BRENNAN, J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
481
U.S. 279
McCleskey v. Kemp
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No.
84-6811 Argued:
October 15, 1986 ---
Decided: April 22, 1987
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
and with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join in all but Part I, dissenting.
I
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment forbidden
by the Eighth and Fourteenth Amendments, I
would vacate the decision below insofar as it left
undisturbed the death sentence imposed in this case.
Gregg v. Georgia, 428 U.S. 153, 227
(1976) (BRENNAN, J., dissenting). The Court observes
that "[t]he Gregg-type statute imposes
unprecedented safeguards in the special context of
capital punishment," which "ensure a degree of care
in the imposition of the death penalty that can be
described only as unique." Ante at 315, n.
37. Notwithstanding these efforts, murder defendants
in Georgia with white victims are more than four
times as likely to receive the death sentence as are
defendants with black victims. Petitioner's Exhibit
DB 82. Nothing could convey more powerfully the
intractable reality of the death penalty:
that the
effort to eliminate arbitrariness in the infliction
of that ultimate sanction is so plainly doomed to
failure that it -- and the death penalty -- must be
abandoned altogether.
Godfrey v.
Georgia, 446 U.S. 420, 442 (1980)
(MARSHALL, J., concurring in judgment).
Even if I did
not hold this position, however, I would reverse the
Court of Appeals, for petitioner McCleskey has
clearly demonstrated that his death sentence was
imposed in violation of the Eighth and Fourteenth
Amendments. While I join Parts I through IV-A of
JUSTICE BLACKMUN's dissenting opinion discussing
petitioner's Fourteenth Amendment claim, I
write separately to emphasize how conclusively
[p321] McCleskey has
also demonstrated precisely the type of risk of
irrationality in sentencing that we have
consistently condemned in our Eighth Amendment
jurisprudence.
II
At some point in this case, Warren McCleskey
doubtless asked his lawyer whether a jury was likely
to sentence him to die. A candid reply to this
question would have been disturbing. First, counsel
would have to tell McCleskey that few of the details
of the crime or of McCleskey's past criminal conduct
were more important than the fact that his victim
was white. Petitioner's Supplemental Exhibits (Supp.
Exh.) 50. Furthermore, counsel would feel bound to
tell McCleskey that defendants charged with killing
white victims in Georgia are 4.3 times as likely to
be sentenced to death as defendants charged with
killing blacks. Petitioner's Exhibit DB 82. In
addition, frankness would compel the disclosure that
it was more likely than not that the race of
McCleskey's victim would determine whether he
received a death sentence: 6 of every 11 defendants
convicted of killing a white person would not have
received the death penalty if their victims had been
black, Supp. Exh. 51, while, among defendants with
aggravating and mitigating factors comparable to
McCleskey's, 20 of every 34 would not have been
sentenced to die if their victims had been black.
Id. at 54. Finally, the assessment would not be
complete without the information that cases
involving black defendants and white victims are
more likely to result in a death sentence than cases
featuring any other racial combination of defendant
and victim. Ibid. The story could be told in
a variety of ways, but McCleskey could not fail to
grasp its essential narrative line: there was a
significant chance that race would play a prominent
role in determining if he lived or died.
The Court today holds that Warren McCleskey's
sentence was constitutionally imposed. It finds no
fault in a system in which lawyers must tell their
clients that race casts a [p322]
large shadow on the capital sentencing process. The
Court arrives at this conclusion by stating that the
Baldus study cannot "prove that race enters
into any capital sentencing decisions or that race
was a factor in McCleskey's particular case."
Ante at 308 (emphasis in original). Since,
according to Professor Baldus, we cannot say "to a
moral certainty" that race influenced a decision,
ante at 308, n. 29, we can identify only "a
likelihood that a particular factor entered into
some decisions," ante at 308, and "a
discrepancy that appears to correlate with race."
Ante at 312. This "likelihood" and "discrepancy,"
holds the Court, is insufficient to establish a
constitutional violation. The Court reaches this
conclusion by placing four factors on the scales
opposite McCleskey's evidence: the desire to
encourage sentencing discretion, the existence of "statutory
safeguards" in the Georgia scheme, the fear of
encouraging widespread challenges to other
sentencing decisions, and the limits of the judicial
role. The Court's evaluation of the significance of
petitioner's evidence is fundamentally at odds with
our consistent concern for rationality in capital
sentencing, and the considerations that the majority
invokes to discount that evidence cannot justify
ignoring its force.
III
A
It is important
to emphasize at the outset that the Court's
observation that McCleskey cannot prove the
influence of race on any particular sentencing
decision is irrelevant in evaluating his Eighth
Amendment claim. Since Furman v. Georgia,
408 U.S. 238 (1972), the Court has been
concerned with the risk of the imposition of
an arbitrary sentence, rather than the proven fact
of one. Furman held that the death penalty
may not be
imposed under sentencing procedures that create a
substantial risk that the punishment will be
inflicted in an arbitrary and capricious manner.
Godfrey v.
Georgia, supra, at 427. As JUSTICE O'CONNOR
observed [p323] in
Caldwell v. Mississippi, 472 U.S. 320,
343 (1985), a death sentence must be struck down
when the circumstances under which it has been
imposed
creat[e] an
unacceptable risk that "the death penalty
[may have been] meted out arbitrarily or
capriciously," or through "whim or mistake"
(emphasis added)
(quoting California v. Ramos, 463 U.S. 992,
999 (1983)). This emphasis on risk acknowledges the
difficulty of divining the jury's motivation in an
individual case. In addition, it reflects the fact
that concern for arbitrariness focuses on the
rationality of the system as a whole, and that a
system that features a significant probability that
sentencing decisions are influenced by impermissible
considerations cannot be regarded as rational.
[n1] As we said in Gregg v.
Georgia, 428 U.S. at 200, "the petitioner looks
to the sentencing system as a whole (as the Court
did in Furman and we do today)": a
constitutional violation is established if a
plaintiff demonstrates a "pattern of
arbitrary and capricious sentencing." Id. at
195, n. 46 (emphasis added) (joint opinion of
Stewart, POWELL, and STEVENS, JJ.).
As a result, our
inquiry under the Eighth Amendment has not
been directed to the validity of the individual
sentences before us. In Godfrey, for instance,
the Court struck down the petitioner's sentence
because the vagueness of the statutory definition of
heinous crimes created a risk that prejudice
[p324] or other
impermissible influences might have infected
the sentencing decision. In vacating the sentence,
we did not ask whether it was likely that Godfrey's
own sentence reflected the operation of irrational
considerations. Nor did we demand a demonstration
that such considerations had actually entered into
other sentencing decisions involving heinous crimes.
Similarly, in Roberts v. Louisiana, 428
U.S. 325 (1976), and Woodson v. North
Carolina, 428 U.S. 280 (1976), we struck
down death sentences in part because mandatory
imposition of the death penalty created the risk
that a jury might rely on arbitrary
considerations in deciding which persons should be
convicted of capital crimes. Such a risk would arise,
we said, because of the likelihood that jurors,
reluctant to impose capital punishment on a
particular defendant, would refuse to return a
conviction, so that the effect of mandatory
sentencing would be to recreate the unbounded
sentencing discretion condemned in Furman.
Roberts, supra, at 334-335 (plurality opinion);
Woodson, supra, at 303 (plurality opinion).
We did not ask whether the death sentences in the
cases before us could have reflected the jury's
rational consideration and rejection of mitigating
factors. Nor did we require proof that juries had
actually acted irrationally in other cases.
Defendants
challenging their death sentences thus never have
had to prove that impermissible considerations have
actually infected sentencing decisions. We have
required instead that they establish that the system
under which they were sentenced posed a significant
risk of such an occurrence. McCleskey's claim does
differ, however, in one respect from these earlier
cases: it is the first to base a challenge not on
speculation about how a system might operate,
but on empirical documentation of how it does
operate.
The Court
assumes the statistical validity of the Baldus study,
and acknowledges that McCleskey has demonstrated a
risk that racial prejudice plays a role in capital
sentencing in Georgia, ante at 291, n. 7.
Nonetheless, it finds the probability of prejudice
insufficient to create constitutional concern.
[p325] Ante at
313. Close analysis of the Baldus study, however, in
light of both statistical principles and human
experience, reveals that the risk that race
influenced McCleskey's sentence is intolerable by
any imaginable standard.
B
The Baldus study
indicates that, after taking into account some 230
nonracial factors that might legitimately influence
a sentencer, the jury more likely than not
would have spared McCleskey's life had his victim
been black. The study distinguishes between those
cases in which (1) the jury exercises virtually no
discretion because the strength or weakness of
aggravating factors usually suggests that only one
outcome is appropriate;
[n2] and (2) cases reflecting an "intermediate"
level of aggravation, in which the jury has
considerable discretion in choosing a sentence.
[n3] McCleskey's case falls into the
intermediate range. In such cases, death is imposed
in 34% of white-victim crimes and 14% of black-victim
crimes, a difference of 139% in the rate of
imposition of the death penalty. Supp. Exh. 54. In
other words, just under 59% -- almost 6 in 10 --
defendants comparable to McCleskey would not have
received the death penalty if their victims had been
black.
[n4] [p326]
Furthermore,
even examination of the sentencing system as a whole,
factoring in those cases in which the jury exercises
little discretion, indicates the influence of race
on capital sentencing. For the Georgia system as a
whole, race accounts for a six percentage point
difference in the rate at which capital punishment
is imposed. Since death is imposed in 11% of all
white-victim cases, the rate in comparably
aggravated black-victim cases is 5%. The rate of
capital sentencing in a white-victim case is thus
120% greater than the rate in a black-victim case.
Put another way, over half -- 55% -- of defendants
in white-victim crimes in Georgia would not have
been sentenced to die if their victims had been
black. Of the more than 200 variables potentially
relevant to a sentencing decision, race of the
victim is a powerful explanation for variation in
death sentence rates -- as powerful as nonracial
aggravating factors such as a prior murder
conviction or acting as the principal planner of the
homicide.
[n5]
These adjusted
figures are only the most conservative indication of
the risk that race will influence the death
sentences of defendants in Georgia. Data unadjusted
for the mitigating or aggravating effect of other
factors show an even more pronounced disparity by
race. The capital sentencing rate for all white-victim
cases was almost 11 times greater than
[p327] the rate for
black-victim cases. Supp. Exh. 47. Furthermore,
blacks who kill whites are sentenced to death at
nearly 22 times the rate of blacks who kill
blacks, and more than 7 times the rate of
whites who kill blacks. Ibid. In addition,
prosecutors seek the death penalty for 70% of black
defendants with white victims, but for only 15% of
black defendants with black victims, and only 19% of
white defendants with black victims. Id. at
56. Since our decision upholding the Georgia capital
sentencing system in Gregg, the State has
executed seven persons. All of the seven were
convicted of killing whites, and six of the seven
executed were black.
[n6] Such execution figures are
especially striking in light of the fact that,
during the period encompassed by the Baldus study,
only 9.2% of Georgia homicides involved black
defendants and white victims, while 60.7% involved
black victims.
McCleskey's
statistics have particular force because most of
them are the product of sophisticated multiple-regression
analysis. Such analysis is designed precisely to
identify patterns in the aggregate, even though we
may not be able to reconstitute with certainty any
individual decision that goes to make up that
pattern. Multiple-regression analysis is
particularly well suited to identify the influence
of impermissible considerations in sentencing, since
it is able to control for permissible factors that
may explain an apparent arbitrary pattern.
[n7] While the decisionmaking process
of a body such as a jury may be complex, the Baldus
study provides a massive compilation of the details
that are most relevant to that decision. As we held
in the context of Title VII of the Civil Rights Act
of 1964 last Term in Bazemore v. Friday,
478 U.S. 385 (1986), a multiple-regression
analysis need not include every conceivable variable
to establish a party's case, as long as it includes
those variables that account for the
[p328] major factors
that are likely to influence decisions. In this
case, Professor Baldus in fact conducted additional
regression analyses in response to criticisms and
suggestions by the District Court, all of which
confirmed, and some of which even strengthened, the
study's original conclusions.
The statistical
evidence in this case thus relentlessly documents
the risk that McCleskey's sentence was influenced by
racial considerations. This evidence shows that
there is a better than even chance in Georgia that
race will influence the decision to impose the death
penalty: a majority of defendants in white-victim
crimes would not have been sentenced to die if their
victims had been black. In determining whether this
risk is acceptable, our judgment must be shaped by
the awareness that
[t]he risk of
racial prejudice infecting a capital sentencing
proceeding is especially serious in light of the
complete finality of the death sentence,
Turner v.
Murray, 476 U.S. 28, 35 (1986), and that
[i]t is of
vital importance to the defendant and to the
community that any decision to impose the death
sentence be, and appear to be, based on reason
rather than caprice or emotion,
Gardner v.
Florida, 430 U.S. 349, 358 (1977). In
determining the guilt of a defendant, a State must
prove its case beyond a reasonable doubt. That is,
we refuse to convict if the chance of error is
simply less likely than not. Surely, we should not
be willing to take a person's life if the chance
that his death sentence was irrationally imposed is
more likely than not. In light of the gravity of the
interest at stake, petitioner's statistics, on their
face, are a powerful demonstration of the type of
risk that our Eighth Amendment jurisprudence
has consistently condemned.
C
Evaluation of
McCleskey's evidence cannot rest solely on the
numbers themselves. We must also ask whether the
conclusion suggested by those numbers is consonant
with our understanding of history and human
experience. Georgia's legacy of a race-conscious
criminal justice system, as well as
[p329] this Court's own recognition of
the persistent danger that racial attitudes may
affect criminal proceedings, indicates that
McCleskey's claim is not a fanciful product of mere
statistical artifice.
For many years,
Georgia operated openly and formally precisely the
type of dual system the evidence shows is still
effectively in place. The criminal law expressly
differentiated between crimes committed by and
against blacks and whites, distinctions whose
lineage traced back to the time of slavery. During
the colonial period, black slaves who killed whites
in Georgia, regardless of whether in self-defense or
in defense of another, were automatically executed.
A. Higginbotham, In the Matter of Color: Race in the
American Legal Process 256 (1978).
[n8]
By the time of
the Civil War, a dual system of crime and punishment
was well established in Georgia. See Ga.Penal
Code (1861). The state criminal code contained
separate sections for "Slaves and Free Persons of
Color," Pt. 4, Tit. 3, Ch. 1, and for all other
persons, Pt. 4, Tit. 1, Divs. 1-16. The code
provided, for instance, for an automatic death
sentence for murder committed by blacks, Pt. 4, Tit.
1, Art. II, § 4704, but declared that anyone else
convicted of murder might receive life imprisonment
if the conviction were founded solely on
circumstantial testimony or simply if the jury so
recommended. Pt. 4, Tit. 1, Div. 4, § 4220. The code
established that the rape of a free white female by
a black "shall be" punishable by death. § 4704.
However, rape by anyone else of a free white female
was punishable by [p330]
a prison term not less than 2 nor more than 20 years.
The rape of blacks was punishable "by fine and
imprisonment, at the discretion of the court."
§ 4249. A black convicted of assaulting a free white
person with intent to murder could be put to death
at the discretion of the court, § 4708, but the same
offense committed against a black, slave or free,
was classified as a "minor" offense whose punishment
lay in the discretion of the court, as long as such
punishment did not "extend to life, limb, or health."
Art. III, §§ 4714, 4718. Assault with intent to
murder by a white person was punishable by a prison
term of from 2 to 10 years. Div. 4, § 4258. While
sufficient provocation could reduce a charge of
murder to manslaughter, the code provided that
[o]bedience
and submission being the duty of a slave, much
greater provocation is necessary to reduce a
homicide of a white person by him to voluntary
manslaughter, than is prescribed for white persons.
Art. II, § 4711.
In more recent
times, some 40 years ago, Gunnar Myrdal's epochal
study of American race relations produced findings
mirroring McCleskey's evidence:
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.
* * * *
For offenses
which involve any actual or potential danger to
whites, however, Negroes are punished more severely
than whites.
* * * *
On the other
hand, it is quite common for a white criminal to be
set free if his crime was against a Negro.
G. Myrdal, An
American Dilemma 551-552, (1944).
This Court has
invalidated portions of the Georgia capital
sentencing system three times over the past 15
years. The specter of race discrimination was
acknowledged by the Court in striking down the
Georgia death penalty statute in Furman.
[p331] Justice Douglas
cited studies suggesting imposition of the death
penalty in racially discriminatory fashion, and
found the standardless statutes before the Court
"pregnant with discrimination." 408 U.S. at 257
(concurring opinion). JUSTICE MARSHALL pointed to
statistics indicating that
Negroes [have
been] executed far more often than whites in
proportion to their percentage of the population.
Studies indicate that, while the higher rate of
execution among Negroes is partially due to a higher
rate of crime, there is evidence of racial
discrimination.
Id. at
364 (concurring opinion). Although Justice Stewart
declined to conclude that racial discrimination had
been plainly proved, he stated that
[m]y
concurring Brothers have demonstrated that, if any
basis can be discerned for the selection of these
few to be sentenced to die, it is the
constitutionally impermissible basis of race.
Id. at
310 (concurring opinion). In dissent, Chief Justice
Burger acknowledged that statistics
suggest, at
least as a historical matter, that Negroes have been
sentenced to death with greater frequency than
whites in several States, particularly for the crime
of interracial rape.
Id. at
289, n. 12. Finally, also in dissent, JUSTICE POWELL
intimated that an Equal Protection Clause argument
would be available for a black
who could
demonstrate that members of his race were being
singled out for more severe punishment than others
charged with the same offense.
Id. at
449. He noted that, although the Eighth Circuit had
rejected a claim of discrimination in Maxwell v.
Bishop, 398 F.2d 138 (1968), vacated and
remanded on other grounds, 398 U.S. 262
(1970), the statistical evidence in that case
tend[ed] to
show a pronounced disproportion in the number of
Negroes receiving death sentences for rape in parts
of Arkansas and elsewhere in the South.
408 U.S. at 449.
It is clear that the Court regarded the opportunity
for the operation of racial prejudice a particularly
troublesome aspect of the unbounded discretion
afforded by the Georgia sentencing scheme.
[p332]
Five years later,
the Court struck down the imposition of the death
penalty in Georgia for the crime of rape. Coker
v. Georgia, 433 U.S. 584 (1977). Although
the Court did not explicitly mention race, the
decision had to have been informed by the specific
observations on rape by both the Chief Justice and
JUSTICE POWELL in Furman. Furthermore,
evidence submitted to the Court indicated that black
men who committed rape, particularly of white women,
were considerably more likely to be sentenced to
death than white rapists. For instance, by 1977,
Georgia had executed 62 men for rape since the
Federal Government began compiling statistics in
1930. Of these men, 58 were black and 4 were white.
See Brief for Petitioner in Coker v.
Georgia, O.T. 1976, No. 75-5444, p. 56; see
also Wolfgang & Riedel, Rape, Race, and the
Death Penalty in Georgia, 45 Am.J.Orthopsychiatry
658 (1975).
Three years
later, the Court in Godfrey found one of the
State's statutory aggravating factors
unconstitutionally vague, since it resulted in
"standardless and unchanneled imposition of death
sentences in the uncontrolled discretion of a
basically uninstructed jury. . . ." 446 U.S. at 429.
JUSTICE MARSHALL, concurring in the judgment, noted
that
[t]he
disgraceful distorting effects of racial
discrimination and poverty continue to be painfully
visible in the imposition of death sentences.
Id. at
439 (footnote omitted).
This historical
review of Georgia criminal law is not intended as a
bill of indictment calling the State to account for
past transgressions. Citation of past practices does
not justify the automatic condemnation of current
ones. But it would be unrealistic to ignore the
influence of history in assessing the plausible
implications of McCleskey's evidence.
[A]mericans
share a historical experience that has resulted in
individuals within the culture ubiquitously
attaching a significance to race that is irrational
and often outside their awareness.
Lawrence, The Id,
The Ego, and Equal Protection: Reckoning With
Unconscious Racism, 39 Stan.L.Rev.
[p333] 327 (1987). See generally id.
at 328-344 (describing the psychological dynamics of
unconscious racial motivation). As we said in
Rose v. Mitchell, 443 U.S. 545, 558-559
(1979):
[W]e . . .
cannot deny that, 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.
The ongoing
influence of history is acknowledged, as the
majority observes, by our "‘unceasing efforts' to
eradicate racial prejudice from our criminal justice
system." Ante at 309 (quoting Batson v.
Kentucky, 476 U.S. 79, 85 (1986)). These
efforts, however, signify not the elimination of the
problem, but its persistence. Our cases reflect a
realization of the myriad of opportunities for
racial considerations to influence criminal
proceedings: in the exercise of peremptory
challenges, Batson v. Kentucky, supra; in the
selection of the grand jury, Vasquez v. Hillery,
474 U.S. 254 (1986); in the selection of the
petit jury, Whitus v. Georgia, 385 U.S.
545 (1967); in the exercise of prosecutorial
discretion, Wayte v. United States, 470
U.S. 598 (1985); in the conduct of argument,
Donnelly v. DeChristoforo, 416 U.S. 637
(1974); and in the conscious or unconscious bias of
jurors, Turner v. Murray, 476 U.S. 28
(1986), Ristaino v. Ross, 424 U.S. 589
(1976).
The discretion
afforded prosecutors and jurors in the Georgia
capital sentencing system creates such opportunities.
No guidelines govern prosecutorial decisions to seek
the death penalty, and Georgia provides juries with
no list of aggravating and mitigating factors, nor
any standard for balancing them against one another.
Once a jury identifies one aggravating factor, it
has complete discretion in choosing life or death,
and need not articulate its basis for selecting life
imprisonment. The Georgia sentencing system
therefore [p334]
provides considerable opportunity for racial
considerations, however subtle and unconscious, to
influence charging and sentencing decisions.
[n9]
History and its
continuing legacy thus buttress the probative force
of McCleskey's statistics. Formal dual criminal laws
may no longer be in effect, and intentional
discrimination may no longer be prominent.
Nonetheless, as we acknowledged in Turner, "subtle,
less consciously held racial attitudes" continue to
be of concern, 476 U.S. at 35, and the Georgia
system gives such attitudes considerable room to
operate. The conclusions drawn from McCleskey's
statistical evidence are therefore consistent with
the lessons of social experience.
[p335]
The majority
thus misreads our Eighth Amendment
jurisprudence in concluding that McCleskey has not
demonstrated a degree of risk sufficient to raise
constitutional concern. The determination of the
significance of his evidence is at its core an
exercise in human moral judgment, not a mechanical
statistical analysis. It must first and foremost be
informed by awareness of the fact that death is
irrevocable, and that, as a result,
the
qualitative difference of death from all other
punishments requires a greater degree of scrutiny of
the capital sentencing determination.
California v.
Ramos, 463 U.S. at 998-999. For this reason, we
have demanded a uniquely high degree of rationality
in imposing the death penalty. A capital sentencing
system in which race more likely than not plays a
role does not meet this standard. It is true that
every nuance of decision cannot be statistically
captured, nor can any individual judgment be plumbed
with absolute certainty. Yet the fact that we must
always act without the illumination of complete
knowledge cannot induce paralysis when we confront
what is literally an issue of life and death.
Sentencing data, history, and experience all counsel
that Georgia has provided insufficient assurance of
the heightened rationality we have required in order
to take a human life.
IV
The Court cites four reasons for shrinking from the
implications of McCleskey's evidence: the
desirability of discretion for actors in the
criminal justice system, the existence of statutory
safeguards against abuse of that discretion, the
potential consequences for broader challenges to
criminal sentencing, and an understanding of the
contours of the judicial role. While these concerns
underscore the need for sober deliberation, they do
not justify rejecting evidence as convincing as
McCleskey has presented.
The Court
maintains that petitioner's claim "is antithetical
to the fundamental role of discretion in our
criminal justice [p336]
system." Ante at 311. It states that "[w]here
the discretion that is fundamental to our criminal
process is involved, we decline to assume that what
is unexplained is invidious." Ante at 313.
Reliance on race
in imposing capital punishment, however, is
antithetical to the very rationale for granting
sentencing discretion. Discretion is a means, not an
end. It is bestowed in order to permit the sentencer
to "trea[t] each defendant in a capital case with
that degree of respect due the uniqueness of the
individual." Lockett v. Ohio, 438 U.S. 586,
605 (1978). The decision to impose the punishment of
death must be based on a "particularized
consideration of relevant aspects of the character
and record of each convicted defendant." Woodson
v. North Carolina, 428 U.S. at 303. Failure to
conduct such an individualized moral inquiry
treats all
persons convicted of a designated offense not as
unique individual human beings, but as members of a
faceless, undifferentiated mass to be subjected to
the blind infliction of the penalty of death.
Id. at
304.
Considering the
race of a defendant or victim in deciding if the
death penalty should be imposed is completely at
odds with this concern that an individual be
evaluated as a unique human being. Decisions
influenced by race rest in part on a categorical
assessment of the worth of human beings according to
color, insensitive to whatever qualities the
individuals in question may possess. Enhanced
willingness to impose the death sentence on black
defendants, or diminished willingness to render such
a sentence when blacks are victims, reflects a
devaluation of the lives of black persons. When
confronted with evidence that race more likely than
not plays such a role in a capital sentencing system,
it is plainly insufficient to say that the
importance of discretion demands that the risk be
higher before we will act -- for, in such a case,
the very end that discretion is designed to serve is
being undermined. [p337]
Our desire for
individualized moral judgments may lead us to accept
some inconsistencies in sentencing outcomes. Since
such decisions are not reducible to mathematical
formulae, we are willing to assume that a certain
degree of variation reflects the fact that no two
defendants are completely alike. There is thus a
presumption that actors in the criminal justice
system exercise their discretion in responsible
fashion, and we do not automatically infer that
sentencing patterns that do not comport with ideal
rationality are suspect.
As we made clear
in Batson v. Kentucky, 476 U.S. 79
(1986), however, that presumption is rebuttable.
Batson dealt with another arena in which
considerable discretion traditionally has been
afforded, the exercise of peremptory challenges.
Those challenges are normally exercised without any
indication whatsoever of the grounds for doing so.
The rationale for this deference has been a belief
that the unique characteristics of particular
prospective jurors may raise concern on the part of
the prosecution or defense, despite the fact that
counsel may not be able to articulate that concern
in a manner sufficient to support exclusion for
cause. As with sentencing, therefore, peremptory
challenges are justified as an occasion for
particularized determinations related to specific
individuals, and, as with sentencing, we presume
that such challenges normally are not made on the
basis of a factor such as race. As we said in
Batson, however, such features do not justify
imposing a "crippling burden of proof," id.
at 92, in order to rebut that presumption. The Court
in this case apparently seeks to do just that. On
the basis of the need for individualized decisions,
it rejects evidence, drawn from the most
sophisticated capital sentencing analysis ever
performed, that reveals that race more likely than
not infects capital sentencing decisions. The
Court's position converts a rebuttable presumption
into a virtually conclusive one.
[p338]
The Court also
declines to find McCleskey's evidence sufficient in
view of "the safeguards designed to minimize racial
bias in the [capital sentencing] process." Ante
at 313. Gregg v. Georgia, 428 U.S. at 226,
upheld the Georgia capital sentencing statute
against a facial challenge which JUSTICE WHITE
described in his concurring opinion as based on "simply
an assertion of lack of faith" that the system could
operate in a fair manner (opinion concurring in
judgment). JUSTICE WHITE observed that the claim
that prosecutors might act in an arbitrary fashion
was "unsupported by any facts," and that prosecutors
must be assumed to exercise their charging duties
properly "[a]bsent facts to the contrary. " Id.
at 225. It is clear that Gregg bestowed no
permanent approval on the Georgia system. It simply
held that the State's statutory safeguards were
assumed sufficient to channel discretion without
evidence otherwise.
It has now been
over 13 years since Georgia adopted the provisions
upheld in Gregg. Professor Baldus and his
colleagues have compiled data on almost 2,500
homicides committed during the period 1973-1979.
They have taken into account the influence of 230
nonracial variables, using a multitude of data from
the State itself, and have produced striking
evidence that the odds of being sentenced to death
are significantly greater than average if a
defendant is black or his or her victim is white.
The challenge to the Georgia system is not
speculative or theoretical; it is empirical. As a
result, the Court cannot rely on the statutory
safeguards in discounting McCleskey's evidence, for
it is the very effectiveness of those safeguards
that such evidence calls into question. While we may
hope that a model of procedural fairness will curb
the influence of race on sentencing, "we cannot
simply assume that the model works as intended; we
must critique its performance in terms of its
results." Hubbard, "Reasonable Levels of
Arbitrariness" in Death Sentencing Patterns: A
Tragic Perspective on Capital Punishment, 18
U.C.D.L.Rev. 1113, 1162 (1985).
[p339]
The Court next
states that its unwillingness to regard petitioner's
evidence as sufficient is based in part on the fear
that recognition of McCleskey's claim would open the
door to widespread challenges to all aspects of
criminal sentencing. Ante at 314-315. Taken
on its face, such a statement seems to suggest a
fear of too much justice. Yet surely the majority
would acknowledge that, if striking evidence
indicated that other minority groups, or women, or
even persons with blond hair, were
disproportionately sentenced to death, such a state
of affairs would be repugnant to deeply rooted
conceptions of fairness. The prospect that there may
be more widespread abuse than McCleskey documents
may be dismaying, but it does not justify complete
abdication of our judicial role. The Constitution
was framed fundamentally as a bulwark against
governmental power, and preventing the arbitrary
administration of punishment is a basic ideal of any
society that purports to be governed by the rule of
law.
[n10]
In fairness, the
Court's fear that McCleskey's claim is an invitation
to descend a slippery slope also rests on the
realization that any humanly imposed system of
penalties will exhibit some imperfection. Yet to
reject McCleskey's powerful evidence on this basis
is to ignore both the qualitatively different
character of the death penalty and the particular
repugnance of racial discrimination, considerations
which may [p340]
properly be taken into account in determining
whether various punishments are "cruel and unusual."
Furthermore, it fails to take account of the
unprecedented refinement and strength of the Baldus
study.
It hardly needs
reiteration that this Court has consistently
acknowledged the uniqueness of the punishment of
death.
Death, in its
finality, differs more from life imprisonment than a
100-year prison term differs from one of only a year
or two. Because of that qualitative difference,
there is a corresponding difference in the need for
reliability in the determination that death is the
appropriate punishment.
Woodson,
428 U.S. at 305. Furthermore, the relative interests
of the state and the defendant differ dramatically
in the death penalty context. The marginal benefits
accruing to the state from obtaining the death
penalty, rather than life imprisonment, are
considerably less than the marginal difference to
the defendant between death and life in prison. Such
a disparity is an additional reason for tolerating
scant arbitrariness in capital sentencing. Even
those who believe that society can impose the death
penalty in a manner sufficiently rational to justify
its continuation must acknowledge that the level of
rationality that is considered satisfactory
must be uniquely high. As a result, the
degree of arbitrariness that may be adequate to
render the death penalty "cruel and unusual"
punishment may not be adequate to invalidate lesser
penalties. What these relative degrees of
arbitrariness might be in other cases need not
concern us here; the point is that the majority's
fear of wholesale invalidation of criminal sentences
is unfounded.
The Court also
maintains that accepting McCleskey's claim would
pose a threat to all sentencing because of the
prospect that a correlation might be demonstrated
between sentencing outcomes and other personal
characteristics. Again, such a view is indifferent
to the considerations that enter into a
determination whether punishment is "cruel and
unusual." Race is a consideration whose influence is
expressly constitutionally
[p341] proscribed. We have expressed a moral
commitment, as embodied in our fundamental law, that
this specific characteristic should not be the basis
for allotting burdens and benefits. Three
constitutional amendments, and numerous statutes,
have been prompted specifically by the desire to
address the effects of racism.
Over the years,
this Court has consistently repudiated "[d]istinctions
between citizens solely because of their ancestry"
as being "odious to a free people whose institutions
are founded upon the doctrine of equality."
Loving v.
Virginia, 388 U.S. 1, 11 (1967) (quoting
Hirabayashi v. United States, 320 U.S. 81,
100 (1943)). Furthermore, we have explicitly
acknowledged the illegitimacy of race as a
consideration in capital sentencing, Zant v.
Stephens, 462 U.S. 862, 885 (1983). That
a decision to impose the death penalty could be
influenced by race is thus a particularly repugnant
prospect, and evidence that race may play even a
modest role in levying a death sentence should be
enough to characterize that sentence as "cruel and
unusual."
Certainly, a
factor that we would regard as morally irrelevant,
such as hair color, at least theoretically could be
associated with sentencing results to such an extent
that we would regard as arbitrary a system in which
that factor played a significant role. As I have
said above, however, supra, at 328-329, the
evaluation of evidence suggesting such a correlation
must be informed not merely by statistics, but by
history and experience. One could hardly contend
that this Nation has, on the basis of hair color,
inflicted upon persons deprivation comparable to
that imposed on the basis of race. Recognition of
this fact would necessarily influence the evaluation
of data suggesting the influence of hair color on
sentencing, and would require evidence of
statistical correlation even more powerful than that
presented by the Baldus study.
Furthermore, the
Court's fear of the expansive ramifications of a
holding for McCleskey in this case is unfounded,
because it fails to recognize the uniquely
sophisticated nature of the Baldus study. McCleskey
presents evidence that is [p342]
far and away the most refined data ever assembled on
any system of punishment, data not readily
replicated through casual effort. Moreover, that
evidence depicts not merely arguable tendencies, but
striking correlations, all the more powerful because
nonracial explanations have been eliminated.
Acceptance of petitioner's evidence would therefore
establish a remarkably stringent standard of
statistical evidence unlikely to be satisfied with
any frequency.
The Court's
projection of apocalyptic consequences for criminal
sentencing is thus greatly exaggerated. The Court
can indulge in such speculation only by ignoring its
own jurisprudence demanding the highest scrutiny on
issues of death and race. As a result, it fails to
do justice to a claim in which both those elements
are intertwined -- an occasion calling for the most
sensitive inquiry a court can conduct. Despite its
acceptance of the validity of Warren McCleskey's
evidence, the Court is willing to let his death
sentence stand because it fears that we cannot
successfully define a different standard for lesser
punishments. This fear is baseless.
Finally, the
Court justifies its rejection of McCleskey's claim
by cautioning against usurpation of the
legislatures' role in devising and monitoring
criminal punishment. The Court is, of course,
correct to emphasize the gravity of constitutional
intervention, and the importance that it be
sparingly employed. The fact that "[c]apital
punishment is now the law in more than two thirds of
our States," ante at 319, however, does not
diminish the fact that capital punishment is the
most awesome act that a State can perform. The
judiciary's role in this society counts for little
if the use of governmental power to extinguish life
does not elicit close scrutiny. It is true that
society has a legitimate interest in punishment.
Yet, as Alexander Bickel wrote:
It is a
premise we deduce not merely from the fact of a
written constitution but from the history of the
race, and ultimately as a moral judgment of the good
society, that government should serve not only what
we conceive [p343] from
time to time to be our immediate material needs, but
also certain enduring values. This in part is what
is meant by government under law.
The Least
Dangerous Branch 24 (1962).
Our commitment
to these values requires fidelity to them even when
there is temptation to ignore them. Such temptation
is especially apt to arise in criminal matters, for
those granted constitutional protection in this
context are those whom society finds most menacing
and opprobrious. Even less sympathetic are those we
consider for the sentence of death, for execution "is
a way of saying, ‘You are not fit for this world,
take your chance elsewhere.'" Furman, 408
U.S. at 290 (BRENNAN, J., concurring) (quoting
Stephen, Capital Punishments, 69 Fraser's Magazine
753, 763 (1864)).
For these
reasons,
[t]he methods
we employ in the enforcement of our criminal law
have aptly been called the measures by which the
quality of our civilization may be judged.
Coppedge v.
United States, 369 U.S. 438, 449 (1962).
Those whom we would banish from society or from the
human community itself often speak in too faint a
voice to be heard above society's demand for
punishment. It is the particular role of courts to
hear these voices, for the Constitution declares
that the majoritarian chorus may not alone dictate
the conditions of social life. The Court thus
fulfills, rather than disrupts, the scheme of
separation of powers by closely scrutinizing the
imposition of the death penalty, for no decision of
a society is more deserving of "sober second thought."
Stone, The Common Law in the United States, 50
Harv.L.Rev. 4, 25 (1936).
V
At the time our Constitution was framed 200 years
ago this year, blacks had for more than a century
before been regarded as beings of an inferior order,
and altogether unfit to associate with the white
race, either in social or political relations; and
so far inferior that they had no rights which the
white man was bound to respect.
Dred Scott v.
Sandford, [p344] 19
How. 393, 407 (1857). Only 130 years ago, this Court
relied on these observations to deny American
citizenship to blacks. Ibid. A mere three
generations ago, this Court sanctioned racial
segregation, stating that "[i]f one race be inferior
to the other socially, the Constitution of the
United States cannot put them upon the same plane."
Plessy v. Ferguson, 163 U.S. 537, 552
(1896).
In more recent
times, we have sought to free ourselves from the
burden of this history. Yet it has been scarcely a
generation since this Court's first decision
striking down racial segregation, and barely two
decades since the legislative prohibition of racial
discrimination in major domains of national life.
These have been honorable steps, but we cannot
pretend that, in three decades, we have completely
escaped the grip of a historical legacy spanning
centuries. Warren McCleskey's evidence confronts us
with the subtle and persistent influence of the past.
His message is a disturbing one to a society that
has formally repudiated racism, and a frustrating
one to a Nation accustomed to regarding its destiny
as the product of its own will. Nonetheless, we
ignore him at our peril, for we remain imprisoned by
the past as long as we deny its influence in the
present.
It is tempting
to pretend that minorities on death row share a fate
in no way connected to our own, that our treatment
of them sounds no echoes beyond the chambers in
which they die. Such an illusion is ultimately
corrosive, for the reverberations of injustice are
not so easily confined. "The destinies of the two
races in this country are indissolubly linked
together," id. at 560 (Harlan, J., dissenting),
and the way in which we choose those who will die
reveals the depth of moral commitment among the
living.
The Court's
decision today will not change what attorneys in
Georgia tell other Warren McCleskeys about their
chances of execution. Nothing will soften the harsh
message they must convey, nor alter the prospect
that race undoubtedly will continue to be a topic of
discussion. McCleskey's evidence
[p345] will not have obtained judicial
acceptance, but that will not affect what is said on
death row. However many criticisms of today's
decision may be rendered, these painful
conversations will serve as the most eloquent
dissents of all.
*****
[t]he
closeness of the evidence makes it possible for the
jury to respond to sentiment by liberating it
from the discipline of the evidence.
Id. at
165. While
the jury does
not often consciously and explicitly yield to
sentiment in the teeth of the law . . . it yields to
sentiment in the apparent process of resolving
doubts as to evidence. The jury, therefore, is able
to conduct its revolt from the law within the
etiquette of resolving issues of fact.
Ibid.
Thus, it is those cases in which sentencing evidence
seems to dictate neither life imprisonment nor the
death penalty that impermissible factors such as
race play the most prominent role.
With respect to
the Court's criticism that McCleskey has not shown
how Georgia could do a better job, ante at
315, n. 37, once it is established that the
particular system of guided discretion chosen by a
State is not achieving its intended purpose, the
burden is on the State, not the defendant, to
devise a more rational system if it wishes to
continue to impose the death penalty.
Congress, from
their general powers, may fully go into business of
human legislation. They may legislate, in criminal
cases, from treason to the lowest offence -- petty
larceny. They may define crimes and prescribe
punishments. In the definition of crimes, I trust
they will be directed by what wise representatives
ought to be governed by. But when we come to
punishments, no latitude ought to be left, nor
dependence put on the virtue of representatives.
3 J. Elliot's Debates on the
Constitution 447 (1854).
