# James Lee Spencer v. Ralph Kemp, Warden, Georgia Diagnostic & Classification Center, Respondent

> Court of Appeals for the Eleventh Circuit · January 23, 1986 · 781 F.2d 1458

URL: https://www.frixlaw.com/law-library/cases/9474475

## Case

- **Full name:** James Lee SPENCER, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic & Classification Center, Respondent-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** January 23, 1986
- **Citations:** 781 F.2d 1458; 1986 U.S. App. LEXIS 21447
- **Precedential status:** Published
- **Opinion:** Concurring in part by Johnson
- **Judges:** Godbold, Ro-Ney, Tjoflat, Hill, Fay, Vance, Kravitch, Johnson, Henderson, Hatchett, Anderson, Clark
- **Cited by:** 56 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474475

## How later opinions describe it (automated extraction)

- holding that "novel or sporadically applied state procedural grounds," as well as retroactively applied state procedural rules, are "inadequate to preclude federal review of federal constitutional claims"

## Opinion text

JOHNSON, Circuit Judge,
concurring in part and dissenting in part:
In Part II of the majority opinion after many expressions and observations not involved in this case and therefore not necessary for determining the issue under consideration (See Section C. Analysis), this Court holds that petitioner Spencer is not procedurally barred from presenting his jury composition challenge to the federal district court. With respect to Part II, as Judge Warren Jones stated in concurring in an opinion written by Judge John R. Brown in Wirtz v. Fowler, 372 F.2d 315 (5th Cir.1966), “I concur in the result and in so much of the opinion as supports the result.” Id. at 335 (Jones, J., concurring).
I dissent from Part I of the majority opinion, in which the majority holds that Spencer’s proffer of the study conducted by Dr. David Baldus did not entitle him to an evidentiary hearing because the facts allegedly proven by the study are legally insufficient to support an Eighth or Fourteenth Amendment challenge to the Georgia capital sentencing system. The petitioner did not have to prove purposeful discrimination against him in sentencing in order to support his claim; even if he were required to do so, he would still almost certainly succeed. In my view, the evidence proffered by Spencer would establish grounds for relief under the Eighth Amendment because it would prove that Georgia has applied its death penalty statute in an arbitrary and capricious manner by allowing race to determine in part who will receive the death penalty.
A petitioner can prove that a state has operated its death penalty system arbitrarily and capriciously without proving that a state agent intended to discriminate against the petitioner or against any other defendant in a capital case. A death penalty system is arbitrary and capricious if it produces significantly inconsistent results, regardless of the intent of state agents. See Godfrey v. Georgia, 446 U.S. 420, 433 , 100 S.Ct. 1759, 1767 , 64 L.Ed.2d 398 (1980) (death penalty scheme must provide meaningful way of distinguishing between those who receive death sentence and those who do not); Pulley v. Harris, 465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984) (comparative proportionality review not required if system adequately ensures consistent and rational results).
The reason that an Eighth Amendment claim based on racial discrimination cannot require proof of discriminatory intent is that the death penalty heightens the need for consistent and fair decisions while at the same time maintaining the need for the discretion to make individualized judgments. An appellate court can only give searching review to the fairness and consistency of a discretionary decision if it employs effects evidence, since the discretion of state decisionmakers makes evidence of their intent difficult if not impossible to obtain. McCleskey v. Kemp, 753 F.2d 877, 909 (11th Cir.1985) (Johnson, J., dissenting). Since the special nature of the death penalty calls for the use of effects evidence, the evidence proffered by Spencer had only to show by a preponderance of the evidence a significant racial influence on the pattern of death sentences; his evidence did not have to compel an inference of purposeful discrimination. The Baldus Study could succeed under this standard and the district court erred in refusing to hold a hearing.
Even if proof of purposeful discrimination were the appropriate standard, the Baldus Study proffered by Spencer would suffice to support his constitutional claim. *1475 In some instances, circumstantial or statistical evidence of racially disproportionate impact may be so strong that it compels an inference of purposeful racial discrimination. Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977); Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. Unit B), cert. denied, 459 U.S. 882 , 103 S.Ct. 181 , 74 L.Ed.2d 148 (1982). The Bal-dus Study begins with evidence of a very large disproportionate impact by showing that the death penalty falls on killers of white victims eleven times more often than on killers of black victims. Then, moving beyond the usual confines of statistical evidence, the study analyzes that disproportionate impact to show that it is strong, virtually irrefutable evidence of purposeful discrimination. The multivariate regression analysis demonstrates that the average killer of a white victim has a significantly greater risk of receiving the death penalty than does the killer of a non-white victim and that the greater risk exists solely because of the race of the victim. Spencer has therefore produced strong evidence of a disproportionate impact sufficiently large to compel an inference of purposeful discrimination.
While this Court has determined, wrongly in my view, the legal significance of the Baldus Study, the issue remains alive because the Supreme Court could take action in McCleskey v. Kemp, supra. The shortcomings of this Court’s decision in McCles-key, together with the possibility that it may not stand as binding precedent on the issue, lead me to conclude that the evidence proffered by Spencer would entitle him to habeas corpus relief. I would reverse the judgment of the district court and order it to hold an evidentiary hearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474475. Public record. Not legal advice.