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No. 84-6811 
  

  

IN THE 

Supreme Court of the United States 
OCTOBER TERM, 1986 

WARREN MCCLESKEY, 

Petitioner, 

VY. 

RaLpH M. KEMP, 

Respondent. 

On Writ of Certiorari to the 

United States Court of Appeals for 
The Eleventh Circuit 

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
AND BRIEF AMICUS CURIAE OF THE 

INTERNATIONAL HUMAN RIGHTS LAW GROUP 
IN SUPPORT OF PETITIONER 

Of Counsel: * RALPH G. STEINHARDT 

STEVEN M. SCHNEEBAUM 720 20th Street, N.W. 
PATTON, Boggs & Brow or i -C. 20052 
2550 M Street, N.W. 
Washington, D.C. 20037 * Counsel of Record 

LARRY GARBER 
INTERNATIONAL HUMAN RIGHTS 
Law GROUP 

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

  

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203  



    

 



MOTION OF THE 
INTERNATIONAL HUMAN RIGHTS LAW GROUP 

TO FILE BRIEF AMICUS CURIAE 
IN SUPPORT OF PETITIONER 

Pursuant to Rule 36.3 of the Rules of this Court, 

the International Human Rights Law Group (the Law 
Group) moves for leave to file the attached brief Amsa- 
cus Curiae in support of Petitioner. The Law Group 
1s a non-profit organization of international lawyers 
and scholars, which, through litigation, publication, 
and other public activism, seeks to promote respect 
for human rights norms in all nations, including the 
United States. 

By order dated October 7, 1985, this Court allowed 
the Law Group to file a brief Amicus Curiae in sup- 
port of the petition for a writ of certiorari in this 
case. Having argued in favor of the propriety of re- 
view, the Law Group now moves to file a brief on 
the merits. In particular, Amicus wishes to submit 
for this Court’s consideration the argument that the 
en banc decision below approved an admittedly ra- 
cially-diseriminatory system for the imposition of the 
death penalty, which violates peremptory norms of 
international law. In failing to consider international 
law as a relevant source of the rule of decision, the 
Eleventh Circuit’s opinion violates the Supremacy 
Clause of the Constitution as interpreted. At a min- 
imum, the decisions of this Court oblige the Eleventh 
Circuit to consider international standards in deter- 
mining whether Petitioner's sentence was ‘“‘cruel and 
unusual” within the meaning of the Eighth Amend- 
ment. 

  
Amicus also brings a unique institutional perspec- 

tive to these proceedings. Between 1980 and 1984,



  

the Law Group sought to litigate the very issues of 

race discrimination raised in this case before the In- 

ter-American Commission on Human Rights, an in- 

strumentality of the Organization of American States. 

On October 3, 1984, the Commission held the Law 

Group’s petition inadmissible on certain procedural 

grounds and in particular on the representation of 

the United States that U.S. courts should be allowed 

to consider the Law Group's data and argumentation. 

Amicus files this brief in order to lay before this 

Court these legal and empirical submissions. 

Amicus is not aware of any other presentation of 

these data or arguments to this Court. Counsel for 

Petitioner has consented to the filing of this brief. 

Amicus sought the consent of counsel for Respondent 

who declined to provide it, necessitating this motion. 

Respectfully submitted, 

RALPH G. STEINHARDT 

720 20th Street, N.W. 

Washington, D.C. 20052 
(202) 676-5739 

Counsel of Record for the 

INTERNATIONAL HUMAN RIGHTS 

LAW GROUP 

August 21, 1986 

   



TABLE OF CONTENTS 

SUMMARY OF ARGUMENT “i... soni hl nan, 

LTE eT ha Ce ela ve SLC LG li 

1 

4 

II. 

DATA SUBMITTED TO THE INTER-AMER- 
ICAN COMMISSION ON HUMAN RIGHTS 
ESTABLISH THAT THE DEATH PEN- 
ALTY IS IMPOSED IN A RACIALLY DIS- 
CRIMINATORY MANNER IN THE STATE 
OR GEORGIA, ........000tisiimnst Brvsiisissois 

THE EXISTENCE OF RACIAL DISCRIMI- 
NATION AS ACKNOWLEDGED BY THE 
COURT OF APPEALS FOR THE ELEV- 
ENTH CIRCUIT EN BANC VIOLATES A 
PEREMPTORY ° NORM OF INTERNA- 
TIONAL LAY oi iocorecosmons rnsssssomseinensnsns 

THE ELEVENTH CIRCUIT WAS RE- 
QUIRED TO CONSTRUE THE GEORGIA 
DEATH PENALTY STATUTE CONSIST- 
ENTLY WITH PERTINENT INTERNA- 
TIONAL LAW AND FAILED TO DO SO. . 

CONCLUSION i... vdovesris ss ervinet iden ta ukiin ds oh Sie debe cor ties euiaslits 

12 

17 

 



  

  

TABLE OF AUTHORITIES 
CASES: Page 

Barcelona Traction Light and Power Co., Ltd., [1970] 
LiC.d. BED. 32. ..livisveciiiiriciosssnnisnnsiisossmmssinnonn 11 

Blonder-Tongue Laboratories, Inc. v. University of 
Hlinvis Foundation, 402 U.S. 313 (1871)  ...... 

Chisolm. uv. Georgin, 2 Da. 419 (A793) ..coovrvcivsinnnans 13 

Coker: v. Georgia, 433: 11.8. 584 (A977) .covivseisinnsiv. 15 

Cook v. United States, 438 U.S. 102 (1983) .......... 15 

Eddings. v. Oklahoma, 455 U.S. 104 (1982) .......... 4 

Evwrmund v. Floride, 458 U.S. 732 (1982) ............. 16 

Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 
1980), aff'd sub mom. Rodriguez-Fernandez wv. 
Wilkinson, 654 F.2d 1382 (10th Cir. 1981) .... 14 

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 
TORY io ieii brivis sassdinsisiyrnnabssssotaniivhisdsvhin 14 

First National City Bank v. Banco Para el Com- 
mercio Exterior de Cuba, 103 S.Ct. 2591 
8h HEE ED SN SE PR a St i 13 

Lauritzen v. Larsen, 345 U.S. 571 (1953) hier 15 

Legal Consequences for States of the Continued Pres- 
ence of South Africa im Namibia (South West 
Africa) Notwithstanding Security Council Reso- 
lution 276, [1971} 1.C.J. Rep. 87 ....... ...0.... 11 

McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985) 
C0 DOUBLY. iiiieciiniciviiiniocininisrnmassbnssrisisansionans 3.78 

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

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 
64 (1304)  ......octinrrsiiimencnstmorssnransirsnsttarsrass 15 

The Nereide, 13 U.S. (9 Cranch) 388 (1815). ........ 13 

North Sea Continental Shelf Cases, [1969] 1.C.J. Rep. 
CE al Iai Ll Re 14 

The Paquete Habana, 175 U.S. 677 
gin Ese OR ele Le ER 3, 12, 14, 16 

k



iii 

Table of Authorities Continued 

Page 

Procuwier wv. Novarelie, 434:U0.8.4555 (1978) .....e. 4 

Respublica v. DeLongchamps, 1 U.S. 119, 1 Dall. 111 
(0:87. Pa. 1788): i ..cocoolstioricrsvinmibrivinrnnnaothsnnins 14 

oy West Africa Cases (Second Phase), [1966] 1.C.J. " 

Spinkelink v. Wainwright, 578 F.2d 582 (5th Cir. 
(1978), cert. 'devied, 404 11.8. 976 (1979) ....... 6 

Talbot ».: Seeman, 5 U.S. (1 Cranch) 1 (1801) _ ...... 15 

Trop uv. Dulles, 356 11.8, 86 (1958) ......uiiiiii 3.15, 16 

Vance uv. Terrazas, 444 1.8, 252 (1980) ....coceenseess 4 

Village of Arlington Heights v. Metropolitan Hous. 
Dev. Corp., 429:11.8.,1282 (QOTT).. ivciiecssssvnineses 17 

Ware ». Hylion, 3 -U.8. (3 Da.) 199 (1796) ............ 13 

Weinberger. uv. Bossi, 456: 1.8. 25 (1982). .v.ivmeresnene 15 

Wood 2... Georgio, 450 U.S. . 26% (1981) ii..ccciiil. iii; 4 

TREATIES, DECLARATIONS, STATUTES, AND REGULATIONS 

American Convention on Human Rights, signed Nov. 
22, 1969, OAS Official Records OEA/Ser. K/ 
XV1ii, Dec. 85 Rev. 1, Corr. 1 (Jan. 7, 
Y0T0Y  ...coviceatonaboricisissnonsravasasionsdobeddisonsibdopesde 9 

American Declaration on the Rights and Duties of 
Man, O.A.S. Res. XXX, adopted by the Ninth 
International Conference of American States, 
held at Bogota, Colombia (1948), OEA/Ser. L./ 
YA. 4 Bey, (1968) . .ccoovoiinne ediind Babin ti its 10 

Declaration of Social Progress and Development, 
adopied Dec. 11, 1969, G.A.Res. 2542, 24 U.N. 
GAOR, Supp. (No. 30) 49, U.N. Doc. A/7630 
CUIOGD)  .....o enim itches sens ltaiss ciate 10 

 



  

iv 

Table of Authorities Continued 

Page 

Declaration on the Promotion Among Youth of the 
Ideals of Peace, Mutual Respect and Under- 
standing Between Peoples, adopted Dec. 7, 1965, 
G.A. Res. 2037, 20 U.N. GAOR, Supp. (No. 14) 
40, UN. Dec. ABOLE (1988) . ..cc.sieecisisnsivioases 10 

The International Convention on the Elimination of 
All Forms of Racial Discrimination, opened for 
signature March 7, 1966, 660 U.N.T.S. 195 .. 9 

International Covenant on Civil and Political Rights, 
adopted Dec. 16, 1966, G.A. Res. 2200A, 21 U.N. 
GAOR, Supp. (RO. 16) ...cciierrricmriivasusiorsnnanes 9 

International Covenant on Economic, Social, and Cul- 
tural Rights, adopted Dec. 16, 1966, G.A. Res. 
2200A, 21 U.N. GAOR, Supp. (No. 16) .......... 9 

Organization of American States Charter, signed 
April 30, 1948, entered into force December 13, 
1951, 2 U.S.T. 2394, T.1.A8. No. 2861 ..... 9 

United Nations Charter, signed June 26, 1945, en- 
tered into force October 24, 1945, 59 Stat. 1031, 
B.S. NO, 99 cise iiiiieiiisnnsi ibis nivnisinnrens 9 

United Nations Declaration on the Elimination of All 
Forms of Racial Discrimination, adopted Nov. 
20, 1963, G.A. Res. 1904, 18 U.N. GAOR Supp. 
(No. 15) 35, 86, UN. Doe. A/5B15 (1963) .... 10 

Universal Declaration of Human Rights, G.A. Res. 
A7A (dD, UN. Doc. A/S10 (1948) ..........oc00ms 10 

Vienna Convention on the Law of Treaties, adopted 
May 22, 1969, entered into force, Jan. 17, 1980, 
U.N. Doc. A/CONF. 39/27 (1969), reprinted in 
63 AMER. J. INT’l L. 875 (1969), 8 INT'L LEG. 
MAT. 879 (1969).  cccovviivnnirrriiiciens denis losers. 8 

LEGISLATIVE MATERIALS: 

S. Exec. Doc. L.; 924 Cong., lst Sess. A971) ...... 9 

MISCELLANEOUS: 

 



Table of Authorities Continued 

American Law Institute, Restatement of 
Foreign Relations Law of the United States 
(Berised) (1980) ...coioscenssirmimsimsrinnsmikecivsessibennns 12, 13 

Baldus, et al., Monitoring and Evaluating Contem- 
porary Death Sentencing Systems: Lessons From 
Georgia, 18 U.C. DAVIS 1. REV. 15375 
CD ) iirrtiiei es cecnissssintassmsranensrsenbunsitesinsa burrs 7 

Barnett, Some Distribution Patterns for the Georgia 
Death Sentence, 18 U.C. DAVIS L. REV. 1327 
EL Bae Ee ee OS EE eh Sea 7 

Gross, Race and Death: The Judicial Evaluation of 
Evidence of Discrimination In Capital Sentenc- 
ing, 18 U.C. DAVIS L. REV 1275 (1935) .... 7 

Henkin, International Law as Law in the United 
States, 32 MICH. L. REV. 1555 (1934) ......... 13 

Lillich, “The Role of Domestic Courts in Enforcing 
International Human Rights Law,” Guide To In- 
ternational Human Rights Practice (1984) ..... 11 

McDougall, Lasswell, & Chen, Human Rights and 
World Public Order (1980). .......5ccoeniiiieinnn.ns 11 

McKean, Equality and Discrimination Under Inter- 
notin Log (TI83) © ol rei cicsvvineseiniit inion 11 

Memorial of the United States, The Case Concerning 
United States Diplomatic and Consular Staff in 
Tehran (Uniled Stotes vu. Irom), [1980] 1.C.J. 
Pleadings 131 (January 1980) '......coeererevveeiannes 10 

OD. MEY Gent. 27 (1972). 1..issvecnsssissescropssresuusnsssas 13 

Santa Cruz, Racial Discrimination, U.N. Doc. E/CN. 
41 Sub. 2/207/Ray, 1, 28 (1971) ....occeceicetncnn. 10 

Zeisel, Race Bias in the Administration of the Death 
Penalty: The Florida Experience, 95 HARV. L. 
REY. BB ORLY 7 

 





IN THE 

Supreme Court of the United States 
OcTOBER TERM, 1986 

  

No. 84-6811 
  

WARREN MCCLESKEY, 

Petitioner, 

v. 
RaLpH M. KEMP, 

Respondent. 

On Writ Of Certorari to the 

United States Court of Appeals 
For the Eleventh Circuit 

  

BRIEF AMICUS CURIAE OF THE 
INTERNATIONAL HUMAN RIGHTS 

LAW GROUP IN SUPPORT 
OF PETITIONER 
  

INTEREST OF AMICUS 

The International Human Rights Law Group is a 
non-profit organization of international lawyers and 
scholars which seeks to promote the observance of | 
international human rights norms by providing legal i 
assistance and information to individuals and groups 
on a pro bono basis; representing clients in interna- 
tional forums; and participating amicus curiae in U.S. 
litigation involving international human rights norms. 

 



  

The Law Group respectfully submits and intends to 
demonstrate that this case requires consideration of 
relevant human rights law. 

The Law Group also has a unique and direct in- 
stitutional stake in the resolution of this case. In 1980, 

the Law Group petitioned the Inter-American Com- 
mission on Human Rights, an instrumentality of the 
Organization of American States (the Commission), to 

declare that capital sentences in the United States 
are imposed in a racially discriminatory manner. In 
particular, the Law Group argued that the death pen- 
alty 1s imposed disproportionately on those defendants 
the victims of whose crimes are white and that such 
discrimination based upon the race of the victim was 
in violation of treaties to which the United States is 
a party. After receiving statistical evidence similar to 
that presented below by Petitioner herein, the Com- 
mission held the Law Group’s petition inadmissible on 
procedural grounds, and effectively deferred the Law 
Group’s international claims pending an authoritative 
disposition of the issue by American courts. 

The Law Group submits this brief in order to lay 
before this Court the race discrimination data sub- 
mitted to the Commission, and to demonstrate that 

the en banc court below failed to construe the Georgia 
death penalty statute consistently with binding inter- 
national law, thereby committing reversible error. 

SUMMARY OF ARGUMENT 

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

 



victims were white. Indeed, the court below expressly 
‘“assum[ed] the validity of the research’ and acknowl- 
edged ‘‘that it proves what it claims to prove.” 
McCleskey v. Kemp, 753 F.2d 877, 886 (llth Cir. 1985) 

(en banc). The conclusion as a matter of law that this 

evidence established no violation of the Eighth and 
Fourteenth Amendments to the U.S. Constitution does 
not exhaust the legal analysis the court was required 
to undertake. In particular, the en banc court failed 
to consider international law as a pertinent source of 
the rule of decision. Under The Paquete Habana, 175 

U.S. 677 (1900) and its progeny, the Georgia death 
penalty statute should have been considered in light 
of the peremptory norm of international law con- 
demning racial discrimination—a customary norm to 
which the United States is bound beyond peradven- 
ture. The failure to consider an applicable source or 
guarantor of Petitioner’s rights is reversible error. At 
a minimum, the case should be remanded to the Elev- 

enth Circuit Court of Appeals for its analysis of the 
limits imposed by this international obligation on the 
discretion of State officials to administer the death 
penalty. 

In addition, under Trop v. Dulles, 356 U.S. 86 (1958) 
and its progeny, the Eleventh Circuit should have 
consulted international standards in determining the 
contours of the Eighth Amendment's ban on cruel 
and unusual punishment. 

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

  

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

 



  

Amicus offers no opinion as to the circuit court's 
disposition of purely domestic legal issues. 

ARGUMENT 

I. DATA SUBMITTED TO THE INTER-AMERICAN 
COMMISSION ON HUMAN RIGHTS AND TO THE 
COURT BELOW ESTABLISH THAT THE DEATH 
PENALTY IS IMPOSED IN A RACIALLY DIS- 
CRIMINATORY MANNER IN THE STATE OF 
GEORGIA. 

On August 6, 1980, Amicus submitted a petition to 
the Inter-American Commission on Human Rights, an 
instrumentality of the Organization of American 
States, alleging that the United States imposed the 
death penalty in a racially discriminatory manner. The 
data submitted to the Commission established a pro- 
nounced pattern of racially-based disparities in death 
sentencing based on the race of the victim. In par- 
ticular, the evidence showed that a person convicted 
in the State of Florida of murdering a white person 
was ten times more likely to receive the death penalty 
than one convicted of murdering a black person.? In 
  

it has the power to consider relevant issues raised in a case ‘““in 
the interest of justice,” irrespective of whether those issues were 
previously raised, Wood v. Georgia, 450 U.S. 251, 265 n. 5 
(1981). The exercise of that power is especially appropriate in 
capital cases. Eddings v. Oklahoma, 455 U. S. 104 (1982). See 
also, Vance v. Terrazas, 444 U.S. 252 (1980); Procunier v. Na- 
varette, 434 U.S. 555, 559-60 n. 6 (1978); Blonder-Tongue Lab- 
oratories, Inc. v. University of Illinois Foundation, 402 U.S. 
313, 320-21 n. 6 (1971). 

? The data are described in the affidavit of Professor William 
J. Bowers, which is attached hereto in the Appendix. The Florida 
data appear on pp. 2a and 5a. 

 



Texas, the ratio was eighteen to one.? In Georgia, 

where this litigation arose, it was twelve to one, a 
figure which reinforces the conclusions of the study 
submitted by Petitioner herein. More specifically, the 
Law Group's statistician, Professor William Bowers 
of Northeastern University, produced the following 
tabulation: 

PROBABILITY OF RECEIVING THE DEATH 

SENTENCE FOR CRIMINAL HOMICIDE BY RACE 

OF OFFENDER AND VICTIM IN GEORGIA FROM 

THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 19772 

Estimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 
White 1082 41 .038 
Black 2716 49 018 

Race of Victim 

White 1265 76 .060 
Black 2529 25 .005 

Offender/Victim 
Racial Combinations 

Black Kills White 258 37 .143 
White Kills White 1006 39 .039 
Black Kills Black 2458 12 .005 
White Kills Black 71 2 .028 

All Offenders 3798 90 .024 

  

a Data Sources: Supplementary Homicide Reports on criminal hom- 
icide data from April 1973 through December 1976, supplied by the 
Uniform Crime Reporting Program, Federal Bureau of Investigation, 
United States Department of Justice, Washington, D.C.; (2) Supple- 
mentary Homicide Reports on criminal homicide data for 1977, supplied 

  

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

 



  

by the Criminal Activity Reporting Unit, Georgia Bureau of Investi- 
gation, Georgia Crime Information Center, Atlanta, Georgia; (3) Vital 

Statistics tabulations on willful homicide from April 1973 through De- 
cember 1977, supplied by the Office of Health Services Research and 
Statistics, Division of Physical Health, Atlanta, Georgia; (4) Persons 

sentenced to death from April 1975 through December 1977, supplied 
by Georgia Committee Against the Dealth Penalty, Atlanta, Georgia. 

b The estimated number of offenders for a given category is obtained 
by multiplying the reported number of offenders in that category for 
the years 1976, 1977 (sources: 1, 2) by a victim-based adjustment factor 
to correct for undercoverage. The adjustment factor 4.453 equals the 
number of homicide victims from April 1973 through December 1977 
(source: 3) divided by the number of homicide victims in the years 1976, 

1977 (sources: 1,2). 

Thus, although black defendants on average were 
less likely than white defendants to receive the death 
sentence (.018 versus .038), black defendants who 
killed white people were more likely than any other 
group to receive that sentence by several orders of 
magnitude. And when the data are controlled for 
defendant’s race, as noted, the defendant of either 

race who kills a white person is twelve times more 
likely to be sentenced to death than the defendant of 
either race who kills a black person (.060 versus .005). 

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

 



fairly to any such demonstration. Opposition of: the 
United States, Case 7465, Inter-American Commis- 

sion on Human Rights (June 16, 1981). In light of 
this representation and on other procedural grounds, 
the Commission denied the petition on October 3, 
1984, noting that the statistical evidence submitted 
was more appropriately directed to a domestic court 
in each individual case. 

The Law Group’s data, unchallenged and stark as 
they are standing alone, become especially compelling 
in light of other consistent and sophisticated dem- 
onstrations of the same phenomenon, including the 
Baldus study in the instant litigation and multiple 
reports in the scholarly literature. See e.g., Zeisel, 
Race Bias in the Administration of the Death Penalty: 
The Florida Experience, 95 HARV. L. REV. 456 
(1981); Gross, Race and Death: The Judicial Evalu- 

ation of Evidence of Discrimination in Capital Sent- 
encing, 18 U.C. DAVIS L. REV. 1275 (1985); Barnett, 

Some Distribution Patterns for the Georgia Death Sen- 
tence, 13 U.C. DAVIS L. REV. 1327 (1985); Baldus, 
et al., Momitoring and Evaluating Contemporary 
Death Sentencing Systems: Lessons From Georgia, 18 
U.C.. DAVIS L. BEY. 1375 (1985). ‘To Awmicus's 
knowledge, the only sustained attack on any of these 
studies is the en banc court’s treatment of the Baldus 
study in the decision below. Though lengthy, that at- 
tack suffers from inconsistency* and an apparent un- 

  

+ Despite its apparent rejection of the Baldus data in parts of 
its opinion, the en banc court was also willing to “assume the 
validity of the research.” 753 F.2d at 886, acknowledging ‘‘that 
it proves what it claims to prove.” Id. 

 



  

8 

familiarity with rudimentary mathematics. The 
evidence remains persuasive that there exists a 
marked, significant disparity in the susceptibility of 
certain categories of defendants to the ultimate sanc- 
tion and that that disparity is determined by race. 
The values placed on white and black lives in Georgia 
are demonstrably unequal. 

II. THE EXISTENCE OF RACIAL DISCRIMINATION 
AS ACKNOWLEDGED BY THE COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT EN 
BANC VIOLATES A PEREMPTORY NORM OF IN- 
TERNATIONAL LAW. 

The right to be free from official government-spon- 
sored discrimination on the basis of race is so uni- 
versally accepted by nations as to constitute a 
peremptory norm of international law.® It is included 

  

5 For example, the Eleventh Circuit focused on the “.06” dis- 
parity by race of victim in overall death sentencing rates, as 
reported by Baldus. It consistently viewed this as a six percent 
disparity, 753 F.2d at 896, 899. But the figure is in fact a six 
percentage point disparity, raising the overall death sentence rate 
from .05 to .11, a percentage increase of 120%, not 6%. 

Petitioner and other Amici offer a thorough critique of the 
Eleventh Circuit's statistical acumen. See Motion for Leave To 
File Brief Amici Curiae and Brief Amici Curiae For Dr. Peter 
W. Sperlich, Dr. Marvin E. Wolfgang, Professor Hans Zeisel 
and Professor Franklin E. Zimring in Support of the Petition 
for Writ of Certiorari, filed herein on June 27, 1985. 

5 A peremptory norm of international law is a “norm accepted 
and recognized by the international community of states as a 
whole as a norm from which no derogation is permitted and 
which can be modified only by a subsequent norm of general 
international law having the same character.” Vienna Conven- 
tion on the Law of Treaties, adopted May 22, 1969, entered into 

force, January 17, 1980, U.N. Doc. A/Conf. 39/27 (1969), re- 

 



in such fundamental texts as the Charter of the 
United Nations’, and the Charter of the Organization 
of American States,® both of which are treaties ra- 

tified by and binding upon the United States. Similar 
prohibitions are found in every comprehensive inter- 
national treaty pertaining to human rights® and in 
  

printed 'n 63 AMERICAN J. INT'L L. 875 (1969), 8 INT'L 
LEG. MAT. 679 (1969). Although the Vienna Convention has 
been signed but not ratified by the United States, the Depart- 
ment of State, in submitting the Convention to the Senate, stated 

that it “is already recognized as the authoritative guide to cur- 
rent treaty law and practice.” S. Exec. Doc. L., 92d Cong., 1st 

Sess. (1971) at 1. 

"U.N. Charter, signed June 26, 1945, entered into force Oc- 

tober 24, 1945, 59 Stat. 1031, T.S. No. 933, at Article 55(c). 

8 O.A.S. Charter, signed April 30, 1948, entered into force 

December 13, 1951, 2 U.S.T. 2394, T.I.A.S. No. 2361, at Article 

33). 

® International Convenant on Civil and Political Rights, adopted 
December 16, 1966, G.A. Res. 2200A, 21 U.N. GAOR, Supp. 

(No. 16), Articles 2(a), 13, 26; International Covenant on Eco- 
nomic, Social, and Cultural Rights; adopted December 16, 1966, 

G.A. Res. 2200A, 21 U.N. GAOR, Supp. (No.16), Article 2(2); 
American Convention on Human Rights, signed Nov. 22, 1969, 

OAS Official Records OEA/Ser. K/XVI/i.i, Doc. 65, Rev. 1, Corr. 

1 (Jan. 7, 1970), Articles 22(7) 22(9), 24; The International Con- 
vention on the Elimination of All Forms of Racial Discrimination, 

opened for signature March 7, 1966, 660 U.N.T.S. 195, Articles 
1, 2. The United States has signed but not yet ratified each of 
these treaties. Under Article 18 of the Vienna Convention on 
the Law of Treaties, supra, the United States is obliged not to 
defeat the object and purpose of these conventions prior to their 
entry into force. In addition, those international agreements to 
which the United States is not a party may nevertheless create 
or evidence a customary norm which is equally authoritative and 
equally binding. North Sea Continental Shelf Cases, [1969] 1.C.J. 
Rep. 37. Other treaties which prohibit racial discrimination are 

 



10 

numerous international declarations and resolutions. 
The most authoritative of these—the Universal Dec- 
laration of Human Rights'—sets forth in various 
forms a basic guarantee of rights and freedoms ‘‘with- 
out distinction of any kind, such as race ... [or] na- 
tional or social origin,” 7d., at Articles 2, 7, and 14. 
In international adjudication, the United States itself 
has invoked those provisions as evidence of the core 
human rights protected by international law.!2 The 
renunciation of official racial discrimination is re- 
flected as well in the laws and constitutions of a vast 
majority of states,’ and is conceived as the center- 

  

catalogued in Appendix B to Amicus’ Brief in Support of Petition 
for Certiorari, filed herein on July 8, 1985, at 8a-9a. 

10 United Nations Declaration on the Elimination of All Forms 
of Racial Discrimination, adopted Nov. 20, 1963, G.A. Res. 1904, 
18 U.N. GAOR Supp. (no. 15) 35, 36, U.N. Doc. A/5515 (1963); 
American Declaration of the Rights and Duties of Man, 0.A.S. 
Res. XXX, adopted by the Ninth International Conference of 
American States, held at Bogota, Columbia (1948), OEA/SER.L./ 
V/I. 4 Rev. (1965), Articles II, XXCII: Declaration of Social 
Progress and Development, adopted Dec. 11, 1969, G.A. Res. 
2542, 24 U.N. GAOR, Supp. (No. 30) 49, U.N. Doc. A/7630 
(1969), Articles 1, 2; Declaration on the Promotion Among Youth 
of the Ideals of Peace, Mutual Respect and Understanding Be- 
tween Peoples, adopted Dec. 7, 1965, G.A. Res. 2037, 20 U.N. 
GAOR, Supp. (No. 14) 40, U.N. Doc. A/6015 (1965), Principles 
1; 3. 

1 G.A. Res. 217A(III), U.N. Doc. A/810 (1948). 

12 Memorial of the United States, The Case Concerning United 
States Diplomatic and Consular Staff in Tehran (United States 
v. Iran), [1980] I.C.J. Pleadings 181, n. 3 (January 1980). 

13 Santa Cruz, Racial Discrimination, U.N. Doc. E/CN. 41 

Sub. 2/307/Rev. 1, 28 (1971). See South West Africa Cases (Sec- 
ond Phase), [1966] 1.C.J. 4, 299 (Tanaka, J., dissenting). 

 



11 

piece of contemporary human rights norms in the 
writings of international law scholars. 

Recognizing this consistent and universal condem- 
nation of racial discrimination, the International Court 

of Justice has concluded that ‘‘the principles and rules 
concerning the basic rights of the human person, in- 
cluding protection from ... racial discrimination,” 
constitute an international obligation of all states. 
Case Concerning The Barcelona Traction Light and 
Power Co., Ltd., [1970] I.C.J. Rep. 32. The Interna- 
tional Court has also concluded that 

to establish ... and to enforce distinctions, 

exclusions, restrictions, and limitations exclu- 
sively based on grounds of race, colour, de- 
scent or national or ethnic origin 
constitutes a denial of fundamental human 
rights [and] is a flagrant violation of the pur- 
poses and principles of the [U.N.] Charter. 

Legal Consequences for States of the Continued Pres- 
ence of South Africa in Namibia (South West Africa) 
Notunthstanding Security Council Resolution 276, 
[1971] I.C.J. Rep. 57. The cumulative power of this 
international consensus has led the American Law 
Institute to include ‘‘systematic racial discrimination” 
in its authoritative catalogue of fundamental viola- 
tions of customary international law. American Law 

  

14 See e.g., Lillich, “The Role of Domestic Courts in Enforcing 
International Human Rights Law,” International Human Rights 
Practice (1984); McDougall, Lasswell & Chen, Human Rights and 
World Public Order 581-611 (1980). See generally, McKean, 
Equality and Discrimination Under International Law (1983); 
Henkin, The Rights of Man Today (1978). 

 



12 

Institute, Restatement of Foreign Relations Low of the 
United States (Revised) § T02(f) (1986).15 

Thus, the prohibition against government-sponsored 
racial discrimination is firmly grounded in all of the 
traditional sources of customary international law set 
out by Mr. Justice Gray in The Paquete Habana, 175 
U.S. 677, 700 (1900). That norm, stated in compre- 
hensive and unqualified language, has never been lim- 
ited in any authoritative way to demand some 
incontrovertible showing of individualized intent. Sim- 
larly, apparently unlike the Eighth and Fourteenth 
Amendments as read by the Eleventh Circuit, it ad- 
mits no defense of degree. Although international law, 
like domestic law, will not redress trifles, racial dis- 
crimination of the type admittedly and repeatedly 
demonstrated in this case plainly falls within the cus- 
tomary international prohibition. 

III. THE ELEVENTH CIRCUIT WAS REQUIRED TO 
CONSTRUE THE GEORGIA DEATH PENALTY 
STATUTE CONSISTENTLY WITH PERTINENT 
INTERNATIONAL LAW AND FAILED TO DO SO. 

It is axiomatic that international law is part of the 
law of the United States and that, under the Su- 

premacy Clause of the U.S. Constitution!® as inter- 
preted, it “must be ascertained and administered by 
the courts of justice of appropriate jurisdiction, as 
often as questions of right depending upon it are duly 
presented for their determination.” The Paquete Ha- 
bana, 175 U.S. 677, 700 (1900). This basic principle 
  

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

617.8. Const., Art. VI, Sec. 2. 

 



13 

has been accepted by this Court from the earliest days 
of the Republic, Chisolm v. Georgia, 2 Da. 419, 474 

(1793) (“Prior ... to that period [the date of the 
Constitution], the United States had, by taking a place 
among the nations of the earth, become amenable to 
the law of nations’); Ware v. Hylton, 3 U.S. (3 Da.) 
199, 281 (1796); The Nereide, 13 U.S. (9 Cranch) 388, 
423 (1815). It has received fresh confirmation as re- 
cently as 1983 in Justice O’Connor’s opinion for the 
Court in First National City Bank v. Banco Para el 
Commercio Exterior de Cuba, 103 S.Ct. 2591, 2598 
(1983). The executive branch has reached the same 
conclusion. See e.g., Op. Atty. Gen. 27 (1972): “The 
law of nations, although not specially adopted by the 
Constitution or any municipal act, is essentially part 
of the law of the land.”’"" 

The “law of nations” which the courts are directed 
to apply includes treaties to which the U.S. is a party, 
as well as customary international law or ‘‘interna- 
tional common law,” which arises out of the practice 
of states acting in a particular manner because they 
feel themselves legally bound to do so. This state 
practice may be deduced from treaties, national con- 
stitutions, declarations and resolutions of intergov- 
ernmental bodies, public pronouncements by heads of 
state, and empirical evidence of the extent to which 

  

17 See generally American Law Institute, Restatement (Revised) 

of the Foreign Relations Law of the United States, § 131, Com- 

ment D (‘The proposition that international law and agreements 
are law in the United States is addressed mainly to the courts. 
They are to apply international law or agreements as if their 
provisions were enacted by Congress.”); Henkin, International 
Law as Law in the United States, 82 MICH. L. REV. 1555, 
1560 (1984). 

 



14 

customary law rules are observed. See North Sea Con- 
tinenial Shelf Conses, [1969] 1.C.J. Rep. 37. Unlike 
treaties which specify obligations only for their sig- 
natories, customary international is binding on all na- 
tions by virtue of membership in the international 
community. Consent is unnecessary, and ad hoc ob- 
jection is unavailing. 

As a matter of United States law, customary inter- 
national law also creates enforceable rights and ob- 
ligations for individuals. Thus, in The Paquete Ha- 
bana, supra, this Court held that the customary 
international law of prize in time of war created rights 
in an individual whose boat had been seized in vio- 
lation of those norms. See also Respublica v. De- 
Longehoyps, 1 U.S. 119, 1 Dall. 111 (0..& T. Pa. 
1784); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 
1980); Fernandez v. Wilkinson, 505 F. Supp. 787 (D. 
Kan. 1980), aff’d on other grounds sub nom., Rodri- 
guez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir. 
1981). As The Paquete Habana teaches, when juris- 
diction is clear, customary rights by their nature are 
enforceable by individuals in U.S. courts.’® Any other 
disposition would erect the anomoly of a right without 
a remedy. Thus, in construing the Georgia death pen- 
alty statute and Petitioner’s sentence thereunder, the 
Eleventh Circuit Court of Appeals was obliged to 
“ascertain[] and administer[]”’ international law, in- 
sofar as ‘‘questions of right’ depend upon it. 175 U.S. 
at 700. 

  

18 The self-execution doctrine, generally critical in treaty anal- 
yses, is irrelevant—indeed meaningless—in the context of cus- 
tomary international law, the intent of whose draftsmen 
necessarily defies discovery. 

 



15 

The argument here is not that international law in 
any sense displaces domestic law. It is rather that 
statutes enacted by Congress or the state legislatures 
“ought never to be construed to violate the law of 
nations, if any other possible construction remains.” 
Weinberger v. Rossi, 456 U.S. 25, 33 (1982), quoting 
Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 
64, 118 (1804). See also, Talbot v. Seeman, 5 U.S. (1 

Cranch) 1, 43 (1801); Cook v. United States, 288 U.S. 
102 (1983). Lauritzen v. Lorsen, 345 U.S. 571, B78 
(1953); McCulloch v. Sociedad Nacional de Marineros 

de Honduras, 372 U.S. 10, 21 (1963). Thus, for ex- 
ample, the State of Georgia could not by statute sus- 
pend the customary laws of war or diplomatic 
immunity within its territory. So too is its imple- 
mentation of racial discrimination in the imposition 
of capital punishment a forbidden departure from 
binding customary international norms. 

At a minimum, this Court should reverse the de- 

cision below on the ground that the Eighth Amend- 
ment to the Constitution, as interpreted in light of 
international norms, prohibits death sentences tainted 
by racial discrimination. See Rodriguez-Fernandez, su- 
pra, 6564 F.2d at 1388. In Trop v. Dulles, 356 U.S, 
86, 101 (1958), this Court emphasized that the Eighth 
Amendment “must derive its meaning from evolving 
standards of decency that mark the progress of a 
maturing society.” In determining the content of these 
“evolving standards,” the Court noted that the vast 
majority of nations did not employ denaturalization 
as a punishment for desertion and concluded that such 
punishment would be “cruel and unusual” within the 
meaning of the Eighth Amendment. 356 U.S. at 102- 
103. Similarly, in Coker v. Georgia, 433 U.S. 584 

 



  

16 

(1977), this Court held that the imposition of the death 
penalty for the rape of an adult woman was ‘cruel 
and unusual,” referring explicitly to international 
standards. 433 U.S. at 596, n. 10. The Court recently 
turned again to the ‘“‘climate of international opinion” 
in determining that the death sentence was cruel and 
unusual when imposed on a defendant who had not 
intended to kill his victim. Enmund v. Florida, 458 
U.S. 782, 796 n. 22 (1932). 

Plainly then, customary international standards are 
entitled to persuasive weight under the decisions of 
this Court. As demonstrated above, there is no cus- 

tomary norm more powerful or well-established than 
the prohibition of government-sponsored racial dis- 
crimination. Under Trop, Coker, and Enmund, there- 

fore, petitioner's Eighth Amendment claim should 
have been assessed in this light. 

Obviously, the en banc court below made no attempt 
to discharge its burden under either The Paquete Ha- 
bana to apply international law or Trop and its prog- 
eny to consult international standards in determining 
the “evolving standards of decency’ protected by the 
Eighth Amendment. The en banc court did not ad- 
dress the relevant norms of international law as in- 
corporated into federal common law, nor did it address 
whether the racial disparities alleged by Petitioner fall 
within the scope of the international prohibition. In- 
stead, on the issue of discrimination, the en banc court 

of appeals contented itself with considering only the 
contours of domestic law. The court’s apparent ne- 
glect of the peremptory norm of international law 
prohibiting racial discrimination cannot be squared 
with this Court’s consistent adherence to the law of 
nations as providing the rule of decision, whenever a 

 



17 

litigant’s rights may be framed in its terms. In short, 
the en banc court’s failure to assess international law 
issues raised by its acceptance that the showing of 
discrimination was valid constitutes error which should 

be reversed by this Court. 

CONCLUSION 

“Sometimes a clear pattern, unexplainable on 
grounds other than race, emerges from the effect of 
the state action even when the governing legislation 
appears neutral on its face.” Village of Arlington 
Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 
252, 266 (1977). This is such a case. Data collected 
by Petitioner and by Amicus in parallel international 
proceedings demonstrate that unequal sanctions are 
attached to the taking of white and black lives in the 
State of Georgia. Although the structure and precise 
results of these studies may vary, the conclusion does 
not. That the court below was willing to concede the 
discriminatory impact makes its affirmation of 
Petitioner’s sentence all the more erroneous. In ad- 
dition, the en banc court’s failure to consider the in- 
ternational law issues relevant to this case violates 
the Supremacy Clause of the Constitution as inter- 
preted, and ignores the decisions of this Court which 
establish the fundamental role of international law in 
the law of the United States and its persuasive role 
in interpreting the Eighth Amendment. 

 



  

18 

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

Respectfully submitted, 

Of Counsel: * RALPH G. STEINHARDT 
720 20th Street, N.W. 

STEVEN M. SCHNEEBAUM Washington, D.C. 20052 
PATTON, BoGGSs & BLow (202) 676-5739 
2550 M Street, N.W. * Counsel of Record 
Washington, D.C. 20037 

LARRY GARBER 

INTERNATIONAL HUMAN RIGHTS 

LAw GROUP 

722 Fifteenth Street, N.W. 
Suite 1000 

Washington, D.C. 20005 

  

  

 



APPENDIX 

 





la 

APPENDIX 

AFFIDAVIT OF PROFESSOR WILLIAM BOWERS 

I am a sociologist with particular training in statistics and 

computer applications to sociology. I graduated from Wash- 

ington and Lee University in 1957 and received my doctorate in 

sociology in 1966 from Columbia University. I am presently a 

professor of sociology at Northeastern University, Boston, 

Massachusetts, and Director of that University’s Center for 

Applied Social Research. 

Since approximately 1972, I have been engaged in research, 

study, and writing on the use of the death penalty in the United 

States. I am the author of numerous articles on the subject and 

of the book Executions in America, published in 1974. 

Together with the Assistant Director here at the Center, 

Glenn L. Pierce, and others, I have supplied the figures and 
statistics on race-victim death sentencing disparaties con- 

tained in appendices A and B of this complaint. These figures 

are accurate to the best of our abilities and reflect sustained 

research and the use of widely-accepted statistical methods. 

I believe, on the basis of my research and analysis, that the 

broad pattern of race-victim death sentencing disparities com- 

plained of in the foregoing document remain unremedied by 
state or federal authorities and therefore continue today. 

(signed) William Bowers 
  

Professor William Bowers 

SS: Commonwealth of Massachusetts 
County of Suffolk 

Subscribed and sworn to before me this 11th day of April, 
1980. 

(signed) Philip C. Boyd 

Notary Public 

My Commission Expires: 
Nov. 28, 1980 

  

SEAL 

 



  

2a 

FLORIDA 

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

STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 

Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 

White 2265 72 .032 

Black 2606 61 .023 

Race of Victim 

White 2439 122 .050 

Black 2432 1 ; .005 

Offender/Victim 
Racial Combinations 

Black Kills White 286 48 .168 

White Kills White 2146 72 .034 

Black Kills Black 2320 11 .005 

White Kills Black 111 0 .000 

All Offenders 4871 133 027 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 

data from January 1973 through December 1976, supplied by the Uniform 

Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reports Program, Department of Law Enforcement, Tallahassee, Florida; 

(3) persons sentenced to death from January 1973 through December 1977, 

supplied by Citizens Against the Death Penalty, Jacksonville, Florida. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 3.484 equals the number of homicide 
victims from January 1973 through December 1977 (sources: 1, 2) divided by 
the number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



3a 

GEORGIA 

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

STATUTE THROUGH 1977 

Estimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders to Death Sentence 
White 1082 41 .038 
Black 2716 49 .018 

Race of Victim 
White 1265 76 .060 
Black 2529 14 .005 

Offender/Victim 
Racial Combinations 

Black Kills White 258 CE J43 
White Kills White 1006 39 .039 

Black Kills Black 2458 12 .005 

White Kills Black 71 2 .028 

All Offenders 3798 90 .024 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from April 1973 through December 1976, supplied by the Uniform 

Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Criminal Ac- 
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In- 
formation Center, Atlanta, Georgia; (3) Vital Statistics tabulations on willful 
homicides from April 1973 through December 1977, supplied by the Office of 
Health Services Research and Statistics, Division of Physical Health, Atlan- 
ta, Georgia; (4) Persons sentenced to death from April 1975 through De- 
cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 

undercoverage. The adjustment factor 4.453 equals the number of homicide 
victims from April 1973 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



  

4a 

TEXAS 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR CRIMINAL HOMICIDE BY RACE 

OF OFFENDER AND VICTIM IN TEXAS FROM THE 
EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 
White 3771 38 .010 
Black 2940 29 .010 

Race of Victim 

White 3964 71 .018 
Black 2740 2 001 

Offender/Victim 
Racial Combinations 

Black Kills White 344 37 078 
White Kills White 3616 37 .010 
Black Kills Black 2597 2 .007 
White Kills Black 143 0 .000 

All Offenders 6711 73 11 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from January 1974 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reporting Bureau, Texas Department of Public Safety, Austin, Texas; (3) 
Vital Statistics records on willful homicides from January 1974 through 
December 1977, supplied by the Bureau of Vital Statistics, Texas Depart- 
ment of Health, Austin, Texas; (4) persons sentenced to death from January 
1974 through December 1977, supplied by the Office of Court Administration, 
The Supreme Court of Texas, Austin, Texas. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 2.473 equals the number of homicide 
victims from January 1974 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

  
 



  

Ha 

FLORIDA 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN FLORIDA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons Probability 

Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 

White 307 54 .176 

Black 251 50 .199 

Race of Victim 

White 432 97 224 

Black 122 7 .057 

Offender/Victim 

Racial Combinations 
Black Kills White 136 =: 41 .301 

White Kills White 296 54 .182 

Black Kills Black 115 7 .061 

White Kills Black 7 0 .000 

All Offenders 558 104 .186 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 

data from January 1973 through December 1976, supplied by the Uniform 

Crime Reporting Program, Federal Bureau of Investigation, United States 

Department of Justice, Washington, D.C.; (2) Supplementary Homicide 

Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reports Program, Department of Law Enforcement, Tallahassee, Florida; 
(3) persons sentenced to death from January 1973 through December 1977, 
supplied by Citizens Against the Death Penalty, Jacksonville, Florida. 

aThe estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for 

undercoverage. The adjustment factor 3.484 equals the number of homicide 
victims from January 1973 through December 1977 (sources: 1, 2) divided by 
the number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



  

6a 

GEORGIA 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY-TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN GEORGIA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 
Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 
White 196 4 .189 
Black 338 42 124 

Race of Victim 
White 316 69 218 
Black 218 10 .046 

Offender/Victim 
Racial Combinations 

Black Kills White 134 34 S54 
White Kills White 183 35 191 
Black Kills Black 205 8 .039 

White Kills Black 13 2 154 

All Offenders 534 79 148 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from April 1973 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Criminal Ac- 
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In- 
formation Center, Atlanta, Georgia; (3) Vital Statistics tabulations on willful 
homicides from April 1973 through December 1977, supplied by the Office of 
Health Services Research and Statistics, Division of Physical Health, Atlan- 

ta, Georgia; (4) Persons sentenced to death from April 1973 through De- 
cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia; (4) Persons sentenced to death from April 1973 through 
December 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 4.453 equals the number of homicide 
victims from April 1973 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



1a, 

TEXAS 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY-TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN TEXAS FROM THE 

EFFECTIVE DATE OF THE POST-FURMAN 
STATUTE THROUGH 1977 

Estimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 
White 411 34 .083 
Black 294 27 .092 

Race of Victim 
White 551 63 114 
Black 151 2 .013 

Offender/Victim 
Racial Combinations 

Black Kills White 173 25 .144 

White Kills White 378 34 .090 
Black Kills Black 121 2 .016 

White Kills Black 30 0 .000 

All Offenders 705 61 087 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from January 1974 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reporting Bureau, Texas Department of Public Safety, Austin, Texas; (3) 
Vital Statistics records on willful homicides from January 1974 through 
December 1977, supplied by the Bureau of Vital Statistics, Texas Depart- 
ment of Health, Austin, Texas; (4) persons sentenced to death from January 
1974 through December 1977, supplied by the Office of Court Administration, 
The Supreme Court of Texas, Austin, Texas. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 2.473 equals the number of homicide 
victims from January 1974 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



 
 

 
 

 
 
 



 



   



  

No. 84-6811 
  

  

IN THE 

Supreme Court of the Bnited States 

OCTOBER TERM, 1984 

WARREN MCCLESKEY, 

Petitioner, 
V. . 

RarLprH M. KEMP, 

Respondent. 

On Petition for Writ of Certiorari 

to the United States Court of Appeals 
for the Eleventh Circuit 

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE AND 

BRIEF AMICUS CURIAE OF THE 
INTERNATIONAL HUMAN RIGHTS LAW 

GROUP IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI 

  

Of Counsel: *RALPH G. STEINHARDT, Esq. 
AMY YOUNG, Esq. PATTON, BOGGS & BLow 

HURST HANNUM, Esq. 2550 M Street, N.W. 
STEVEN M. SCHNEEBAUM, Washington, D.C. 20037 

Esq. (202) 457-6055 

INTERNATIONAL HUMAN *Counsel of Record 
RIGHTS LAW GROUP 

Washington, D.C. 
  

a Pe op a ood 
  

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 

 



    

 



MOTION OF THE INTERNATIONAL HUMAN RIGHTS 
LAW GROUP TO FILE BRIEF AMICUS CURIALY 

IN SUPPORT OF PETITION FOR WRIT OF 

CERTIORARI 

Pursuant to Rule 36.3 of the Rules of this Court, the 

International Human Rights Law Group moves for leave to 
file the attached brief amicus curiae in support of the 
petition for a writ of certiorari. The Law Group is a non- 
profit organization of international lawyers and scholars, 
which, through litigation, publication, and other public ac- 
tivism, seeks to promote respect for human rights norms in 
all nations, including the United States. 

Amicus wishes to support the petition for writ of cer- 
tiorari to the United States Court of Appeals for the [Klev- 
enth Circuit on the grounds that that Court of Appeals has 
both “decided an important question of federal law which 
has not been, but should be settled by this Court” and 
“decided a federal question in a way in conflict with applica- 
ble decisions of this Court.” Rule 17(c). In particular, «ni- 

cus wishes to submit for this Courts consideration the 
argument that the en banc decision below approved an 
admittedly racially-discrimimatory system for the imposi- 
tion of the death penalty, which violates peremptory norms 
of international law. In failing to consider international law 

as a relevant source of the rule of decision, the Eleventh 

Circuit’ decision violates the Supremacy Clause of the Con- 
stitution and applicable decisions of this Court. Alter- 
natively the precise question of whether international 
human rights norms must inform interpretations of Consti- 
tutional text is a highly significant issue of federal law 
deserving authoritative resolution by this Court. 

Amiens also brings a unique institutional perspective to 
these proceedings. Between 1980 and 1984, the Law Group 
sought to litigate the issues of race discrimination raised in  



    

  

this case before the Inter-American Commission on Human 
Rights, an instrumentality of the Organization of American 
States. On October 3, 1984, the Commission held the Law 

Group’s petition inadmissible on certain procedural 
grounds. The Government of the United States had re- 

(quested such a disposition inter alia on the ground that 
domestic remedies had not been exhausted and in particular 
on the ground that the issues raised herein were appropriate 
for disposition in the first instance by this Court and U.S. 
courts generally. 

Amicus is not aware of any presentation of these argu- 
ments to this Court in this case. Counsel for petitioner has 
consented to the filing of this brief. Amicus sought the 
consent of counsel for the respondent who declined to 
provide it, necessitating this motion. 

respectfully submitted, 

RALPH G. STEINHARDT 

PATTON, Bogs & BLow 

2550 M Street, N.W. 
Washington, D.C. 20037 
(202) 457-6000 

Counsel of Record for the 
International Human Rights 
Law Group 

 



  

ii 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES co vianrsvr rina amomes sus 

INTEREST OF THE AMICUS coven inn rnaserens 

SUMMARY OF ARGUMENT ,.. 0. rc vecnnrnrvrnssrsnsy 

ARCH MENT. sii sah sansa wa Trew sr a dae 

[. As Suggested By The United States In Its Submis- 

sions To The Inter-American Commission On Human 

dights, The Issues Raised By The Eleventh Circuit's 

Decision Are Uniquely Important Questions Of Fed- 

eral Law Deserving Authoritative Resolution ..... 

II. The Eleventh Circuit Was Required To Construe The 

Georgia Death Penalty Statute Consistently With 

Pertinent International Law And Failed To Do So. 

The Existence Of Racial Discrimination As Acknowl- 

edged By The Eleventh Circuit Violates A Perempto- 

ry Norm Of International Law .................. 

CONCLUSION 

e
r
 

 



  

1v 

TABLE OF AUTHORITIES 

CASES: Page 
Asakura uv Seattle, 85 0.8. 33201020)... = 8, 10 

Barcelona Traction Light and Power Co., Lid., [1970] 
CS Ren. 375, ii ia EE 9 

Castaneds ». Portida, 430 U.S. 482 (1978)... ....... .. 6 
Cook uv. United States, 255 U.S. 102983) 0... =. 7 
Eddings.» Oklahoma, 455 U.S. 104 982) . .......... SH 
Fernandez v. Wilkinson, 505 : Si 787 (D. Kan. 1980) 7 
Filartiga v. Pena-Drala, 630 F.2d 876 (2d Cir. 1980) . . . 7 

First National City Bank v. Banco Para el Commercio 
Exterior de Cuba, 103 8S. CL. 2591 (1983) ........ 0 

Loouritzen vw Lovsen, HB U.S BTL (100 ico 7 

Legal Consequences for States of the Continued Presence 
of South Africa tn Namibia (South Africa) notwith- 
standing Security Council Resolution 276, [1971] 
Cd Ben 87 = oii. EL 9 

McCulloch v. Sociedad Nacional de Marineros de Hon- 
dures, S208. 048%... a 7 

Murray v. The Charniing Betsy, 6 U.S. (2 Cranch) 64, 118 
EL Mee TE Ee NO ee Lad 7 

The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) ...... 6 
North Sea Continental Shelf Cases, | % 69] or J. Rep. 37 7 

The Paguete Habana, 175 U.S. 877 (1900)... .. 2. 8,7, 10 
Respublica vn. DeLongehamps, 1 U.S. 119, 1 Dall. 111 (O. 

EI Se TEE EER ee 3 

Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th 
Ade SEIN el re EE ee 7 

Rose uv. Mitchell, U3 U.S. BAB (1978). /.o. 2 a 06 
Spinkellink v. Wairnum igh, 578 F.2d 582 (5th Cir. 1978). 

cert. denied 404 U.S. 076 (9... a 4 
Tkbot » Seeman, 53 U8. (1 Cranch) 141800). .... <.. 7 
Were vo Hylton, 30.8. G Day 19901796... ovo. 6 
Weinberger v. Rossi, 45 i; U.S. 901982) =»... 0... 7 

Wood un. Georgie, 430 11.8. 261 (98D). ............. & 3 

   



Vv 

Table of Authorities Continued 

Page 

Woodson uv. North Carolina, 428 11.5. 230 (1976) ..... 5 

TREATIES, STATUTES, DECLARATIONS, AND REGULATIONS: 

American Convention on Human Rights, signed Nov. 22, 

1969, OAS Official Records OK A/Ser. K/XVI.LL, 

Doc. 65, Bev. |, Cory, 1 Olan. 7, 1990)... ..... App. B 

American Declaration of the Rights and Duties of 
Man, 0.A.S. Res. XXX, adopted by the Ninth Inter- 
national Conference of American States, held at 

Bogata, Columbia (1948), OEA/Ser. LL./V/1. 4 Rev. 

(OBB)... rat Re a Ye. ce App. B 

Charter of the Organization of American States, April 30, 
1948, 2 U.5/F 2595, T.LAS. No. 2381, ...... App. B 

Convention against Discrimination in Iducation, adopted 
Dec. 14, 1960, 429 U.N.'T.S. 93 (UNESCO General 
Conference) (entered into foree May 22, 1962) . App. B 

Convention concerning Discrimination in Respect of [Sm- 
ployment and Occupation, adopted June 25, 1958, 362 
U.N.T.5. 31 (1LO General Conference) (entered into 
force June 15, 1960) 1. ..n. 0 sol. cn. uaa App. B 

Convention on Human Rights and Fundamental Free- 
doms, adopted Nov. 4, 1950, 1950 Kurop. T.S. No. 5, 
Lie TIS MOT DO SE eo Re Me App. B 

Convention on the Prevention and Punishment of the 
Crime of Genocide, adopted Dec. 9, 1948, 78 

U.N.T.S. (entered into force Jan. 12, 1951) .... App. B 

Convention Relating to the Status of Refugees, adopted 
July 25, 1951, Art. 3, 189 U.N.T.S. 304 (entered into 

force May 23. 19583) Jo as eee va App. B 

Convention Relating to the Status of Stateless Persons, 
Art. 3, adopted Sept. 23, 1954, 360 LL. NDS. 117 
(entered into force June 8, 1960) ............. App. B  



  
Vi 

Table of Authorities Continued 

Page 

Declaration of Social Progress and Bova, adopted 
Dec. 11, 1969, Arts. Imre A. Res. 2542, 24 U.N. 
GAOR, Supp. (No. 30) 49, U.N. Doc. ASTI 330) 
win SRE IR SER WC EE es App. 

Declaration on the Promotion Among Youth of the Ideals 
of Peace, Mutual Respect and Understanding be- 

tween Peoples, SR Dec. 7, 1965; Principles 1 and 
3, G.A. Res. 2037, 20 U.N. GAOR, Supp. (No. 14) 40, 
UN Doe. ABBISA08BY  o.. ive nea App. 

Iimployment on Policy Convention, adopted July 9, 1964, 
Art. 1(2)(c), 569 U.N.T.3. 65 (entered into force July 

ID, JOY Pa ie irik ine App. 

European Convention on Human Rights, 213 
UNTR221030) a. App. 

International Covenant on Civil and Political Rights, 
adopted Dec. 16, 1966, G.A. Res. 2200A, 21 U.N. 
GAOR. Supp (No. 18) ose as App. 

International Covenant on Demos, Social And Cultural 

Rights, adopted Dec. 16, 1966, G.A. Res. 2200A, 21 

U.N. GAOR, Supp. Bi VER aE App. 

International Convention on the Elimination of All Forms 

of Racial Discrimination, opened for signature March 
7.3008 GO UNES 8 0 an App. 

International Convention on the Supression and Punish- 
ment of the Crime of Apartheid, adopted Nov. 30, 
1973, G.A. Res. 3068, 25 1J.N. GAOR, Supp. (No. + 30) 
75: LN. Doc, AOZ33/AGA. 1 LI970) ia... 9 

OAS Charter, signed April 30, 1948, Ran mito force 

December 13, 1951, 2 U.S. T 2994. T1L.A.S. No. 236] 

Protocol to the Convention against Discrimination in Edu- 
cation, adopted Dec. 10, 1962, (1969) U.N.T.S. No. 
SAoCmd 280) oi. a App. 

B 

   



re 

po
 

r
w
 

vil 

Table of Authorities Continued 

Page 

U.N. Charter, signed June 2( 38%, entered into force 
October 24, 1945, 59 Stat, 1031. 7.8. No. 993 

United Nations Declaration on ik IKlimination of All 
Forms of Racial Discrimination, adopted Nov. 20, 

1963, G.A. Res. 1904, 18 U.N. GAOR Supp. (No. 15) 
35,36, U.N. Doe. ABBIS LIMBA)... cov iurs App. 

Hele il Declaration iH Rights, adopted Dee. 10, 
48 G.A. Res. 217, U.N. doc. A/S10 (1948) ... App. 

ne Convention on i Law of the Treaties, adopted 
May 22, 1969, entered into force Jan. 27, 1930 .... 

LEGISLATIVE MATERIALS: 

S- Exee. Doc. L., 92d Cong. Ist Sess, (1971) ........ 

MISCELLANEOUS: 

American Law Institute, Restatement of the Iforeign Re- 
lations Law of the United States (Revised), § 131 

(Tentative Draft No. 1, 1980). . =. roo vine, 

American Law Institute, Restatement of [Foreign Bes \- 

tions Law of f the United States (Revised), § T02(f) 

(Ten, Draft No. 8. 1085)... oo ii vdrnern ons 

Gross, Race and Death: The Judicial IJ valuation of IJvi- 
dence of Discrimination in Capital Sentencing, 
forthcoming in 18 UL.C. Davis L.. R., No. 4 ..... 

Henkin, International Law as Law in the United States, 

S2MicH. LL, Bey. IB8B (10M 6... ....... 0 nies 

On Att'y Gen. 271972) 0... i aes Bums ss Foe 

Zeisel, Race Bias in the Administration of the Death 

Penalty: The Florida Experience, 95 HARV. L. REV. 
AR (T0811). oni ul ED aa eh i 

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10 

 



  

  

  

 



  

IN THLE 

Supreme Court of the Anited States 

OCTOBER TERM, 1984 

  

No. 84-6811 

WARREN MCCLESKEY, 

Petitioner, 

V. 

RALPH M. KEMP, 

Respondent. 

On Petition for Writ of Certiorari 

to the United States Court of Appeals 

for the Kleventh Circuit 

BRIEF AMICUS CURIAE OF THIS 
INTERNATIONAL HUMAN RIGHTS LAW 

GROUP IN SUPPORT Off PETITION 
FOR WRIT OF CERTIORARI 

INTEREST OF THE AMICUS 

The International Human Rights Law Group is a non- 
profit organization of international lawyers and scholars 
which seeks to promote the observance of international 
human rights norms by providing legal assistance and infor- 
mation to individuals and groups on a pro bono basis; repre-  



  

  

  

senting clients in international forums; and participating 
amicus curiae in U.S. litigation involving international 
human rights norms. 

In 1980, the Law Group petitioned the Inter-American 
Commission on Human Rights, an instrumentality of the 
Organization of American States, to declare that capital 
sentences in the United States are imposed in a racially 
discriminatory manner. In particular, the Law Group ar- 
gued that the death penalty is imposed disproportionately 
on those defendants whose victims are white and that such 
discrimination based upon the race of the vietim was in 
violation of treaties to which the United States is a party. 
After receiving statistical evidence similar and in some 

cases identical to that presented below by petitioner herein, 
the Commission held the Law Group's petition inadmissible 
on procedural grounds and effectively deferred the Law 
Group’ international claims pending an authoritative dis- 
position of the issue by American courts. The Law Group 
thus has a direct institutional stake in this Court's decision 
to review the en banc opinion of the Eleventh Circuit Court 
of Appeals and to resolve th& issues raised by that decision. 

SUMMARY OFF ARGUMENT 

This is not an ordinary capital case. Amicus appears for 
the purposes of (1) demonstrating the unique and fundamen- 
tal significance of this case, as acknowledged by the United 
States in its submissions to the Inter-American Commission 
on Human Rights, and (ii) arguing that the Eleventh Cir- 
cuit, in violation of the Supremacy Clause of the Constitu- 
tion and applicable decisions of this Court, failed to consider 
international law as a pertinent source of the rule of deci- 
sion. Under The Paquete Habana, 175 U.S. 677 (1900) and 
its progeny, each of Questions Presented 1 through 5 should 
have been considered in light of the peremptory norm of 

 



  

international law condemning racial discrimination. It 1s 

submitted in fine that the ex bane court's failure to construe 

the Georgia Death Penalty Statute consistently with bind- 

ing international law is reversible error. 

Although the international issues raised by aniicus were 

neither presented to the courts below nor raised in the 

petition for certiorari, this Court has established that it has 

the power to consider relevant issues raised in a case “in the 

interests of justice,” irrespective of whether those issues 

were previously raised, Wood v. Georgia, 450 U.S. 261, 265, 
n.5 (1981), and that the exercise of that power is especially 

appropriate in capital cases, IKddings v. Oklahoma, 455 

U.S. 104 (1982). 

Amicus offers no opinion as to the cireuit court's disposi- 
tion of purely domestic issues of law, including its severe 
approach to admittedly valid statistical evidence in suits of 

this type. 

ARGUMENT 

[. As Suggested By The United States In [ts Submissions 

To The Inter-American Commission On [Human 

Rights, The Issues Raised By The Eleventh Circuit's 
Decision Are Uniquely Important Questions Of 

Federal Law Deserving Authoritative Resolution. 

In his petition for certiorari, the petitioner portrays a 
myriad of important, indeed unprecedented federal issues 

raised by the en bane decision of the Iileventh Circuit. 
Amicus expresses no opinion as to these domestic 1ssues 
but would demonstrate to this Court that the United States 

in parallel international proceedings has conceded the sig- 

nificance of the issues raised in this case. 

On August 6, 1980, amicus submitted a petition to the 

Inter-American Commission on Human Rights, an instru-  



  

  

mentality of the Organization of American States, alleging 
that the United States imposed the death penalty in a 
racially diseriminatory manner. The various studies submit- 
ted to the Commission revealed a broad pattern of racially- 
based disparities in death sentencing based on the race of 
the victim. The evidence established that a person convicted 
in the State of Florida of murdering a white person was ten 
times more likely to receive the death penalty than one 
convicted of murdering a black person.' In Texas, the ratio 
was eighteen to one.” In Georgia, where this litigation 
arose, it was twelve to one.” 

The Law Group argued that domestic remedies for the 
redress of this discrimination were effectively exhausted 
when this Court denied certiorari in Spinkelink v. Wain- 
wright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 404 U.S. 
970 (1979), 

The United States opposed the petition almost ex- 
clusively on the ground that domestic remedies had not 
been exhausted with the denial of certiorari in Spinkelink. 
It stressed that U.S. courts including this Court remained 

open to receive evidence demonstrating the fact and extent 
of discrimination. Indeed, the government of the United 
States in framing the issue expressly conceded its relevance 
and importance: 

The Petition filed by the International Human Rights 

Law Group on behalf of all prisoners currently awaiting 
execution in the states of Florida, Georgia, and Texas 
raises an important issue in the administration of jus- 

  

"The data are described in the affidavit of Professor William J. 

Bowers, which was attached to the Law Group's 1980 petition, and 

which is attached hereto as Appendix A. See also, Zeisel, Race Bias 

othe Admovstration of the Death Penalty: The Florida Experience, 

95 Harv. L. REV. 456 (1981). 

App. A at 4a. 

1d. at 3a. 

   



  

tice in the United States—whether capital punishment 
statutes determined by the U.S. Supreme Court to be 
constitutionally valid on their face are being imple- 
mented in a constitutional manner. 

Opposition of the United States, Case 7465 (June 16, 1951) 
at 4 1. The United States repeated its assurance to the 
Commission that U.S. courts would respond fully and fairly 
Lo evidence establishing race discrimination. In light of this 
suggestion and on other procedural grounds, the Commis- 
sion denied the petition on October 3, 1984, noting that the 
statistical evidence submitted was more appropriately di- 
rected to a domestic court in each individual case. 

As a result, the propriety of review in this particular 
capital case is patent. At the threshold of course the peti- 
tioner’s sentence of death inherently deserves this Court's 
most searching review. 

Because sentences of death are “qualitatively dif- 
ferent” from prison sentences, Woodson v. North Car- 
olina, 428 U.S. 230, 305 (1976) (opinion of Stewart, 
Powell, and Stevens, JJ.), this Court has gone to extra- 
ordinary measures to ensure that the prisoner sen- 
tenced to be executed is afforded process that will 
guarantee, as much as is humanly possible, that the 
sentence was not imposed out of whim, passion, preju- 
dice, or mistake. 

Eddings v. Oklahoma, 455 U.S. 104, 117-118 (1982) (O’Con- 
not, J., concurring). But even ignoring its unique evidenti- 
ary record, ' the case raises an issue which the United States 

"The statistical study submitted to the courts below “is based on 
the most comprehensive empirical record of racial patterns in the 
imposition of the death penalty that has ever been developed in this 
country, or that is likely to be developed in the foreseeable future.” 
Gross, Race and Death: The Judicial Evaluation of Keidenee of 

Discrinvnation in Capital Sentencing, forthcoming mm 18 UNtv.  



  

  

  

government itself apparently regards as fundamentally im- 
portant and unresolved, i.e. whether discrimination in cap- 
ital sentencing, as established by statistical proof, is consti- 
tutional. Pet. App. 43-50. 

II. The Eleventh Circuit Was Required To Construe The 

Georgia Death Penalty Statute Consistently With Per- 

tinent International Law And Failed To Do So. The 
Existence Of State-Sanctioned Racial Diserimina- 
tion As Acknowledged By The Eleventh Circuit Vio- 
lates A Peremptory Norm Of International Law. 

It 1s axiomatic that international law is part of the law of 
the United States and, under the Supremacy Clause of the 
Constitution as interpreted, “must be ascertained and ad- 

ministered by the courts of justice of appropriate jurisdic- 
tion, as often as questions of right depending upon it are 
duly presented for their determination.” The Puaquete 
Habana, 175 U.S. 677, 700 (1900). This basic principle has 
been accepted from the earliest days of the Republie, Ware 
v. Hylton, 3 U5, (3 Da.) 199, 281 (1796); The Nereide, 13 

U.S. (9 Cranch) 388, 423 (1815), and received fresh con- 

firmation from this Court as recently as 1983 in Justice 
O'Connor’ opinion for the Court in First National City 
Bank v. Banco Para el Commercio Id xterior de Cuba, 103 

S.Ct. 2591, 2598 (1983).° 
  

CaL. Davis L. R., No. 4 (1985) (at page 1 of prepublication man- 
useript). Though acknowledging the validity of the study, the en bane 
court was sharply divided on the issue of what conclusions of law 
could be drawn from it, compare 753 I.2d at 886 with 753 1°.2d at Y07 
(Johnson, Hatchett, and Clark, J.J., dissenting). The dispute indepen- 
dently suggests the propriety of this Court's review in light of Justice 
Blackmun’s opinion for the Court in both Castaneda v. Partida, 430 
U.S. 482 (1976) and Rose v. Mitchell, 443 U.5. 545 (1978). 

"See also Op. Att'y Gen. 27 (1972) (“The law of nations, although not 
specially adopted by the Constitution or any municipal act, is essen- 
tially a part of the law of the land”); Restatement (Revised) of the 

Foreign Relations Law of the United States (Tentative Draft No. 1, 

1950) at § 131, Comment D (“the proposition that international law 

 



  

~J
 

The most fundamental application of this principle arises 
when courts are requested to interpret statutes enacted by 

Congress or the state legislatures. In all such cases, the 
statute “ought never to be construed to violate the law of 
nations, if any other possible construction remains . ? 
Weinberger v. Rossi, 456 U.S. 25, 33 (1982), quoting Murray 
v. The Charming Betsy, 6 U.S. (2 Cr anch) 64, 118 (1804). See 

also, Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801); Cook 

v. United States, 283 U.S. 102 (1983); Lauritzen v. Larsen, 

345 U.S. 571, 578 (1953); McCulloch v. Sociedad Nacional 

Jo Marine de Hondhoras, 372 U.S. 10, 21 (1963). The “law 

of nations” which the courts are directed to apply includes 
both treaties and customary international law." 

Thus, in construing the Georgia death penalty statute and 
petitioners sentence thereunder, the Eleventh Circuit 
Court of Appeals was obliged to “ascertain[ | and admin- 
ister[ |” international law, insofar as “questions of right” 

depend upon it, The Paquete Habana, supra. On such 
  

and agreements are law in the United States is addressed mainly to 
the courts. They are to apply international law or agreements as if 
their provisions were enacted by Congress”); Henkin, International 
Law as Law in the United States, 82 Mic. LL. Rev. 1535, 1560 

(1984), 

“Customary international law is essentially international common 
law, which arises out of the practice of nations acting in a particular 
manner because they [eel themselves legally bound to do so. This 
state practice may be deduced from treaties, national constitutions, 
declarations and resolutions of intergovernmental bodies, public pro- 
nouncements by heads of state, and empirical evidence of the extent 
to which the customary law rule is observed. See North Sea Conti- 
nental Shelf Cases, [1969] 1.C.J. Rep. 37. Customary international 

law is binding on all nations and creates enforceable rights and 
obligations for individuals. Paquete Habana, supra; Bespublica rv. 
Delonwgchamps, 1 11.5. 119, 1 Dall. 111 (O.&T. Pa. 1784). See ey. 
Filartiga v. Pena-Drala, 630 172d 876 (2d Cir. 1980); Fernandez rv. 
Wilkinson, 505 I. Supp. 787 (D. Kan. 1980), ¢ff'd on other grounds 
sub nom, Rodriguez-Fernandez v. Wilkinson, 654 1°.2d 1382 (10th 

Cir. 1981)  



  
grounds, this Court struck down a discriminatory ordinance 
which was inconsistent with the provisions of an interna- 
tional treaty in Asakura v. Seattle, 265 U.S. 332 (1923): 

The rule of equality established by [the treaty] cannot 
be rendered nugatory in any part of the United States 
by municipal ordinances or state laws. It stands on the 
same footing of supremacy as do the provisions of the 
Constitution and laws of the United States. IL operates 
of itsell without the aid of any legislation, state or 
national; and it will be applied and given authoritative 
effect by the courts. 

Id. at 341 (citations omitted). 

The anti-discrimination norm of international law is no 
less binding than that applied in Asakura. Indeed, under 
any standard of proof, the right to be {ree from governmen- 
tal discrimination on the basis of race is so universally 
accepted by nations as to constitute a peremptory norm of 

international law.” It is included in such fundamental texts 
as the Charter of the United Nations,® and the Charter of 

the Organization of American States”, both of which are 

“A peremptory norm of international law is a “norm accepted and 
recognized by the international community of states as a whole as a 
norm {rom which no derogation is permitted and which can be modi- 
fied only by a subsequent norm of general international law having 
the same character.” Vienna Convention on the Law of Treaties, 

adopted May 22, 1969, entered into force Jan. 27, 1980. Although the 
Vienna Convention has been signed but not ratified by the United 
States, the Department of State, in submitting the convention to the 

Senate, stated that the convention “is already recognized as the 
authoritative guide to current treaty law and practice.” S. xec. Doc. 
L., 92d Cong. Ist Sess. (1971) at 1, 

“U.N. Charter, signed June 26, 1945, entered into force October 24, 

1945, 59 Stal. 1031, T.S. No. 993. Article bhile). 

"OAS Charter, signed April 30, 1948, entered into force December 

13, 1951, 2 LL.S.E 2294, T1.A.S. No. 2361, Article 3). 

   



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(reaties ratified by the United States. Similar prohibitions 
are found in every comprehensive international treaty per- 
taining to human rights and in numerous international dec- 
larations and resolutions. "Recognizing this consistent and 

universal condemnation of racial diserimination, the Inter- 

national Court of Justice has concluded that “the principles 
and rules concerning the basic rights of the human person, 

including protection from . . . racial discrimination,” con- 
stitute an international obligation of all states. Case con- 
cerning the Barcelona Traction Light and Power Co., Lid. 
[1970] [.C.J. Rep. 32. See also Legal Consequences for 
States of the Continued Presence of South Africa in 

Namibia (South West Africa) notwithstanding Security 
Council Resolution 276, [1971] 1.C.J. Rep. HT: 

[T]o establish . . . and to enforce distinctions, exclu- 

sions, restrictions, and limitations exclusively based on 

grounds of race, colour, descent or national or ethnic 

origin . . . constitutes a denial of fundamental human 
rights [and] is a flagrant violation of the purposes and 
principles of the charter 

With remarkable candor, the en bane Court of Appeals 
accepted the factual findings of petitioner’ studies, viz. that 
no factors other than race could account for the marked 
increase in capital sentences among those defendants whose 
victims were white. Indeed, the court below expressly 
“assum|ed| the validity ol the rosnnrahs. and “that it proves 

what it claims to prove.” 753 I. 2d at 886. The court’ decision 
as a matter of law that this evidence established no violation 
of the Kighth and Fourteenth Amendments to the U.s. 
Constitution does not dispose of the issue whether it evinces 
a fundamental violation of international law. The court of 

“The relevant international authorities are collected in Appendix 

B.  



  
10 

appeals cannot so blithly ignore the legal consequences of its 
factual concessions. 

The discrepancy in capital sentencing patterns which is 
assumed by the en banc court in this case clearly falls within 
the international prohibition. That norm, apparently unlike 
the Eighth and Fourteenth Amendments in the Eleventh 
Circuit, admits no defense of degree and demands no in- 
controvertible showing of individualized intent. It is sys- 
tematic racial discrimination, of the kind admittedly demon- 
strated in this case, which violates binding international 
law, !! 

But the en banc court below made no attempt to dis- 
charge its burden under The Paquete Habana and Asakiora 
to apply international law. It utterly failed to address the 
relevant norms of international law that constitute part of 
federal common law. The court simply did not discuss 
whether the racial discrimination alleged by petitioner falls 
within the scope of international law as incorporated into 
federal common law. Instead, on the issue of discrimination, 

the court of appeals contented itself with considering only 
the contours of the Eighth and Fourteenth Amendments. 
The courts apparent neglect of the peremptory norm of 

international law prohibiting racial discrimination cannot be 
squared with this Court's consistent adherence to the law of 
nations as providing the rule of decision, whenever a liti- 
gant’s rights are framed in its terms. In short, the en bane 
court’s failure to assess the international law issues raised 
by its assumption that the showing of discrimination was 
valid constitutes error which should be reviewed by this 
Court. And, if the en banc court somehow did not err in 

failing to ascertain and apply international law, then the 

nSee e.g. American Law Institute, Restatement of Foreign Rela- 

tions Law of the United States (Revised), § T02(0) (Tent. Draft No. 6 

1985). 

   



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No. 6 

11 

case raises the fundamental issue of when, under The Pa- 

quete Habana and Asakura, domestic courts are obliged to 

look to that source of law and when they may ignore it. 

CONCLUSION 

The decision of the Court of Appeals en bane that the 
Georgia death penalty statute is not unlawfully applied in 
spite of an admitted discriminatory impact flies in the face of 
the universal principle that international human rights law 
applies to all individuals. The en bane court’ failure to 
consider in a meaningful way the international law issues 
relevant to this case violates the Supremacy Clause of the 
Constitution as interpreted and ignores the decisions of this 
Court which establish the fundamental role of international 
law in United States law. In addition, even if the en bane 

courts disposition were consistent with Supreme Court 
precedent in the international law field, the case raises 

issues of law and fact which sharply distinguish it from other 
capital cases, as the United States itself has acknowledged. 

[For these reasons, anicus vespectfully urges this Court 
to grant certiorart. 

Respectfully submitted, 

RALPH G. STEINHARDT, Lis. 

Parton, Bosas & Brow 

2560 M Street, N.W. 

Washington, D.C. 20037 
(202) 457-6055 

Of Counsel: Counsel of Record 

a for Amicus Curiae 
Hurst Hannum, Esq. 
Amy Young, sq. 
Steven M. Schneebaum, Is.  



    

   



APPENDIX 

 



  

 



APPENDIX A 

AFFIDAVIT OF PROFESSOR WILLIAM BOWERS 

[ am a sociologist with particular training in statistics and 

computer applications to sociology. I graduated from Wash- 

ington and Lee University in 1957 and received my doctorate in 

sociology in 1966 from Columbia University. I am presently a 
professor of sociology at Northeastern University, Doston, 

Massachusetts, and Director of that University’s Center for 

Applied Social Research. 

Since approximately 1972, I have been engaged in research, 

study, and writing on the use of the death penalty in the United 

States. I am the author of numerous articles on the subject and 

of the book Executions in America, published in 1974. 

Together with the Assistant Director here at the Center, 

Glenn L. Pierce, and others, I have supplied the figures and 
statistics on race-vietim death sentencing disparaties con- 

tained in appendices A and B of this complaint. These figures 

are accurate to the best of our abilities and reflect sustained 

research and the use of widely-accepted statistical methods. 

[ believe, on the basis of my research and analysis, that the 

broad pattern of race-victim death sentencing disparities com- 

plained of in the foregoing document remain unremedied by 
state or federal authorities and therefore continue today. 

(signed) William Bowers 
  

Professor William Bowers 

SS: Commonwealth of Massachusetts 

County of Suffolk 

Subscribed and sworn to before me this 11th day of April, 

1980. 

(signed) Philip C. Boyd 
  

Notary Public 

My Commission Lixpires: 

Nov. 28, 1980 

SKAL  



  
    

0, 
et 

FLORIDA 

PROBABILITY OF RECEIVING THE DEATH 

SENTENCE FOR CRIMINAL HOMICIDE BY RACE 

OF OFFENDER AND VICTIM IN FLORIDA FROM 

THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Iistimated Persons Probability 

Number of Sentenced of a Death 
Race of Offender Offenders" to Death Sentence 

White 2265 72 032 
Black 26006 61 023 

Race of Victim 

White 2439 122 L050 

Black 2432 11 .005 

Offender/Victim 

Racial Combinations 

Black Kills White 2806 48 168 

White Kills White 2146 2 .034 

Black Kills Black 2320 2911 005 

White Kills Black 111 0 .000 

All Offenders 4871 133 027 

Data Sonrces: (1) Supplementary Homicide Reports on criminal homicide 

data from January 1973 through December 1976, supplied by the Uniform 

Crimne Reporting Program, Federal Bureau of Investigation, United States 

Department of Justice, Washington, D.C.; (2) Supplementary Homicide 

Reports on eriminal homicide data for 1977, supplied by the Uniform Crime 

Leports Program, Department of Law Enforcement, Tallahassee, Florida; 
(3) persons sentenced to death from January 1973 through December 1977, 

supplied by Citizens Against the Death Penalty, Jacksonville, Florida. 

“I'he estimated number of offenders for a given category is obtained by 

multiplying the reported number of offenders in that category for the vers 
1976, 1977 (sources: 1, 2) by vietim-based adjustment factor to correct for 
undercoverage. The adjustment factor 3.481 equals the number of homicide 
victims from January 1973 through December 1977 (sources: 1, 2) divided by 

   



hicide 

iform 
tates 

cide 

rime 
rida; 

1977, 

3, 

ad by 

vers 
ct for 

eide 
ed by 

GEORGIA 

PROBABILITY OF RECEIVING THI DIKATH 
SENTENCE FOR CRIMINAL HOMICIDE BY RACE . 
OF OFFENDER AND VICTIM IN GEORGIA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Listimaled Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders” to Death Sentence 
White 1082 41 oo 
Black ; 2716 49 —- 013 

Race of Victim 
White 1265 76 L060 

Black 2529 14 .005 

Offender/Victim 
: 

tacial Combinations 

Black Kills White 258 37 143 

White Kills White 1006 39 .039 

Black Kills Black 2458 2 L005 

White Kills Black 71 g O28 

All Offenders 3798 90 024 
    

Data Sonrces: (1) Supplementary Homicide Reports on eriminal homicide 
data from April 1973 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.: (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Criminal Ac- 
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In- 
formation Center, Atlanta, Georgia; (3) Vital Statistics tabulations on willful 
homicides from April 1973 through December 1977, supplied by the Office of 

© Health Services Research and Statistics, Division of Physical Health, Atlan- 
ta, Georgia: (4) Persons sentenced to death from April 1975 through De- 
cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia. 

“I'he estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a vietim-based adjustment factor to corveet for 
undercoverage. The adjustment factor 1.153 equals the number of homicide 
victims from April 1973 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2).  



  

TEXAS 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR CRIMINAL HOMICIDE BY RACE 

OF OFFENDER AND VICTIM IN TEXAS FROM THE 
EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

     
Estimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders to Death Sentence 
White 3771 38 010 4 
Black 294) 0g 010 

Race of Victim 
White 3964 71 018 | 
Black 2740 2 001 

| 

Offender/Victim 4 

Racial Combinations | 

Black Kills White S14 27 078 | : 

White Kills White 3616 37 .010 

Black Kills Black 2597 2 007 i 

White Kills Black 143 0 .000 

All Offenders 6711 73 011 

Data Sources: (1) Supplementary Homicide Reports on eriminal homicide 
data from January 1974 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide : 
Reports on eriminal homicide data for 1977, supplied by the Uniform Crime 
Reporting Bureau, Texas Department of Publie Safety, Austin, Texas; (3) 
Vital Statistics records on willful homicides from January 1974 through 
December 1977, supplied by the Bureau of Vital Statisties, Texas Depart- 
ment of Health, Austin, Texas; (1) persons sentenced to death from January 
1971 through December 1977, supplied by the Office of Court Administration, 
The Supreme Court of Texas, Austin, Texas. 

  

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1076, 1977 (sources: 1, 2) by a vietim-based adjustment factor to correct for 
undercoverage. The adjustment factor 2.473 equals the number of homicide 
victims from January 197-1 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). | 

  PRs a salient ob vor aie ATTEN REE icos Se ng 
EEA Sd ond



| 

rR gr TE wo 

FLORIDA 

PROBABILITY OF RECEIVING THE DEATH 

SENTENCE FOR FELONY TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN FLORIDA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons Probability 

Number of Sentenced of a Death 

Race of Offender Offenders" to Death Sentence 

White 307 H4 1376 

Black 251 50 .199 

Race of Victin 

White 432 97 294 

Black 122 7 057 

Offender/Victim 

Racial Combinations 

Black Kills White 136 41 301 

White Kills White 2906 Hd 182 

Black Kills Black 115 7 .061 

White Kills Black 7 0 .000 

All Offenders 558 104 186 

Data Sources: (1) Supplementary Homicide Reports on eriminal homicide 

data from January 1973 through December 1976, supplied by the Uniform 

Crime Reporting Program, Federal Bureau of Investigation, United States 

Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on eriminal homicide data for 1977, supplied by the Uniform Crime 

Reports Program, Department of Law Enforcement, Tallahassee, Florida: 
(3) persons sentenced to death from January 1973 through December 1977, 

supplied by Citizens Against the Death Penalty, Jacksonville, Florida. 

  

“The estimated number of offenders for a given category is obtained by 

multiplying the reported number of offenders in that category for the years 

1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for 

undercoverage. The adjustment factor 3.484 equals the number of homicide 

victims from January 1973 through December 1977 (sources: 1, 2) divided by 

the number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

  HAT SS VAR Wf 3 AA ee AAR ae  



ba 

GEORGIA 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY-TYPIE MURDER BY RACE 
OF OFFENDER AND VICTIM IN GEORGIA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

    
Kstimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders: to Death Sentence 
White 196 37 .189 

Black 338 42 A124 

Race of Victim 
White 3106 (GY 218 

Black 218 10) L046 

Offender/Vietim 
Racial Combinations 

Black Kills White 134 34 254 

White Kills White 18:3 35 .191 

Black Kills Black 2056 hot .03Y 

White Kills Black 13 2 .154 

All Offenders Hd 74 C148 

Data Sources: (1) Supplementary Homicide Reports on eriminal homicide 
data from April 1973 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Criminal Ac- 
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime [n- 
formation Center, Atlanta, Georgia; (3) Vital Statisties tabulations on willful 

Health Services Research and Statistics, Division of Physical Health, Atlan- 
ta, Georgia; (1) Persons sentenced to death from April 1973 through De- 
cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia; (1) Persons sentenced to death from April 1973 through 

December 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia. 

“The estimated number of offenders tor a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 4.153 equals the number of homicide 
victims from April 1973 through December 1977 (source: 3) divided by the 
member of homicide victims in the years 1976, 1977 (sources: 1, 2). 

  

homicides from April 1973 through December 1977, supplied by the Office of 

 



oe NATIT 1 A Ai rom 

TEXAS 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY-TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN TEXAS FROM THI 

EFFECTIVE DATE OF THE POST-FURMAN 
STATUTE THROUGH 1977 

Iistimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders" to Death Sentence 
White 411 34 L083 

Black 294 27 .092 

Race of Victim 
White 551 63 114 
Black 151 2 013 

Offender/Victim 

Racial Combinations 

Black Kills White 173 25 144 

White Kills White 378 34 .090 

Black Kills Black 12} 2 016 

White Kills Black 30 0 .000 

All Offenders 705 61 O87 

Data Sonrvees: (1) Supplementary Homicide Reports on eriminal homicide 
data from January 1974 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reporting Bureau, Texas Department of Public Safety, Austin, Texas; (3) 
Vital Statistics records on willful homicides from January 1974 through ° 
December 1977, supplied by the Bureau of Vital Statisties, Texas Depant- 
ment of Health, Austin, Texas; (<1) persons sentenced to death from January 
197-4 through December 1977, supplied by the Office of Court Administration, 

“The Supreme Court of Texas, Austin, Texas. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a vietim-based adjustment factor to correct for 
undercoverage. The adjustment factor 2.473 equals the number of homicide 
victims from January 1974 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2)  



  

Si 

APPENDIX B 

      

Universal Declaration of Human Rights, adopted Dec. 10, 1948 

(.A. Res. 217, UI.N. doe. AB10 (1M8)Y arts. 2, 7, 4; 

International Covenant on Civil and Political Rights, adopted 

Dee. 16, 1966, G.A. Res. 22004, 21 U.N. GAOR, Supp. (No. 

165) arts. 2a), 13. 26; 

[International Covenant on Keonomie, Social And Cultural 

Rights, adopted Dee. 16, 1966, G.A. Res. 2200A, 21 U.N. 

GAOR, Supp. (Neo. 16) art. 202); 

Charter of the Organization of American States, April 30, 1948, 

2 0.8.7 2395, T.LA.S. No. 2381, art. 303); 

American Declaration of the Rights and Duties of Man, O.A.S. 
Res. XXX, adopted by the Ninth International Conference of 

American States, held at Bogota, Columbia (1948), OlKA/Ser. 

L./V/. 4 Rev. (1963) Arts. 11, XXC1]; 

American Convention on Human Rights, signed Nov. 22, 1969, 
OAS Official Records OKA/Ser. K/IXVIL, Doe. 65, Rev. 1, 

Cory. L:0Jan. 7, 1970) arts. 227) 249). 24; 

[luropean Convention on Human Rights, 213 U.N.T.S. 221 
(1950) arts. 3, 14: 

International Convention on the Suppression and Punishment 
of the Crime of Apartheid, adopted Nov. 30, 1973, G.A. Res. 

3068, 28 U.N. GAOR, Supp. (No. 30) 75, U.N. Doc. A/9233/ 

Add. 1 (197): 

United Nations Declaration on the Elimination of All Forms of 

Racial Discrimination, adopted Nov. 20, 1963, GG. A. Res. 1904, 

18 U.N. GAOR Supp. (No. 15) 35, 36, U.N. Doc. A/5515 (1963) 

art 1: 

International Convention on the Elimination of All Forms of 

Racial Discrimination, opened for signature Maveh 7, 1966, 660) 

UNTS. 195, arts. 1, 2 .   i th a sae ot a Ei a ar wo ee Se



9a 

Declaration of Social Progress and Development, adopted Dec. 
11, 1969, Arts. 1 and 2, G. A. Res. 2542, 24 U.N. GAOR, Supp. 

(No. 30) 49, U.N. Doc. A/T630 (1969); 

Declaration on the Promotion Among Youth of the Ideals of 
Peace, Mutual Respect and Understanding between Peoples, 
adopted Dec. 7, 1965; Principles 1 and 3, G.A. Res. 2037, 20 

U.N. GAOR, Supp. (No. 14) 40, U.N. Doc. A/6015 (1965); 

[Employment Policy Convention, adopted July 9, 1964, Art. 
1(2)(e), 569 U.N.T.S. 65 (entered into force July 15, 1964); 

Protocol to the Convention against Discrimination in duca- 

tion, adopted Dec. 10, 1962, [1969] U.N.T.S. No. 9423 (Cmd. 

3894); 

Convention against Discrimination in Education, adopted Dec. 

14, 1960, 429 U.N.T.S. 93, 96 (UNESCO General Conference) 

(entered into force May 22, 1962); 

Declaration on the Rights of the Child, Principle 1, adopted 

Nov. 20, 1959, G.A. Res. 1386, 14 U.N. GAOR, Supp. (No. 16) 
19, U.N. Doe. A/4354 (1959); 

Convention concerning Discrimination in Respect of ISmploy- 

ment and Occupation, adopted June 25, 1958, 362 U.N.T.5. 31 

(11.0 General Conference) (entered into force June 15, 1960); 

Convention Relating to the Status of Stateless Persons, Art. 3, 
adopted Sept. 23, 1954, 360 U.N.T.S. 117 (entered into force 
June 6, 1960); 

Convention on Human Rights and Fundamental Freedoms, 
adopted Nov. 4, 1950, 1950 Europ. T.S. No. 5, 213 U.N.T.S. 
39% . 
Seated 1 

Convention Relating to the Status of Refugees, adopted July 
25, 1951, Art. 3, 189 U.N.I\S. 304 (entered into force May 23, 

1953); 

Convention on the Prevention and Punishment of the Crime of 

Genocide, adopted Dee. 9, 1948, 78 U.N.T.S. 277 (entered into 

force Jan. 12, 1951).   
AA ERE RRA cri ta CE EA ts o 30 0 JEANIE 41390 104 Tre Arron same 

BT TIS  



No. 84-6811 
  

  

IN THE 

Supreme Court of the United States 

OcTOBER TERM, 1984 

WARREN MCCLESKEY, 

Petitioner, 
V. 

RALPH M. KEMP, 

Respondent. 

On Petition for Writ of Certiorari 

to the United States Court of Appeals 

for the Eleventh Circuit 

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE AND 

BRIEF AMICUS CURIAE OF THE 
INTERNATIONAL HUMAN RIGHTS LAW 

GROUP IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI 

Of Counsel: *RALPH G. STEINHARDT, ESQ. 

AMY YOUNG, Esq. PATTON, BOGGS & BLow 

Hurst HANNUM, Esq. 2550 M Street, N.W. 
STEVEN M. SCHNEEBAUM, Washington, D.C. 20037 

Esq. (202) 457-6055 

INTERNATIONAL HUMAN *Counsel of Record 

RIGHTS LAW GROUP 

Washington, D.C. 
  

  

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203  





MOTION OF THE INTERNATIONAL HUMAN RIGHTS 
LAW GROUP TO FILE BRIEF AMICUS CURIAE 

IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI 

Pursuant to Rule 36.3 of the Rules of this Court, the 
International Human Rights Law Group moves for leave to 
file the attached brief amicus curiae in support of the 
petition for a writ of certiorari. The Law Group is a non- 
profit organization of international lawyers and scholars, 
which, through litigation, publication, and other public ac- 
tivism, seeks to promote respect for human rights norms in 
all nations, including the United States. 

Amicus wishes to support the petition for writ of cer- 
tiorari to the United States Court of Appeals for the Elev- 
enth Circuit on the grounds that that Court of Appeals has 
both “decided an important question of federal law which 
has not been, but should be settled by this Court” and 
“decided a federal question in a way in conflict with applica- 
ble decisions of this Court.” Rule 17(c). In particular, ami- 
cus wishes to submit for this Courts consideration the 
argument that the en banc decision below approved an 
admittedly racially-discriminatory system for the imposi- 
tion of the death penalty, which violates peremptory norms 
of international law. In failing to consider international law 
as a relevant source of the rule of decision, the Eleventh 
Circuit’ decision violates the Supremacy Clause of the Con- 
stitution and applicable decisions of this Court. Alter- 
natively the precise question of whether international 
human rights norms must inform interpretations of Consti- 
tutional text is a highly significant issue of federal law 
deserving authoritative resolution by this Court. 

Amicus also brings a unique institutional perspective to 
these proceedings. Between 1980 and 1984, the Law Group 
sought to litigate the issues of race discrimination raised in  



  

i 

this case before the Inter-American Commission on Human 
Rights, an instrumentality of the Organization of American 

States. On October 3, 1984, the Commission held the Law 

Group’s petition inadmissible on certain procedural 
grounds. The Government of the United States had re- 
quested such a disposition inter alia on the ground that 
domestic remedies had not been exhausted and in particular 
on the ground that the issues raised herein were appropriate 

for disposition in the first instance by this Court and U.S. 
courts generally. 

Amicus is not aware of any presentation of these argu- 

ments to this Court in this case. Counsel for petitioner has 

consented to the filing of this brief. Amicus sought the 

consent of counsel for the respondent who declined to 
provide it, necessitating this motion. 

Respectfully submitted, 

RALPH G. STEINHARDT 

PATTON, BoGGs & BLow 

2550 M Street, N.W. 

Washington, D.C. 20037 
(202) 457-6000 

Counsel of Record for the 
International Human Rights 
Law Group 

  

   



111 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES... ut. ci subs. a su Vv 

INTEREST OF THE AMICUS: . oo. tina. vuiondl oni 1 

SUMMARY OF ARGUMENT un nnn ain sruiiis Sdn 2 

ABGUMENT. .... 0.0. os ae 0 aol 3 

I. As Suggested By The United States In Its Submis- 
sions To The Inter-American Commission On Human 
Rights, The Issues Raised By The Eleventh Circuits 
Decision Are Uniquely Important Questions Of Fed- 
eral Law Deserving Authoritative Resolution ... .. 3 

II. The Eleventh Circuit Was Required To Construe The 
Georgia Death Penalty Statute Consistently With 
Pertinent International Law And Failed To Do So. 
The Existence Of Racial Discrimination As Acknowl- 
edged By The Eleventh Circuit Violates A Perempto- 
ry Norm Of International Law =. ....ouv unin 6 

CONCLUSION 4... sie ca Ci mil Lo 11 

 



  

  

iv 

TABLE OF AUTHORITIES 

CASES: Page 

Asakwro uv. Seattle, 265 U.S. 3321923) .......... +... 8, 10 

Barcelona Traction Light and Power Co., Ltd., [1970] 
YC J. Ben. 32 i... i... hs anniaml idan 9 

Castaneda v. Partida, 430 U.S. 482 (A978) ...... 0... 6 

Cook v. United States, 288 U.S. 102 A983) =. ....... 4. 7 

Eddings v. Oklahoma, 455 U.S. 104 (1982) ........... 3,5 

Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980) 7 

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) ... 7 

First National City Bank v. Banco Para el Commercio 
Eaterior.de Cubg, 103 S. Ct. 2501. (1983). ovis 6 

Lowritzen uv. Larsen, 845 U.S. BTL (A953)... oi. on iniiis 7 

Legal Consequences for States of the Continued Presence 
of South Africa in Namibia (South Africa) notwith- 
standing Security Council Resolution 276, [1971] 
LOJ BED. 57 ivsvinviiahopnh s sessimninass sony, 9 

McCulloch v. Sociedad Nacional de Marineros de Hon- 
duras, 372 US, 10963) . ............ 0c ais 7 

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 
ABO)... ........ ccm or aie 7 

The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) ...... 6 

North Sea Continental Shelf Cases, [1969] I.C. J. Rep. 37 7 

The Paquete Habana, 175 U.S. 677 (1900) ...... 267.10 

Respublica v. DeLongchamps, 1 U.S. 119, 1 Dall. 111 (O. 
EL Pars)... es re rea 7 

Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th 
Civ, 198)... ress 7 

Rose v. Mitchell, 443 U8. 4B AMD) ................ 6 

Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), 
cert denied 404 U.S. 976 (ANY) ........... coves 

Talbot v. Seeman, 5 U.S. 1 Cranch) 1 A301) ......... 

Ware v. Hylton, 3 U.S. (3 Da)199(1796) ............ 

Weinberger v. Rossi, 456 11.8. 2611982) ............. 

Wood ». Georgia, 450 11.8. 261 (19RY) ........50n...... W
 

3 
OC
 

J
 

=
 

   



Table of Authorities Continued 

Woodson v. North Carolina, 428 U.S. 280 (1976) ..... 5 

TREATIES, STATUTES, DECLARATIONS, AND REGULATIONS: 

American Convention on Human Rights, signed Nov. 22, 
1969, OAS Official Records OEA/Ser. K/XVI/i.i., 
Doc..65, Rev.il, Corr. 1 (Jan. 7, 1970) i. ....u App. B 

American Declaration of the Rights and Duties of 
Man,0.A.S. Res. XXX, adopted by the Ninth Inter- 
national Conference of American States, held at 
Bogata, Columbia (1948), OEA/Ser. L./V/I. 4 Rev. 
(1965). oi esol App. B 

Charter of the Organization of American States, April 30, 
1948. 2 U.S. 7 2395, T.1.A.S. No. 2361, ...... App. B 

Convention against Discrimination in Education, adopted 
Dec. 14, 1960, 429 U.N.T.S. 93 (UNESCO General 
Conference) (entered into force May 22, 1962) . App. B 

Convention concerning Discrimination in Respect of Em- 
ployment and Occupation, adopted June 25, 1958, 362 
U.N.T.S. 31 (ILO General Conference) (entered into 
force June 15, 1960) i... ..... 0. coh id nas App. B 

Convention on Human Rights and Fundamental Free- 
doms, adopted Nov. 4, 1950, 1950 Europ. T.S. No. 5, 
A UNITS. 22)... i aii App. B 

Convention on the Prevention and Punishment of the 
Crime of Genocide, adopted Dec. 9, 1948, 78 
U.N.T.S. (entered into force Jan. 12, 1951).... App. B 

Convention Relating to the Status of Refugees, adopted 

July 25, 1951, Art. 3, 189 U.N.T.S. 304 (entered into 
force May 23,1953) .........ic..iisois iis App. B 

Convention Relating to the Status of Stateless Persons, 
Art. 3, adopied Sept. 23, 1954, 360 U.N. T.S. 117 
(entered into force June 6, 1960) ............. App. B 

 



  

vi 

Table of Authorities Continued 

Page 

Declaration of Social Progress and Development, adopted 
Dec. 11, 1969, Arts. 1 and 2, G.A. Res. 2542, 24 U.N. 
GAOR, Supp. (No. 30) 49, U.N. Doc. A/7630 
£10 EE FOR Se OL Se Te App. B 

Declaration on the Promotion Among Youth of the Ideals 
of Peace, Mutual Respect and Understanding be- 
tween Peoples, adopted Dec. 7, 1965; Principles 1 and 
3, G.A. Res. 2037, 20 U.N. GAOR, Supp. (No. 14) 40, 
U.N. Doe, ABO (1965). +... ....o viii bruni App. B 

Employment on Policy Convention, adopted July 9, 1964, 
Art. 1(2)(c), 569 U.N.T.S. 65 (entered into force July 
15,0964) i. vii Reisen si App. B 

European Convention on Human Rights, 213 
U.NTS22101980) ............ savers App. B 

International Covenant on Civil and Political Rights, 
adopted Dec. 16, 1966, G.A. Res. 2200A, 21 U.N. 
GAOR,. Supp. (No. 16) .............i........ App. B 

International Covenant on Economie, Social And Cultural 
Rights, adopted Dec. 16, 1966, G.A. Res. 2200A, 21 
UN.GAOB,. Supp. (No. 16) ..............+.. App. B 

International Convention on the Elimination of All Forms 
of Racial Discrimination, opened for signature March 
7.1966, 660 UN.TS, 105... ............... App. B 

International Convention on the Supression and Punish- 
ment of the Crime of Apartheid, adopted Nov. 30, 
1973, G. A. Res. 3068, 28 U.N. GAOR, Supp. (No. 30) 
75, U.N. Doe. A/O283/A4d4. 1QA973) .......... App. B 

OAS Charter, signed April 30, 1948, entered into force 
December 13, 1951, 2 U.S.T. 2394, T.1.A.S. No. 2361 

Protocol to the Convention against Discrimination in Edu- 
cation, adopted Dec. 10, 1962, (1969) U.N.T.S. No. 
UBC. IBM)... a eae App. B 

     



vil 

Table of Authorities Continued 

Page 

U.N. Charter, signed June 26, 1945, entered into force 
October 24, 1945, 59 Stat. 1031, T.S. No. 993 .... 8 

United Nations Declaration on the Elimination of All 
Forms of Racial Discrimination, adopted Nev. 20, 
1963, G.A. Res. 1904, 18 U.N. GAOR Supp. (No. 15) 
23, 36, U.N. Doc. ABBI5 (1963) ............. App. B 

Universal Declaration of Human Rights, adopted Dec. 10, 
1948 G.A. Res. 217, U.N. doc. A/810 (1948)... App. B 

Vienna Convention on the Law of the Treaties, adopted 
May 22, 1969, entered into force Jan. 27, 1980 .... 8 

LEGISLATIVE MATERIALS: 

S. Exec. Doe. L., 92d Cong., lst Sess. (1971) ........ 8 

MISCELLANEOUS: 

American Law Institute, Restatement of the Foreign Re- 
lations Law of the United States (Revised), § 131 
(Tentative Draft No. 1, 1930)... ....... i... 6 

American Law Institute, Restatement of Foreign Rela- 
tions Law of the United States (Revised), § 702(f) 
Cen. Draft No. 6, 1985)... conn. ind 10 

Gross, Race and Death: The Judicial Evaluation of Evi- 
dence of Discrimination in Capital Sentencing, 
forthcoming in 18 U.C. Davis. R., No. 4 ..... 5 

Henkin, International Law as Law in the United States, 
SMICH.L. REV. ISS (03) i liddie....... 7 

Op Att'y Gen, 270972) ............. ............. 6 

Zeisel, Race Bias in the Administration of the Death 
Penalty: The Florida Experience, 95 HARV. L. REV. 
ABB (1081) vl LL ES. 4 

 



   



IN THE 

Supreme Court of the United States 

OCTOBER TERM, 1984 
  

No. 84-6811 

  

WARREN MCCLESKEY, 

Petitioner, 
V 

RALPH M. KEMP, 

Respondent. 

On Petition for Writ of Certiorari 

to the United States Court of Appeals 

for the Eleventh Circuit 

BRIEF AMICUS CURIAE OF THE 
INTERNATIONAL HUMAN RIGHTS LAW 

GROUP IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI 

INTEREST OF THE AMICUS 

The International Human Rights Law Group is a non- 

profit organization of international lawyers and scholars 

which seeks to promote the observance of international 

human rights norms by providing legal assistance and infor- 

mation to individuals and groups on a pro bono basis; repre- 

 



senting clients in international forums; and participating 
amicus curiae in U.S. litigation involving international 
human rights norms. 

In 1980, the Law Group petitioned the Inter-American 
Commission on Human Rights, an instrumentality of the 
Organization of American States, to declare that capital 

sentences in the United States are imposed in a racially 

discriminatory manner. In particular, the Law Group ar- 
gued that the death penalty is imposed disproportionately 

on those defendants whose victims are white and that such 
discrimination based upon the race of the victim was in 

violation of treaties to which the United States is a party. 
After receiving statistical evidence similar and in some 

cases identical to that presented below by petitioner herein, 

the Commission held the Law Group's petition inadmissible 
on procedural grounds and effectively deferred the Law 

Group’ international claims pending an authoritative dis- 
position of the issue by American courts. The Law Group 
thus has a direct institutional stake in this Court’s decision 

to review the en banc opinion of the Eleventh Circuit Court 

of Appeals and to resolve the issues raised by that decision. 

SUMMARY OF ARGUMENT 

This is not an ordinary capital case. Amicus appears for 

the purposes of (i) demonstrating the unique and fundamen- 
tal significance of this case, as acknowledged by the United 

States in its submissions to the Inter-American Commission 

on Human Rights, and (ii) arguing that the Eleventh Cir- 
cuit, in violation of the Supremacy Clause of the Constitu- 
tion and applicable decisions of this Court, failed to consider 
International law as a pertinent source of the rule of deci- 

sion. Under The Paquete Habana, 175 U.S. 677 (1900) and 
its progeny, each of Questions Presented 1 through 5 should 

have been considered in light of the peremptory norm of 

   



international law condemning racial discrimination. It is 

submitted in fine that the en banc court's failure to construe 

the Georgia Death Penalty Statute consistently with bind- 
ing international law is reversible error. 

Although the international issues raised by amicus were 

neither presented to the courts below nor raised in the 
petition for certiorari, this Court has established that it has 

the power to consider relevant issues raised in a case “in the 

interests of justice,” irrespective of whether those issues 
were previously raised, Wood v. Georgia, 450 U.S. 261, 265, 

n.5 (1981), and that the exercise of that power is especially 
appropriate in capital cases, Eddings v. Oklahoma, 455 
U.S. 104 (1982). 

Amicus offers no opinion as to the circuit court’s disposi- 
tion of purely domestic issues of law, including its severe 

approach to admittedly valid statistical evidence in suits of 
this type. 

ARGUMENT 

I. As Suggested By The United States In Its Submissions 
To The Inter-American Commission On Human 
Rights, The Issues Raised By The Eleventh Circuit’s 
Decision Are Uniquely Important Questions Of 
Federal Law Deserving Authoritative Resolution. 

In his petition for certiorari, the petitioner portrays a 

myriad of important, indeed unprecedented federal issues 

raised by the en banc decision of the Eleventh Circuit. 

Amicus expresses no opinion as to these domestic issues 

but would demonstrate to this Court that the United States 

in parallel international proceedings has conceded the sig- 
nificance of the issues raised in this case. 

On August 6, 1980, amicus submitted a petition to the 

Inter-American Commission on Human Rights, an instru- 

 



mentality of the Organization of American States, alleging 
that the United States imposed the death penalty in a 
racially discriminatory manner. The various studies submit- 
ted to the Commission revealed a broad pattern of racially- 
based disparities in death sentencing based on the race of 
the victim. The evidence established that a person convicted 
in the State of Florida of murdering a white person was ten 
times more likely to receive the death penalty than one 
convicted of murdering a black person.! In Texas, the ratio 
was eighteen to one.? In Georgia, where this litigation 
arose, it was twelve to one.? 

The Law Group argued that domestic remedies for the 
redress of this discrimination were effectively exhausted 
when this Court denied certiorari in Spinkelink v. Wain- 
wright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 404 U.S. 
976 (1979). 

The United States opposed the petition almost ex- 
clusively on the ground that domestic remedies had not 
been exhausted with the denial of certiorari in Spinkelink. 
It stressed that U.S. courts including this Court remained 
open to receive evidence demonstrating the fact and extent 
of discrimination. Indeed, the government of the United 
States in framing the issue expressly conceded its relevance 
and importance: 

The Petition filed by the International Human Rights 
Law Group on behalf of all prisoners currently awaiting 
execution in the states of Florida, Georgia, and Texas 
raises an important issue in the administration of jus- 

‘The data are described in the affidavit of Professor William J. 
Bowers, which was attached to the Law Group’ 1980 petition, and 
which is attached hereto as Appendix A. See also, Zeisel, Race Bias 
in the Administration of the Death Penalty: The Florida Experience, 
95 HARV. L. REV. 456 (1981). 

App. A at 4a. 

*1d. at 3a. 

     



tice in the United States—whether capital punishment 
statutes determined by the U.S. Supreme Court to be 
constitutionally valid on their face are being imple- 
mented in a constitutional manner. 

Opposition of the United States, Case 7465 (June 16, 1981) 
at 1 1. The United States repeated its assurance to the 
Commission that U.S. courts would respond fully and fairly 
to evidence establishing race discrimination. In light of this 
suggestion and on other procedural grounds, the Commis- 
sion denied the petition on October 3, 1984, noting that the 
statistical evidence submitted was more appropriately di- 
rected to a domestic court in each individual case. 

As a result, the propriety of review in this particular 
capital case is patent. At the threshold of course the peti- 
tioner’s sentence of death inherently deserves this Court's 
most searching review. 

Because sentences of death are “qualitatively dif- 
ferent” from prison sentences, Woodson v. North Car- 
olina, 428 U.S. 280, 305 (1976) (opinion of Stewart, 
Powell, and Stevens, JJ.), this Court has gone to extra- 
ordinary measures to ensure that the prisoner sen- 
tenced to be executed is afforded process that will 
guarantee, as much as is humanly possible, that the 
sentence was not imposed out of whim, passion, preju- 
dice, or mistake. 

Eddings v. Oklahoma, 455 U.S. 104, 117-118 (1982) (O’Con- 
nor, J., concurring). But even ignoring its unique evidenti- 
ary record,” the case raises an issue which the United States 

‘The statistical study submitted to the courts below “is based on 
the most comprehensive empirical record of racial patterns in the 
imposition of the death penalty that has ever been developed in this 
country, or that is likely to be developed in the foreseeable future.” 
Gross, Race and Death: The Judicial Evaluation of Evidence of 
Discrimination in Capital Sentencing, forthcoming in 18 UNIV. 

 



government itself apparently regards as fundamentally im- 
portant and unresolved, i.e. whether discrimination in cap- 
ital sentencing, as established by statistical proof, is consti- 
tutional. Pet. App. 43-50. 

II. The Eleventh Circuit Was Required To Construe The 
Georgia Death Penalty Statute Consistently With Per- 
tinent International Law And Failed To Do So. The 
Existence Of State-Sanctioned Racial Discrimina- 
tion As Acknowledged By The Eleventh Circuit Vio- 
lates A Peremptory Norm Of International Law. 

It is axiomatic that international law is part of the law of 
the United States and, under the Supremacy Clause of the 
Constitution as interpreted, “must be ascertained and ad- 
ministered by the courts of justice of appropriate jurisdic- 
tion, as often as questions of right depending upon it are 
duly presented for their determination.” The Paquete 
Habana, 175 U.S. 677, 700 (1900). This basic principle has 
been accepted from the earliest days of the Republic, Ware 
v. Hylton, 3 U.S. (3 Da.) 199, 281 (1796); The Nereide, 13 
U.S. (9 Cranch) 388, 423 (1815), and received fresh con- 
firmation from this Court as recently as 1983 in Justice 
O’Connor’s opinion for the Court in First National City 
Bank v. Banco Para el Commercio Exterior de Cuba, 103 
S.Ct. 2591, 2598 (1983).% 
  

CAL. Davis L. R., No. 4 (1985) (at page 1 of prepublication man- 
uscript). Though acknowledging the validity of the study, the en banc 
court was sharply divided on the issue of what conclusions of law 
could be drawn from it, compare 753 F.2d at 886 with 753 F.2d at 907 
(Johnson, Hatchett, and Clark, JJ., dissenting). The dispute indepen- 
dently suggests the propriety of this Court's review in light of Justice 
Blackmun’s opinion for the Court in both Castaneda v. Partida, 430 
U.S. 482 (1976) and Rose v. Mitchell, 443 U.S. 545 (1978). 

*See also Op. Att'y Gen. 27 (1972) (“The law of nations, although not 
specially adopted by the Constitution or any municipal act, is essen- 
tially a part of the law of the land”); Restatement (Revised) of the 
Foreign Relations Law of the United States (Tentative Draft No. 1, 
1980) at § 131, Comment D (“the proposition that international law 

     



The most fundamental application of this principle arises 
when courts are requested to interpret statutes enacted by 
Congress or the state legislatures. In all such cases, the 
statute “ought never to be construed to violate the law of 
nations, if any other possible construction remains . . . .” 
Weinberger v. Rossi, 456 U.S. 25, 33 (1982), quoting Murray 
v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See 
also, Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801); Cook 
v. United States, 288 U.S. 102 (1983); Lauritzen v. Larsen, 
345 U.S. 571, 578 (1953); McCulloch v. Sociedad Nacional 

de Marineros de Honduras, 372 U.S. 10, 21 (1963). The “law 
of nations” which the courts are directed to apply includes 
both treaties and customary international law.® 

Thus, in construing the Georgia death penalty statute and 
petitioners sentence thereunder, the Eleventh Circuit 
Court of Appeals was obliged to “ascertain[ | and admin- 
ister] ]” international law, insofar as “questions of right” 

depend upon it, The Paquete Habana, supra. On such 

  

and agreements are law in the United States is addressed mainly to 
the courts. They are to apply international law or agreements as if 
their provisions were enacted by Congress.”); Henkin, International 
Law as Law in the United States, 82 MicH. L. REV. 1555, 1560 
(1984). 

Customary international law is essentially international common 
law, which arises out of the practice of nations acting in a particular 
manner because they feel themselves legally bound to do so. This 
state practice may be deduced from treaties, national constitutions, 
declarations and resolutions of intergovernmental bodies, public pro- 
nouncements by heads of state, and empirical evidence of the extent 
to which the customary law rule is observed. See North Sea Conti- 
nental Shelf Cases, [1969] 1.C.J. Rep. 37. Customary international 
law is binding on all nations and creates enforceable rights and 
obligations for individuals. Paquete Habana, supra; Respublica v. 
DeLongchamps, 1 U.S. 119, 1 Dall. 111 (O.&T. Pa. 1784). See e.g., 
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Fernandez v. 
Wilkinson, 505 F. Supp. 787 (D. Kan. 1980), aff’d on other grounds 
sub nom, Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th 
Cir. 1981).  



  

grounds, this Court struck down a discriminatory ordinance 
which was inconsistent with the provisions of an interna- 
tional treaty in Asakura v. Seattle, 265 U.S. 332 (1923): 

The rule of equality established by [the treaty] cannot 
be rendered nugatory in any part of the United States 

* by municipal ordinances or state laws. It stands on the 
same footing of supremacy as do the provisions of the 
Constitution and laws of the United States. It operates 
of itself without the aid of any legislation, state or 
national; and it will be applied and given authoritative 
effect by the courts. 

Id. at 341 (citations omitted). 

The anti-discrimination norm of international law is no 
less binding than that applied in Asakura. Indeed, under 
any standard of proof, the right to be free from governmen- 
tal discrimination on the basis of race is so universally 
accepted by nations as to constitute a peremptory norm of 
international law.” It is included in such fundamental texts 
as the Charter of the United Nations,® and the Charter of 
the Organization of American States’, both of which are 

’A peremptory norm of international law is a “norm accepted and 
recognized by the international community of states as a whole as a 
norm from which no derogation is permitted and which can be modi- 
fied only by a subsequent norm of general international law having 
the same character.” Vienna Convention on the Law of Treaties, 
adopted May 22, 1969, entered into force Jan. 27, 1980. Although the 
Vienna Convention has been signed but not ratified by the United 
States, the Department of State, in submitting the convention to the 
Senate, stated that the convention “is already recognized as the 
authoritative guide to current treaty law and practice.” S. Exec. Doc. 
L., 92d Cong., 1st Sess. (1971) at 1. 

*U.N. Charter, signed June 26, 1945, entered into force October 24, 
1945, 59 Stat. 1031, T.S. No. 993, Article 55(c). 

OAS Charter, signed April 30, 1948, entered into force December 
13, 1951, 2 U.S.T. 2394, T.I.A.S. No. 2361, Article 3(j). 

   



treaties ratified by the United States. Similar prohibitions 

are found in every comprehensive international treaty per- 

taining to human rights and in numerous international dec- 
larations and resolutions. ’Recognizing this consistent and 
universal condemnation of racial discrimination, the Inter- 

national Court of Justice has concluded that “the principles 
and rules concerning the basic rights of the human person, 
including protection from . . . racial discrimination,” con- 

stitute an international obligation of all states. Case con- 
cerning the Barcelona Traction Light and Power Co., Ltd., 

[1970] I.C.J. Rep. 32. See also Legal Consequences for 

States of the Continued Presence of South Africa in 
Namibia (South West Africa) notwithstanding Security 
Council Resolution 276, [1971] 1.C.J. Rep. 57: 

[T]o establish . . . and to enforce distinctions, exclu- 

sions, restrictions, and limitations exclusively based on 

grounds of race, colour, descent or national or ethnic 
origin . . . constitutes a denial of fundamental human 
rights [and] is a flagrant violation of the purposes and 

principles of the charter. 

With remarkable candor, the en banc Court of Appeals 
accepted the factual findings of petitioner’ studies, viz. that 
no factors other than race could account for the marked 
increase in capital sentences among those defendants whose 
victims were white. Indeed, the court below expressly 
“assuml[ed] the validity of the research,” and “that it proves 

what it claims to prove.” 753 F.2d at 886. The court’ decision 
as a matter of law that this evidence established no violation 
of the Eighth and Fourteenth Amendments to the U.S. 
Constitution does not dispose of the issue whether it evinces 
a fundamental violation of international law. The court of 

“The relevant international authorities are collected in Appendix 
B.  



  

10 

appeals cannot so blithly ignore the legal consequences of its 
factual concessions. 

The discrepancy in capital sentencing patterns which is 
assumed by the en banc court in this case clearly falls within 
the international prohibition. That norm, apparently unlike 
the Eighth and Fourteenth Amendments in the Eleventh 
Circuit, admits no defense of degree and demands no in- 
controvertible showing of individualized intent. It is sys- 
tematic racial discrimination, of the kind admittedly demon- 
strated in this case, which violates binding international 
law. 1! 

But the en banc court below made no attempt to dis- 
charge its burden under The Paquete Habana and Asakura 
to apply international law. It utterly failed to address the 
relevant norms of international law that constitute part of 
federal common law. The court simply did not discuss 
whether the racial discrimination alleged by petitioner falls 
within the scope of international law as incorporated into 
federal common law. Instead, on the issue of discrimination, 
the court of appeals contented itself with considering only 
the contours of the Eighth and Fourteenth Amendments. 
The courts apparent neglect of the peremptory norm of 
international law prohibiting racial discrimination cannot be 
squared with this Court's consistent adherence to the law of 
nations as providing the rule of decision, whenever a liti- 
gant’s rights are framed in its terms. In short, the en banc 
court’ failure to assess the international law issues raised 
by its assumption that the showing of discrimination was 
valid constitutes error which should be reviewed by this 
Court. And, if the en banc court somehow did not err in 
failing to ascertain and apply international law, then the 

See e.g. American Law Institute, Restatement of Foreign Rela- 

tions Law of the United States (Revised), § 702(f) (Tent. Draft No. 6 
1985). 

    

 



11 

case raises the fundamental issue of when, under The Pa- 
quete Habana and Asakura, domestic courts are obliged to 
look to that source of law and when they may ignore it. 

CONCLUSION 

The decision of the Court of Appeals en banc that the 
Georgia death penalty statute is not unlawfully applied in 

spite of an admitted discriminatory impact flies in the face of 
the universal principle that international human rights law 

applies to all individuals. The en banc courts failure to 
consider in a meaningful way the international law issues 

relevant to this case violates the Supremacy Clause of the 
Constitution as interpreted and ignores the decisions of this 

Court which establish the fundamental role of international 
law in United States law. In addition, even if the en banc 

courts disposition were consistent with Supreme Court 

precedent in the international law field, the case raises 
issues of law and fact which sharply distinguish it from other 

capital cases, as the United States itself has acknowledged. 

For these reasons, amicus respectfully urges this Court 
to grant certiorari. 

Respectfully submitted, 

RALPH G. STEINHARDT, ESQ. 

PATTON, BOGGS & BLOW 

2550 M Street, N.W. 

Washington, D.C. 20037 
(202) 457-6055 

Of Counsel: Counsel of Record 

for Amicus Curiae 
Hurst Hannum, Esq. C 
Amy Young, Esq. 

Steven M. Schneebaum, Esq.  



  

 
 

  
  
 



APPENDIX 

 



 



1a 

APPENDIX A 

AFFIDAVIT OF PROFESSOR WILLIAM BOWERS 

I am a sociologist with particular training in statistics and 

computer applications to sociology. I graduated from Wash- 

ington and Lee University in 1957 and received my doctorate in 

sociology in 1966 from Columbia University. I am presently a 

professor of sociology at Northeastern University, Boston, 

Massachusetts, and Director of that University’s Center for 

Applied Social Research. 

Since approximately 1972, I have been engaged in research, 

study, and writing on the use of the death penalty in the United 

States. I am the author of numerous articles on the subject and 
of the book Executions in America, published in 1974. 

Together with the Assistant Director here at the Center, 

Glenn L. Pierce, and others, I have supplied the figures and 

statistics on race-victim death sentencing disparaties con- 

tained in appendices A and B of this complaint. These figures 

are accurate to the best of our abilities and reflect sustained 

research and the use of widely-accepted statistical methods. 

I believe, on the basis of my research and analysis, that the 

broad pattern of race-victim death sentencing disparities com- 

plained of in the foregoing document remain unremedied by 

state or federal authorities and therefore continue today. 

(signed) William Bowers   

Professor William Bowers 

SS: Commonwealth of Massachusetts 
County of Suffolk 

Subscribed and sworn to before me this 11th day of April, 
1980. 

(signed) Philip C. Boyd 

Notary Public 

My Commission Expires: 

Nov. 28, 1980 

  

SEAL  



  
  

    

2a 

FLORIDA 

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

STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 

Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 

White 2265 72 .032 

Black 2606 61 .023 

Race of Victim 

White 2439 122 .050 

Black 2432 11 .005 

Offender/Victim 

Racial Combinations 

Black Kills White 286 48 .168 

White Kills White 2146 72 .034 

Black Kills Black 2320 11 .005 

White Kills Black 111 0 .000 

All Offenders 4871 133 027 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 

data from January 1973 through December 1976, supplied by the Uniform 

Crime Reporting Program, Federal Bureau of Investigation, United States 

Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reports Program, Department of Law Enforcement, Tallahassee, Florida; 
(3) persons sentenced to death from January 1973 through December 1977, 
supplied by Citizens Against the Death Penalty, Jacksonville, Florida. 

“The estimated number of offenders for a given category is obtained by 

multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 3.484 equals the number of homicide 
victims from January 1973 through December 1977 (sources: 1, 2) divided by 
the number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



3a 

GEORGIA 

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

STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 
Number of Sentenced of a Death 

Race of Offender Offenders* to Death Sentence 
White 1082 41 .038 
Black 2716 49 .018 

Race of Victim 
White 1265 76 .060 
Black 2529 14 .005 

Offender/Victim 
Racial Combinations 

Black Kills White 258 37 143 

White Kills White 1006 39 .039 

Black Kills Black 2458 12 .005 

White Kills Black 71 2 .028 

All Offenders 3798 90 .024 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from April 1973 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Criminal Ac- 
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In- 
formation Center, Atlanta, Georgia; (3) Vital Statistics tabulations on willful 
homicides from April 1973 through December 1977, supplied by the Office of 
Health Services Research and Statistics, Division of Physical Health, Atlan- 
ta, Georgia; (4) Persons sentenced to death from April 1975 through De- 
cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 4.453 equals the number of homicide 
victims from April 1973 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2).  



  

4a 

TEXAS 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR CRIMINAL HOMICIDE BY RACE 

OF OFFENDER AND VICTIM IN TEXAS FROM THE 
EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders to Death Sentence 
White 3771 38 .010 
Black 2940 29 .010 

Race of Victim 

White 3964 71 .018 
Black 2740 2 .001 

Offender/Victim 
Racial Combinations 

Black Kills White 344 7 078 
White Kills White 3616 37 .010 
Black Kills Black 2597 2 .007 
White Kills Black 143 0 .000 

All Offenders 6711 73 .011 

Data Sources: (1) Supplementary Homicide Reports on eriminal homicide 
data from January 1974 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 

Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reporting Bureau, Texas Department of Public Safety, Austin, Texas; (3) 
Vital Statistics records on willful homicides from January 1974 through 
December 1977, supplied by the Bureau of Vital Statistics, Texas Depart- 
ment of Health, Austin, Texas; (4) persons sentenced to death from January 
1974 through December 1977, supplied by the Office of Court Administration, 
The Supreme Court of Texas, Austin, Texas. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 2.473 equals the number of homicide 
victims from January 1974 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



FLORIDA 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN FLORIDA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons Probability 

Number of Sentenced of a Death 

Race of Offender Offenders” to Death Sentence 

White 307 54 176 

Black 251 50 .199 

Race of Victim 

White 432 97 224 

Black 122 7 .067 

Offender/Victim 

Racial Combinations 

Black Kills White 136 41 301 

White Kills White 296 54 182 

Black Kills Black 115 7 .061 

White Kills Black 7 0 .000 

All Offenders 558 104 .186 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 

data from January 1973 through December 1976, supplied by the Uniform 

Crime Reporting Program, Federal Bureau of Investigation, United States 

Department of Justice, Washington, D.C.; (2) Supplementary Homicide 

Reports on criminal homicide data for 1977, supplied by the Uniform Crime 

Reports Program, Department of Law Enforcement, Tallahassee, Florida; 

(3) persons sentenced to death from January 1973 through December 1977, 

supplied by Citizens Against the Death Penalty, Jacksonville, Florida. 

“The estimated number of offenders for a given category is obtained by 

multiplying the reported number of offenders in that category for the years 

1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for 

undercoverage. The adjustment factor 3.484 equals the number of homicide 

victims from January 1973 through December 1977 (sources: 1, 2) divided by 

the number of homicide victims in the years 1976, 1977 (sources: 1, 2).  



  
  

ba 

GEORGIA 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY-TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN GEORGIA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 
Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 
White 196 7 .189 
Black 338 42 124 

Race of Victim 
White 316 69 218 
Black 218 10 .046 

Offender/Victim 
Racial Combinations 

Black Kills White 134 34 .254 
White Kills White 183 35 .191 
Black Kills Black 205 8 .039 
White Kills Black 13 2 154 

All Offenders 534 79 148 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from April 1973 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Criminal Ac- 
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In- 
formation Center, Atlanta, Georgia; (3) Vital Statistics tabulations on willful 
homicides from April 1973 through December 1977, supplied by the Office of 
Health Services Research and Statistics, Division of Physical Health, Atlan- 

ta, Georgia; (4) Persons sentenced to death from April 1973 through De- 
cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia; (4) Persons sentenced to death from April 1973 through 

December 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 4.453 equals the number of homicide 
victims from April 1973 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

  
 



Ta 

TEXAS 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY-TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN TEXAS FROM THE 

EFFECTIVE DATE OF THE POST-FURMAN 
STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 
Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 
White 411 34 .083 

Black 294 Lf .092 

Race of Victim 
White 551 63 114 

Black 151 2 .013 

Offender/Victim 
Racial Combinations 

Black Kills White 173 25 .144 

White Kills White 378 34 .090 

Black Kills Black 121 2 .016 

White Kills Black 30 0 .000 

All Offenders 705 61 087 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from January 1974 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reporting Bureau, Texas Department of Public Safety, Austin, Texas; (3) 
Vital Statistics records on willful homicides from January 1974 through 
December 1977, supplied by the Bureau of Vital Statistics, Texas Depart- 
ment of Health, Austin, Texas; (4) persons sentenced to death from January 
1974 through December 1977, supplied by the Office of Court Administration, 
The Supreme Court of Texas, Austin, Texas. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 2.473 equals the number of homicide 
victims from January 1974 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2).  



  
    

8a 

APPENDIX B 

Universal Declaration of Human Rights, adopted Dec. 10, 1948 
G.A. Res. 217, U.N. doc. A/810 (1948) arts. 2, 7, 14; 

International Covenant on Civil and Political Rights, adopted 

Dec. 16, 1966, G.A. Res. 22004, 21 U.N. GAOR, Supp. (No. 

16) arts. 2(a), 13, 26; 

International Covenant on Economic, Social And Cultural 

Rights, adopted Dec. 16, 1966, G.A. Res. 2200A, 21 U.N. 

GAOR, Supp. (No. 16) art. 2(2); 

Charter of the Organization of American States, April 30, 1948, 
2 U.S.T 2395, T1.A.8. No. 2361, art. 303); 

American Declaration of the Rights and Duties of Man, O.A.S. 

Res. XXX, adopted by the Ninth International Conference of 

American States, held at Bogota, Columbia (1948), OEA/Ser. 

L./V/1. 4 Rev. (1965) Arts. II, XXCII; 

American Convention on Human Rights, signed Nov. 22, 1969, 

OAS Official Records OEA/Ser. K/XV1/i.i, Doc. 65, Rev. 1, 

Corr. 1 (Jan. 7, 1970) arts. 22(7), 22(9), 24; 

European Convention on Human Rights, 213 U.N.T.S. 221 
(1950) arts. 5, 14; 

International Convention on the Suppression and Punishment 

of the Crime of Apartheid, adopted Nov. 30, 1973, G.A. Res. 
3068, 28 U.N. GAOR, Supp. (No. 30) 75, U.N. Doc. A/9233/ 
Add. 1 (1973); 

United Nations Declaration on the Elimination of All Forms of 

Racial Discrimination, adopted Nov. 20, 1963, G.A. Res. 1904, 

18 U.N. GAOR Supp. (No. 15) 35, 36, U.N. Doe. A/5515 (1963) 
art. 1: 

International Convention on the Elimination of All Forms of 

Racial Discrimination, opened for signature March 7, 1966, 660 

U.N.TS. 195, arts. 1, 2; 

 



9a 

Declaration of Social Progress and Development, adopted Dec. 

11, 1969, Arts. 1 and 2, G.A. Res. 2542, 24 U.N. GAOR, Supp. 

(No. 30) 49, U.N. Doc. A/7630 (1969); 

Declaration on the Promotion Among Youth of the Ideals of 

Peace, Mutual Respect and Understanding between Peoples, 

adopted Dec. 7, 1965; Principles 1 and 3, G.A. Res. 2037, 20 

U.N. GAOR, Supp. (No. 14) 40, U.N. Doc. A/6015 (1965); 

Employment Policy Convention, adopted July 9, 1964, Art. 

1(2)(e), 569 U.N.T.S. 65 (entered into force July 15, 1964); 

Protocol to the Convention against Discrimination in Educa- 
tion, adopted Dec. 10, 1962, [1969] U.N.T.S. No. 9423 (Cmd. 

3894); 

Convention against Discrimination in Education, adopted Dec. 

14, 1960, 429 U.N.T.S. 93, 96 (UNESCO General Conference) 

(entered into force May 22, 1962); 

Declaration on the Rights of the Child, Principle 1, adopted 

Nov. 20, 1959, G.A. Res. 1386, 14 U.N. GAOR, Supp. (No. 16) 

19, U.N. Doc. A/4354 (1959); 

Convention concerning Discrimination in Respect of Employ- 

ment and Occupation, adopted June 25, 1958, 362 U.N.T.S. 31 

(ILO General Conference) (entered into force June 15, 1960); 

Convention Relating to the Status of Stateless Persons, Art. 3, 

adopted Sept. 23, 1954, 360 U.N.T.S. 117 (entered into force 

June 6, 1960); 

Convention on Human Rights and Fundamental Freedoms, 

adopted Nov. 4, 1950, 1950 Europ. T.S. No. 5, 213 U.N.T.S. 
221: 

Convention Relating to the Status of Refugees, adopted July 

25, 1951, Art. 3, 189 U.N.T.S. 304 (entered into force May 23, 

1953); 

Convention on the Prevention and Punishment of the Crime of 

Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into 

force Jan. 12, 1951).  



 
 

 
 

 







No. 84-6811 
  
  

IN THE 

Supreme Court of the United States 

OCTOBER TERM, 1984 

WARREN MCCLESKEY, 

Petitioner, 
VY, 

RALPH M. KEMP, 

Respondent. 

On Petition for Writ of Certiorari 

to the United States Court of Appeals 

for the Eleventh Circuit 

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE AND 

BRIEF AMICUS CURIAE OF THE 
INTERNATIONAL HUMAN RIGHTS LAW 

GROUP IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI 

Of Counsel: *RALPH G. STEINHARDT, ESQ. 

AMY YOUNG, Esq. PATTON, BOGGS & BLow 

HursT HANNUM, Esq. 2550 M Street, N.W. 

STEVEN M. SCHNEEBAUM, Washington, D.C. 20037 

Esq. (202) 457-6055 

INTERNATIONAL HUMAN *Counsel of Record 
RIGHTS LAW GROUP 

Washington, D.C. 

  

  

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203  





MOTION OF THE INTERNATIONAL HUMAN RIGHTS 
LAW GROUP TO FILE BRIEF AMICUS CURIAE 

IN SUPPORT OF PETITION FOR WRIT OF 
CERTIORARI 

Pursuant to Rule 36.3 of the Rules of this Court, the 

International Human Rights Law Group moves for leave to 
file the attached brief amicus curiae in support of the 

petition for a writ of certiorari. The Law Group is a non- 

profit organization of international lawyers and scholars, 
which, through litigation, publication, and other public ac- 

tivism, seeks to promote respect for human rights norms in 
all nations, including the United States. 

Amicus wishes to support the petition for writ of cer- 
tiorari to the United States Court of Appeals for the Elev- 
enth Circuit on the grounds that that Court of Appeals has 

both “decided an important question of federal law which 
has not been, but should be settled by this Court” and 

“decided a federal question in a way in conflict with applica- 
ble decisions of this Court.” Rule 17(c). In particular, ami- 

cus wishes to submit for this Courts consideration the 

argument that the en banc decision below approved an 
admittedly racially-discriminatory system for the imposi- 

tion of the death penalty, which violates peremptory norms 

of international law. In failing to consider international law 
as a relevant source of the rule of decision, the Eleventh 
Circuit's decision violates the Supremacy Clause of the Con- 

stitution and applicable decisions of this Court. Alter- 

natively the precise question of whether international 
human rights norms must inform interpretations of Consti- 

tutional text is a highly significant issue of federal law 
deserving authoritative resolution by this Court. 

Amacus also brings a unique institutional perspective to 

these proceedings. Between 1980 and 1984, the Law Group 
sought to litigate the issues of race discrimination raised in 

 



  

ii 

this case before the Inter-American Commission on Human 
Rights, an instrumentality of the Organization of American 

States. On October 3, 1984, the Commission held the Law 

Group’s petition inadmissible on certain procedural 
grounds. The Government of the United States had re- 
quested such a disposition inter alia on the ground that 
domestic remedies had not been exhausted and in particular 
on the ground that the issues raised herein were appropriate 
for disposition in the first instance by this Court and U.S. 
courts generally. 

Amicus is not aware of any presentation of these argu- 
ments to this Court in this case. Counsel for petitioner has 
consented to the filing of this brief. Amicus sought the 
consent of counsel for the respondent who declined to 
provide it, necessitating this motion. 

Respectfully submitted, 

RALPH G. STEINHARDT 

PaTrTON, BOGGS & BLOW 

2550 M Street, N.W. 

Washington, D.C. 20037 
(202) 457-6000 

Counsel of Record for the 
International Human Rights 

Law Group 

   



iii 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES... oo A nb PL BL Vv 

INTEREST OF THE AMICUS ib. de AB dia 1 

SUMMARY OF ARGUMENT ....oiv on vive idan 2000 2 

ABGUMENT. ....oivivi. sin. Sova rnb cBii i bon VN 3 

I. As Suggested By The United States In Its Submis- 
sions To The Inter-American Commission On Human 

Rights, The Issues Raised By The Eleventh Circuit’s 
Decision Are Uniquely Important Questions Of Fed- 
eral Law Deserving Authoritative Resolution ..... 3 

II. The Eleventh Circuit Was Required To Construe The 
Georgia Death Penalty Statute Consistently With 
Pertinent International Law And Failed To Do So. 
The Existence Of Racial Discrimination As Acknowl- 
edged By The Eleventh Circuit Violates A Perempto- 
ry Norm Of International Law ~... ....ou on iin 6 

CONCLUSION oo... ro ie ria m,n 1 

 



  

1v 

TABLE OF AUTHORITIES 

CASES: Page 

Asalowre vu. Seattle, 265 11.8. 332 (1928)... .. cdl 8, 10 

Barcelona Traction Light and Power Co., Ltd., [1970] 
LO.J. Rep. 32 i. oiih os ibis das ivai 9 

Castaneda v. Partido, 430 U.S. 482 (1976) ........... 6 

Cook v. United Stoles, 288 U.S. 102 (1983) -...... ...... 7 

Eddings v. Oklahoma, 455 U.S. 104 (1982) ........... 3,5 

Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980) 7 

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) ... 7 

First National City Bank v. Banco Para el Commercio 
Exterior de Cuba, 103 S. Ct. 2591 (1983)... .... 6 

Lowritzen wv. Lorsen, 345 U.S. 5TL.QA988) .;:... oa 7 

Legal Consequences for States of the Continued Presence 
of South Africa in Namibia (South Africa) notwith- 
standing Security Council Resolution 276, [1971] 
LOC J. Bep. BY .c..tiscinsiissindvinansssi dad 9 

McCulloch v. Sociedad Nacional de Marineros de Hon- 
dures, 372 U8. 10 (A963). =... ve oe viii 7 

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 
CABOLY ... vss iris ies tat dic Seiichi saat ns 7 

The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) ...... 6 

North Sea Continental Shelf Cases, [1969] I.C. J. Rep. 37 7 

The Paquete Habana, 175 U.S. 677 (1900) ...... 2:6, 7, 10 

Respublica v. DeLongchamps, 1 U.S. 119, 1 Dall. 111 (O. 
ELPA)... ia rani 7 

Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th 
CI 1981)... ive ii i viii 7 

Rose v. Mitchell, 443 U.S. 545 (1978)... ... vv s viii 6 

Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), 
cert. dewied 404 U.S. 976 (1979) ................ 

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1301) .......... 

Wore» Hylion, 3 U.S. 3 Da.) 19901796) ............. 

Weinberger v. Bossi, 456 U.S. 25 (1982) ............. 

Wood v. Georgia, 450 U.S. 261 (1981) ................. W
 

a 
OO

 
J 

=
 

   



Table of Authorities Continued 

Woodson v. North Carolina, 428 U.S. 280 (1976) ..... 5 

TREATIES, STATUTES, DECLARATIONS, AND REGULATIONS: 

American Convention on Human Rights, signed Nov. 22, 
1969, OAS Official Records OEA/Ser. K/XVI/i.i., 
Doc. 65, Rev. 1, Corr. 1: (Jan. 7.1970) ....... App. B 

American Declaration of the Rights and Duties of 
Man,0.A.S. Res. XXX, adopted by the Ninth Inter- 
national Conference of American States, held at 
Bogata, Columbia (1948), OEA/Ser. L./V/I. 4 Rev. 
Hi ER a ER RE RE App. B 

Charter of the Organization of American States, April 30, 
1948, 2. U.S.T. 2395, T1.A.8. No..2361, ...... App. B 

Convention against Discrimination in Education, adopted 
Dec. 14, 1960, 429 U.N.T.S. 93 (UNESCO General 
Conference) (entered into force May 22, 1962) . App. B 

Convention concerning Discrimination in Respect of Em- 
ployment and Occupation, adopted June 25, 1958, 362 

U.N.T.S. 31 (ILO General Conference) (entered into 
force June 15, 1960) 5... .. a. Liat App. B 

Convention on Human Rights and Fundamental Free- 
doms, adopted Nov. 4, 1950, 1950 Europ. T.S. No. 5, 
A UN. TS. 2 i ies App. B 

Convention on the Prevention and Punishment of the 

Crime of Genocide, adopted Dec. 9, 1948, 78 
U.N.T.S. (entered into force Jan. 12, 1951) .... App. B 

Convention Relating to the Status of Refugees, adopted 
July 25, 1951, Art. 3, 189 U.N.T.S. 304 (entered into 
force May 22,1953). ...c... ..-.ocv oi 0s vas App. B 

Convention Relating to the Status of Stateless Persons, 
Art. 3, adopted Sept. 23, 1954, 360 U.N.T.S. 117 
(entered into force June 6, 1960) ............. App. B 

 



    

vi 

Table of Authorities Continued 

Page 

Declaration of Social Progress and Development, adopted 
Dec. 11, 1969, Arts. 1 and 2, G.A. Res. 2542, 24 U.N. 
GAOR, Supp. (No. 30) 49, U.N. Doc. A/7630 
O69). coal ann BRL BLAS App. B 

Declaration on the Promotion Among Youth of the Ideals 
of Peace, Mutual Respect and Understanding be- 
tween Peoples, adopted Dec. 7, 1965; Principles 1 and 
3, G.A. Res. 2037, 20 U.N. GAOR, Supp. (No. 14) 40, 
L.N.. Doc. ABOIS L1965) =... viv in vin owinivia App. B 

Employment on Policy Convention, adopted July 9, 1964, 
Art. 1(2)(e), 569 U.N.T.S. 65 (entered into force July 
15: 106) ..o0 viii ii trai oie bn ah App. B 

European Convention on Human Rights, 213 
DN. T8221 (1050) ... ois ovis sis numiotiobinnn tins App. B 

International Covenant on Civil and Political Rights, 
adopted Dec. 16, 1966, G.A. Res. 2200A, 21 U.N. 
GAOR, Supp. (No. 18)... ci conicnsr ors van App. B 

International Covenant on Economic, Social And Cultural 
Rights, adopted Dec. 16, 1966, G.A. Res. 22004, 21 
U.N. GAOR, Supp. (No. 16) .......v cin vinnie» App. B 

International Convention on the Elimination of All Forms 
of Racial Discrimination, opened for signature March 
7.1966, 660 TI. NTS, 195 ....... son ssaannss App. B 

International Convention on the Supression and Punish- 
ment of the Crime of Apartheid, adopted Nov. 30, 
1973, G.A. Res. 3068, 28 U.N. GAOR, Supp. (No. 30) 
75, U.N. Doc. A/9233/Add. 1 (1973) .......... App. B 

OAS Charter, signed April 30, 1948, entered into force 
December 13, 1951, 2 U.S.T. 2394, T.1.A.S. No. 2361 

Protocol to the Convention against Discrimination in Edu- 
cation, adopted Dec. 10, 1962, (1969) U.N.T.S. No. 
S423 (Cmd. 384) . J. aE a ES App. B 

 



vil 

Table of Authorities Continued 

Page 

U.N. Charter, signed June 26, 1945, entered into force 
October 24, 1945, 59 Stat. 1031, T.S. No. 993 .... 8 

United Nations Declaration on the Elimination of All 
Forms of Racial Discrimination, adopted Nev. 20, 
1963, G.A. Res. 1904, 18 U.N. GAOR Supp. (No. 15) 
35, 36, U.N. Doc. A/BBI5(1963) ............. App. B 

Universal Declaration of Human Rights, adopted Dec. 10, 
1948 G.A. Res. 217, U.N. doc. A/810 (194%) ... App. B 

Vienna Convention on the Law of the Treaties, adopted 
May 22, 1969, entered into force Jan. 27, 1980 .... 8 

LEGISLATIVE MATERIALS: 

8S. Exec. Doe. L., 92d Cong., lst Sess. (1971) ........ 8 

MISCELLANEOUS: 

American Law Institute, Restatement of the Foreign Re- 
lations Law of the United States (Revised), § 131 
(Tentative Draft No. 1, 1980) ..... ... .... ..... 6 

American Law Institute, Restatement of Foreign Rela- 
tions Law of the United States (Revised), § 702(f) 
(Ton. Dealt No.6, 1985)... oii ina, 10 

Gross, Race and Death: The Judicial Evaluation of Evi- 
dence of Discrimination in Capital Sentencing, 
forthcoming wn 18 U.C. Davis. R.. No.4 ..... 5 

Henkin, International Law as Law in the United States, 
S2MicH. L.REV. 1555/1934) ................... 7 

Op Atty Cen, 271972) ............ccovneenninnss 6 
Zeisel, Race Bias in the Administration of the Death 

Penalty: The Florida Experience, 95 HARV. L. REV. 
456 (1081) ........... AES ae Ga SE IE ER 4 

 



  

  

 



INTHE 

Supreme Court of the Enited States 

OCTOBER TERM, 1984 

  

No. 84-6811 

  

WARREN MCCLESKEY, 

Petitioner, 
V. 

RALPH M. KEMP, 

Respondent. 

On Petition for Writ of Certiorari 

to the United States Court of Appeals 

for the Eleventh Circuit 

BRIEF AMICUS CURIAE OF THE 
INTERNATIONAL HUMAN RIGHTS LAW 

GROUP IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI 

INTEREST OF THE AMICUS 

The International Human Rights Law Group is a non- 
profit organization of international lawyers and scholars 

which seeks to promote the observance of international 

human rights norms by providing legal assistance and infor- 

mation to individuals and groups on a pro bono basis; repre- 

 



  

  

senting clients in international forums; and participating 

amicus curiae in U.S. litigation involving international 

human rights norms. 

In 1980, the Law Group petitioned the Inter-American 

Commission on Human Rights, an instrumentality of the 
Organization of American States, to declare that capital 
sentences in the United States are imposed in a racially 
discriminatory manner. In particular, the Law Group ar- 
gued that the death penalty is imposed disproportionately 

on those defendants whose victims are white and that such 
discrimination based upon the race of the victim was in 

violation of treaties to which the United States is a party. 
After receiving statistical evidence similar and in some 

cases identical to that presented below by petitioner herein, 
the Commission held the Law Group's petition inadmissible 
on procedural grounds and effectively deferred the Law 

Group’ international claims pending an authoritative dis- 
position of the issue by American courts. The Law Group 
thus has a direct institutional stake in this Court’ decision 

to review the en banc opinion of the Eleventh Circuit Court 
of Appeals and to resolve the issues raised by that decision. 

SUMMARY OF ARGUMENT 

This is not an ordinary capital case. Amicus appears for 
the purposes of (i) demonstrating the unique and fundamen- 
tal significance of this case, as acknowledged by the United 
States in its submissions to the Inter-American Commission 

on Human Rights, and (ii) arguing that the Eleventh Cir- 
cuit, in violation of the Supremacy Clause of the Constitu- 

tion and applicable decisions of this Court, failed to consider 

international law as a pertinent source of the rule of deci- 

sion. Under The Paquete Habana, 175 U.S. 677 (1900) and 
its progeny, each of Questions Presented 1 through 5 should 
have been considered in light of the peremptory norm of 

 



international law condemning racial discrimination. It is 
submitted in fine that the en banc court’ failure to construe 

the Georgia Death Penalty Statute consistently with bind- 
ing international law is reversible error. 

Although the international issues raised by amicus were 
neither presented to the courts below nor raised in the 

petition for certiorari, this Court has established that it has 

the power to consider relevant issues raised in a case “in the 
interests of justice,” irrespective of whether those issues 

were previously raised, Wood v. Georgia, 450 U.S. 261, 265, 

n.5 (1981), and that the exercise of that power is especially 
appropriate in capital cases, Eddings v. Oklahoma, 455 
U.S. 104 (1982). 

Amicus offers no opinion as to the circuit court’s disposi- 
tion of purely domestic issues of law, including its severe 

approach to admittedly valid statistical evidence in suits of 
this type. 

ARGUMENT 

I. As Suggested By The United States In Its Submissions 
To The Inter-American Commission On Human 
Rights, The Issues Raised By The Eleventh Circuit’s 
Decision Are Uniquely Important Questions Of 
Federal Law Deserving Authoritative Resolution. 

In his petition for certiorari, the petitioner portrays a 

myriad of important, indeed unprecedented federal issues 

raised by the en banc decision of the Eleventh Circuit. 
Amicus expresses no opinion as to these domestic issues 

but would demonstrate to this Court that the United States 

in parallel international proceedings has conceded the sig- 
nificance of the issues raised in this case. 

On August 6, 1980, amicus submitted a petition to the 
Inter-American Commission on Human Rights, an instru- 

 



  

mentality of the Organization of American States, alleging 
that the United States imposed the death penalty in a 
racially discriminatory manner. The various studies submit- 
ted to the Commission revealed a broad pattern of racially- 
based disparities in death sentencing based on the race of 
the victim. The evidence established that a person convicted 
in the State of Florida of murdering a white person was ten 
times more likely to receive the death penalty than one 
convicted of murdering a black person.' In Texas, the ratio 
was eighteen to one.” In Georgia, where this litigation 
arose, it was twelve to one.’ 

The Law Group argued that domestic remedies for the 
redress of this discrimination were effectively exhausted 
when this Court denied certiorar: in Spinkelink v. Wain- 
wright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 404 U.S. 
976 (1979). 

The United States opposed the petition almost ex- 
clusively on the ground that domestic remedies had not 
been exhausted with the denial of certiorar: in Spinkelink. 
It stressed that U.S. courts including this Court remained 
open to receive evidence demonstrating the fact and extent 
of discrimination. Indeed, the government of the United 
States in framing the issue expressly conceded its relevance 
and importance: 

The Petition filed by the International Human Rights 
Law Group on behalf of all prisoners currently awaiting 
execution in the states of Florida, Georgia, and Texas 
raises an important issue in the administration of jus- 

'The data are described in the affidavit of Professor William J. 
Bowers, which was attached to the Law Group's 1980 petition, and 
which is attached hereto as Appendix A. See also, Zeisel, Race Bias 

in the Administration of the Death Penalty: The Florida Experience, 
95 Harv. L. REV. 456 (1981). 

App. A at 4a. 

31d. at 3a. 

 



tice in the United States—whether capital punishment 
statutes determined by the U.S. Supreme Court to be 
constitutionally valid on their face are being imple- 
mented in a constitutional manner. 

Opposition of the United States, Case 7465 (June 16, 1981) 
at 1. The United States repeated its assurance to the 
Commission that U.S. courts would respond fully and fairly 
to evidence establishing race discrimination. In light of this 
suggestion and on other procedural grounds, the Commis- 
sion denied the petition on October 3, 1984, noting that the 
statistical evidence submitted was more appropriately di- 
rected to a domestic court in each individual case. 

As a result, the propriety of review in this particular 
capital case is patent. At the threshold of course the peti- 
tioner’s sentence of death inherently deserves this Courts 
most searching review. 

Because sentences of death are “qualitatively dif- 
ferent” from prison sentences, Woodson v. North Car- 
olina, 428 U.S. 280, 305 (1976) (opinion of Stewart, 
Powell, and Stevens, JJ.), this Court has gone to extra- 
ordinary measures to ensure that the prisoner sen- 
tenced to be executed is afforded process that will 
guarantee, as much as is humanly possible, that the 
sentence was not imposed out of whim, passion, preju- 
dice, or mistake. 

Eddings v. Oklahoma, 455 U.S. 104, 117-118 (1982) (O’Con- 
nor, J., concurring). But even ignoring its unique evidenti- 
ary record, the case raises an issue which the United States 

‘The statistical study submitted to the courts below “is based on 
the most comprehensive empirical record of racial patterns in the 
imposition of the death penalty that has ever been developed in this 
country, or that is likely to be developed in the foreseeable future.” 
Gross, Race and Death: The Judicial Evaluation of Evidence of 
Discrimination in Capital Sentencing, forthcoming in 18 UNIV. 

 



  

government itself apparently regards as fundamentally im- 
portant and unresolved, i.e. whether discrimination in cap- 
ital sentencing, as established by statistical proof, is consti- 
tutional. Pet. App. 43-50. 

II. The Eleventh Circuit Was Required To Construe The 
Georgia Death Penalty Statute Consistently With Per- 
tinent International Law And Failed To Do So. The 
Existence Of State-Sanctioned Racial Discrimina- 
tion As Acknowledged By The Eleventh Circuit Vio- 
lates A Peremptory Norm Of International Law. 

It is axiomatic that international law is part of the law of 
the United States and, under the Supremacy Clause of the 
Constitution as interpreted, “must be ascertained and ad- 
ministered by the courts of justice of appropriate jurisdic- 
tion, as often as questions of right depending upon it are 
duly presented for their determination.” The Paquete 
Habana, 175 U.S. 677, 700 (1900). This basic principle has 
been accepted from the earliest days of the Republic, Ware 
v. Hylton, 3 U.S. (3 Da.) 199, 281 (1796); The Nereide, 13 
U.S. (9 Cranch) 388, 423 (1815), and received fresh con- 
firmation from this Court as recently as 1983 in Justice 
O’Connor’s opinion for the Court in First National City 
Bank v. Banco Para el Commercio Exterior de Cuba, 103 
S.Ct. 2591, 2598 (1983).° 
  

CAL. Davis L. R., No. 4 (1985) (at page 1 of prepublication man- 
uscript). Though acknowledging the validity of the study, the en banc 
court was sharply divided on the issue of what conclusions of law 
could be drawn from it, compare 753 F.2d at 886 with 753 F.2d at 907 
(Johnson, Hatchett, and Clark, JJ., dissenting). The dispute indepen- 
dently suggests the propriety of this Court’s review in light of Justice 
Blackmun’s opinion for the Court in both Castaneda v. Partida, 430 
U.S. 482 (1976) and Rose v. Mitchell, 443 U.S. 545 (1978). 

>See also Op. Att'y Gen. 27 (1972) (“The law of nations, although not 
specially adopted by the Constitution or any municipal act, is essen- 
tially a part of the law of the land”); Restatement (Revised) of the 
Foreign Relations Law of the United States (Tentative Draft No. 1, 
1980) at § 131, Comment D (“the proposition that international law 

 



The most fundamental application of this principle arises 
when courts are requested to interpret statutes enacted by 
Congress or the state legislatures. In all such cases, the 
statute “ought never to be construed to violate the law of 
nations, if any other possible construction remains . . . .” 
Weinberger v. Rossi, 456 U.S. 25, 33 (1982), quoting Murray 
v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See 
also, Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801); Cook 
v. United States, 288 U.S. 102 (1983); Lauritzen v. Larsen, 
345 U.S. 571, 578 (1953); McCulloch v. Sociedad Nacional 
de Marineros de Honduras, 372 U.S. 10, 21 (1963). The “law 

of nations” which the courts are directed to apply includes 
both treaties and customary international law.® 

Thus, in construing the Georgia death penalty statute and 
petitioner’s sentence thereunder, the Eleventh Circuit 
Court of Appeals was obliged to “ascertain[ ] and admin- 
ister[ |” international law, insofar as “questions of right” 

depend upon it, The Paquete Habana, supra. On such 

  

and agreements are law in the United States is addressed mainly to 
the courts. They are to apply international law or agreements as if 
their provisions were enacted by Congress.”); Henkin, International 
Law as Law in the United States, 82 MicH. L. REV. 1555, 1560 
(1984). 

Customary international law is essentially international common 
law, which arises out of the practice of nations acting in a particular 
manner because they feel themselves legally bound to do so. This 
state practice may be deduced from treaties, national constitutions, 
declarations and resolutions of intergovernmental bodies, public pro- 
nouncements by heads of state, and empirical evidence of the extent 
to which the customary law rule is observed. See North Sea Conti- 
nental Shelf Cases, [1969] I.C.J. Rep. 37. Customary international 
law is binding on all nations and creates enforceable rights and 
obligations for individuals. Paquete Habana, supra; Respublica v. 
DeLongchamps, 1 U.S. 119, 1 Dall. 111 (O.&T. Pa. 1784). See e.g., 
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Fernandez v. 
Wilkinson, 505 F. Supp. 787 (D. Kan. 1980), aff’d on other grounds 
sub nom, Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th 
Cir. 1981), 

 



grounds, this Court struck down a discriminatory ordinance 
which was inconsistent with the provisions of an interna- 
tional treaty in Asakura v. Seattle, 265 U.S. 332 (1923): 

The rule of equality established by [the treaty] cannot 
be rendered nugatory in any part of the United States 
by municipal ordinances or state laws. It stands on the 
same footing of supremacy as do the provisions of the 
Constitution and laws of the United States. It operates 
of itself without the aid of any legislation, state or 
national; and it will be applied and given authoritative 
effect by the courts. 

Id. at 341 (citations omitted). 

The anti-discrimination norm of international law is no 
less binding than that applied in Asakura. Indeed, under 
any standard of proof, the right to be free from governmen- 
tal discrimination on the basis of race is so universally 
accepted by nations as to constitute a peremptory norm of 
international law.” It is included in such fundamental texts 
as the Charter of the United Nations,® and the Charter of 
the Organization of American States’, both of which are 

"A peremptory norm of international law is a “norm accepted and 
recognized by the international community of states as a whole as a 
norm from which no derogation is permitted and which can be modi- 
fied only by a subsequent norm of general international law having 
the same character.” Vienna Convention on the Law of Treaties, 
adopted May 22, 1969, entered into force Jan. 27, 1980. Although the 
Vienna Convention has been signed but not ratified by the United 
States, the Department of State, in submitting the convention to the 
Senate, stated that the convention “is already recognized as the 
authoritative guide to current treaty law and practice.” S. Exec. Doc. 
L., 92d Cong., 1st Sess. (1971) at 1. 

SU.N. Charter, signed June 26, 1945, entered into force October 24, 
1945, 59 Stat. 1031, T.S. No. 993, Article 55(c). 

OAS Charter, signed April 30, 1948, entered into force December 
13,1951, 21.8.7 2394, T1.A.S. No. 2361, Article 33). 

   



treaties ratified by the United States. Similar prohibitions 
are found in every comprehensive international treaty per- 

taining to human rights and in numerous international dec- 
larations and resolutions. ’Recognizing this consistent and 

universal condemnation of racial discrimination, the Inter- 
national Court of Justice has concluded that “the principles 
and rules concerning the basic rights of the human person, 

including protection from . . . racial discrimination,” con- 

stitute an international obligation of all states. Case con- 
cerning the Barcelona Traction Light and Power Co., Ltd., 

[1970] I.C.J. Rep. 32. See also Legal Consequences for 
States of the Continued Presence of South Africa in 

Narmubia (South West Africa) notwithstanding Security 

Council Resolution 276, [1971] 1.C.J. Rep. 57: 

[T]o establish . . . and to enforce distinctions, exclu- 

sions, restrictions, and limitations exclusively based on 
grounds of race, colour, descent or national or ethnic 

origin . . . constitutes a denial of fundamental human 

rights [and] is a flagrant violation of the purposes and 
principles of the charter. 

With remarkable candor, the en banc Court of Appeals 
accepted the factual findings of petitioner’ studies, viz. that 
no factors other than race could account for the marked 
increase in capital sentences among those defendants whose 
victims were white. Indeed, the court below expressly 
“assuml[ed] the validity of the research,” and “that it proves 

what it claims to prove.” 753 F.2d at 886. The court’s decision 
as a matter of law that this evidence established no violation 
of the Eighth and Fourteenth Amendments to the U.S. 
Constitution does not dispose of the issue whether it evinces 
a fundamental violation of international law. The court of 

"The relevant international authorities are collected in Appendix 
B. 

 



  

10 

appeals cannot so blithly ignore the legal consequences of its 
factual concessions. 

The discrepancy in capital sentencing patterns which is 
assumed by the en banc court in this case clearly falls within 
the international prohibition. That norm, apparently unlike 
the Eighth and Fourteenth Amendments in the Eleventh 
Circuit, admits no defense of degree and demands no in- 
controvertible showing of individualized intent. It is sys- 
tematic racial discrimination, of the kind admittedly demon- 
strated in this case, which violates binding international 
law." 

But the en banc court below made no attempt to dis- 
charge its burden under The Paquete Habana and Asakura 
to apply international law. It utterly failed to address the 
relevant norms of international law that constitute part of 
federal common law. The court simply did not discuss 
whether the racial discrimination alleged by petitioner falls 
within the scope of international law as incorporated into 
federal common law. Instead, on the issue of discrimination, 
the court of appeals contented itself with considering only 
the contours of the Eighth and Fourteenth Amendments. 
The courts apparent neglect of the peremptory norm of 
international law prohibiting racial discrimination cannot be 
squared with this Court’ consistent adherence to the law of 
nations as providing the rule of decision, whenever a liti- 
gant’s rights are framed in its terms. In short, the en banc 
court’s failure to assess the international law issues raised 
by its assumption that the showing of discrimination was 
valid constitutes error which should be reviewed by this 
Court. And, if the en banc court somehow did not err in 
failing to ascertain and apply international law, then the 

See e.g. American Law Institute, Restatement of Foreign Rela- 

tions Law of the United States (Revised), § T02(f) (Tent. Draft No. 6 

1985). 

 



11 

case raises the fundamental issue of when, under The Pa- 
quete Habana and Asakura, domestic courts are obliged to 
look to that source of law and when they may ignore it. 

CONCLUSION 

The decision of the Court of Appeals en banc that the 
Georgia death penalty statute is not unlawfully applied in 

spite of an admitted discriminatory impact flies in the face of 
the universal principle that international human rights law 
applies to all individuals. The en banc courts failure to 

consider in a meaningful way the international law issues 

relevant to this case violates the Supremacy Clause of the 
Constitution as interpreted and ignores the decisions of this 
Court which establish the fundamental role of international 

law in United States law. In addition, even if the en banc 

courts disposition were consistent with Supreme Court 
precedent in the international law field, the case raises 

issues of law and fact which sharply distinguish it from other 

capital cases, as the United States itself has acknowledged. 

For these reasons, amicus respectfully urges this Court 
to grant certiorari. 

Respectfully submitted, 

RALPH G. STEINHARDT, ESQ. 

PaTTON, BoGGSs & BLow 

25560 M Street, N.W. 

Washington, D.C. 20037 
(202) 457-6055 

Of Counsel: Counsel of Record 

for Amicus Curiae 
Hurst Hannum, Esq. 

Amy Young, Esq. 
Steven M. Schneebaum, Esq. 

 



  

 
 

 



APPENDIX 

 





Ia 

APPENDIX A 

AFFIDAVIT OF PROFESSOR WILLIAM BOWERS 

I am a sociologist with particular training in statistics and 

computer applications to sociology. I graduated from Wash- 

ington and Lee University in 1957 and received my doctorate in 

sociology in 1966 from Columbia University. I am presently a 

professor of sociology at Northeastern University, Boston, 

Massachusetts, and Director of that University’s Center for 
Applied Social Research. 

Since approximately 1972, I have been engaged in research, 

study, and writing on the use of the death penalty in the United 

States. I am the author of numerous articles on the subject and 

of the book Executions in America, published in 1974. 

Together with the Assistant Director here at the Center, 

Glenn L. Pierce, and others, I have supplied the figures and 

statistics on race-victim death sentencing disparaties con- 

tained in appendices A and B of this complaint. These figures 

are accurate to the best of our abilities and reflect sustained 

research and the use of widely-accepted statistical methods. 

I believe, on the basis of my research and analysis, that the 

broad pattern of race-victim death sentencing disparities com- 

plained of in the foregoing document remain unremedied by 

state or federal authorities and therefore continue today. 

(signed) William Bowers 
  

Professor William Bowers 

SS: Commonwealth of Massachusetts 
County of Suffolk 

Subscribed and sworn to before me this 11th day of April, 
1980. 

(signed) Philip C. Boyd 

Notary Public 

My Commission Expires: 

Nov. 28, 1980 

  

SEAL 

 



2a 

FLORIDA 

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

STATUTE THROUGH 1977 

Estimated Persons Probability 

Number of Sentenced of a Death 

Race of Offender Offenders to Death Sentence 

White 2265 72 .032 

Black 2606 61 .023 

Race of Victim 

White 2439 122 .050 

Black 2432 11 .005 

Offender/Victim 
Racial Combinations 

Black Kills White 286 48 .168 

White Kills White 2146 72 .034 

Black Kills Black 2320 11 .005 

White Kills Black 111 0 .000 

All Offenders 4871 133 027 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 

data from January 1973 through December 1976, supplied by the Uniform 

Crime Reporting Program, Federal Bureau of Investigation, United States 

Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 

Reports Program, Department of Law Enforcement, Tallahassee, Florida; 

(3) persons sentenced to death from January 1973 through December 1977, 

supplied by Citizens Against the Death Penalty, Jacksonville, Florida. 

“The estimated number of offenders for a given category is obtained by 

multiplying the reported number of offenders in that category for the years 

1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 3.484 equals the number of homicide 
victims from January 1973 through December 1977 (sources: 1, 2) divided by 
the number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

   



3a 

GEORGIA 

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

STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 
Number of Sentenced of a Death 

Race of Offender Offenders” to Death Sentence 
White 1082 41 .038 
Black 2716 49 .018 

Race of Victim 
White 1265 76 .060 
Black 2529 14 .005 

Offender/Victim 
Racial Combinations 

Black Kills White 258 37 143 

White Kills White 1006 39 .039 
Black Kills Black 2458 12 .005 

White Kills Black 71 2 .028 

All Offenders 3798 90 .024 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from April 1973 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Criminal Ac- 
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In- 
formation Center, Atlanta, Georgia; (3) Vital Statistics tabulations on willful 
homicides from April 1973 through December 1977, supplied by the Office of 
Health Services Research and Statistics, Division of Physical Health, Atlan- 
ta, Georgia; (4) Persons sentenced to death from April 1975 through De- 
cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 4.453 equals the number of homicide 
victims from April 1973 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



4a 

TEXAS 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR CRIMINAL HOMICIDE BY RACE 

OF OFFENDER AND VICTIM IN TEXAS FROM THE 
EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 
Number of Sentenced of a Death 

Race of Offender Offenders® to Death Sentence 
White 3771 38 .010 
Black 2940 29 .010 

Race of Victim 
White 3964 1 .018 
Black 2740 2 001 

Offender/Victim 
Racial Combinations 

Black Kills White 344 27 078 
White Kills White 3616 37 .010 
Black Kills Black 2597 2 .007 
White Kills Black 143 0 .000 

All Offenders 6711 73 .011 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 

data from January 1974 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reporting Bureau, Texas Department of Public Safety, Austin, Texas; (3) 
Vital Statistics records on willful homicides from January 1974 through 
December 1977, supplied by the Bureau of Vital Statistics, Texas Depart- 
ment of Health, Austin, Texas; (4) persons sentenced to death from January 
1974 through December 1977, supplied by the Office of Court Administration, 
The Supreme Court of Texas, Austin, Texas. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 2.473 equals the number of homicide 
victims from January 1974 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

   



FLORIDA 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN FLORIDA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons Probability 

Number of Sentenced of a Death 

Race of Offender Offenders to Death Sentence 

White 307 54 .176 

Black 251 50 .199 

Race of Victim 

White 432 97 224 

Black 122 7 .057 

Offender/Victim 

Racial Combinations 

Black Kills White 136 41 301 

White Kills White 296 54 132 

Black Kills Black 115 7 .061 

White Kills Black 7 0 .000 

All Offenders 558 104 .186 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 

data from January 1973 through December 1976, supplied by the Uniform 

Crime Reporting Program, Federal Bureau of Investigation, United States 

Department of Justice, Washington, D.C.; (2) Supplementary Homicide 

Reports on criminal homicide data for 1977, supplied by the Uniform Crime 

Reports Program, Department of Law Enforcement, Tallahassee, Florida; 

(3) persons sentenced to death from January 1973 through December 1977, 

supplied by Citizens Against the Death Penalty, Jacksonville, Florida. 

“The estimated number of offenders for a given category is obtained by 

multiplying the reported number of offenders in that category for the years 

1976, 1977 (sources: 1, 2) by victim-based adjustment factor to correct for 

undercoverage. The adjustment factor 3.484 equals the number of homicide 

victims from January 1973 through December 1977 (sources: 1, 2) divided by 

the number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



  

6a 

GEORGIA 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY-TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN GEORGIA FROM 
THE EFFECTIVE DATE OF THE POST-FURMAN 

STATUTE THROUGH 1977 

Estimated Persons Probability 
Number of Sentenced of a Death 

Race of Offender Offenders’ to Death Sentence 
White 196 37 .189 
Black 338 42 124 

Race of Victim 
White 316 69 218 
Black 218 10 .046 

Offender/Victim 
Racial Combinations 

Black Kills White 134 34 254 

White Kills White 183 35 191 
Black Kills Black 205 8 .039 

White Kills Black 13 2 154 

All Offenders 534 79 148 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from April 1973 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Criminal Ac- 
tivity Reporting Unit, Georgia Bureau of Investigation, Georgia Crime In- 
formation Center, Atlanta, Georgia; (3) Vital Statistics tabulations on willful 

homicides from April 1973 through December 1977, supplied by the Office of 
Health Services Research and Statistics, Division of Physical Health, Atlan- 
ta, Georgia; (4) Persons sentenced to death from April 1973 through De- 

cember 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia; (4) Persons sentenced to death from April 1973 through 

December 1977, supplied by Georgia Committee Against the Death Penalty, 
Atlanta, Georgia. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 

undercoverage. The adjustment factor 4.453 equals the number of homicide 
victims from April 1973 through December 1977 (source: 3) divided by the 

number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

   



Ta 

TEXAS 

PROBABILITY OF RECEIVING THE DEATH 
SENTENCE FOR FELONY-TYPE MURDER BY RACE 
OF OFFENDER AND VICTIM IN TEXAS FROM THE 

EFFECTIVE DATE OF THE POST-FURMAN 
STATUTE THROUGH 1977 

Estimated Persons ~~ Probability 
Number of Sentenced of a Death 

Race of Offender Offenders” to Death Sentence 
White 411 34 .083 

Black 294 27 .092 

Race of Victim 
White 551 63 114 
Black 151 2 013 

Offender/Victim 
Racial Combinations 

Black Kills White 173 25 .144 
White Kills White 378 34 .090 
Black Kills Black 121 2 .016 
White Kills Black 30 0 .000 

All Offenders 705 61 .087 

Data Sources: (1) Supplementary Homicide Reports on criminal homicide 
data from January 1974 through December 1976, supplied by the Uniform 
Crime Reporting Program, Federal Bureau of Investigation, United States 
Department of Justice, Washington, D.C.; (2) Supplementary Homicide 
Reports on criminal homicide data for 1977, supplied by the Uniform Crime 
Reporting Bureau, Texas Department of Public Safety, Austin, Texas; (3) 
Vital Statistics records on willful homicides from January 1974 through 
December 1977, supplied by the Bureau of Vital Statistics, Texas Depart- 
ment of Health, Austin, Texas; (4) persons sentenced to death from January 
1974 through December 1977, supplied by the Office of Court Administration, 

The Supreme Court of Texas, Austin, Texas. 

“The estimated number of offenders for a given category is obtained by 
multiplying the reported number of offenders in that category for the years 
1976, 1977 (sources: 1, 2) by a victim-based adjustment factor to correct for 
undercoverage. The adjustment factor 2.473 equals the number of homicide 
victims from January 1974 through December 1977 (source: 3) divided by the 
number of homicide victims in the years 1976, 1977 (sources: 1, 2). 

 



8a 

APPENDIX B 

Universal Declaration of Human Rights, adopted Dec. 10, 1948 

G.A. Res. 217, U.N. doc. A/810 (1948) arts. 2, 7, 14; 

International Covenant on Civil and Political Rights, adopted 
Dec. 16, 1966, G.A. Res. 22004, 21 U.N. GAOR, Supp. (No. 

16) arts. 2(a), 13, 26; 

International Covenant on Economic, Social And Cultural 

Rights, adopted Dec. 16, 1966, G.A. Res. 2200A, 21 U.N. 
GAOR, Supp. (No. 16) art. 2(2); 

Charter of the Organization of American States, April 30, 1948, 

2 US.T 2305, TLA.S. No. 2361, art. 30); 

American Declaration of the Rights and Duties of Man, O.A.S. 

Res. XXX, adopted by the Ninth International Conference of 

American States, held at Bogota, Columbia (1948), OE A/Ser. 

L./V/1. 4 Rev. (1965) Arts. II, XXCII: 

American Convention on Human Rights, signed Nov. 22, 1969, 

OAS Official Records OEA/Ser. K/XV1/i.i, Doc. 65, Rev. 1, 

Corr. 1 (Jan. 7, 1970) arts. 22(7), 22(9), 24; 

European Convention on Human Rights, 213 U.N.T.S. 221 
(1950) arts. 5, 14; 

International Convention on the Suppression and Punishment 

of the Crime of Apartheid, adopted Nov. 30, 1973, G.A. Res. 

3068, 28 U.N. GAOR, Supp. (No. 30) 75, U.N. Doc. A/9233/ 
Add. 1 (1973); 

United Nations Declaration on the Elimination of All Forms of 

Racial Discrimination, adopted Nov. 20, 1963, G.A. Res. 1904, 

18 U.N. GAOR Supp. (No. 15) 35, 36, U.N. Doc. A/5515 (1963) 
art. 1; 

International Convention on the Elimination of All Forms of 

Racial Discrimination, opened for signature March 7, 1966, 660 

U.N.T8.:195, arts. 1, 2: 

   



9a 

Declaration of Social Progress and Development, adopted Dec. 

11, 1969, Arts. 1 and 2, G.A. Res. 2542, 24 U.N. GAOR, Supp. 

(No. 30) 49, U.N. Doc. A/7630 (1969); 

Declaration on the Promotion Among Youth of the Ideals of 

Peace, Mutual Respect and Understanding between Peoples, 

adopted Dec. 7, 1965; Principles 1 and 3, G.A. Res. 2037, 20 

U.N. GAOR, Supp. (No. 14) 40, U.N. Doc. A/6015 (1965); 

Employment Policy Convention, adopted July 9, 1964, Art. 

12)(e), 569 U.N.T.S. 65 (entered into force July 15, 1964); 

Protocol to the Convention against Discrimination in Educa- 

tion, adopted Dec. 10, 1962, [1969] U.N.T.S. No. 9423 (Cmd. 
3894); 

Convention against Discrimination in Education, adopted Dec. 

14, 1960, 429 U.N.T.S. 93, 96 (UNESCO General Conference) 
(entered into force May 22, 1962); 

Declaration on the Rights of the Child, Principle 1, adopted 

Nov. 20, 1959, G.A. Res. 1386, 14 U.N. GAOR, Supp. (No. 16) 

19, U.N. Doc. A/4354 (1959); 

Convention concerning Discrimination in Respect of Employ- 

ment and Occupation, adopted June 25, 1958, 362 U.N.T.S. 31 

(ILO General Conference) (entered into force June 15, 1960); 

Convention Relating to the Status of Stateless Persons, Art. 3, 

adopted Sept. 23, 1954, 360 U.N.T.S. 117 (entered into force 
June 6, 1960); 

Convention on Human Rights and Fundamental Freedoms, 

adopted Nov. 4, 1950, 1950 Europ. T.S. No. 5, 213 U.N.T.S. 
291; 

Convention Relating to the Status of Refugees, adopted July 

25, 1951, Art. 3, 189 U.N.T.S. 304 (entered into force May 23, 
1953); 

Convention on the Prevention and Punishment of the Crime of 

Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into 

force Jan. 12, 1951).