Amicus Curiae Brief — McCleskey v. Kemp

No. 84-6811 Office Supreme Court. US

JUN 28 1985

IN THE

Supreme Court of the

October Term, 1984

WARREN McCLESKEY,

Petitioner,

against

RALPH M. KEMP, Superintendent, Georgia Diagnostic &

Classification Center,

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE FOR DR. PETER W.

SPERLICH, DR. MARVIN E. WOLFGANG, PROFESSOR

HANS ZEISEL & PROFESSOR FRANKLIN E. ZIMRING

IN SUPPORT OF THE PETITION FOR WRIT OF

CERTIORARI

MicuaeL O. FINKELSTEIN

Martin F. Ricuman*

Barrett Smita ScHapPiro

Simon & ARMSTRONG

26 Broadway

New York, New York 10004

(212) 422-8180

Attorneys for Amici Curiae

* Attorney of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..ccescesevees

MOTION FOR LEAVE TO FILE

BRIEF AMICI CURIAE ...eeeeeeeees

SUMMARY OF ARGUMENT seeneeteeneeererersrterrte#

ARGUMENT eoeenwreeeeeeseeeneneteeeeeeeneeneeee

I.

II.

CONCLUSION

The Lower Courts Have

Seriously Undervalued

Both The Validity Of

The Baldus Studies And

The Significance Of

Their Findings ......ee-.

A. The Baldus Studies .

B. The Opinion of the

District Court .....

C. The Opinion of the

Court Of Appeals ...

The Striking Reluctance

Of The Court of Appeals

To Accept Reliable Social

Scientific Methods And

Findings Warrants Review

By This Court ee feeee#ee#ee#se#e.

13

20

19

Page

@ ii «

TABLE OF AUTHORITIES

Cases:

Ballew v. Georgia, 435 U.S. 233

(1978) e*eeeieeeneseseteeeeneeneeneeneeeetee vi,4

Castaneda v. Partida, 430 U.S. 482

(A978 Pccocoveceosseeen ne ‘4

Hazelwood School District v. United

States, 453 U.S. 299 (1977) .... 18

International Brotherhood of Teamsters

v. United States, 431 U.S. 324

(1977) eeeeenseeenseneeneeneeneeneeee#eee 4,18

McCleskey v. Kemp, 753 F.2d 877

(llth Cir. 1985) (en

banc) oeeeeveeveeeeeaeneeeae v,1,13,15,19

McCleskey v. Zant, 580 F. Supp. 338

(N.D. Ga. 1984) e*eneeeneweet#8es 8,9,10,11

Segar v. Smith, 738 F.2d 1249 (D.C.

Ga. 1984) e*enseerseseges+fe*#e**#seeeee#eee#ee#e#e 19

Vuyanich v. Republic Nat'l Bank,

505 F. Supp. 244 (N.D.

Tex. 1980) *oenereneeneneneteeeneeneeeee#e 19

Other Authorities

Finkelstein, The Judicial Reception

of Multiple Regression Studies

In Race and Sex Discrimination

Cases, 80 Colum. L. Rev. 737

(1980) @eeeeeoeeeeeeeeeeeneeeeeeee

Fisher, Multiple Regression in

Legal Proceedings, 80 Colum.

L. Rev. 702 (1980) eeeeoeveeeeee

H. Kalven & H. Zeisel, The American

Jury (1966) *e @eeeeree#s#the#reeeetertntete

Page

- iii -

No. 84-6811

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

WARREN MCCLESKEY,

Petitioner,

~against-

RALPH M. KEMP, Superintendent,

Georgia Diagnostic & Classification

Center,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

MOTION FOR LEAVE TO

FILE BRIEF AMICI CURIAE

Dr. Peter W. Sperlich, Dr. Marvin E.

Wolfgang, Professor Hans Zeisel and

Professor Franklin E. Zimring respectfully

move, pursuant to Rule 36.1 of the Rules

-iv-

of the Court, for leave to file the

attached brief amici curiae in support of

the petition for certiorari filed in this

case. The consent of counsel for the

petitioner has been obtained. The consent

of counsel for respondent was requested

but refused, necessitating this motion.

The interest of amici in this case

stems from their work as social scientists

whose professional contributions have

Significantly advanced the legal use of

empirical data. Dr. Sperlich is Professor

Of Political Science at the University of

California at Berkeley. Dr. Sperlich has

taught, consulted and published widely on

many criminal justice issues, including

the role of juries and the use of scienti-

fic evidence in legal settings. His

writings were cited prominently by the

- Y=

Court of Appeals in McCleskey v. Kemp. Dr.

Wolfgang is Professor of Criminology and

Criminal Law and Director of theCenter for

Studies in Criminology and Criminal Law at

the University of Pennsylvania. During

his distinguished career, Dr. Wolfgang has

made numerous contributions to the

development of empirical research on legal

issues. His pioneering study on the

influence of racial factors in the

imposition of death sentences for rape was

the object of intensive legal examination

during the Maxwell v. Bishop litigation of

the 1960s. Professor Hans Zeisel is

Emeritus Professor of Law and Sociology

and Associate of the Center for Criminal

Justice Studies at the University of

Chicago. Professor Zeisel is co-author of

The American Jury, widely recognized as

one of the most influential empirical

- vi-

Studies of the legal system ever pub-

lished, Professor Zeisel's empirical

research on the functioning of juries was

relied upon by this Court in Ballew v.

Georgia, 435 U.S. 233 (1978). Profes-

sor Zimring is Professor of Law and

Director of the Earl Warren Institute at

Boalt Hall, University of California at

Berkeley. Professo. Zimring has written

extensively on criminal justice issues,

including juvenile crime and sentencing,

the deterent value of punishment, and the

control of firearms. Professor Zimring

served as Director of Research for the

Task Force on Firearms of the National

Commission on the Causes and Prevention of

Violence, and has also served as consul-

tant to many private and public organiza-

- vii -

tions concerned with the application of

social scientific perspectives to legal

issues.

The present case focuses on two

unusually sophisticated and comprehensive

social scientific studies that address on

an important public issue: racial

disparities in a State's capital sentenc-

ing system. In amici's judgment, the

courts below have not appreciated either

the remarkable soundness of that research

or the significance of its findings.

Amici's professional interest is not in

the ultimate resolution of the legal

issues presented, which involve constitu-

tional considerations upon which amici

would not presume to advise the Court.

However, amici do wish to provide the

Court with an informed appraisal of (1)

the record facts, specifically, the two

- viii -

empiricai studies that comprise the basis

for petitioner McCieskey's constitutional

claims of arbitrariness and racial

discrimination; and (ii) the lower courts’

evaluation of those studies. Amici hope

that their views might assist the Court's

resolution of this important matter.

Amici's special interest is prompted

by the skepticism and implicit hostility

toward statistical evidence that animate

the opinions of the lower courts. Ironi-

cally, both the strengths and the limits

of social scientific research have been

. Misunderstood by the Court of Appeals.

The broad sweep of the court's

language, moreover, threatens not only to

end further legal use of empirical

evidence in determining whether our

nation's capital punishment statutes are

being applied in a racially discriminatory

- ix -

manner, but to discourage, as a4 practical

matter, the use of statistical evidence in

other areas of the law -- an outcome that

would constitute a regrettable development

in the relationship between the dis-

ciplines of law and social science.

Dated: New York, New York

June 27, 1985

Respectfully submitted,

MICHAEL O. FINKELSTEIN

*MARTIN F. RICHMAN

Barrett Smith Schapiro

Simon & Armstrong

26 Broadway

New York, New York 10004

(212) 422-8180

ATTORNEYS FOR AMICI CURIAE

BY:

MARTIN F. RICHMAN

*Attorney of Record

a 7

= ss =

No. 84-6811

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

WARREN McCLESKEY,

Petitioner,

~against-

RALPH M. KEMP, Superintendent,

Georgia Diagnostic & Classification

Center,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

BRIEF AMICI CURIAE OF

DR. PETER W. SPFERLICH, DR. MARVIN

E. WOLFGANG, PROFESSOR HANS ZEISEL

AND PROFESSOR FRANKLIN E. ZIMRING

SUMMARY OF ARGUMENT

The Baldus studies presented by the

petitioner in McCleskey v. Kemp are the

most sophisticated and comprehensive

-2-

empirical studies on criminal sentencing

ever submitted to any court. They have

been meticulously conducted and are

distinguished by state-of-the-art proce-

dures. The analytical methods employed

are jappropriate, and the results --

demonstrating racial disparities in

Capital sentencing at a highly statis-

tically significant level -- are sound and

valid.

The District Court and the Court of

Appeals display profound misunderstanding

of the statistical evidence itself and of

the significance of that evidence. Many of

their technical criticisms are misinformed

Or erroneous, and their reservations about

the reliability of the research are

inappropriate. Most importantly, the

Court of Appeals has failed to recognize

the significance of the racial disparities

reported by Professor Baldus; his firdings

— 2

demonstrate in fact that race continues to

have an important impact in death-sentenc-

ing decisions in the State of Georgia.

The opinion of the Court of Appeals

also expresses a general skepticism toward

social scientific methods and results that

is unwarranted and possibly injurious to

the continued ability of courts to make

use of statistically reliable evidence --

in many contexts other than capital

sentencing -- within the Eleventh Circuit.

ARGUMENT

I.

THE LOWER COURTS HAVE

SERIOUSLY UNDERVALUED BOTH

THE VALIDITY OF THE BALDUS

STUDIES AND THE SIGNIFI-

CANCE OF THEIR FINDINGS

To be of significant value to tne

courts, social scientific research, like

any other evidence, plainly must be

reliable. If research lacks “internal

validity” -- if its methods are inappro-

priate, or if its execution is careless

and slipshod -- it does not deserve the

serious attention of the courts.

On the other hafid, when research has

been meticulously conducted, when analyses

are searching and exhaustive, social

scientific studies, as the Court has often

acknowledged, can be of great value in

resolving legal disputes. See, e.g.,

Ballew v. Georgia, 435 U.S. 233 (1978);

International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 339 (1977);

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

Some of the most valuable contribu-

tions by social science to the resolution

of legal issues have been made in the area

of racial discrimination. Through the use

of statistical techniques such as multiple

regression analysis, social scientists and

Statisticians have regularly assisted

courts in discerning the influence of race

-5-

on complex decisionmaking processes that

may involve dozens of independent con-

siderations. See generally Finkeistein,

The Judicial Reception of Multiple

Regression Studies in Race and sex

Discrimination Cases, 80 Colum. L. Rev.

737 (1980); Fisher, Multiple Regression in

Legal Proceedings, 80 Colum. L. Rev. 702

(1980).

A. The Baldus Studies

In our judgment as social scientists,

the two studies of Georgia's capital

punishment system conducted by Professor

Baldus and his colleagues are examples of

excellent professional empirical studies.

The researchers had full access to

official State files on each homicide

case, permitting them to assemble data

distinguished by its unusual tichness and

high quality. The design of the studies is

sophisticated, and the number of relevant

~— 2

sentencing factors considered exceeds that

of any major study ever conducted in this

field. The researchers have followed

elaborate, state-of-the-art procedures in

data collection and entry.

Professor Baldus' analytical methods,

moreover, illustrate the unique contribu-

tion social science can make to legal

problems. The unadjusted racial disparity

in capital sentencing in the State of

Georgia are scriking: one whose victim is

white is eleven times more likely to

receive a death sentence than one whose

victim is black. Professor Baldus,

however, did not rest his conclusions on

these unadjusted racial disparities.

Instead, he used an array of increasingly

more complex statistical methods to test

dozens of alternative hypotheses that

might have disproven or eliminated the

effects of race. He turned social science

metnods, in other words, against his own

- 7-

unadjusted findings, subjecting his data

to rigorous scientific scrutiny designed

to determine whether the apparent racial

effects would persist when other factors

were taken into account.

Although Baldus has been conservative

in his findings, the adjusted influence of

racial factors on Georgia's capital

sentencing system remains clear and

significant. Race, especially the race of

the homicide victim, plays a large and

recognizable part in determining who among

convicted Georgia defendants will be

sentenced to life and who will be sen-

tenced to death. Baldus reports, for

example, that the odds of receiving a

death sentence are increased by 4.3 times

if the victim is white, even when he

controls for dozens of other legitimate

variables.

Why, in view of the soundness and

importance of these findings, shave the

Baldus studies been rejected by the lower

courts? If the answer to this important

question were solely a matter of constitu-

tional law, we of course would have no

role as amici before this Court. The

Opinions of the lower courts, however,

reflect a profound misunderstanding of

Baldus' research or, at best, an unwar-

ranted mistrust of the Significance of his

results.

B. The Opinion of the District Court

The District Court's Opinion, in

Particular, recites a Luddite's list of

grievances against empirical m@thods and

Procedures, almost none of which are

well-founded. It asserts that Baldus'

data base was "substantially flawed"

because it "could not Capture every nuance

Of every case," McCleskey v. Zant, 580 F.

Supp. 338, 356 (N.D. Ga. 1984). None of

Baldus' many models, even those with over

230 variables, are deemed sufficient in

the District Court's eyes, since they

"have [not] accounted for ... unaccounted-

for factors." Id. at 362.

These objections are fundamentally

misplaced. One essential quality of

statistical analysis is its power to tell

us many things about a phenomenon with

great reliability, without the necessity

of knowing everything about that phenome-

non. As a scientific matter, the like-

lihood that any omitted variable could

significantly affect Baldus' robust racial

findings -- especially when so many

legitimate variables have been taken into

account -- is truly negligible. By

insisting on a _ standard of “absolute

knowledge” about every case, however, the

District Court implicitly rejects the

value of all applied statistical analysis,

which has brought us much of what we know

in medicine, genetics, agronomy and other

areas of science.

The District Court also expresses

general skepticism toward a range of

well-established social scientific methods

employed by Baldus, including multiple

regression analysis, which it finds "ill

Suited to provide the Court with circum-

Stantial evidence of the presence of

discrimination." Id. at 372 (emphasis

omitted), Indeed the only statistical

method the District Court does seem to

approve is the simple cross-tabular

approach, id. at 354, even though the

Court acknowledges that the inherent

mature of the problem under Study here

makes it “impossible to get any statis-

tically significant results in comparing

exact cases using a cross tabulation

method." Id. at 354. This preference for

e tte

cros*-tabular methods lacks any scientific

foundation. Baldus' methods are clearly

valid and appropriate to his data.

Finally, in evaluating Baldus'

results, the District Court seizes upon 4

somewhat confused welter of statistical

issues, including Baldus' conventions for

coding “unknown” data, id. at 357-59, the

possible multicollinearity of Baldus'

variables, id. at 363-64, and the reported

rn? of his model, id. at 351, 361, as

reasons for its ultimate conclusion that

Baldus' results cannot be relied upon.

However, Baldus and his colleagues

satisfactorily addressed each of these

issues and demonstrated that the racial

results were not adversely affected by

such concerns. Baldus not only employed

the correct method of treating “unknowns”;

he conducted alternative analysis to

demonstrate that racial influences

persisted irrespective of the method of

- 12 -

treatment adopted. Multicollinearity

undoubtedly affected some of the larger

models employed by Baldus; however, the

District Court failed to realize that the

presence of of multicollinearity would not

affect the estimate of the racial results

reported. It would only affect the

Standard error of that estimate. Finally,

the Court's concern with the reported R?

of Baldus' models is unfounded. Apart

from the questionable relevance of the R?

measure for logistic models of the type

used by Baldus, an R? of .40 or higher is

quite acceptable.

In sum, the District Court Opinions

is a compendium of basic Statistical

errors and misunderstandings. Its

evaluation of the validity of the Baldus

Studies is off-target.

—> 2

Cc. The Opinion of the Court of

Appeals

The Court of Appeals purports to take

a different approach to Baldus' research:

it announces that it will “assum[(e] [the

study's] validity and that it proves what

it claims to prove,” McCleskey v. Kemp,

753 F.2d 877, 886 (lith Cir. 1985) (en

banc), and will base its judgment solely

on the legal consequences which flow from

that research. Yet even a quick reading

of the Court's opinion persuades us that

the skepticism which pervaded the District

Court's analysis continues to dominate the

treatment of Baldus' research by the Court

of Appeals. After first Knitting together

citations from several scholarly articles

that caution courts against an unreflec-

tive use of social scientific evidence,

id. at 887-90, the Court announces “that

generalized statistical studies are of

little use in deciding whether a particu-

-14<-

lar defendant has been unconstitutionally

sentenced to death ... [and] are at most

probative of how much disparity is

present." Id. at 894. That observation

misses the point: although statistics

cannot determine with absolute certainty

whether any one defendant may have been

sentenced to death because of race,

statistical evidence can determine with

great reliability whether racial factors

are playing a role in the sentencing

System as a whole. Baldus' studies

provide just such evidence.

When the Court turns to Baldus'

Studies, it relies a’most entirely upon

one summary figure drown from the entire

body of Baldus' results -- a reported .06

disparity by race of victim in overall

death-sentencing rates. As we view Baldus’

research, this is but one of a number of

important, meaningful results indicating a

consistent racial presence in Georgia

- 15 -

sentence patterns. Seen as such, this

figure is important, though obviously by

no means the sole basis for Baldus's

conclusions.

The Court of Appeals, however,

misunderstands even the significance of

this one figure, repeatedly describing it

as a six percent disparity, see, €-g-,

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

896, 899, rather than a six percentage

point disparity. The distinction is by no

means technical. The overall death-

sentencing rate in the State of Georgia is

quite small, only .05, or 5-in-100. Thus

a six pecentage point’ increase, for

example, raises the death-sentencing rate

from .05 to .11, a percentage increase of

120%. Baldus in fact reports a death-odds

multipler effect of 4.3: that is, the

odds of receiving a death sentence are 4.3

times greater if one's victim is white.

e 16 @

Such an impact, larger than that of a

number of Georgia's statutory aggravation

circumstances, scarcely seems "marginal."

Moreover, when the Court of Appeals

examines Baldus' well-documented finding

of a 20-point racial disparity in the

“midrange” of cases, it indulges a quick

succession of disparaging observations

--none of which is defensible. The expert

testimony at trial strongly substantiates

the existence of a meaningful, statisti-

Cally significant "midrange" of Georgia

cases. Warren McCleskey, in fact, falls

squarely within that midrange.

In sum, the Court of Appeals, like

the District Court, fundamentally mis-

trusts Baldus' findings and undervalues

their Significance as proof of racial

disparities in Georgia's capital sentenc-

ing system. From our perspective as

social scientists, that mistrust is

unwarranted. The Baldus studies are

-17<-

sound; they are consistent with prior

“esearch; and their basic conclusions are

entitled to the confidence of the scienti-

fic and the legal communities.

II.

THE COURT OF APPEALS' RE-

LUCTANCE TO ACCEPT RE-

LIABLE SOCIAL SCIENTIFIC

METHODS AND FINDINGS WAR-

RANTS REVIEW BY THIS COURT

It is possible that the extraodinary

reluctance of the Court of Appeals to

place reliance upon Baldus' research

reflects no more than an unwillingness,

despite the evidence, to invalidate

post-Furman capital statutes. The

opinion, however, does not expressly

limit its holding to death penalty cases.

Instead, it articulates a standard of

proof that seems applicable to other Equal

e 18 «

Protection Clause challenges, see, @.g.,

id. at 887-90, and perhaps to Title VII

disparate treatment cases as well.

If so, the opinion raises important

issues about the usefulness of social

scientific evidence that transcend the

McCleskey case itself. The contributions

of social scientific evidence to the

resolution of legal issues has increased

Significantly in recent decades, as

Statistical methods have improved and the

confidence of the courts has grown. This

Court has led the lower federal courts

toward an appreciation of the nature of

such evidence, and has developed legal

principles, including standards of proof

for parties presenting statistical

evidence, that reflect a clear understand-

ing of the powerful utility of reliable

social scientific evidence. See, e.g.,

Hazelwood School District Vv. United

fates, 433 U.S. 299 (1977); Teamsters v.

- 19 -

United States, 431 U.S. 324 (1977); see

also Segar v. Smith, 738 F.2d 1249 (D.C.

Cir. 1984); Vuyanich v. Republic Nat'l

Bank, 505 F. Supp. 244 (N.D. Tex. 1980),

vacated on other grounds, 723 F.2d 1195

(Sth Cir. 1984).

The Court of Appeals has disregarded

these basic standards of proof that have

been fashioned by the Court. Its opinion

in McClesky insists upon a level of

methodological purity in data quality,

model design, and analysis that can be

achieved only in theory. If left unre-

viewed, the opinion of the Court of

Appeals will erect formidable barriers

against the use of reliable statistical

evidence that can, and amici believe,

properly should be used by the courts to

resolve complex legal issues that regular-

ly come before them for decision.

- 20 «

CONCLUSION

For the reasons set forth above,

amici curiae respectfully urge the Court

to grant certiorari in the McCleskey v.

Kemp case and engage in a full considera-

tion of the important questions it

presents for review.

Dated: New York, New York

June 27, 1985

Respectfully submitted,

MICHAEL 0. FINKELSTEIN

*MARTIN F. RICHMAN

Barrett Smith Schapiro

Simon & Armstrong

26 Broadway

New York, New York 10004

(212) 422-8180

ATTORNEYS FOR AMICI CURIAE

BY:

* Attorney of Record

CERTIFICATE OF SERVICE

I hereby certify that I am a member

of the bar of this Court, and that I

served the annexed Motion for Leave to

File Brief Amici Curiae and Brief Amici

Curiae on the parties by placing copies in:

the United States mail, first class mail,

postage prepaid, addressed as follows:

John Charles Boger, Inc.

NAACP Legal Defense Fund

99 Hudson Street

New York, New York 10013

Mary Beth Westmoreland, Esq.

132 State Judicial Bldg.

40 Capitol Square, S.W.

Atlanta, Georgia 30334

Hon. John Conyers, Jr.

2313 Rayburn House Office Bldg.

Washington, D.C. 20515.

Ralph G. Steinhardt, Esq.

Patton, Boggs & Blow

2550 M Street, N.W.

Washington, D.C. 20037

All parties required to be served

have been served. Done this 27th day of

June, 1985.

By

MARTIN F. RICHMAN

Attorney of Record

for Amici Curiae