Amicus Curiae Brief — Payne v. Tennessee

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No. 90-5721 MAR 18 1998

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

>_>

PERVIS TYRONE PAYNE,

Petitioner,

—_V$,.—

STATE OF TENNESSEE,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF TENNESSEE

BRIEF OF SOUTHERN CHRISTIAN LEADERSHIP

CONFERENCE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

STEPHEN B. BRIGHT* J. L. CHESTNUT

83 Poplar Street CHESTNUT, SANDERS,

Atlanta, GA 30303 SANDERS, TURNER,

(404) 688-1202 WILLIAMS & PETTAWAY

e P.O. Box 1305

Counsel of Record Selma, AL 3670!

JOHNNIE E. WALLS (205) 875-2964

P.O. Box 634

Greenville, MS 38701

(601) 335-6001

Counsel for Amicus Curiae

ee ee see AT SOR

TABLE OF AUTHORITIES... ....cceeneees ;

INTEREST OF AMICUS AMICUS CURIAE.....

SUMMARY a Gen 6 66666686608 866608

REE + 6066666066806 6868 B60 0S 6S 066s

A. RACE AND CLASS CONSIDERA-

TIONS ALREADY INFLUENCE THE

SENTENCING DETERMINATION IN

CAPITAL CASES... ..c.cccccceces

B. ADMISSION OF VICTIM WORTH

EVIDENCE WOULD INCREASE THE

INFLUENCE OF RACE AND

STATUS ON THE SENTENCING

DECISION... cccccccccscsccece

Coeac 060006908400 0060b6 666686 KSe

PAGE

CASES

Amadeo v. Zant, 486

U.S. 214 (1988)... cccccccces

Batson v. Kentucky,

476 U.S. 79 (1986) ...-+4+-dS, 8,

Booth v. Maryland, 482

U.S. 496 (1987) ...ceceeeees

Caldwell v. Mississippi,

472 U.S. 320 (1985) ...+-4---.

California v. Brown, 479

ee Cece dneeees

Dobbs v. Zant, 720 F. Supp.

1566 (N.D. Ga. 1989) ......-..

Eddings v. Oklahoma, 455 U.S.

Edwards v. Scroggy, 849 F.2d

204 (5th Cir. 1988) .....---+-4--

Gregg v. Georgia, 428 U.S.

153 (1976) “eevee eeeneeee#;t * * * * *

McCleskey v. Kemp, 481 U.S.

i PE ccssepeccsecveceecss

Morris v. Commonwealth, 766

S.W.2d 58 (Ky. 1989) ..-eeeeeeeees

Penry v. Lynaugh, 492 U.S. P

109 S. Ct. 2934, 106 L. Ed. 2d

256 (1989) *“enereeenreeeneeeenrert © e# * © © © @

23,27

passim

iii

South Carolina v. Gathers,

See Wee SES C19G9) ..cccccccces passim

Turner v. Murray, 476 U.S. at

DT Weien eee eo eeese 6 eececececce S, 16,

Vela v. Estelle, 708 F.2d 954

(Sth Cir. 1983), cert. denied,

me Wate BOOP CEOCE cccccccvcece 28

Zant v. Stephens, 462 U.S.

i SE Skeeebeeeeeeeececececes 5,8,10

STATUTES

Be WemsGe $8 BGR, BAAD, AFSL ccccces 30

MISCELLANEOUS

Alabama Capital Representation

Resource Center, Alabama Capital _

Reporter, Vol. 1, No. 5 at I-34

TEs EMD ceccacescoccceccess 12

Belkin, Texas Judge Eases

e s fo lller o

Homosexuals, N. Y. Times,

Dec. 17, 1988, § 1, at 8,

0 ee ea ae 19,28

Brief Amici Curiae of Murder

Victims'Families for

Reconciliation, Ohio v.

Huertas, No. 89-1944

i Mw chaeeueeeaeeescbecccerseces 29

Carter, When Victims Happen to Be

Black, 97 Yale L.J.

ES 19

Coady, When Life is Cheap,

The Atlanta Constitution,

Feb. 16, 1991 at Bl, B10O.........-.

Columbus Ledger-Enquirer, Aug.

14, 1988, § B at Brll...---eeeeese

Columbus Ledger-Enquirer,

Aug. 7, 1988, § B, at B-l.........

Columbus Ledger-Enquirer, Feb. 11,

1991, § A, at Ar-l...---ees eocccccs

Davis, Law as Microa ssion,

98 Yale L. Jou. 1559, 1559 n. 1

(1989) wccccccesccsccccccccseccess

Death Row U.S.A. at 5-8 (Jan. 21,

ee rere eeery

Johnson, Unconscious Racism and the

Criminal Law, 73 Cornell L.

Rev. 1016, 1023-1024 (1988) ....23,

Joint Center for Political

Studies, Black Elected __

Officials: j oster

at 127, 142 (1989) .. ccc veveeeevees

Pillsbury, j stice:

re. —

, 74

Criminal Punishment

Cornell L. Rev. 655, 708 (1989)....

S. Gross & R. Mauro, Death and

Di imination: Racial

Sherman, Is Mississippi Turning,

The National Law Journal,

Feb. 20, 1989, at 1, 24-25 .......

Disparities in Capital

Sentencing 43-44 (1989)...........

State v. Brooks, Superior Court of

Muscogee Co. Nos.

38888 & 94604...2.6060622.2213,14,15,

U.S. Department of Justice,

Crime in the United States

at 10 (Aug. 5, 1990) ...

U.S. Department of Justice,

Sourcebook of Criminal Justice

eee GE SOO ccccccsccecccsccae

U.S. General Accounting Office,

ea ena Sentencing: Research

Indicates Pattern of Racial

Disparities 5(February 1990) .......

UESTION SEN

Whether the admission of victim worth

and victim impact evidence, which

necessarily brings into consideration such

factors as the race, social status, and

other personal characteristics of the

victim of a crime, may be properly

considered in determining whether to give

the offender the death penalty?

INTEREST OF AMICUS CURIAE

The Southern Christian Leadership Con-

ference (SCLC) is a national membership

organization founded in 1957 by the Rev.

Martin Luther King, Jr., to bring about an

end to racial discrimination in American

life and obtain full citizenship for Afri-

can Americans. One of the goals of the

SCLC is to secure equal justice for

African Americans in the state and federal

courts. SCLC has long been active in

efforts to see that black victims of crime

are treated equally with white victims by

police, prosecutors, judges, juries and

other actors in the criminal justice

systen.

SCLC is interested in this case because

it believes that distinctions based upon

race and class of the victim already play

too large a role in determining punishment

in the criminal justice system. Crimes

involving black victims are not

investigated as thoroughly by police,

prosecuted as vigorously by prosecutors,

Or punished as severely by judges and

juries as cases involving white victims.

This problem is particularly pronounced

in cases involving the death penalty.

Even though black citizens have been the

victims in about half of the total number

of homicides in this country in the last

twenty years, the death penalty is used

primarily to punish the murders of white

people. Imposition of the death penalty

in white victim cases when many other

Similar or more aggravated cases involving

black victims are punished with less

severe sentences sends a powerful and

unmistakable message to the African

American community that black lives are

not valued as much by our society as the

lives of white citizens.

SCLC believes that overturning Booth v.

Maryland, 482 U.S. 496 (1987), and South

Carolina v. Gathers, 490 U.S. 805 (1989),

would exacerbate these problems-= and

formalize a system of separate and unequal

infliction of the death penalty.

Accordingly, SCLC submits this brief as

amicus curiae to express its concerns and

urge this Court to reaffirm Booth. In our

multi-racial society, the rule in Booth is

constitutionally required to minimize the

influence of race and class considerations

in the capital sentencing process and to

guarantee that all life is given equal

protection of the laws.

SUMMARY OF ARGUMENT

Overturning Booth v. Maryland, 482 U.S.

496 (1987), and South Carolina v. Gathers,

490 U.S. 805 (1989), will undermine the

Eighth Amendment's most fundamental

requirement: that the capital sentencing

decision must be based upon a principled

evaluation of the defendant's background

and character and the circumstances of the

crime guided by objective standards and

not upon impermissible or capricious

factors. California v. Brown, 479 U.S.

538 (1987); Zant v. Stephens, 462 U.S.

862, 879, 885 (1983); Gregg v. Georgia,

428 U.S. 153 (1976).

Even without the admission of victim

worth evidence, the sentencing decision in

capital cases is often influenced by the

extent to which the lives of prominent,

majority race persons are valued by

prosecutors and sentencers of the same

race and background over the lives of

those who are poor and members of minority

groups. Overruling Booth and Gathers

would increase the role that the color and

standing of the victim plays in

determining which cases are punishable by

death by making such value judgments a

regular and explicit feature of the

process.

Admission of victim worth and victim

impact evidence will result in a capital

sentencing process in which the difference

between a sentence of death or life

imprisonment may turn on the race and

social prominence of the victim and the

victim's survivors, the articulateness of

the survivors, their willingness’ to

express their emotions in public, and

other factors that have little relation to

"a reasoned moral response to the

defendant's background, character and

crime." Penry v. Lynaugh, 492 U.S. __,

109 S.Ct. 2934, 2951, 106 L.Ed.2d 256, 279

(1989), quoting California v. Brown, 479

U.S. 538, 545 (1987) (emphasis in

original).

Overruling Booth and Gathers would not

only be inconsistent with this Court's

Eighth Amendment decisions; it would be a

retreat from this Court's "unceasing

efforts" to eradicate racial prejudice

from our criminal justice system. Batson

vy. Kentucky 476 U.S. 79, 80 (1986).

ARGUMENT

THE RULE IN BOOTH IS

REQUIRED TO MINIMIZE THE

INFLUENCE OF RACE AND

CLASS CONSIDERATIONS’ IN

THE CAPITAL SENTENCING

PROCESS AND TO GUARANTEE

THAT ALL LIFE IS GIVEN

EQUAL PROTECTION OF THE

LAWS.

The Court's decisions in Booth v. Mary-

land, 482 U.S. 496 (1987), and South

Carolina v. Gathers, 490 U.S. 805 (1989),

follow from the well established Eighth

Amendment requirement that the sentencing

decision in a capital case be based upon

"the character of the individual and the

circumstances of the crime" and not upon

“factors that are constitutionally irrele-

vant to the sentencing process" such as

race, social status, religion or political

affiliation, ant _v e , 462 U.S.

862, 879, 885 (1983), and from the

requirements of the Eighth and Fourteenth

Amendments that capital sentencing proce-

dures may not carry with them = an

unacceptable risk race influencing the

determination of sentence. urne Vv.

Murray, 476 U.S. 28, 35-36 (1986); Batson

v. Kentucky, 476 U.S. 79, 85 (1986).

Overruling Booth and Gathers and

allowing victim worth evidence would be

inconsistent with these well established

principles. The social status and race of

the victim would become two of the fore-

most considerations in determining who

dies. The death penalty, already used

primarily in white-victim cases, would

increasingly become a sanction imposed for

the deaths of prominent white persons.

Determinations of sentence based upon the

characteristics of the victim and the

surviving family

members would result in an arbitrariness

and capriciousness that is not tolerable

under the Court's “insistence that capital

punishment be imposed fairly, and with

reasonable consistency, or not at all."

SY a, 455 U.S. 104, 112

(1982).

A. RACE AND CLASS CONSIDERATIONS AL-

READY INFLUENCE THE SENTENCING

DETERMINATION IN CAPITAL CASES.

The race and prominence of the victim

are factors which already lurk dangerously

close to the surface in determining wheth-

er the death penalty is sought by a prose-

cutor, whether a plea is offered in

exchange for a less severe sentence, and

whether a jury imposes a death sentence.

Overruling Booth would allow the role that

the color and standing of the victim to

influence the process beyond

constitutionally acceptable limits.

The sentencing decision in a capital

case involves "a ‘highly subjective,

"unique, individualized judgment regarding

the punishment that a particular person

deserves."'" Turner v. Murray, 476 U.S.

at 33-34, quoting Caldwell v. Mississip-

Pi, 472 U.S. 320, 340 n. 7 (1985), and

Zant v. Stephens, 462 U.S. 862, 900 (1983)

(Rehnquist, ~ concurring in the

judement). "Because of [this] range of

discretion, there is a unique opportunity

for racial prejudice" -- including "[mjore

subtle, less conscientiously held racial

attitudes" -- to "operate but remain unde-

tected." Turner, 476 U.S. at 35.

Black citizens have been the victims in

almost half of the total homicides in this

country in the last twenty years.'4

U.S. Department of Justice, Sourcebook of

Criminal Justice Statistics at 390, table

3.131 (1989). Black wersons were the

victims in 9,314 murders, 49.1 percent of

(continued...)

Nevertheless, the death penalty is

inflicted primarily in cases involving

white victims. Only 17 of the first 143

executions that have taken place in the

nation since Gregg were for murders of

black people.‘°4

In the South, which has much of the

nation's black population, the patterns

are particularly stark. For example, in

Alabama, although black citizens were the

victims of 65 percent of the murders in

1989, 81 percent of the cases in which

death has been imposed have involved mur-

1. (...continued)

the total, in the United States in 1989,

the most recent year for which statistics

are available. U.S. Department of Jus-

tice, Crime in the United States at 10

(Aug. 5, 1990). White persons were the

victims in 9,103 murders, 48 percent of

the total, that year. Id.

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

at 5-8 (Jan. 21, 1991). In two of those

17 cases, there was also a white victim.

Id. at 6-7.

ders of white people.?

In Georgia, though

blacks were the victims of 63.5 percent of

the murders between 1976 and 1980, 85

percent of the cases in which death was

. An

imposed involved murders of whites.

analysis of 28 studies by the General

Accounting Office found that murders of

white persons are more likely to be

punished by death than murders of black

persons.”

‘Alabama Capital Representation Resource

Center, Alabama Capital Reporter, Vol. 1,

No. 5 at I-34 (July-Aug. 1990).

a Gross & R. Mauro, Death and

Discrimination: Racial Disparities in

Capital Sentencing 43~44 (1989). In Geor-

gia, those who kill whites are almost ten

times as likely to be sentence to death as

those who kili blacks; in Florida the

ratio is about eight to one, in Illinois

six to one, in Mississippi 5.5 to one, and

in North Carolina 2the ratio is four to

one. Id. at 44, 88-94.

The General Accounting Office reported:

(continued...)

The reality behind these disparities is

illustrated by the practices in Georgia's

Chattahoochee Judicial Circuit, where

African Americans are the victims of 63

percent of the homicides but in 78 percent

of the capital cases tried in that cir-

cuit -- twenty-one of twenty-seven cases -

- the victims were white.°® In a case

5. (...continued)

In 82 percent of the studies, race of the

victim was found to influence the likelihood

of being charged with capital murder or re-

ceiving the death penaity, i.e., those who

murdered whites were found to be more likely

to be sentenced to death than those who mur-

dered blacks. This finding was remarkably

consistent across data sets, states, data

collection methods, and analytic techniques.

U.S. General Accounting Office, Death

ena Sentencing: Research Indicates

Pattern of Racial Disparities 5 (February

1990).

State v. Brooks, Superior Court of

Muscogee Co. Nos. 38888 & 54604, Sept. 1l-

14, 1990 hearing, Defendant's Exhibit 3.

Defendant's Exhibits 1A, 3-10. The racial

disparities were found for various types

of cases, such as those involving other

felonies besides murder. For example, the

death penalty was sought in 48 percent of

(continued...)

involving the murder of the daughter of a

prominent white contractor, the district

attorney personally called the contractor

and asked him if he wanted the death pen-

alty.’ When the contractor said yes, the

district attorney told him that was all he

need to know. He obtained the death

penalty and was rewarded with a $5000

contribution from the contractor when he

ran for judge in the next election.’

6. (...continued)

the cases involving murders of white

females, but only 9.4 percent of the cases

involving murders of black females. Id.,

Transcript of Sept. 11, 1990 hearing at

130.

Davis _v. Kemp, Super. Ct. of Butts Co.,

Ga. No. 86-V-865, Transcript of Hearing of

Oct. 21, 1988, at 38; Claybrook, Slain's

girl's father top campaign contributor,

Columbus (Ga.) Ledger-Enquirer, Aug. 7,

1988, § B, at B-1 col. 3, B-10.

Davis v. Kemp, supra n. 7, Transcript at

38; Claybrook, supra n. 7, at B-10.

(continu

In another white victim case, the

prosecutor called a press conference after

meeting with the victim's family, and said

that based upon his meeting with the

family, he had decided to pursue the death

penalty.” The views of surviving

relatives were solicited in other white

victim cases and the families were kept

informed of the development of the cases."'

The families of black victims in the

Chattahoochee Circuit do not get this

treatment; indeed, they get no treatment

at all. They are not asked by the

...-continued)

Davis v. Kemp, supra n. 7, Transcript at

38-39; Claybrook, supra n. 7, at B-l, B-

10. The contractor also contributed

$3,000 to the campaign of the assistant

district attorney who handled the case to

become district attorney. Id.

State v. Brooks, supra n. 6, Transcript of

Sept. 12, 1990 hearing at 155-156;

Defendant's Exhibit 41.

State v. Brooks, supra n. 6, Transcript of

Sept. 12, 1990 nearing at 67-69, 152-153.

district attorney what sentence they want

or even kept informed of developments in

the cases. *

They usually hear about the

disposition of cases involving the murder

of their loved ones from friends or in the

media.”

Not surprisingly, a survey by the

local newspaper found that "large numbers

of the city's black residents feel that

blacks do not receive the same treatment

as whites in the criminal justice systen.

12.

State v. Brooks, supra n. 6, Transcript of

Sept. 12, 1990 hearing at 177-178, 184-

185, 199-200, 203, 205-207, 212-213, 221-

222, 227-229.

13.

See, e.g., State v. Brooks, supra n. 6,

Transcript of Sept. 12, 1990 hearing at:

177-78 (father of murdered son learned

“from the street" of arrest and that the

“guy who actually did the killing got 25

years, but I don't know if that's true or

not"); 200 (mother of murdered daughter

working in yard when she heard surviving

daughter screaming that she had heard

about disposition of case on television) ;

206 (mother of murdered daughter felt

"like I should've been contacted about my

daughter, and it hurts real bad. Nobody

have contacted me about her at all.")

This belief . . . comes up any time a

black defendant receives the death penal-

ty."" This recognition that crimes

against black citizens are not treated

equally with crimes against whites is

found in black communities throughout the

nation.”

That view was reinforced recently in

another white victim case in the

Chattahoochee Circuit in which it appeared

14.

Winn, Racism concern is nothing new in

Columbus, Columbus Ledger-Enquirer, Aug.

14, 1988, § B at B-1l.

See, e.g., Davis, Law as Microaggression,

98 Yale L. Jou. 1559, 1559 n. 1 (1989)

(citing one national study conducted in

1988 showing that 61 percent of black

citizens believe that minorities do not

receive equal treatment in the criminal

justice system and other national and

local surveys showing that blacks believe

they are not treated as well as whites in

the courts); see also Coady, When Life is

Cheap, The Atlanta Constitution, Feb. 16,

1991 at Bl, B1O (Mothers of Murdered Sons

organized by black families and ministers

in Atlanta because lack of attentiveness

to black victimization by "Georgia's

predominantly white judicial system").

acacia nema iene ai

igs

that the death penalty was imposed on the

black defendant not so much because of the

crime -- a convenience store robbery and

murder which tragically is all too common

-- but the prominence of the victim's

father, the commander of the Infantry

Training Center at the Fort Benning Army

base. ©

Black victims are treated differently

than whites in the Chattahoochee Judicial

Circuit and elsewhere because of the

absence of black citizens in the process

and because of the "familiar psychological

tendency [of] predominantly white deci-

sion makers .. . to sympathize more with

whites than blacks." This tendency was

16.

Walsh, Walker gets death sentence for 1988

store clerk slaying, Columbus Ledger-

Enquirer, Feb. 11, 1991, § A, at A-1.

17.

Pillsbury, Emotional Justice: Moralizing

the Passions of Criminal Punishment, 74

Cornell L. Rev. 655, 708 (1989); see also

(continued...)

stated bluntly by a Texas judge: "'When a

white is killed, the whites are upset.

When a black is killed, the blacks are up-

106 However, black citizens have

set.

limited opportunity to express their

outrage through the criminal justice

system as judges, prosecutors or jurors.

Quite often, they have no opportunity at

all.

For example, although twenty-seven

percent of Georgia's population is black,

all 45 elected district attorneys are

17. =(...continued)

Carter, When Victims Happen to Be Black,

97 Yale L.J. 420 (1988); Dane &

Wrightsman, Effects of Defendants' and

Victims' __ Characteristics on __Jurors'

Verdicts, in The Psychology of the

Courtroom 104-06 (1982). The effect is

particularly pronounced and result in the

most severe sentences where the victim is

of the same race, and the defendant is of

a different race, from that of the jurors.

Id. at 106.

18.

Belkin,

Texas Judge Eases Sentences for

Killer of 2 Homosexuals, N. Y. Times, Dec.

17, 1988, § 1, at 8, col. 5.

white and only six of the state's 138

Superior Court judges are black.” There

is a similar absence of black citizens in

the official positions in the court

systems in other states.”

Thus, the decision to seek death or to

resolve cases with a plea bargain to a

sentence less than death is frequently

made by officials who may not be as

sensitive to loss of life in the black

community as in their own communities. In

one judicial circuit in Georgia, for

example, those decisions are made by a

19.

Joint Center for Political Studies, Black

icials: at

127, 142 (1989).

20.

Sherman, Is Mississippi Turning, The

National Law Journal, Feb. 20, 1989, at 1,

24-25 (only one black judge among 38

circuit court judges and none among 40

chancery court judges in Mississippi; only

four black judges among 125 on circuit

courts in Alabama; only five black judges

among the 178 on the district courts in

Louisiana).

district attorney who has remained in

office even after it was discovered that

he had secretly directed jury

commissioners to underrepresent' black

citizens on the lists from which grand and

petit jurors were drawn.*' That district

attorney, who has prosecuted almost 30

capital cases, has used 94 percent of his

strikes against blacks in cases involving

a white victim and a black defendant.“

Because of such practices and the

relatively small number of blacks in the

population, black citizens have little

opportunity to participate as jurors. The

district attorney in Jackson, Mississippi,

has stated that his strategy for jury

selection in a capital case is to "get rid

21.

Amadeo v. Zant, 486 U.S. 214, 217 (1988).

22.

Horton v. Zant, lith Cir. No. 90-8522,

Petitioner's Exhibit 10 (96 strikes used

against black jurors and only six against

white jurors).

of as many" blacks as possible with his

peremptory strikes.“ In Chambers County,

Alabama, where official marriage records

are still kept separately at the

courthouse in books engraved with the

words "white" and "colored," the district

attorney has divided prospective jurors

into four lists -- "strong," "medium,"

"weak" and "black" -- and then used all 23

of his peremptory challenges to eliminate

the 23 black venirepersons from service in

a capital case involving a white victim

and black defendant.”

ave

W Vv , 849 F.2d 204, 207 (5th

Cir. 1988)

24.

, Circuit Court of

Chambers County, Alabama, No. CC-81-77,

Petitioner's Postconviction Hearing Exhib-

it 7 (January 25, 1989).

25.

Id., Petitioner's Postconviction Exhibit

Despite the Court's decision in Batson

v.Kentucky, such a strategy continues to

be effective in limiting black participa-

tion in the process. In Georgia's Chatta-

hoochee Judicial Circuit, it was recently

shown that the local Superior Court judges

have yet to find a single reason given by

a prosecutor for striking a black juror in

any criminal case inadequate under

Batson.*° See also Johnson, Unconscious

Racism and the Criminal Law, 73 Cornell L.

Rev. 1016, 1023-1024 (1988).

The predominantly white juries selected

-- whether because of these practices or

because of a low percentage of blacks in

the population -- often bring with them to

the jury box, either consciously or uncon-

sciously, "racial stereotypes and assump-

26.

State v. Bailey, Super. Ct. Muscogee

County, Ga., No. SU-90-CR-000744,

Affidavits of Michael E. Garner, Robert G.

Jones, II, Andrew C. Dodgen filed May 30,

1990.

tions" which influence them "in the direc-

tion of findings of black culpability and

white victimization, . . . black

immorality and white virtue, .. . blacks

as social problems and whites as valued

citizens. "*’ See, e.g., Dobbs v. Zant, 720

F. Supp. 1566, 1576-1578, 1576 n. 22 (N.D.

Ga. 1989) (many white jurors who sentenced

black man to death fo. murder of white

victim demonstrated an “insensitivity to

racial matters" and felt "races should mix

to a limited extent only;:" two jurors

found blacks "scarier than whites" and two

jurors admitted to using the slur

“nigger").

27.

Davis, supra n. 15, 98 Yale L. Jou. at

1571. See_also Johnson, Unconscious

imi W, 73 Cornell L.

Rev. 1016, 1020 n. 27 (1988) (describing

persons in our society who "maintain a

distance" between themselves and

minorities and as a result are "less

likely to feel empathy for minorities due

to this distance.")

Questioning on voir dire may result in

candid disclosures by some jurors of

beliefs that "blacks are violence-prone or

morally inferior" or "[fjears of blacks,"

Turner v. Murray, 476 U.S. at 35, but will

seldom uncover the extent to which the

juror identifies with members of his own

race over another race.”

These factors have contributed to the

remarkable disparity between imposition of

the death penalty for murders of white and

blacks. While the disparities standing

alone may not be sufficient proof to

establish a constitutional violation in a

particular case, McCleskey v. Kemp, 481

U.S. 279 (1987), they nevertheless signal

28.

Nor will it identify one who "claims to

accept egalitarian norms and _ behaves

consistently with those norms in most

Situations[,]" but "reverts to traditional

patterns of racial discrimination" when

anger is aroused such as in white-victim

cases. Johnson, supra n. 27, 73 Cornell

L. Rev. at 1020 n. 27.

the very clear and present danger of these

invidious factors influencing whether a

crime will be punished by death.° They

also underscore the constitutional neces-

sity of the Court maintaining its "unceas-

ing efforts" to eradicate racial prejudice

from the process by requiring procedures

which minimize the risk of race influenc-

29.

The magnitude of the danger is’ also

indicated by the fact that four members of

the Court concluded in McCleskey that race

was playing an impermissible role in the

process. Id. at 325 (Brennan, Jo,»

dissenting) ("the risk that race influ-

enced McCleskey's sentence is intolerable

by any imaginable standard") ; 359

(Blackmun, J., dissenting) ("McCleskey's

showing is of sufficient magnitude that,

absent evidence to the contrary, one must

conclude that racial factors entered into

the decisionmaking process that yielded

McCleskey's death sentence") ; 366

(Stevens, J., dissenting) (observing

"strong probability" that sentencing

decision was influenced by race and that

the "same outrage would not have been

generated if he had killed a member of his

Own race.") Justice Marshall joined the

dissents of Justice Brennan and Justice

Blackmun.

ing the sentencing decision. Batson v.

Kentucky, 476 U.S. at 80.

B. ADMISSION OF VICTIM WORTH EVIDENCE

WOULD INCREASE THE INFLUENCE OF RACE

AND STATUS ON THE SENTENCING

DECISION

The admission of victim worth evidence

would exacerbate the problem of race and

socioeconomic status influencing’ the

sentencing decision. Upon consideration

of victim impact evidence, a jury would be

authorized and encouraged to reject the

death penalty for an aggravated murder

involving a poor, unemployed -- often

minority -- person but impose it in a less

aggravated case of a prominent white

person.

Prosecutors and juries could validly

take into account the social and polit-

ical standing of a victim of the crime in

deciding whether to seek and impose the

death penalty. See, e.g., Morris v.

Commonwealth, 766 S.W.2d 58, 61 (Ky. 1989)

(prosecution brought out that victim's

father and brother were both prosecutors) ;

V Vv s , 708 F.2d 954, 962, 965,

966 (5th Cir. 1983) (prosecution presented

the testimony of a "well-known profession-

al football player" that victim was a star

athlete and usher and choir member at his

church to "encourage by jury to set

punishment based on the goodness of the

murder victim"), cert. enied, 464 U.S.

1053 (1984).

Prosecutors and juries would also be

authorized to find that the lives of home-

less people, prostitutes, the politically

unpopular, or others who are differennt

are not "worth" as much as other members

of society. See, e.g., Belkin, Texas

Judge Eases Sentence for Killer of 2

Homosexuals, N.Y. Times, Dec. 17, 1988, at

§ 1, at 8, col. 5 (thirty-year sentence

for murders of two homosexuals explained

by: "I put prostitutes and gays at about

the same level. And I'd be hard put to

give somebody life for killing a

prostitute.")*

These concerns are not’ based. on

speculation, but on the cold hard reality

that racial and class bias have not been

eradicated from either American society or

the criminal justice system. Overruling

Booth would remove a Significant

protection against racial discrimination

and allow race and social standing to play

a greater and more explicit role in

deciding who is sentenced to death. Such

an outcome wouid be a major step backward

toward an earlier time in our history when

crimes were punished differently based

30.

See Brief Amici Curiae of Murder Victims'

Families for Reconciliation, Ohio v.

Huertas, No. 89-1944 at 32-36.

upon race of the victim’ and contrary to

the purpcse of the equal protection clause

to protect equally the lives of all

citizens.*™

Imposition of the death penalty based

on ad hoc, subjective assessments of an

individual's personal worth or the impact

of the loss on a family is much different

than the use of capital punishment to

protect governmental functions and person-

nel, such as police officers and court

officials,™ or Classes of persons with

unique vulnerabilities, such as children

and the elderl:.

See McCleskey_ y. Kemp, at 329-331

(Brennan, J., dissenting) .

32.

For a discussion of the intent and purpose

of the equal protection clause see Brief

of the NAACP Legal Defense

and Educational Fund, filed in

Vv , 490 U.S. 805 (1989).

See e.g., 18 U.S.C. §§ 351, 1111, 1751.

Providing for the death penalty in

these latter situations comes well within

the legislature's prerogative to carry out

government functions and adopt objective

Classifications to protect its citizens.

But no legislature has attempted to autho-

rize the death penalty for the murders of

"exemplary" citizens such as executives in

large corporations, those in certain

income brackets or people who are active

in their churches.

Similarly, while legislatures may

provide for different punishments

depending on the result -- for example,

whether a pedestrian was killed or the

intersection was empty when a drunk driver

went through a stoplight™ or whether a gun

Booth v. Maryland, 482 U.S. at 516 (White,

J., dissenting), see_also id., at 519

(Scalia, J., dissenting).

aimed at a guard fires or misfires” -

~ those distinctions do not turn on the

worth and status of the victim involved.

It is the loss of life when the car went

through the stoplight or the gun was fired

that should determine the enhanced

punishment, not whether the victim was

white or black, prosperous or poor, well

respected or generally disliked, religious

or not religious, single or a parent of

four.

As Justice Powell wrote for the Court

in Booth: "We are troubled by the

implication that defendants whose victims

are assets to the community are more

deserving of punishment than those whose

victims are perceived to be less worthy.

Of course, our system does not tolerate

such distinctions." Booth v. Maryland,

35.

Id., 482 U.S. at 519 (Scalia, Jd.,

dissenting).

482 U.S. at 506 n. 8. So long as the

system rests on the fundamental premise of

political equality for all, that

intolerance should be maintained.

CONCLUSION

Because Booth and Gathers are

indispensable to minimizing the risk of

racial and class influence on the capital

sentencing process and providing equal

protection for all life, those decisions

should be reaffirmed.

Respectfully submitted,

STEPHEN B. BRIGHT*

83 Poplar Street

Atlanta, GA 30303

(404) 688-1202

J. L. CHESTNUT

Chestnut, Sanders,

Sanders,

Turner, Williams &

Pettaway

P. 0. Box 1305

Selma, AL 36701

(205) 875-2964

JOHNNIE E. WALLS

P. O. Box 634

Greenville, MS 38701

(601) 335-6001

Counsel for Amicus Curiae

* Counsel of Record

March 18, 1991.

an = Oe Oe ets Ss i Nr Ay

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