Amicus Curiae Brief — McCleskey v. Kemp

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ia 1.400 T Street N.W., Suite 400

No. 84-6811

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

WARREN McCCLESKEY,

Petitioner,

Vv.

RALPH M. KEMP, Superintendent,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

OF THE CONGRESSIONAL BLACK CAUCUS,

THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS

UNDER LAW, AND THE NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED PEOPLE

The Congressional Black Caucus, the

Lawyers' Committee for Civil Rights Under

Law, and the National Association for the

Advancement of Colored People, respectfully

move the Court pursuant to Supreme Court

Rule 36.3, for leave to file the attached

brief as amici curiae in support of

Petitioner. Petitioner has consented to

this filing, but Respondent has refused its

consent.

The \Congressional Black Caucus is

composed of all twenty black members of the

United States House of Representatives.

Its primary function is to implement and

preserve the constitutional guarantee of

equal justice under the law for all

Americans, particularly black Americans.

The Lawyers' Committee for Civil

Rights Under Law is a nationwide civil

rights organization that was formed in 1963

by leaders of the American Bar, at the

request of President Kennedy, to provide

legal represeritation to blacks who were

being deprived of their civil rights.

Since then, e national office of the

Lawyers' Committee and its local offices

have represented the interests of blacks,

Hispanics and women in hundreds of cases

challenging state and private actions based

on race discrimination. Over a thousand

members of the private bar, including

former Attorneys General, former Presidents

of the American Bar Association and other

leading lawyers, have assisted it in such

efforts.

The National Association for’ the

Advancement of Colored People is a New York

nonprofit membership corporation, with sore

three million members nationwide. Its

principal aims and objectives include

eradicating caste or race prejudice among

the citizens of the United States and

promoting genuine equality of rights in the

operation of its laws.

Amici have a long-standing interest in

insuring that no one is denied equal

justice on the basis of race. We believed

it well-established that the unequal

application of criminal statutes on the

basis of race is a violation of the

Constitution. Yet in this case the Court

of Appeals has held that a proven racial

disparity in death sentencing does not in

and of itself violate the Eighth and

Fourteenth Amendments. In order to respond

to this ruling we have asked to participate

as amici. In our view, the holding of the

Court of Appeals threatens the principle of

equality under the law and undermines our

efforts to realize this fundamental

principle.

Because the issues raised by this case

go beyond the interests of Petitioner

alone, and the implications of the Court of

Appeals' decision affect the rights of all

Americans we are dedicated to preserve, we

believe our participation will be of

assistance to the Court.

For the foregoing reasons, we

respectfully request that leave to

participate as amici curiae be granted.

Respectfully submitted,

WILLIAM L. ROBINSON*

HAROLD R. TYLER and

JAMES ROBERTSON, Cochairmen

NORMAN REDLICH, Trustee

Lawyers' Committee for

Civil Rights Under Law

1400 I Street N.W.

Suite 400

Washington, D.C. 20005

(202) 371-1212

SETH P. WAXMAN

Miller, Cassidy, Larroca & Lewin

2555 M Street, Suite 500

Washington, D.C. 20037

(202) 293-6400

Counsel for the Congressional

Black Caucus

GROVER HANKINS, General Counsel

NAACP Special Contribution Fund

4805 Mount Hope Drive, Room 501

Baltimore, MD 21215

(301) 358-8900

*Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....... ii.

INTEREST OF THE AMICI ...++ s+ + 1

SUMMARY OF ARGUMENT .....+ + « + 2

ARGUMENT . . . . . . . . * o . . . 5

Il.

Itt.

THE EVIDENCE IN THIS CASE

SHOWS THAT RACE REMAINS A

DRIVING FORCE IN THE

IMPOSITION OF CAPITAL

SENTENCES IN THE STATE

OF GEORGIA. .. + © «© «© «© « «» 5

SIGNIFICANT RACIAL INFLUENCES

IN DEATH-SENTENCING DECISIONS--

CONSCIOUS OR UNCONSCIOUS--

VIOLATE THE CONSTITUTION. .. 18

A. Any Significant Quantum

BECAUSE GEORGIA'S UNIQUE

DEATH SENTENCING SYSTEM HAS

FAILED TO ELIMINATE THE

INFLUENCE OF RACE, IT IS

INCONSISTENT WITH THE EIGHTH

AND FOURTEENTH AMENDMENTS. .. 36

CON CLUS I ON . . . + . . . . . . 7 . 4 4

CASES

Alexander v. Louisiana

405 U.S. 625 (1972) . .. +. + + « 12,28

Amadeo v. Kemp

773 F.2d 1141 (llth Cir. 1985) .. 30

Arlington Heights v.

Metropolitan Housing Corporation

429 U.S. 252° (1977) .~. «© « « « « « 28,35

Batson v. Kentucky

106 S.Ct. 1712 (1986) .... +. « 3,26

Bazemore v. Friday

106 S.Ct. 3000 (1986) .. . 12,25,27,31

Bowden v. Kemp

793 F.2d 273 (llth Cir. 1986) ... 30

Briscoe v. LaHue

460 U.S. 325 (1983) . . « « « « « 15,21

Burrows v. State

640 P.2d 533 (Ok. Crim. 1982) ... 39

Carter v. Texas

177 U.S. 442 (1900) . «© «© «© «© «© «© « 21

Casteneda v. Partida

430 U.S. 482 (1977) ... . 11,22,28,29

Chicago, Burlington &

Quiney Railway v. Babcock

204 U.S. 585 (1907) . «© « «© «© «© «© «© 25

Coker v. Georgia

433 U.S. 584 (1977) . «© «© «© «© «© «© « 41

ii.

Coley v. State

204 S.E.2d 612 (Ga. 1974) ..... 41

Davis v. Zant

721 F.2d 1478 (llth Cir. 1984) oo aoe

Eddings v. Oklahoma

455 U.S. 104 (1982) ..... + 6 « 34

Estelle v. Gamble

429 U.S. 97 (1976) ...«« © «© « « 33

Ex Parte Virginia

100 U.S. 667 (1879) . .«. «© « «© «© «© « 27

Fayerweather v. Ritch

195 U.S. 276 (1904) . . «© «© «© «© «© « 25

Furman v. Georgia

408 U.S. 238 (1972) ..... . passim

Gardner v. Florida

430 U.S. 349 (1977) .

WwW

Gates v. Collier

501 F.2d 1291 (5th Cir. 1974) ... 33

General Building Contractors

Ass'n, Inc. v. Pennsylvania

456 U.S. 375 (1982) . .«. «© «© «© © e «© 21

Godfrey v. Georgia

446 U.S. 420 (1980) ...... . 34,39

Gregg v. Georgia

428 U.S. 153 (1976) ... 4,5,36,37,40

Hall v. State

244 S.E.2d 833 (Ga. 1978) ..... 41

Hazelwood School District

v. United States

433 U.S. 299 (1977) . «© «© «© © © e e« Bil

iii.

Jones v. Georgia

389 U.S. 24 (1967) “a a on a oe a oe

Lodge v. Buxton

639 F.2d 1358 (llth Cir. 1981)

Loving v. Virginia

388 U.S. 1 (1967) . «© «© «© © © © © © 20

McCleskey v. Kemp

753 F.2d 877 (llth Cir. 1985) . passim

Norris v. Alabama

294 U.S. 559 (1953) . «© «© «© «© © «© «© 2h

Rhodes v. Chapman

452 U.S. 337 (1981)

WwW

Rogers v. Lodge

458 U.S. 613 (1982) . . 10,14,25,29,31

Rose v. Mitchell

443 U.S. 545 (1979) .... . 17,21,31

Ross v. Kemp

785 F.2d 1467 (llth Cir. 1986) .. 30

Rozcecki v. Gaughan

459 F.2d 6 (ist Cir. 1972) .... 33

Shelly v. Kramer

334 U.S. 1 (1948) . . >. >. >. > o o . 27

Smith v. Texas

311 U.S. 128 (1940) . «. «© «© «© © « © 32

Spain v. Procunier

600 F.2d 189 (9th Cir. 1979) ... 33

Spencer v. Kemp

784 F.2d 458 (llth Cir. 1986) ... 30

Spivey v. State

246 S.E.2d 288 (Ga. 1978) .... . 38

iv.

State v. Osborn

631 P.2d 187 (Id. 1981) .

Strauder v. West Virginia

100 U.S. 664 (1879) ...

Texas Dept. of Community

Affairs v. Burdine

450 U.S. 248 (1981) ...

Turner v. Fouche

396 U.S. 346 (1970)...

Turner v. Murray

106 S.Ct. 1683 (1986) ..

Ward v. State

236 S.E.2d 365 (Ga. 1977)

Washington v. Davis

426 U.S. 229 (1976) .. .

Whalen v. State

492 A.2d 552 (Del. 1985)

Whiteley v. Albers

106 S.Ct. 1078 (1986) .

Whitus v. Georgia

385 U.S. 545 (1967) ..

Willis v. Zant

720 F.2d 1212 (llth Cir.

Yick Wo v. Hopkins

118 U.S. 356 (1886) ..

Zant v. Stephens

462 U.S. 862 (1983) ...

. oF

14,21

- dil

21,22

- 27

- 41

—

- 39

25,33

12,22

- 30

- 20

39,40,43

RULES AND STATUTES

Georgia Code Ann. §27-2534(b)(2) . 39

OTHER AUTHORITIES

Bentele, The Death Penalty in

Georgia: Still Arbitrary

62 WASH.U.L.Q. 573 . .. +++ -+ 38,41

Bowers and Pierce, Arbitrariness

and Discrimination Under the Post-

Furman Capital Statutes

26 CRIME AND DELINQUENCY 563 (1980) 7

Gillers, Deciding Who Dies

129 U.PA.L.REV. 1 (1980) ..... 38

Gross and Mauro, Patterns of Death

37 STAN.L.REV. 27 (1984) .... . 6,7

HIGGENBOTHAM, IN THE MATTER OF

COLOR: RACE IN THE AMERICAN LEGAL

PROCESS (1978) .. + «© «© © «© «© « « 23

Joint Center for Political

Studies, Black Elected Officials:

A National Roster (1986) .... . 30

Joint Center for Political

Studies, Black Judges in the

United States (1986) ..... +. 30

MYRDAL, AN AMERICAN DILEMMA

(1944) . . . . . . . . . . . . . . 16

NAACP Legal Defense Fund

Death Row U.S.A., August 1, 1986. 5

Stampp, The Peculiar Institution:

Slavery in the Antebellum South

(1956) . . . 7 ” . . . . . . . . . 14

vi.

No. 84-6811

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

WARREN MCCLESKEY,

Petitioner,

RALPH M. KEMP, Superintendent,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF OF AMICI CURIAE

THE CONGRESSIONAL BLACK CAUCUS,

THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS

UNDER LAW, AND THE NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED PEOPLE

INTEREST OF AMICI

The interests of amici in this case

are set out in the preceding Motion for

Leave to File this Brief.

SUMMARY OF ARGUMENT

The exhaustive scientific proof in

this case shows that race has retained a

powerful influence on capital sentencing

decisions in Georgia, since Furman v.

Georgia, 408 U.S. 238 (1972). That

confirms what is evident to even a casual

observer: Just as before Furman, "a look

at the bare statistics regarding executions

is enough to betray much of the

discrimination." 408 U.S. at 364

(concurring opinion of Justice Marshall).

The scientific evidence in this case tests

every possible explanation for these

apparent disparities, and shows nothing can

explain them but the conscious or

unconscious influence of race. It does so

with a thoroughness and rigor which meet or

exceed every standard this Court, or any

other court, has ever set down for such

proof. It cannot b:: simply explained away

or ignored.

The Court of Appeals' suggestion that

the discrimination this evidence showed was

of a tclerable magnitude is inconsistent

with everything this Court has said about

race discrimination in criminal justice.

It also ignores the true magnitude of the

racial disparities here, which matched or

exceeded those the Court has _ found

intolerable in related contexts.

The Court of Appeals' insistence on

proof cf an intentional act of

discrimination by an identified actor

imposes “a crippling burden of proof,"

Batson v. Kentucky, 106 S.Ct. 1712, 1720

(1986) on claims of discrimination in this

context. There is no justification for

imposing such an extraordinary burden here:

Death sentencing is quintessential state

action; it involves such a range of

discretion and such a multitude of decision

makers that proof of a particular

discriminatory act or animus is unnecessary

and unrealistic. In such circumstances,

the kind of strong statistical proof

presented here, coupled with a history of

discrimination, sufficiently shows

"purposeful discrimination" under any

established and realistic Fourteenth

Amendment standard. Moreover, the separate

requirements of the Eighth Amendment place

on the states a duty to avoid

discrimination in death sentencing which is

independent of any particular actor's

subjective intent.

The evidence here shows that the hope

of Gregg v. Georgia, 428 U.S. 153 (1976)

has not been realized. Georgia's uniquely

discretionary post-Furman system has not

removed discrimination from the imposition

of death sentences in that state.

ARGUMENT

I. THE EVIDENCE IN THIS CASE SHOWS

THAT RACE REMAINS A DRIVING FORCE

IN THE IMPOSITION OF CAPITAL

SENTENCES IN THE STATE OF GEORGIA.

Since this Court's decision in Gregg

v. Georgia, 428 U.S. 153 (1976), the State

of Georgia has carried out seven

executions. Six of the seven men executed

were blacks convicted of killing whites;

the victim in the seventh case was white,

also. If this Court affirms the Court of

Appeals' decision in this case, it appears

that pattern will persist: Of the fifteen

men Georgia holds under death sentences now

in force which precede Warren McCleskey's

in time, thirteen are black; nine of the

1 The seven men executed were John

Smith (white defendant, white victim); Ivon

Stanley (black defendant, white victim);

Alpha Stephens (black defendant, white

victim); Roosevelt Green (black defendant,

white victim) ; Van Solomon (black

defendant, white victim); John Young (black

defendant, white victim); and Jerome Bowden

(black defendant, white victim). NAACP

Legal Defense Fund, Death Row U.S.A.,

August 1, 1986 at 4.

thirteen had a white victim; so did both of

the two white defendants in this group.?

These figures are particularly

striking when one considers that black

people constitute a substantial majority of

the victims of all homicides in the state

of Georgia, and black-on-white homicides

are extremely rare.’ Although these raw

figures are certainly not scientific proof,

no fair-minded observer who is aware of the

history of race relations in this state can

confront them without suspecting that

racial inequities persist in the manner in

which capital defendants are chosen for

execution by the Georgia judicial system.

2 See Appendix I.

3 Professor Baldus' data showed

black people were the victims in 60.7%

(1502/2475) of Georgia homicides; and

crimes involving black defendants and white

victims constituted only 9.2% (228/2475) of

Georgia homicides, during the period he

studied. See D.Ct. Exhibit DB 63. FBI

Uniform Crime Reports confirm’ these

percentages. See Gross and Mauro, Patterns

of Death, 37 STAN.L.REV. 27, 56 (1984).

The evidence presented in this case is

strict scientific proof; and it tragically,

but unmistakably, confirms that suspicion.

From Professor Baldus' most preliminary

measures (which showed white victim cases

nearly 11 times more likely to receive

death sentences than black victim cases,

D.Ct. Exhibit DB 62), to his most

comprehensive and refined (which showed

race of victim to multiply the odds of

death some 4.3 times, D.Ct. Exhibit DB 82),

the evidence presented here shows’ the

influence of race in the Georgia system

persists, however it is examined. All

other observers have reached the same

conclusions, whatever methods and data they

have used.4

4 See Gross & Mauro, supra, n.2;

Bowers and Pierce, Arbitrariness and

the Post-Furman

, 26 CRIME AND DELINQUENCY

563 (1980).

These persistent findings admit only

three conceivable explanations: Either (1)

some or all of the actors in the Georgia

criminal justice system empowered to make

decisions affecting the imposition of the

death penalty are intentionally

discriminating by race; or (2) the

discretionary aspects of the Georgia death

sentencing system allow subconscious racial

biases to influence the outcome of death

sentencing decisions; or (3) some unknown

nondiscriminatory influence is at work, and

accounts for these persistent disparities

in a way no one has yet fathomed.

No one would deny the first of these

possibilities violates the Constitution.

As we will discuss in Part II below, in the

context of the Georgia capital sentencing

system, the second does as well. We must

first pause, however, to consider the third

possible explanation, which the Court of

Appeals' majority seized upon when it

faulted the Petitioner's proof for

supposedly “ignor[ing) quantitative

differences in cases: looks, age,

personality, education, profession, job,

clothes, demeanor, and remorse, just to

name a few...." McCleskey v. Kemp, 753

F.2d 877 (llth Cir. 1985). With all

respect, this remarkable assertion is wrong

as a matter of fact, as a matter of law,

and as a matter of common sense.

The factual error in the Court of

Appeals statement is both striking and

revealing. Striking is the fact that

several of the precise variables the Court

of Appeals pointed to were taken into

account by Professor Baldus' data.>

Revealing is the list of new variables the

5 Professor Baldus' questionnaire

(D.Ct. Exhibit DB 38), accounted for the

defendant's age (Foil 46), education (Foil

4.13) profession and employment’ status

(Foils 61-69), and expressions of remorse

(Foils 183, 274). Professor Baldus

recorded similar factors regarding the

victim as well. See Foils 111, 112-120.

Court of Appeals conjured up: "looks ...

personality ... clothes ... and demeanor."

Not only is it unimaginable that such

criteria could serve as legitimate

justifications for a death sentence; they

would be obvious proxies for race prejudice

if they were in fact used.© For as Judge

Clark in his dissenting opinion below

noted, “it is these differences that often

are used to mask, either intentionally or

unintentionally, racial prejudice."

McCleskey v. Kemp, supra, 753 F.2d at 925

n.24. The Court of Appeals' resort to

these farfetched hypotheticals illustrates

how comprehensive Professor Baldus' data

are: No one has yet suggested any factors

he did not take into account which could

6 Even the variables that the Court

of Appeals identified and Professor Baldus

did take into account--job, profession, and

education--are not wholly race neutral.

Any disadvantages black defendants may

suffer in these respects are likely to be

the result of past discrimination. e.

Rogers v. Lodge, 458 U.S. 613, 625-6 (1982).

plausibly and fairly explain death

sentencing outcomes.

As a matter of law, the Court of

Appeals' error lies in its holding that

even such thoroughness was not enough,

demanding that statistical proof of

discrimination eliminate such nebulous and

speculative influences. The breadth of the

Baldus studies--which accounted for over

230 nonracial variables--far exceeds any

other ever offered to meet a prima facie

standard of proof announced by this Court. ?

And as the Court has recently reiterated,

one cannot dismiss or rebut a sophisticated

regression analysis--or any prima facie

proof of discrimination, for that matter--

"declar{ing]) simply that many factors go

into making [the relevant decision)",

without any "attempt ... to demonstrate

7 Compare Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248 (1981);

Hazelwood School District v. United States,

433 U.S. 299 (1977); Casteneda v. Partida,

430 U.S. 482 (1977).

that when these factors were properly

organized and accounted for there was no

significant disparity between ... blacks

and whites." Bazemore v. Friday, 106 S.Ct.

3000, 3010-11 n.14 (1986).8 Yet the

Eleventh Circuit majority did just that.

The Court of Appeals' strain to find

unexplained variables defies common sense

because it ignores the social context and

history in which the substantial racial

discrepancies identified by Professor

Baldus were found. The differing treatment

cf murder defendants in Georgia, based on

their race and the race of their victim, is

no newly-discovered phenomenon. In

Georgia's earliest history, established law

provided as follows:

8 Accord Alexander v. Louisiana,

405 U.S. 625, 631-32 (1972); Whitus v.

Georgia, 385 U.S. 545 (1967); Jones v.

Georgia, 389 U.S. 24 (1967).

Any slave who killed a white

person in order to defend

himself, his family, a fellow

Slave, or a white third party had

to be executed. The courts or

government could grant no mercy

in such cases.

. o .

Death cculd likewise be imposed

if a slave "grievously wound[ed],

maim(ed}], or bruise[d] any white

person"; was convicted for the

third time of striking a white

person; or, ... if he attempted

to run away from his master out

of the province.

Yet conversely, when a white person killed

a slave:

Only on the second offense of

willful murder did the ‘offender

Suffer for the said Crime

according to the Laws of England

except that he shall forfeit no

more of his Lands and Tenemants

Goods and Chattels than what may

be Sufficient to Satisfy the

owner of such Slave so killed as

aforesaid....' Conviction for

willful murder of a slave also

required after 1755 the "oath of

two witnesses" an extremely

difficult burden of evidence for

most criminal prosecutions.

HIGGENBOTHAM, IN THE MATTER OF COLOR: RACE

IN THE AMERICAN LEGAL PROCESS 256, 253-4

(1978) .?

This legal system--with its

differential treatment of blacks as

defendants and victims--was explicitly

among the “discriminations which are steps

toward reducing’ [blacks] Te

condition of a subject race," that the

Fourteenth Amendmeht was enacted to

abolish. Strauder v. West Virginia, 100

9 See also Stampp, The Peculiar

: V

South 210 (1956).

This history, though ancient, remains

relevant. As Judge Fay wrote in Lodge v.

Buxton, 639 F.2d 1358, 1381 n.46 (llth Cir.

1981), aff'd sub nom Rogers v. Lodge, 458

U.S. 612 (1982):

"be problems of Blacks in Burke County

(Seorgia] should not be viewed in a

vaouvun. The present treatment of

Blacks in the South is directly

traceable to their historical

positions as slaves. While many

individual political leaders have

attempted to bring meaningful reforms

to fruition, it is equally true that

the White communities, for the most

part, have fought the implementation

of programs aimed at integration with

every device available. A... court

ordering relief in a case such as this

must take cognizance of that fact.

U.S. 664, 665 (1879).29 yet as this Court

has too often had occasion to recognize,

for a hundred years that noble effort

utterly failed to overcome the entrenched

social conditions that the antebellum laws

reflected and reinforced. Thus, in 1944--

well within the lifetimes of most of the

participants in Georgia's legal system

today--Gunnar Myrdal observed:

In criminal cases discrimination

does not always run against a

Negro defendant.... As long as

only Negroes are concerned and no

whites are disturbed, great

leniency will be shown in most

cases. ... The sentences for even

major crimes are ordinarily

reduced when the victim is

another Negro. ...

+ = 7

10 The express intention of the

framers of the Fourteenth Amendment to

provide for the “equal protection" of

blacks as victims of crimes, as well as

criminal defendants, has been noted by this

Court, Briscoe v. LaHue, 460 U.S. 325, 338

(1983), and recounted briefly in the

Petition for Certiorari in this case (at

pages 5-7). Because it has nowhere been

questioned below, we will not reiterate it

here.

For offenses which involve any

actual or potential danger to

whites, however, Negroes are

punished more severely than

whites....

7 * .

The jury, for the most part, is

more guilty of obvious partiality

than the judge and the public

prosecutor. When the offender is

a white man and the victim a

Negro, a grand jury will often

refuse to indict. Even the

federal courts find difficulty in

getting indictments in peonage

suits, and state courts receive

indictments for physical violence

against Negroes in an

infinitesimally small proportion

of the cases. ... The petit jury

is even less impartial than the

grand jury, since its range of

powers is greater.

* * -

There is even less possibility

for a fair trial when the Negro's

crime is serious. ... On the

other hand, it is quite common

for a white criminal to be set

free if his crime was against a

Negro. Southern whites have told

the present author of singular

occasions when a Negro = got

justice against a white man, even

in a serious case, as something

remarkable and noteworthy.

MYFRDAL, AN AMERICAN DILEMMA, 551-553

(1944).

Such deeply-rooted biases die hard.

The lesson of Professor Baldus' data is

that although the influence of these social

forces may have diminished and are no

longer openly acknowledged, they still

weigh significantly in the balance that

decides life and death in Georgia's

judicial system. As the Court noted in Rose

v. Mitchell, 443 U.S. 545, 558-9 (1979):

114 years after the close of the War

Between the States and nearly 100

years after Strauder, racial and other

forms of discrimination still remain a

fact of life, in the administration of

justice as in our society as a whole.

Perhaps today that discrimination

takes a form more subtle than before.

But it is not less real or pernicious.

To pretend race prejudice has vanished

or never existed, to conjure hypothetical

explanations for persistent discrepancies

that obviously reflect its influence, is to

forget the reality that the Fourteenth

Amendment was enacted to address, and this

Court has long been vigilant to guard

against.

II. SIGNIFICANT RACIAL INFLUENCES

IN DEATH-SENTENCING DECISIONS--

CUNSCIOUS OR UNCONSCIOUS--

VIOLATE THE CONSTITUTION.

The Court of Appeals' ruling goes

beyond quibbling about hypothetical

uncontrolled variables in the Baldus study.

Indeed, the court's majority said it

accepted, for purposes of its decision, the

validity of Professor Baldus' study, and it

“assume([d) ... that it proves what it

Claims to prove." McCleskey v. Kemp,

Supra, 753 F.2d at 886. Nonetheless, the

court held that proof insufficient to raise

even a prima facie case under the Eighth or

Fourteenth Amendments. It gave two basic

reasons for this: the supposedly

insignificant magnitude of the racial

disparities the evidence showed; and the

lack of direct proof of a discriminatory

motive. We will briefly address these each

in turn.

Racial Discrimination in Death

Sentencing Is Intolerable.

In part, the Court of Appeals seemed

to agree McCleskey showed bias--just not

enough bias. Absent proof of subjective

discrimination by capital jurors or other

decisionmakers in the sentencing scheme, it

said statistical proof of racial bias

is insufficient to invalidate a

capital sentencing system, unless

that disparate impact is so great

that it compels a conclusion that

the system is unprincipled,

irrational, arbitrary, and

capricious such that purposeful

discrimination--i.e., race is

intentionally being used as a

factor in sentencing--can be

presumed to permeate the systen.

753 F.2d at 892. And here the court found

McCleskey's proof lacking (id. at 895):

The Baldus study 8 statistical

evidence does not purport to show

that McCleskey was sentenced to

death because of either his race

or the race of his victin. It

only shows that in a group

penalty than murderers of blacks.

(Emphasis added.)

That any court in this day and age

could simply dismiss admittedly valid,

comprehensive proof because it "only"

demonstrated that race is an influential

factor in capital sentencing is astounding.

Amici have long understood that unequal

enforcement of criminal statutes based upon

racial considerations violates the

Fourteenth Amendment. Such racial

disparity, whatever its magnitude, has "no

legitimate overriding purpose independent

of invidious racial discrimination," Loving

v. Virginia, 388 U.S. 1, 11 (1967); Yick Wo

v. Hopkins, 118 U.S. 356 (1886); cf. Furman

v. Georgia, supra, 408 U.S. 238, 389 n.12

(dissenting opinion of Chief Justice

Burger). For well over 100 years, this

Court has consistently interpreted the

Equal Protection Clause to prohibit all

racial discrimination in the administration

of the criminal justice system.+1

While questions concerning the

necessary quantum of proof have

occasionally proven perplexing, no federal

court until now has ever, to our knowledge,

seriously suggested that racial

discrimination at any level of magnitude,

if clearly proven, can be constitutionally

tolerated. Yet that is precisely the

holding of the Court of Appeals.

Moreover, even if the magnitude of

discrimination were relevant, the evidence

here demonstrates an extraordinary racial

effect. The regression models the Court of

Appeals focused on, for example, showed the

increased likelihood of a death sentence,

if the homicide victim is white, is .06, or

11 See, e.g., Strauder_v. West

Virginia, supra; Carter v. Texas, 177 U.S.

442 (1900); Norris v. Alabama, 294 U.S. 559

(1953); Turner v. Fouche, 396 U.S. 346

(1970); Rose _v. Mitchell, supra; General

Building Contractors

Pennsylvania, 458 U.S. 375, 382-91 (1982) ;

Briscoe v. LaHue, supra, 460 U.S. at 337-

six percentage points, holding all other

factors constant. 753 F.2d at 896-7.

Since the average death-sentence rate among

Georgia cases is only .05, the fact that a

homicide victim is white, rather than

black, more than doubles the average

likelihood of a death sentence (from .05 to

.11).122 In plainest terms, these

12 «It is important to note that

these figures, and all those Prof. Baldus

used to express the racial disparities he

found, are different from the raw numbers

used to measure racial disparities in jury

challenges. In those cases, the Court has

generally compared the raw percentages of

minority persons selected for jury service

with the population as a whole. See, e.g.,

Casteneda _v. _Partida, supra (40%

disparity); Turner v. Fouche, 396 U.S. 346

(1970) (23% disparity) ; us _v. Geo a,

supra (18% disparity).

Prof. Baldus' tables list smaller

numbers, because they express a different

ratio: the comparative percentages of

persons in different racial categories

selected for death sentences. A comparable

calculation using the figures in Casteneda

(430 U.S. at 486 n.7), for example, would

show an arithmetic difference of .26%

rather than 40%: The odds of a person in

the population as a whole being selected

for a grand jury was .54% (870/158690); the

odds of a Spanish surnamed person being

selected was .28% (339/120766).

percentages suggest that, among every 100

homicide cases in Georgia, 5 would receive

a death sentence if race were not a factor;

in reality, where white victims are

involved, 11 out of 100 do. Six defendants

are thus sentenced to death, who would not

be but for the race of their victims.

"Stated another way, race influences the

verdict just as much as any one of the

aggravating circumstances listed in

Georgia's death penalty statute." 753 F.2d

at 921 (Clark, J., dissenting). The Court

of Appeals' bland suggestion that race

affects at most a "small percentage of the

cases," 753 F.2d at 899, scarcely reflects

this harsh reality. No analysis true to

the Fourteenth Amendment can condone it.

B. In the Context of Sentencing

The question Professor Baldus' data

does not and cannot answer is whether the

impact of race on Georgia's death

sentencing system is the result of

deliberate discrimination or unconscious

racial influences on the actors who are

part of it. Can it be that resolution of

this issue--on which proof may be

impossible--is a prerequisite to relief?

We believe not. The dispositive issue is

whether, not why, race is a significant

influence on sentencing decisions.

The Baldus study demonstrates that

race is a significant influence. The Court

of Appeals holds that this pattern affronts

no constitutional principles. That cannot

be the law. If race is a significant

factor in capital sentencing outcomes,

whatever subjective intent lies behind this

factor--be it conscious or unconscious--is

constitutionally irrelevant.

The significance of the subjective

intent in claims of discrimination and

cruel and unusual punishment has occupied

this Court's attention several times in

recent years. See, e.g., Bazemore v.

Friday, supra; Whiteley v. Albers, 106

S.Ct. 1078 (1986); Rogers v. Lodge, supra.

In every instance, the Court's answer has

reflected a realistic focus on the context

in which the challenged governmental action

occurs. Here, that focus militates against

a holding that proof of an act of

intentional discrimination by an identified

decision maker should be essential to

showing a constitutional violation.

Most fundamentally, requiring proof of

subjective intent in the sentencing context

raises an impossible burden. Jurors

"cannot be called ... to testify to the

motives and influences that led to their

verdict." Chicago, Burlin-on & Quiney

Railway v. Babcock, 204 U.S. 585, 593

(1907). Neither is it seemly or proper to

so question judges about the motives for

their decisions. Fayerweather v. Ritch,

195 U.S. 276, 306 (1904). And as Justice

Marshall recently observed, "Tajny

prosecutor can easily assert facially

neutral reasons for [his actions] ... and

trial courts are ill-equipped to second

guess those reasons." Batson v. Kentucky,

supra, 106 §.Ct. at 1728 #$= (concurring

opinion). Moreover, the influence of race

prejudice may well be unconscious, unknown

to the decision-makers themselves. Ibid.

"Defendants cannot realistically hope

to find direct evidence of discriminatory

intent." McCleskey v. Kemp, supra, 753

F.2d at 912 (Johnson, J., dissenting).

Only last Term this Court reiterated that

the Equal Protection Clause does not permit

shouldering a defendant with "a crippling

burden of proof" in order to make out a

prima facie case of discrimination. Batson

v. Kentucky, supra, 106 S.Ct. at 1720.

There is no reason to except from that

here.

at |

The death sentence decisionmaking

process is one controlled from stem to

stern by the state; everything about

capital sentencing is state action.23

Nowhere does the "voluntary and unfettered

choice of private individuals", Bazemore v.

Friday, supra, 106 S.Ct. at 3012

(concurring opinion), intervene. At the

same time, death sentencing decisions are

highly discretionary, see Turner v. Murray,

106 §.Ct. 1683 (1986); and as we

demonstrate in the following section of

this brief, Georgia's statutory capital

sentencing scheme does less to guide

discretion than any other this Court has

reviewed since Furman.

Where official grants of discretion

provide "the opportunity to discriminate"

and "the result bespeaks discrimination",

this Court has found the — is

= @. Shelly »: “Kramer, 334 U.S. 1,

15 (1948) ; Vv , 100 U.S. 667,

669 (1879).

violated "whether or not it was a conscious

decision on the part of any individual" to

discriminate. Alexander v. Louisiana, 405

U.S. 625, 632 (1972). Even though "([(tj)he

facial constitutionality of the ... system

-»» has been accepted" by this Court, "a

selection procedure that is susceptible of

abuse ... supports the presumption of

discrimination raised by the statistical

showings." Casteneda v. Partida, supra,

430 U.S. at 497, 494.

This is especially true where, as

here, the discretionary decision is not an

individual one, but the collective one

involving a multitude of individuals. When

decisionmaking responsibility is diffused,

[rjarely can it be said that a

[decisionmaking] eee body.

operating under a broad mandate

made a decision motivated solely

by a single concern, or even that

a particular purpose was the

‘'dominant' or 'primary' one.

Arlington Heights v. Metropolitan Housing

(orporation, 429 U.S. 252, 265 (1977). In

such systems, for practical purposes, there

is no difference between subjective intent

and objective results. As Justice Stevens

explained in Washington v. Davis, supra:

Normally the actor is presumed to

have intended the natural

consequences of his deeds. This

is particularly true in the case

of governmental action which is

frequently the product of

compromise, of collective

decision making, and of mixed

motivation.

426 U.S. at 253 (concurring opinion).

It is also significant that capital

sentencing occurs in an arena in which

blacks have traditionally lacked the means

to defend themselves through participation

in the process. Cf. Rogers v. Lodge,

Supra, 458 U.S. at 650-53 (dissenting

opinion of Justice Stevens); Casteneda v.

Partida, supra, 430 U.S. at 515-16

(dissenting opinion of Justice Powell).

The legacy of past discrimination, if

nothing else, has kept blacks from equal

participation as prosecutors and judges,

the officials who can influence death

penalty decisions in Georgia.14 And one

need not look beyond recent casebooks to

find evidence that blacks--at least at the

time of Warren McCleskey's trial--often

lacked an equal voice on Georgia juries, as

wel1.15 This--and the history of

discrimination in capital sentencing this

Court acted on in Furman--highlights the

significance of objective disparities:

14 Even today, there are no elected

black District Attorneys anywhere § in

Georgia. Joint Center for Political

Studies, Black Elected Officials: A

National Roster 113 (1986). Only 2.3%

(20/865) of Georgia judges are black.

Ibid; Joint Center for Political Studies,

Black Judges In The United States 38-40

(1986). At the time of Warren McCleskey's

trial there were less than a quarter that

number (4)--and not one in a court with

jurisdiction over a capital case. Joint

Center for Political Studies, Black Elected

Officials: A National Roster 53 (1976).

15 See, e.g., Bowden v. Kemp, 793

F.2d 27. llth Cir. 1986); Spencer v. Kemp,

784 F.2d 458 (llth Cir. 1986); Ross v.

Kemp, 785 F.2d 1467 (llth Cir. 1986);

Vv , 773 F.2d 1141, 1143 (11th

Cir. 1985); Davis v. Zant, 721 F.2d 1478

(llth Cir. 1984); Willis v. Zant, 720 F.2d

1212, 1217-18 (llth Cir. 1983).

Evidence of historical

discrimination is relevant to

drawing an inference of

purposeful discrimination,

particularly in cases such as

this one where the evidence shows

that discriminatory practices

were commonly utilized, but that

they were abandoned when enjoined

by courts ... and that they were

replaced by laws and practices

which, though neutral on their

face, served to maintain the

status quo.

Rogers v. Lodge, supra, 458 U.S. at 625;