# Amicus Curiae Brief — McCleskey v. Kemp

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0961%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 279

## Text

Ae 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, BoGccs & BLOW
Hurst HANNUM, Esa. 2550 M Street, N.W.
STEVEN M. SCHNEEBAUM, Washington, D.C. 20037
(202) 457-6055

Esq.
INTERNATIONAL HUMAN ‘*Counsel of Record
RIGHTS LAW GROUP
Washington, D.C.

SS

See

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

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es

_—-.) ~~ er arr; |

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 10
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, am-
cus wishes to submit for this Court’s 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 clecision, 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.

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

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

Counsel of Record for the
International Human Rights
Law Group

ill

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ...........-ccccececccceces Vv
INTEREST OF THE AMICUS .........-e eee ee eeeeeee l
SUMMARY OF ARGUMENT .........-00 seer eee ereeees 2
ee ces eceecesscoeesecsccers 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 C ircuit’s
Decision Are Uniquely Important Questions Of Fed-
ers; 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 ........-....-++--.

ce ee behe case dsccnccvocceces ll

iv

TABLE OF AUTHORITIES

CASES:
Asakura v. Seattle, 265 U.S. 332 (1923) .............

Barcelona Traction Light and Power Co., Ltd., [1970]
MMOS PT Wiidneecekdbeack decaneecie<kns cs

Castaneda v. Partida, 430 U.S. 482 (1976) ...........
Cook v. United States, 288 U.S. 102 (1983) ..........

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

Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980)
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) ...

First National City Bank v. Banco Para el Commercio
Exterior de Cuba, 108 S. Ct. 2591 (1983) ........

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

Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South Africa) notwith-
standing Security Council Resolution 276, {1971]
RN NTE Masada tautkcicokeuus coors nce cao

McCulloch v. Sociedad Nacional de Marineros de Hon-
duras, 372 U.S. 10 (1968) ............... cece.

Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64. 118
EE +04b0 dss ashe dhudeanaiweedieaddancons tac:

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

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

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

Respublica v. DeLongchamps, 1 U.S. 119, 1 Dall. 111 (0.
pk ee eeu ant neeee

Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th
ON ME ence re deer parker ce Oi Te nT

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

Weinberger v. Rossi, 456 U.S. 25 (1982) .............
Wood v. Georgia, 450 U.S. 261 (1981) ................

wl Ss

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), OE A/Ser. L./V/I. 4 Rev.

CREED i cccccwndsesecsecesscnssessensscosecs App. B
Charter of the Organization of American States, April 30,
1948, 2 U.S.T. 2395, T.I1.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.TS. 31 (ILO General Conference) (entered into
force June 15, 1960) .........- 0c eee ee eee eees App. B

Convention on Human Rights and Fundamental Free-
doms, adopted Nov. 4, 1950, 1950 Europ. T.S. No. 5,
. £te hs . errr err App. B

Convention on the Prevention and Punishment of the
Crime of Genocide, adopted Dec. 9, 1948, 78
U.N.TS. (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) ......-..- eee cece cece eee 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

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
SY NUMA AN Whi446504bdseKahweddcececces 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. A/6015 (1965) ................0.0. App. B

Employment on Policy Convention, adopted July 9, 1964,
Art. 1(2)(c), 569 U.N.T.S. 45 (entered into force July

MN Ritind ska cen dukatewusdevieeduocce. App. B
European Convention on Human Rights, 213
WeMe RMD CROIOD < o coccicccccccccncecceces App. B

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

International Covenant on Economic, Social And Cultural
Rights, adopted Dec. 16, 1966, G.A. Res. 2200A, 21
U.N. GAOR, Supp. (No. 16) ................. App. B

International Convention on the Elimination of All F orms
of Racial Discrimination, opened for signature March
7, 1966, 660 U.N.T.S. 195 .........00........ 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/9233/Add. 1 (1973) .......... App. B

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

Protocol to the Convention against Discrimination in Edu-
cation, adopted Dec. 10, 1962, (1969) U.N.T.S. No.
UI IN So sc pdb back cds oie ice wate App. B

vii

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 Nov. 20,

1963, G.A. Res. 1904, 18 U.N. GAOR Supp. (No. 15)
35, 36, U.N. Doc. A/5515 (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. Doc. L., 92d Cong., Ist 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) .............2--45- 6

American Law Institute, Restatement of Foreign Rela-
tions Law of the United States (Revised), § 702(f)
(Ten. Draft No. 6, 1966) .........cccccccccccess 10

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

Henkin, [nternational Law as Law in the United States,

82 MICH. L. REV. 1555 (1984) .............-56-. 7

Op. Att’y Gen. 27 (1972) ...... 2... cece eee eee eee ees 6

Zeisel, Race Bias in the Administration of the Death
Penalty: The Florida Experience, 95 HARV. L. REV.
GED 5.50.0 60 6c deb endocncsdsuseteccesacxers 4

IN THE
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 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 _ scholar~
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
Conumission 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’ petition inadmissible
on procedural grounds and effectively deferred the Law
Group’s 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 C ourt
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
Staves in its submissions to the Inter-American C ommission
om Auman Rights, and (ii) arguing that the Eleventh Cir-
ew", 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 cleci-
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 concecled 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-
4

\

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 on

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 9n behalf of all prisoners currently awaiting
execution in the states of Florida. Georgia, and Texas
raises an important issve 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 a/so, Zeisel, Race Bias
in the Administration of the Death Penalty: The Florida Experience,
95 Harv. L. REV. 456 (1981),

“App. A at da.
‘Id. at 3a.

or

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 dli-
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).°

Cat. 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 733 F.2d at 907
(Johnson, Hatchett, and Clark, JJ., dissenting). The clispute 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. 345 (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 | United States (Tentative Draft No. 1,
1980) at § 131, Comment VU (“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); Layritzen 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, / nternational
Law as Law in the United States, 82 Mico. L. REV. 1558, 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 +
DeLongchamps, 1 U.S. 119, 1 Dall. 111 (O.&T. Pa. 1784). See e.9..
Filartiga v. Pena-Irala, 630 F.2d 876 (24 Cir. 1980); Fernandez «.
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 internationa! 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, ir: 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., Ist 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 33(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] I.C.J. Rep. 47:

(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's studies, vz. 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 e<pressly
“assum{ed] the validity of the research,” and “that it proves
what it claims to prove.” 753 F.2d at 886. The courts 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 ected 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
fedéral 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 F ourteenth Amendments.
The court’s 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’ 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 ot Foreign Rela-
tions Law of the United States (Revised). § T02(f) (Tent. Dratt 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 court’s 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
court’s 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, Esa.
PaTTON, Boccs & BLOW
2550 M Street, N.W.
Washington, D.C. 20037
(202) 457-6055

Of Counsel: Counsel of Record

: Amici: rn
Hurst H um, Esq. for 4 cus Cu 1e

Amy Young, Esq.
Steven M. Schneebaum, Esq.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0961%3A04. Public record. Not legal advice.