Amicus Curiae Brief — McCleskey v. Kemp

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so No. 84-6811

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EOR ARGUMENT] IN THE

Supreme Court of the Gnitiu States

OCTOBER TERM, 1986

WARREN McCLESKEY,

Petitioner,

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

720 20th Street, N.W.

STEVEN M. SCHNEEBAUM

Washington, D.C. 20052

Patton, Boccs & BLow (202) 676-5739

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 Ami-

cus Curiae in support of Petitioner. The Law Group

is 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-discriminatory 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

IS, Cnn. ccccseccscceseccoscoccscccosecsesosseess

INTEREST OF THE AMICUS ..........cccccccccccsccscsccscsscccenes

i 2) SIEGE « ....... .ccsccescosncsccssosencosensooccess

eka... eunesstsegnsesssetensnceoes

Il.

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

OF GEORGIA. . ............ccccccccrsrrecsesssressescsssceees

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 LAW. ......cccccccccccccocrsocscccsereccessessseees

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. .

ec seassnmnnanennerniuscenes

TABLE OF AUTHORITIES

CASES: Page

Barcelona Traction Light and Power Co., Ltd., [1970]

Ble TRU. GR cecensccncensnssonmnstecnssssencconstesnsnctones 11

Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313 (1971) _...... 4

Chisolm v. Georgia, 2 Da. 419 (1793) — .........cceeeeeees 13

Coker v. Georgia, 483 U.S. 584 (1977) .....cccccceeeeeee 15

Cook v. United States, 488 U.S. 102 (1983) _ .......... 15

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

Enmund v. Florida, 458 U.S. 782 (1982) .........0. 16

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

1980), affd sub nom. Rodriguez-Fernandez v.

Wilkinson, 654 F.2d 1382 (0th Cir. 1981) .... 14

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

Hisar tease alate toc ca 14

First National City Bank v. Banco Para el Com-

mercio Exterior de Cuba, 103 S.Ct. 2591

CETTE. venineuicniidiitintiananiennsiimiamtaietiatiigneneyeniee 13

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

Legal Consequences for States of the Continued Pres-

ence of South Africa in Namibia (South West

Africa) Notwithstanding Security Council Reso-

lution 276, [1971] L.C.J. Rep. 57 .......ccccseseeeees ll

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

COND GENE ccacnccanecenscesecdnntscnnecsnemnescssencessnnevnseseee 3, 7, 8

McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10 (1968). .........eeeeeeee 15

Murray v. The Charming Betsy, 6 U.S. (2 Cranch,

Be CE . wapRhinciaceseiaiainentinaiiiidieniitintartsmnaein 15

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

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

oT ~napsinconcunnhinanitetanisibiiiaadaipiiaenmdiaiareiiintionn 14

The Paquete Habana, 175 U.S. 677

TERETE seucsputniisepiatnniabiianngaighiblaientdnapibunenn u, 12, 14, 16

iil

Table of Authorities Continued

Page

Procunier v. Navarette, 434 U.S. 555 (1978) _ ........ 4

Respublica v. DeLongchamps, 1 U.S. 119, 1 Dail. 111

(O.&T. Pa. 1784) ........csccssccccrccseresenreresessescsees 14

7 West Africa Cases (Second Phase), [1966] I.C.J. -

Spinkelink v. Wainwright, 578 F.2d 582 (5th Cir.

(1978), cert. denied, 404 U.S. 976 (1979) _ ....... 6

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

Trop v. Dulles, 356 U.S. 86 (1958) .......cceeees 3, 15, 16

Vance v. Terrazas, 444 U.S. 252 (1980) _ ............4 4

Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252 (1977) — ..sscseeseeeeeeees 17

Ware .v. Hylton, 3 U.S. (3 Da.) 199 (1796) _ ......... 13

Weinberger v. Rossi, 456 U.S. 25 (1982) — .......210+ 15

Wood v. Georgia, 450 U.S. 261 (1981) .....ceeseeeeeees 4

TREATIES, DECLARATIONS, STATUTES, 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,

BOTT cncecenscacecnctasessrnssensscsninessesscnmneptncanatareesons 9

American Deciaration on the Rights and Duties of

Man, 0.A.S. Res. XXX, adopted by the Ninth

International Conference of American States,

held at Bogota, Colombia (1948), OEA/Ser. L./

VIL, © Rew. CUGGB) nccocccvccsccccccscsscsccoscccsoscsscseeses 10

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) — .....secccccccrcccrsscccccscccrceeeeessssscssssssssesenceseees 10

Table of Authorities Continued

Page

Declaration on the Promotion Among Youth of the

Ideals of Peace, Mutual Respect and Under-

standing Between Peoples, ted Dec. 7, 1965,

G.A. Res. 2037, 20 U.N. GAOR, Supp. (No. 14)

40, U.N. Dec. A/6015 hae 10

The International Convention on the Elimination of

Ali Forms of Racial Discrimination, d for

signature March 7, 1966, 660 U.N.T.S. 195 9

International Covenant on Civil and Political ae

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

GAOR, Supp. (No. 16) ....cccccsccsssseeeeeeeseeeeeeeeees 9

International Covenant on Economic, Social, and Cul-

tural — ted Dec. 16, 1966, G.A. Res.

2200A AOR, Supp. (No. 16) _.......... )

Organization of American States Charter, signed

April 30, 1948, entered into force December 13,

1951, 2 U.S.T. 2394, T.LA. + > = 4

United Nations Charter, signed June 26, 1945, en-

tered into force October 24 24, 1945, 59 Stat. 1031,

2 BE ES Nr ren ea ae 4

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 (19638) _..... 10

Universal Declaration of Human Rights, G.A. Res.

217A (III), U.N. Doc. A/810 (1948) © ............004 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), rv inted in

63 AMER. J. INT’! L. 875 (1969), 8 INT’L LEG.

BEAT. G79 (19GB) — .cccrccccccccccccccccccsccccccccccsccsseosees 8

LEGISLATIVE MATERIALS:

S. Exec. Doc. L., 92d Cong., Ist Sess. (1971) _ ...... )

MISCELLANEOUS:

Table of Authorities Continued

American Law Institute, Restatement of

Foreign Relations Law of the United States

Ca OED CITE wcccnsnccvececenssccccsscssesescapeccesenceces 12, 13

Baldus, et al., Monitoring and Evaluating Contem-

porary Death Sentencing Systems: Lessons F’rom

Georgia, 18 U.C. DAVIS L. REV. 1375

| eee 7

Barnett, Some Distribution Patterns for the Georgia

Death Sentence, 18 UC. DAVIS L. REV. 1327

CRGTD —_xecccccasssccessossccnassosoneccensosensnsscessssscosebooces 7

Gross, Race and Death: The Judicial Evaluation of

Evidence of Discrimination In Capital Sentenc-

ing, 18 U.C. DAVIS L. REV 1275 (1985) _.... 7

Henkin, International Law as Law in the United

States, 82 MICH. L. REV. 1555 (1984) _......... 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). ..........sssscesseeeeeeeees 11

McKean, Equality and Discrimination Under Inter-

mattonal Lae (IGG) . .cccccccccesesccccccccccscscccsceseeees 11

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 (January 1980) .........cccceeeeeeeeees 10

Op. Att’y Gen. 27 (1972). ........sccccccsrrserscessessrsssces 13

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

41 Sub. 2/307/Rev. 1, 28 (1971). .........eeeeeeeeees 10

Zeisel, Race Bias in the Administration of the Death

Penalty: The Florida Experience, 95 HARV. L.

REV. GEG (IGBT) — ceccccccccccsccsccsccccsccccccscccscsccsesees 7

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 84-6811

WARREN MCCLESKEY,

Petitioner,

Vv.

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

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 is 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 bane 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 bane 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 ex 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 Amieus were not

presented to the courts below, this Court has established that

ILABLE COPY

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 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 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

3Jd., 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 ad,j.<ment 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 vhen 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

certiorari 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 respord 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, 18 U.C. DAVIS L. REV. 1327 (1985); Baldus,

et al., Monitoring and Evaluating Contemporary

Death Sentencing Systems: Lessons From Georgia, 18

U.C. DAVIS L. REV. 1875 (1985). To Amicus’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 bane 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.

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.

Il. 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

* 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.

* 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 in 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., Ist

Sess. (1971) at 1.

7U.N. Charter, signed June 26, 1945, entered into force Oc-

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

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

December 13, 1951, 2 U.S.T. 2394, T.1.A.S. No. 2361, at Article

3()).

* 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

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-

sut distinction of any kind, such as race ... [or] na-

tional or social origin,” id., 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-

fiected as well in the laws and constitutions of a vast

majority of states, and is conceived as the center-

catalogued in Appendix E to Amicus’ Brief in Support of Petition

for Certiorari, filed herein on July 8, 1985, at 8a-9a.

‘© 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);

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), OE A/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.

"G.A. Res. 217A(IID, U.N. Doc. A/810 (1948). .

'2 Memorial of the United States, The Case Concerning United

States Diplomatic and Consular Staff in Tehran (United States

v. Iran), [1980] 1.C.J. Pleading$ 181, n. 3 (January 1980).

'8 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] I.C.J. 4, 299 (Tanaka, J., dissenting).

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] 1.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)

Notwithstanding 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

‘4 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 genera'ly, McKean,

Equality and Discrimination Under International Law (1983);

Henkin, The Rights of Man Today (1978).

Institute, Restatement of Foreign Relations Law of the

United States (Revised) § 702(f) (1986).'*

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-

ilarly, 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.

‘6 U.S. Const., Art. VI, Sec. 2.

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).

customary law rules are observed. See North Sea Con-

tinental Shelf Cases, [1969] I.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-

Longchamps, 1 U.S. 119, 1 Dall. 111 (O. & 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.

‘* 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.

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); Lawritzen v. Larsen, 345 U.S. 571, 578

(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, 654 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

(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 (1982).

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 bance 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

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 US.

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.

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, Boccs & 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

dene”

APPENDIX

AFFIDAVIT GF 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 E.recutions 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

Coun. 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

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 adjustrhent 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).

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).

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 27 .078

White Kills White 3616 37 .010

Biack Kills Black 2597 2 .007

White Kills Black 143 0 .000

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 .182

_ Black Kills Black 115 7 .061

White Kills Black 7 0 .000

All Offenders 558 104 .186