‘Byror 

R. 
White, 

Sandra 2 
Pay 

0’ Cofftior. afid’An- 
tonimgaile.” 

Fran 
Prosecutors, 

readers 
of 

conserve: 
tive 

groaps 
and:other: 

supporters 
of 

the. 
death: 

penalty. were 
elated. 

© 
“Filink 

this 
decision 

says 
that 

poll: 
e
p
s
 

~demaographers, 
statisticians 

and 
sociologists 

cannot 
possibly 

re- 
p
l
a
c
e
:
 

an 
individual 

judge 
-or-jury.” 

observed 
Daniel 

J. 
Pope, 

p
e
n
e
r
a
l
 

counsel 
“for 

t
h
é
 
W
a
s
h
i
n
g
t
o
n
 

L
e
g
a
l
 

Foundation, 
which 

filed 
a 

brief 
op- 

posing 
McCleskey's 

argument. 
The 

decision 
provoked 

impas- 
sioned 

responses 
from 

the 
four 

dis- 

senters 
— 

William 
J. 

Brennan 
Jr.. 

Thurgood 
Marshall, 

Harry 
A. 

Black: 
m
u
n
 

and 
John 

Paul 
Stevens 

— 
and 

from 
opponents 

of 
the 

death 
penalty 

throughout 
the 

nation. 

Brennan, 
calling 

McCleskey's 
evi- 

dence 
“far 

and 
away 

the 
most 

re- 

fined 
data 

ever 
assembled 

on 
any 

system 
of 

punishment,” 
castigated 

the 
court 

majority 
for 

failing 
to 

rec- 

ognize 
the 

risk 
of 

racial 
influences 

in 
imposing 

death 
sentences. 

B
l
a
c
k
m
u
n
 

said 
the 

majority 
was 

minimizing 
the 

history 
of 

racial 
dis- 

crimination 
in 

Georgia 
and 

the 
lack 

of 
guidelines 

for 
a 
prosecutor's 

criti- 

cal 
decisions 

on 
w
h
e
n
 

to 
seck 

a 
mur- 

    

or 

  

dor 
dredienment. 

“when 
10. 

accept: 
guilty: 

ples; 
w
h
e
n
-
t
o
 
a
c
c
e
p
t
 
deals 

* 
with 

defendants 
and 

when: 
to 

Seek: = 
ithe 

death 
penalty. «

£
8
 

a, 
Stevens 

said 
that 

M
c
C
l
o
s
k
e
y
 

s v
i
e
’
 

dence 
d
e
m
o
n
s
t
r
a
t
e
d
 

“a 
strong 

proba- 

bility 
that... 

, the 
[Atlanta] 

c
o
m
m
u
n
i
 

ty's outrage 
.. 

 
 
 

victim 
w
a
s
 white, 

and 
that 

this 
same 

+ 
outrage 

would 
net 

have 
been 

gener-- 
ated 

if he 
had 

killed 
a m

e
m
b
e
r
 of 

his. 
. own: 

race. 
This 

sort 
of 

disparity. 
is: yd 

‘constitutionally 
intplerable.” 

<
<
 

+7 
Powell, 

rebuffing 
McCleskey’s 

c
o
n
 

tention 
that 

his 
punishinent 

was 
un-:. 

constitutionally 
discriminatory; 

eru- 

el 
and 

unusual, 
also 

m
a
d
e
 

these 

points: 
® 
The 

history 
of 

facially 
discrimi. 

natory 
l
a
w
s
 .in 

G
e
o
r
g
i
a
 
w
a
s
 

undenis; 
“able; 

but-“we 
cannot 

accept 
official 

- 
“actions 

taken 
long 

ago 
as 

evidence 
of 

current 
intent.” 

that 
“we 

remain 
imprisoned 

by 
the 

past 
as 

long 
as 

we 
deny 

its 
influence 

in 
the 

present.” 
® 
Judges, 

juries 
and 

prosecutors 
must 

be 
permitted 

a wide 
range 

of, 
discretion 

in 
sentencing. 

Discretion 
produces’ 

unpredictable 
results 

but 

builds 
h
u
m
a
n
 

j
u
d
g
m
e
n
t
s
 

into 
the 

criminal 
justice 

system 
and 

often 

benefits 
defendants, 

Powell 
said. 

But, 
B
r
e
n
n
a
n
 

replied, 
discretion 

must 
rot 

include 
decisions 

based 
on 

r
a
c
e
.
 

® 
| egal 

safeguards 
amply 

protect 

the 
criminal 

justice 
system 

against 

abuse 
of 

discretion 
through 

racial 
prejudice. 

B
r
e
n
n
a
n
 

wrote 
that 

“it 
is 

the 
very 

effectiveness 
of 

those 
safe- 

guards 
that 

[the 
Baldus 

study] 
calls 

into 
question.” 

   

a 
7 

w
a
s
 

ififluenced 
by 

the 
, 

fact 
that 

McCleskey 
is 

black 
and 

his” 

Brennan. 
replied 

. 

            

  

at 
ne CPR AE can 

that of Warren McCleskey, & black 

(See COURT on 12-A). 
man condemned to death for murs. 

 
 

 
 

William 
J. Brennan 

Jr. 
Et 

Says 
majority 

jgnored 
d
a
t
a
 ° 

S
i
a
 

future 
challenges 

to 
various 

crimi- 

nal 
penalties; 

There 
could 

be 
claims: 

_ 
of 

discrimination 
against 

other 
mi- 

norities 
gnd 

w
o
m
e
n
,
 

or 
bias 

based 
on 

the 
physical 

appearance 
of 

‘the 
de- 

- 
fendant 

or 
the 

victim, 
Powell 

said. 
. 

8 

® 
Courts 

deal 
with 

individual” 
c
a
s
e
s
,
 

legislatures 
are 

béttér 
able 

fo 
weigh 

the 
impact 

of 
statistical 

stud- 
ies 

on 
local 

conditions. 
Brennan 

re- 
plied: 

“Those 
w
h
o
m
 

we 
would 

banish 
from 

society 
... 

often 
speak 

in 
too 

faint 
a voice 

to 
be 

heard 
above 

soci- 
ety's 

d
e
m
a
n
d
 

for 
punishment. 

It 
is 

the 
particular 

role 
of 

courts 
to 

hear 
these 

voices, 
for 

the 
Constitution 

de- 
clares 

that 
the 

majoritarian 
chorus 

may 
not 

alone 
dictate 

the 
conditions 

of 
social 

life.” 
In 

a 
second 

death 
penalty 

decision 
a
n
n
o
u
n
c
e
d
 

yesterday, 
the 

court 
indi- 

cated 
that 

it 
still 

expected 
state 

and 
federal 

courts 
to 

comply 
with 

sen- 
tencing 

procedures 
d
e
e
m
e
d
 

constitu- 

tionally 
necessary. 

By 
a 

u
n
a
n
i
m
o
u
s
 

vote, 
it 

over- 

turned 
the 

death 
sentence 

of 
a 

con- 
victed 

Florida 
murderer, 

ruling 
that 

he 
was 

wrongly 
prevented 

from 
in- 

® 
If. 

McCleskey’s 
argument 

were 
"upheld, 

there, 
would 

be 
no 

end 
to 

    

Harry 
A. 

B
l
a
c
k
m
u
n
 

Cites 
lack 

of 
guidelines 

. 

troducing 
mitigating 

evidence 
dur- 

ing 
his 

sentencing 
trial. 

Since 
the 

S
u
p
r
e
m
e
 

Court 
reinstat- 

ed- 
c
a
p
i
t
a
l
 

- p
u
n
i
s
h
m
e
n
t
 

in 
1976, 

70 
inmates 

have 
been 

executed 
by 

elec-- 
trocution, 

poison 
gas, 

firing 
squad 

or 

lethal 
injection. 

-.Since- 
1984, 

the 
court 

has 
rejected 

two 
other 

broad 
attacks 

on 
capital 

punishment, 
ruling 

that: 

® 
Death 

sentences 
may 

be 
imposed 

even 
if 

state 
courts 

did 
not 

try 
to 

determine 
whether 

others 
convicted 

of 
similar 

crimes 
were 

Treated 
more 

, 
leniently. 

® 
Death 

penalty 
opponents 

may 
be 

barred 
from 

serving 
as 

jurors 
in 

de- 

termining 
guilt 

or 
innocence 

in 
capi- 

tal 
cases. 

Rights 
to 

a 
fair 

trial 
are 

not 

violated 
if 

such 
exclusions 

result 
in 

“conviction-prone” 
juries, 

the 
court 

said. 
; 

One 
significant 

capital 
punishy 

ment 
case 

remains 
on 

the 
Supreme? 

Court's 
docket. 

The 
justices 

agreed 

in 
February 

to 
decide 

in 
the 

next 

term 
whether 

the 
death 

penalty 
is 

a 

valid 
p
u
n
i
s
h
m
e
n
t
 

for 
convicted 

mur- 

derers 
who 

committed 
their 

crimes 

before 
they 

were 
18 

years 
old. 

    

 
 

 



  

A-12 Richmond Times-Dispatch, Thursday, April 23, 1987 & 
  

Death penalty rulings since ZT 
Hege, is a summary of the Supreme Court’s ‘capital 

punishment decisions since 1972: 5% ; 

&"Firman vs. Georgia, 1972. Barred states from carry- 

ingout executions, ruling that administration of the death 

penalty had become too arbitrary and capricious in viola- 

tion“ of: the Constitution’s ban on cruel and unusual : 

punishment. 
Snuy 

redrawn penalties in Florida, Georgia and Texas. 

peffélty as a punishment for rape. 
Lass 

before a death sentence may be ordered. The court struck 

down Ohio’s. law for its failure to permit complete consid: ; 
eration of a defendant’s character and record. 

© Enmund vs. Florida, 1982. Struck down the death 
penalty for accomplices who prove they did not intend to 

- take part in a killing but whose crimes resulted i in murder. 

* ® Barefoot vs. Estelle, 1983. ‘Made it easier for federal : 
appeals courts to speed executions; permitting in a Texas : 
case some shortcuts to throw out last-ditch appeals. 

. Pulley vs. Harts; 1984. i= a California case, permit: i 

Lockett vs. Ohio, 1978. Said states must permit con- that states. may not execute killers who lack the compe- 

sideration of a broad range of mitigating circumstances 

Le McCleskey . vs. ‘Kemp, 1987. Rejected as Hood of ’ 

ted death sentences even when state courts do not CONE 
“proportionality” studies to determine whether others’ 

~ convicted of similar crimes were treated more leniently: 

® Spaziano vs. Florida, 1984. Said judges may overrule« 
juries recommending life in prison and impose death ; 
sentences for convicted murderers. : pre a 

2h i" Heckler Vs. Chaney, 1985. Approved in a case trom, 
*. Gregg vs. Georgia, 1976. Retasated capital punish" 

mepf,yuling that it can be a constitutionally acceptable 

ugishm The court upheld 
p yal {Or Convicted, IpdoTety Tio tun Ww - that death penalty opponents can be barred from serving. | 

son capital c case Juries. . 2 : ¢. 
Coker vs. Georgia, 1977. Banned use of the death * bs : 

Oklahoma continued use of lethal injections. 

® Lockhart vs. McCree, 1986. Said in an Arkansas case 

  

{ 

Ford vs. i 1986. Ruled in a , Florida c case: 

tence to understand why they are being put to death, 
barring executions for murderers who become insane | 
while on death row. . rey 

° Tison vs. Arizona, 1987. Said eenplies toa murdef® a 
may be sentenced to death if they displayed “reckless 
indifference” for human life; even if they did not kill | 
anyone or outicipale that a killing would occur. y 

racial discrimination in a Georgia case studies showing 
that blacks who kill whites are the most likely Aeionany 

  

Challenge to death penalty 

rejected 5 5 4 by high court 
 roseentors to decide When to seek 
“the death sentence and of juries in 

Continued from first page 
Pe 

in the case, McCleskey vs. Kemp and 
he was joined by Chief Justice Wil: 

ehnquist and Justices Byron® liam H. 
R. White, Sandra Day O'Connor and 

~ Antonin Scalia. Justices William J. 
Brennan Jr., Thurgood Marshall, 
Harry A. Blackmun and John Pau) 
Stevens dissented. 

\ Had the dissenters won one tore’ 
vote, it would have clouded hundreds 
of death sentences around the coun- 
try, not just that of Warren McCles- 
key, the defendant in: the Georgia 
case. : 

Studies have found that racial dis. 
parities in death sentencing are com- 
mon in other states as well. But de- 
fendants who had hoped for broad 
invalidation of death sentencing sys- - 
tems because of such disparities must 
now base their appeals on objections 

sentenced to die if their vietims had 
‘been black.” : 

~ Noting that racial discrimination 

to their individual sentences. 
Writing for the majority, Powell: 

said McCleskey’s arguments “basi- 
cally challenge the validity of capital 
punishment in our multiracial soci- ° 
ety” and “the principles that underlie 
our entire criminal justice system,” 
especially the discretion of criminal 

deciding when to impose it. 
That discretion is certain to lead to’ 

disparities, the justice wrote. But to 

crimination in death sentencing, he 
- said, a defendant “must prove that 

the decision makers in his case acted 
;* with .a discriminatory purpose” by 

- producing evidence specific to the 
"case; a generalized study showing sta- 
tistical disparities was not enough. 

Brennan, joined by the other three 
~ dissenters, said “the risk that race 

., influenced McCleksey’s sentence is... 
* ‘intolerable by any imaginable stan- 

dard,” and suggested that the decsion 
amounted to “complete abdication of . 

our judicial role.” 

- He said the statistics showed that 
a | majority of defendants in white- 
vietim crimes would not have been 

was. once written into the criminal 
laws of Georgia, where killing a black 
slave was not considered a serious 
crime, he 8aid the study showed the 
persistence of more subtle racism, 

to receive the death ay | Tx 

ahd t that “we. remain : rprisoded by ; 

. outrage of the community.” AE syd be 

guments by assuming the validity of a-} 

  

    the past as long as we deny its influ- : 
ence in the present.” ge. 

. Blackmun and Slovens wrote sepa: 
rate dissents. 

show unconstitutional racial  dis- 
In oral arguments in “the. case. 

Mary Beth Westmoreland, a lawyer ; 
for the state, said the racial dispari-*} 
ties in death sentencing could be ex: ; 

- plained by the faet that blacks were: 
more often killed in “family disputes, 3 
lover disputes,” barroom Sans and 1 i; 4 
the like. 

- Whites; she. pH are are ‘often 3 
killed in robberies and other crimes 
more likely to provoke “the moral’ 

      

  

   
   

Powell implicitly rejected such ar- | 

study that asserted that even when : 
the type of murder was taken into’ : 
account, the racial dispar on 
persisted. : 3 

At
 

In attacking the ajority’s logic. | 
Brennan stressed the “irrelevance” of" 
one of Powell's observations: that - 4 
McCleskey had not proved the influ- 
ence of race on his particujar death. 
penalty. Co 

  

  a 

 



  

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iat 

FF THE ATLANTA CONSTITUTION 
For 118 Years the South’s Siendard Newspaper 
James M. Cox, Chairman 1950-1957 — Jarmes M. Cox Jr., Chairman 1957-1974 

a
 

WJ 
w
y
 

T
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=
 
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i
 

  

  

: : a bi Smith 

ns Bill Kovach Minor). Ward =~ / 
or Editor President Foal 

AH “Tom Teepen ire i | Minter vere - . i 

Editorial Page Editor 

~ PAGE 22-A, FRIDAY, APRIL 24, 1987 

“Glenn McCutchen ~~ 
.. Managing Editor Senior Editor * 

  

Georgia has taken the nation full circle. 
‘A Georgia case in 1972 prompted the U.S. 

" Supreme Court to rule, 5-4, that the nation’s 
death-penalty laws were applied capriciously 
and unconstitutionally. At the time, it was 
widely believed the decision marked the 
start of a momentous change. It seemed all 
but certain that the United States would at 
last join other Western democracies and 
abandon its electric chairs, firing squads, 
gallows and gas chambers. 

But this week, in another Georgia case, 
in another 5-4 decision, the Supreme Court 
demonstrated just how false those hopes had 
been. Don’t confuse us with facts, the court 
said in so many words: Even if studies 
prove the existence of gross racial dispari- 
ties in the application of the death penalty 
— look, nobody promised absolute fairness. 

It is an appalling decision. 

Justice Lewis F. Powell, writing for the 
majority, put it this way: “Apparent dispari- 
ties in sentencing are an inevitable part of 
our criminal-justice system ... Where the 
discretion that is fundamental to our crimi- 
nal process is involved, we decline to as- 
sume that what is unexplained is invidious.” 

But what is u i in thi 2 Its 
invidious aspects were laid out before the 
court in painstaking detail. 

Some background: Warren McCleskey, 
" who is black, was sentenced to death for 
murdering a white Atlanta police officer 
during a 1978 holdup. McCleskey had based 
his appeal in part on a massive study by 
University of Iowa Law Professor David 

_ Baldus. Baldus examined every murder con- 
viction in Georgia between 1973 and 1978 
and found that killers whose victims where 

PA BNL AA Sm righ Seance tT = To Et SC a 
v 

Injustice? Never wind, court says | 
white were 1 times fikelier to get the death 
penalty than killers Whose. victims. were : 
black. ‘i ab 

‘Does race acount Tor this disparity” al 
Common sense says yes. The state’s crimi- 
nal-justice system is run by whites. Prosecu- _ 
tors who make crucial decisions about 
whether to seek death sentences are white. 
It has not been uncommon in Georgia (and 
elsewhere) for all-white juries to decide 
cases that have heavy racial overtones. 

What's more, hard evidence shows that 
race accounts for such sentencing disparity. 
Baldus isolated 230 separate factors that in- 
fluenced sentences. Again and again, racism 
emerged as the only possible explanation for 
“what is invidious.” The court had a choice. 
It could take a deep breath, acknowledge 
the obvious and overturn hundreds of death 
sentences. Or it could shrug off what it had 
seen and let the penalty stand. Sadly, it 
chose the latter course. 

"By its reasoning, inherent unfairness in 
the system no longer matters. Unless a spe- 
cific defendant can show discrimination by a 

_specific official, he has no case. 

In the 1972 decision, Justice William fo. 
Brennan wrote: “These death sentences are 
cruel and unusual in the same way that be- | 
ing struck by lightning is cruel and unusu- 
al.” Since then, people like Baldus have 
shown us much about why the lightning 
strikes where it does. Interestingly, the 
court makes little effort to deny that broad- 
based injustices exist. { 

r—— 

Rather, it instructs us to ignore them. 
This is cowardly advice that demeans the 
court and the American public alike. 

 



    
  

(ib SE GA Li Cr rR OME SG a hh BE li li Rout BES Som 1 ous CRI kt wo a ah 
& If: 3 baba} oR Nn a ; A LA Nl Ne hes 8 A a Fo § & % Gaon Ge AY x | ; 

  

Thursday, April 23, 1987 Richmond, Vigina 23219. \ v 137th Year, No. 113 * 25 cents 
  

i Racial SRT to death penalty rejected Bitter dissents filed i in 5-4 case 
© New York Times Servis 

WASHINGTON — The Supreme Court, dashing the 
hopes of opponents of the death penalty, ruled 5-4 yester- 

+ day that a state’s capital punishment system is constitu- 
tional despite the fact that killers of white people are far 
more frequently sentenced to die than killers of blacks. 

. The court upheld Georgia's death penalty system 
. against a challenge by a black man convicted of killing a 
white policeman in a 1978 robbery. 

The condemned man cited — and the Supreme Court 
vn assumed as valid — a study Showing Sharp racial 
  

\| AFDC rule upheld, page B-1 

disparities \g the sentencing of killers in Georgia, showing 
in particular{hat capital punishment was far more likely 
in cases involving black killers of white victims. 

  

It was the most iinportant death penalty case since 
1976, when the court upheld new state laws that ne 8 
ed capital punishment, four years after the justices ha 
struck down all death penalty laws as “arbitrary and 
capricious” in a decision that turned in part on racial 
disparities. 

The court’s decision yesterday provoked bitter dissents 
. that accused the majority of distorting legal principles to 
avoid overturning numerous death sentences. The ruling ; 
ended what death penalty opponents had called their last 
sweeping constitutional challenge to capital punishment. 

It will speed the pace of executions somewhat, experts 
~ said, although the immediate effect may not be dramatic _ 

“ because many of the nearly 1,900 convicts on death row * 
have not yet exhausted their appeals on various issues 
unrelated to the decision. ; f 
. Justice Lewis F. Powell Jr. wrote the majority Lye 

Continued on page 12, col. 1 

    

Times Dispateh staff writers 

The Supreme Court's decision yesterday to uphold the - 
death penalty against constitutional challenges of racial 

_ bias was a major setback for opponents of capital punish: 
ment in Virginia but it was not unexpected, according to 
several leading scholars and representatives of civil, 

"rights groups in the state. 

Cha ndrick, director of the Virginia chapter of the. 
; American’ Civil Liberties Union, knew the Georgia case 
was “a loser,” he said, but still took heart that the major 
death penalty case almost won a najority. on the high | 

court, : 

that race is a very significant factor in the imposition of : | 
death penalty,” Kendrick said. “But feeling good about 
that doesn’t help’ us much. In the long run we have to be 

“One hopeful point is that four justices are convinced 

/ 

State observers: not surprised 
\ By Michael Hardy and Rob Walker phi * optimistic about receiving four positive v votes.” 

J. Lloyd Snook, a Charlottesville attorney who has: 
handled many appeals of death row inmates, said a deci- 

sion the other way would have had “a major impact” on 

sentences. 

“Most of the people here have had the issue [in the 
Supreme Court case] raised in one way or the other,” 

4 Snook said. 

pending challenges by several Virginia inmates to theif 

PRP 

Death penalty opponents in Virginia have long pointed 
i “to the disproportionate number of blacks Who have been 
. executed in the state’s electric chair, They said the state's 
. once legally sanctioned racism was one of the reasons for : 
the alarming statistics, and that bias lingers in Virginia's 
courts. 

1 More than 85 percent of the 2 242 people executed in the, 

“Continued on ‘page 13, col. 1 

  

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Virginia observers say 
Continued from first page 

/ (he state since 1908 have been black. 
: | "All but one of the executed murderers 

— James Briley of Richmond — have 
been electrocuted for killing whites. 
Half of the 34 men now on Virginia's 
death row are black, according to the 
Department of Corrections, and only 
a few of them were convicted of capi- 
tal crimes against blacks. 

“I don’t think anybody would deny 
_ that Virginia has an incredible racial 
history,” Kendrick argued. “And the 
influence of race, in the death penalty 
in particular, has been more pro- 
nounced than in other areas. Race is 
still a factor here in who receives the 
death penalty.” 

He said that race contaminates 
| Virginia cases just as much as in the 

| Georgia appeal. In both states, the 
L killers of whites — especially blacks 

— face a much greater risk of being 
condemned to death than the killers 
of blacks. Ironically, blacks are the 
victims in a disproportionate number | 
of slayings. 

Professor Richard J. Bonnie, an ex- 
Wokiprogre Se andthe death 
penalty, also described the ruling as 
predictable. 

Bonnie, a University of Virginia 
law professor who has acted as co- 
counsel for four death row inmates, 
two of whom have been executed, 
said there might still be “room left 
for more refined arguments” based 
on the Georgia study. 

“My view of the Georgia study was 

[ 

  

fi Death Tow 
The NAACP Legal De- 

fense and Educational 
Fund says that on death 

. row there are: Gi 

ml, 874 people - st 1,8 855 
males and 19 females. Sh 

a 944 whites. 

" 777 blacks. © 

om 110 Hispanics. (a 

m 43 ‘others (25 native 
Americans; 9° Asians, ] 
EROS) bird       

( that its data did not convincingly Sups 
| port an argument against the death. 
penalty across the board,” he said. 

    

2; pa 

ticular “offense is committed with| 
great frequency and where, in ‘the! 
ordinary course of administering an; 
individual charging or! Sentencing 4 
process, through the exercise of pre- *. 
secutorial discretion and sentencing 
leniency, only a- small proportion of 

. the offenders who! cominit the offense 
actually get the death penalty,” lie : 

, said. 

the course of armed 

* The data “strongly supported 4. 
“argument that” the death penalty can. 

. be imposed without discriminatory. 
| effect “in a very narrowly defined set . 
| 
| 

\ 
of capital homicides,” he said. 

These are offenses “where in Geor- 
gia as well as in Virginia, the death 
penalty is imposed in a substantial 

~ number of the cases where it is avail 
able,” Bonnie said. Those cases in- 
clude the murder of a police officer. 
and rape/murder. 

The potential for discrimination 
arises in relation to other offenses for | 
which the death penalty ight be im- 
posed, Bonnie said. 

“The problem arises where the par- 
    

court’ s ru 

" Bonnielcited as examples of ‘this 3 
kind of offenses killings among fam- : 

+ ily members or acquaintances, and 
killings 

. :robberied. . it 
' Those ‘are more tréqiient otout: # 

rences where ° ‘a Tot of sorting. goes 
on,” Bonnie said.. “Those are. the of- 
fensés where we should be most wor- i 
ried about ‘the factors that go int. 
determining which of those ‘people 
are going to face imposition of the 
death penalty.” 

Alvin‘ J. Bronstein, head of the 
ACLU’s National Prison Project in 

“Washington; said the decision was un- 
fortunate but it. does not ‘close the | 
door on arguments that discrimina- 
tion may have taken lie in every: 

'* individual case. 
+ “They have said the. survey created: 

the inference of discrimination but 

  

that there's was no proof it happened A 

* “bizarre” the court’s concern with the 
administrative problems that might | 

- be created by acceptance of this kind 
- of evidence not just in death penalty 

va AER 
ug. Bh 

¥ 3 
£50 

Richmond Times Dip Thursday April 23, 1987 At 
  

ruling was no surprise * 41 
in this particular case,” he said. “It 
creates a difficult burden. We'll have 
to.prove it in an individual case.” 

Bronstein described as “sad” and 

  
cases but in other kinds of cases. 

- “They kept talking about how that 
“might be a lot of trouble but the dis- 
sent points out that death penalty 
cases are different. You should have 
to go to a lot of trouble to execute | 
people,” he said... #5 

Death penalty foes face a herculet 
an battle in Virginia. Polls show that'" 
Virginians, black and white, support 
the death penalty and the state’s top, 
elected officials and the General As. . 
sembly are solidly behind its, : 
imposition. 

Since 1976, when the US. Supreme 
Court allowed the resumption of capi® 

.. tal punishment provided certain con: 
_ stitutional criteria are met five men’ 
have died in the electric chair in thes 
fer of the State Penitentiary 
Four of them were black and the 
white was executed after he halted 
his appeals. 

NA  —



    

    

  

The View Pressory 

Mrs. Busy F Fava 

wish wna 

Merny Christan 
bo a ne { a 3 

Peacefd News Yor   
  

PEOPLE 

Greetings from Washington: ‘ 
The political Christmas card   

  

  
Georgia defeats 
‘LaSalle in Hawaii : 

SPORE: = TIT 
  

  

  
  

For 119 Years, The South’s Standard Newspaper 

THE ATLANTA CONSTITUTION 
  Copyright © 1987 The Atiants Constitution ) THURSDAY, DECEMBER 24, 1987 Fok Aodok 25 CENTS 
  

  
bery conviction still stands. 

  

| Warren — s armed rob- 

  

Me Cleskey murder conviction overturned again 
Role of jail informer cited to reopen 

By Gail Epstein 
Staff Writer 

For the second time, the same 
federal judge has thrown out the 
murder conviction of Warren 
McCleskey, reopening the nationally 
prominent case that was used to up- 
hold Georgia's death penalty. 

The ruling, issued Wednesday 
by U.S. District Judge J. Owen For- 

| case used to uphold Ga. death penalty 
rester, gives the state 120 days to 
retry McCleskey, who was convicted 
in the May 1978 slaying of an Atlan- 
ta police officer during a robbery. 
McCleskey's armed robbery convic- 
tion still stands, and he will remain 
on Georgia's death row in Jackson. 

McCleskey’s case gained nation- 
al attention last spring when the 
U.S. Supreme Court ruled 54 that 

Georgia's death penalty is legal de- 
spite statistical evidence suggesting 
that it is imposed more frequently 
against blacks who kill whites than 
against whites accused of killing 
blacks. McCleskey is black; Atlanta 
police Officer Frank Schlatt, whom 
he was convicted of killing during 
an attempted furniture store rob- 
bery, was white. 

Forrester’s ruling was based not 
on the racial argument but on newly 
discovered evidence that law en- 
forcement personnel put an inform- 
er in a jail cell next to McCleskey's 

and later used that informant’s tes- 
timony to help convict McCleskey. 

In 1964, the U.S. Supreme Court 
ruled that using an informer to elic- 
it a confession from an accused 
criminal who is represented by a 
lawyer violates the Sixth Amend- 
ment right to counsel by question- 
ing him without a lawyer present. 

“Unfortunately, one or more of 
those investigating Officer Schlatt’s 
murder stepped out of line,” For- 
rester wrote in his 38-page opinion. 

“Determined to avenge his 
death, the investigator(s] violated 

clearly established case law. ... In 
doing so, the investigator{s) ignored 
the rule of law that Officer Schlatt 
gave his life in protecting, and 
thereby tainted the prosecution of 
his killer.” 

McCleskey had heen scheduled 
to die in the electric chair in July, 
but Forrester postponed the execu- 
tion. Jack Boger, a lawyer for the 
NAACP Legal Defense Fund who 
represented McCleskey, said the 
fact that the victory stemmed from 
new evidence of a constitutional vi- 

See McCLESKEY, Page 8-A 

  

    

  

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McCleskey 
  

‘From Page 1-A 
olation reasserts “the evils of capi- 
tal punishment.” 

“If we had found out about this 
a year from now, we could have 
written McCleskey’s family a sad 
note,” Boger said. “We have, 1 
think, saved Mr. McCleskey’s life 
before an injustice was done.” 

Georgia Attorney General Mike 
Bowers had not seen the ruling, 
but said there is a “substantial like- 

~ lihood” of an appeal to the 11th 
U.S. Circuit Court of Appeals. 
Forrester previously overturned 
McCleskey’s conviction in February 
1984 on different grounds. The 11th 
Circuit reversed Forrester’s ruling 
in 1985, and the U.S. Supreme Court 

+ affirmed the 11th Circuit in April. 
McCleskey’s attorneys then filed 

a new petition for habeas corpus. 
Forrester stayed McCleskey’s 

execution indefinitely after retired 
Fulton Deputy Sheriff Ulysses Wor- 

“thy testified during a hearing that a 
law enforcement officer asked him 
to move informer Offie Evans to the 
cell next to McCleskey’s. 

- Although Worthy’s testimony 
was at times contradictory, and de- 
spite testimony from law officers 
disputing Worthy’s contention, For- 
rester held that Evans was iliegally 
working as an agent for the state 
when he elicited incriminating 
statements from McCleskey. 

“It is not possible to find that 
the error was harmless,” Forrester 
wrote, because “Evans’ testimony 
about {McCleskey’s] incriminating 

  

statements was critical to the state's 
case” and could have contributed to 
the jury’s guilty verdict. 

Evans’ testimony that McCleskey 
confessed to being the triggerman 
also was critical to the imposition 
of the death sentence, Boger said: 
Now that Forrester has ruled Ev- 
ans’ testimony was illegally ob-4- : 
tained, McCleskey could be convict- 
ed in a retrial but the state would 
have a difficult time reimposing the 
death sentence, Boger said. 

McCleskey’s attorneys had trie 
earlier to establish that Evans was 
planted in the cell next to McCles- 
key’s, but they had no success — un- 
til June. 

Then, armed with a new court 
decision opening police investiga- 
tive files in closed cases, they filed 
a request with the city of Atlanta 
for other documents relating to 
McCleskey’s case. City attorneys 
turned over a statement from Evans 

_ detailing how he won McCleskey’s 
confidence and elicited incriminat- 
ing statements from McCleskey 
while they were jailhouse 
neighbors. 

McCleskey's attorneys then in- 
“ terviewed Worthy for the first time 
and discovered that Evans had been 
planted in the cell as an informant. 

State attorneys had argued that i. 
McCleskey’s conviction should be 
upheld because he was too late in 
raising the issue of new evidence. 
But Forrester disagreed, saying 
there was no reason for McCleskey’s 
attorneys to have known about Ev- 
ans’ statement to police or to have 
interviewed Worthy earlier. 

Staff writer Bill Dedman con- 
tributed to this report. 

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