BLACKMUN, J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
McCleskey v. Kemp
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
October 15, 1986 ---
Decided: April 22, 1987
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and
JUSTICE STEVENS join, and with whom JUSTICE BRENNAN
joins in all but Part IV-B, dissenting.
The Court today
sanctions the execution of a man despite his
presentation of evidence that establishes a
constitutionally intolerable level of racially based
discrimination leading to the imposition of his
death sentence. I am disappointed with the Court's
action not only because of its denial of
constitutional guarantees to petitioner McCleskey
individually, but also because of its departure from
what seems to me to be well-developed constitutional
has thoroughly demonstrated, ante that, if
one assumes that the statistical evidence presented
by petitioner McCleskey is valid, as we must in
light of the Court of Appeals' assumption,
[n1] there exists in the Georgia
capital sentencing scheme a risk of racially based
discrimination that is so acute that it violates the
Eighth Amendment. His analysis of McCleskey's
case in terms of the Eighth Amendment is
consistent with this Court's recognition that,
because capital cases involve the State's imposition
of a punishment that is unique both in kind and
degree, the decision in such cases must reflect a
heightened degree of reliability under the
Amendment's prohibition of the infliction of cruel
and unusual punishments. See Woodson v. North
Carolina, 428 U.S. 280, 305 (1976) (plurality
opinion). I therefore join Parts II through V of
JUSTICE BRENNAN's dissenting opinion.
case raises concerns that are central not only to
the principles underlying the Eighth Amendment,
but also to the principles underlying the
Fourteenth Amendment. Analysis of his case in
terms of the Fourteenth Amendment is
consistent with this Court's recognition that racial
discrimination is fundamentally at odds with our
constitutional guarantee of equal protection. The
protections afforded by the Fourteenth Amendment
are not left at the courtroom door. Hill v.
Texas, 316 U.S. 400, 406 (1942). Nor is
equal protection denied to persons convicted of
crimes. Lee v. Washington, 390 U.S. 333
(1968) (per curiam). The Court in the past has found
that racial discrimination within the criminal
justice system is particularly abhorrent: "Discrimination
on the basis of race, odious in all aspects, is
especially pernicious in the administration of
justice." Rose v. Mitchell, 443 U.S. 545,
555 (1979). Disparate enforcement of criminal
sanctions "destroys the appearance of justice, and
thereby casts doubt on the integrity of the judicial
process." Id. at 555-556. And only last Term,
JUSTICE POWELL, writing for the Court, noted:
within the judicial system is most pernicious
because it is
a stimulant to
that race prejudice which is an impediment to
securing to [black citizens] that equal justice
which the law aims to secure to all others.
Kentucky, 476 U.S. 79, 87-88 (1986),
quoting Strauder v. West Virginia, 100
U.S. 303, 308 (1880).
legislative history of the Fourteenth Amendment
reminds us that discriminatory enforcement of States'
criminal laws was a matter of great concern for the
drafters. In the introductory remarks to its Report
to Congress, the Joint Committee on Reconstruction,
which reported out the Joint Resolution proposing
the Fourteenth Amendment, specifically noted:
prejudice against color . . . leads to acts of
cruelty, oppression, and murder, which the local
authorities are at no pains to prevent or punish.
Comm.Rep. No. 30, 39th Cong., lst Sess., p. XVII
(1866). Witnesses who testified before
[p347] the Committee
presented accounts of criminal acts of violence
against black persons that were not prosecuted
despite evidence as to the identity of the
The Court today
seems to give a new meaning to our recognition that
death is different. Rather than requiring
correspondingly greater degree of scrutiny of the
capital sentencing determination," California v.
Ramos, 463 U.S. 992, 998-999 (1983), the
Court relies on the very fact that this is a case
involving capital punishment to apply a lesser
standard of scrutiny under the Equal Protection
Clause. The Court concludes that "legitimate"
explanations outweigh McCleskey's claim that his
death sentence reflected a constitutionally
impermissible risk of racial discrimination. The
Court explains that McCleskey's evidence is too weak
to require rebuttal
legitimate and unchallenged explanation for the
decision is apparent from the record: McCleskey
committed an act for which the United States
Constitution and Georgia laws permit imposition of
the death penalty.
297. The Court states that it will not infer a
discriminatory purpose on the part of the state
legislature, because "there were legitimate reasons
for the Georgia Legislature to adopt and maintain
capital punishment." Ante at 298-299.
assertion that the fact of McCleskey's conviction
undermines his constitutional claim is inconsistent
with a long and unbroken line of this Court's case
law. The Court on numerous occasions during the past
century has recognized that an otherwise legitimate
basis for a conviction does not outweigh an equal
protection violation. In cases where racial
discrimination in the administration of the criminal
justice system is established, it has held that
setting aside the conviction is the appropriate
remedy. See, e.g., Rose v. Mitchell, 443 U.S.
at 559; Whitus v. Georgia, 385 U.S. 545,
549-550 (1967); Strauder v. West Virginia,
100 U.S. 303 (1880). The Court recently
reaffirmed the propriety of invalidating a
conviction in order to vindicate federal
constitutional rights. Vasquez v. Hillery,
474 U.S. 254 (1986). Invalidation of a criminal
conviction on federal constitutional grounds does
not necessarily preclude retrial and resentencing of
the defendant by the State. Hill v. Texas,
316 U.S. at 406. The Court has maintained a per
se reversal [p349]
rule rejecting application of harmless error
analysis in cases involving racial discrimination
that "strikes at the fundamental values of our
judicial system and our society as a whole." Rose
v. Mitchell, 443 U.S. at 556. We have noted that
a conviction "in no way suggests that the
discrimination did not impermissibly infect" earlier
phases of the criminal prosecution "and,
consequently, the nature or very existence of the
proceedings to come." Vasquez v. Hillery, 474
U.S. at 263. Hence, McCleskey's conviction and the
imposition of his death sentence by the jury do not
suggest that discrimination did not impermissibly
infect the earlier steps in the prosecution of his
case, such as the prosecutor's decision to seek the
reliance on legitimate interests underlying the
Georgia Legislature's enactment of its capital
punishment statute is likewise inappropriate.
Although that reasoning may be relevant in a case
involving a facial challenge to the
constitutionality of a statute, it has no relevance
in a case dealing with a challenge to the Georgia
capital sentencing system as applied in
McCleskey's case. In Batson v. Kentucky, supra,
we rejected such reasoning:
Constitution requires . . . that we look beyond the
face of the statute . . . and also consider
challenged selection practices to afford "protection
against action of the State through its
administrative officers in effecting the prohibited
476 U.S. at 88,
quoting Norris v. Alabama, 294 U.S. 587,
In analyzing an
equal protection claim, a court must first determine
the nature of the claim and the responsibilities of
the state actors involved to determine what showing
is required for the establishment of a prima
facie case. Castaneda v. Partida, 430
U.S. 482, 493-494 (1977). The Court correctly
broadest form, McCleskey's claim of discrimination
extends to every actor in the Georgia capital
sentencing process, from the prosecutor who
[p350] sought the death
penalty and the jury that imposed the sentence, to
the State itself that enacted the capital punishment
statute and allows it to remain in effect despite
its allegedly discriminatory application.
292. Having recognized the complexity of McCleskey's
claim, however, the Court proceeds to ignore a
significant element of that claim. The Court treats
the case as if it is limited to challenges to the
actions of two specific decisionmaking bodies -- the
petit jury and the state legislature. Ante at
294-295, 297-298. This self-imposed restriction
enables the Court to distinguish this case from the
venire-selection cases and cases under Title VII of
the Civil Rights Act of 1964 in which it long has
accepted statistical evidence and has provided an
easily applicable framework for review. See e.g.,
Castaneda v. Partida, supra; Bazemore v. Friday,
478 U.S. 385 (1986) (BRENNAN, J., joined by
all other Members of the Court, concurring in part).
Considering McCleskey's claim in its entirety,
however, reveals that the claim fits easily within
that same framework. A significant aspect of his
claim is that racial factors impermissibly affected
numerous steps in the Georgia capital sentencing
scheme between his indictment and the jury's vote to
sentence him to death. The primary decisionmaker at
each of the intervening steps of the process is the
prosecutor, the quintessential state actor in a
[n3] The District Court expressly
stated [p351] that there
were "two levels of the system that matter to [McCleskey],
the decision to seek the death penalty and the
decision to impose the death penalty." 580 F.Supp.
338, 379-380 (ND Ga.1984). I agree with this
statement of McCleskey's case. Hence, my analysis in
this dissenting opinion takes into account the role
of the prosecutor in the Georgia capital sentencing
system. I certainly do not address all the
alternative methods of proof in the Baldus study.
Nor do I review each step in the process which
McCleskey challenges. I concentrate on the decisions
within the prosecutor's office through which the
State decided to seek the death penalty and, in
particular, the point at which the State proceeded
to the penalty phase after conviction. This is a
step at which the evidence of the effect of the
racial factors was especially strong, see
Supplemental Exhibits (Supp. Exh.) 56, 57;
Transcript of Federal Habeas Corpus Hearing in No.
C81-2434A (Tr.) 894-926, but is ignored by the Court.
defendant alleging an equal protection violation
must prove the existence of purposeful
discrimination. Washington v. Davis, 426
U.S. 229, 239-240 (1976); Whitus v. Georgia,
385 U.S. at 550. He may establish a prima facie
[n4] of purposeful discrimination "by
showing that the [p352]
totality of the relevant facts gives rise to an
inference of discriminatory purpose." Batson v.
Kentucky, 476 U.S. at 94.
[n5] Once the defendant establishes a
prima facie case, the burden shifts to the
prosecution to rebut that case.
cannot meet this burden on mere general assertions
that its officials did not discriminate, or that
they properly performed their official duties.
State must demonstrate that the challenged effect
was due to "‘permissible racially neutral selection
criteria.'" Ibid., quoting Alexander v.
Louisiana, 405 U.S. 625, 632 (1972).
v. Kentucky and the framework established in
Castaneda v. Partida, McCleskey must meet a
three-factor standard. First, he must establish that
he is a member of a group "that is a recognizable,
distinct class, singled out for different treatment."
430 U.S. at 494. Second, he must make a showing of a
substantial degree of differential treatment.
[n6] Third, he must establish that the
discriminatory procedure is susceptible to abuse or
is not racially neutral. Ibid.
There can be no
dispute that McCleskey has made the requisite
showing under the first prong of the standard. The
Baldus study demonstrates that black persons are a
distinct group that are singled out for different
treatment in the Georgia capital sentencing system.
The Court acknowledges, as it must, that the raw
statistics included in the Baldus study and
presented by petitioner indicate that it is much
less likely that a death sentence will result from a
murder of a black person than from a murder of a
white person. Ante at 286. White-victim cases
are nearly 11 times more likely to yield a death
sentence than are black-victim cases. Supp. Exh. 46.
The raw figures also indicate that, even within the
group of defendants who are convicted of killing
white persons and are thereby more likely to receive
a death sentence, black defendants are more likely
than white defendants to be sentenced to death.
With respect to
the second prong, McCleskey must prove that there is
a substantial likelihood that his death sentence is
due to racial factors. See Hunter v. Underwood,
471 U.S. 222, 228 (1985). The Court of
Appeals assumed the validity of the Baldus study,
and found that it
systemic and substantial disparities existed in the
penalties imposed upon homicide defendants in
Georgia based on race of the homicide victim, that
the disparities existed at a less substantial rate
in death sentencing based on race of defendants, and
that the factors of race of the victim and defendant
were at work in Fulton County.
753 F.2d 877,
895 (CA11 1985). [p354]
The question remaining, therefore, is at what point
does that disparity become constitutionally
unacceptable. See Turner v. Murray, 476
U.S. 28, 36, n. 8 (1986) (plurality opinion).
Recognizing that additional factors can enter into
the decisionmaking process that yields a death
sentence, the authors of the Baldus study collected
data concerning the presence of other relevant
factors in homicide cases in Georgia during the time
period relevant to McCleskey's case. They then
analyzed the data in a manner that would permit them
to ascertain the independent effect of the racial
demonstrated the degree to which his death sentence
was affected by racial factors by introducing
regression analyses that explain how much of the
statistical distribution of the cases analyzed is
attributable to the racial factors. McCleskey
established that, because he was charged with
killing a white person, he was 4.3 times as likely
to be sentenced to death as he would have been had
he been charged with killing a black person.
Petitioner's Exhibit DB 82. McCleskey also
demonstrated that it was more likely than not that
the fact that the victim he was charged with killing
was white determined that he received a sentence of
death -- 20 out of every 34 defendants in
McCleskey's mid-range category would not have been
sentenced to be executed if their victims had been
black. Supp. Exh. 54.
[n8] The most persuasive evidence of
the constitutionally significant effect of racial
factors in the Georgia capital sentencing system is
McCleskey's proof that the race of the victim is
more important in explaining the imposition of a
death sentence than is the factor whether the
defendant was a prime mover in the homicide.
Petitioner's Exhibit DB 82.
[n9] Similarly, the race-of-victim
factor is nearly as crucial as the statutory
aggravating circumstance whether the defendant had a
prior record of a conviction for a capital crime.
[n10] Ibid. See Ga.Code
Ann. § 17-10-30(b) (1982), ante at 284-285,
n. 3. The Court has noted elsewhere that Georgia
could not attach
label to factors that are constitutionally
impermissible or totally irrelevant to the
sentencing process, such as for example the race,
religion, or political affiliation of the defendant.
Stephens, 462 U.S. 862, 885 (1983). What
we have held to be unconstitutional if included in
the [p356] language of
the statute surely cannot be constitutional, because
it is a de facto characteristic of the system.
produced evidence concerning the role of racial
factors at the various steps in the decisionmaking
process, focusing on the prosecutor's decision as to
which cases merit the death sentence. McCleskey
established that the race of the victim is an
especially significant factor at the point where the
defendant has been convicted of murder and the
prosecutor must choose whether to proceed to the
penalty phase of the trial and create the
possibility that a death sentence may be imposed or
to accept the imposition of a sentence of life
imprisonment. McCleskey demonstrated this effect at
both the statewide level, see Supp. Exh. 56,
57, Tr. 897-910, and in Fulton County where he was
tried and sentenced, see Supp. Exh. 59, 60,
Tr. 978-981. The statewide statistics indicated that
black-defendant/white-victim cases advanced to the
penalty trial at nearly five times the rate of the
black-defendant/black-victim cases (70% v. 15%), and
over three times the rate of white-defendant/ black-victim
cases (70% v.19%). See Supp. Exh. 56. The
multiple-regression analysis demonstrated that
racial factors had a readily identifiable effect at
a statistically significant level. See id. at
57; Tr. 905. The Fulton County statistics were
consistent with this evidence, although they
involved fewer cases. See Supp.Exh. 59, 60.
evidence relating to the disposition of the Fulton
County cases that were most comparable to
McCleskey's case was consistent with the evidence of
the race-of-victim effect as well. Of the 17
defendants, including [p357]
McCleskey, who were arrested and charged with
homicide of a police officer in Fulton County during
the 1973-1979 period, McCleskey, alone, was
sentenced to death. The only other defendant whose
case even proceeded to the penalty phase received a
sentence of life imprisonment. That defendant had
been convicted of killing a black police officer.
See id. at 61-63; Tr. 1050-1062.
As to the final
element of the prima facie case, McCleskey
showed that the process by which the State decided
to seek a death penalty in his case and to pursue
that sentence throughout the prosecution was
susceptible to abuse. Petitioner submitted the
deposition of Lewis R. Slaton, who, as of the date
of the deposition, had been the District Attorney
for 18 years in the county in which McCleskey was
tried and sentenced. Deposition in No. 84-8176 of
Lewis R. Slaton, Aug. 4, 1983, p. 5; see
McCleskey v. Zant, 580 F.Supp. 338, 377, n. 15
(1984); Tr. 1316. As Mr. Slaton explained, the
duties and responsibilities of that office are the
prosecution of felony charges within the Atlanta
Judicial Circuit that comprises Fulton County.
Deposition 7-8. He testified that, during his years
in the office, there were no guidelines informing
the Assistant District Attorneys who handled the
cases how they should proceed at any particular
stage of the prosecution. There were no guidelines
as to when they should seek an indictment for murder,
as opposed to lesser charges, id. at 10-11;
when they should recommend acceptance of a guilty
plea to murder, acceptance of a guilty plea to a
lesser charge, reduction of charges, or dismissal of
charges at the postindictment-preconviction stage,
id. at 25-26, 31; or when they should seek
the death penalty, id. at 31. Slaton
testified that these decisions were left to the
discretion of the individual attorneys, who then
informed Slaton of their decisions as they saw fit.
Id. at 13, 24-25, 37-38.
deposition proves that, at every stage of a
prosecution, the Assistant District Attorney
exercised much discretion. The only guidance given
was "on-the-job training."
[p358] Id. at 20. Addressing plea
bargaining, for example, Slaton stated that "through
the training that the assistant DA's get, I think we
pretty much think alike on the cases, on what we
suggest." Id. at 25. The sole effort to
provide any consistency was Slaton's periodic
pulling of files at random to check on the progress
of cases. Id. at 28-29. Slaton explained that,
as far as he knew, he was the only one aware of this
checking. Id. at 28. The files contained
information only as to the evidence in the case, not
any indication as to why an attorney made a
particular decision. The attorneys were not required
to record why they sought an indictment for murder
as opposed to a lesser charge, id. at 19, or
why they recommended a certain plea, id. at
[n12] The attorneys were not required
to report to Slaton the cases in which they decided
not to seek the death penalty, id. at 34-36,
38, or the cases in which they did seek the death
penalty, id. at 41.
directly as to how the office decided whether to
seek the death penalty, Slaton listed several
factors he thought relevant to that decision,
including the strength of the evidence, the
atrociousness of the crime, and the likelihood that
a jury would impose the death sentence. Id.
at 59. He explained that the attorneys did not seek
the death penalty in every case in which statutory
aggravating factors existed. Id. at 38-39.
Slaton testified that his office still operated in
the same manner as it did when he took office in
1965, except that it has not sought the death
penalty in any rape cases since this Court's
decision in Coker v. Georgia, 433 U.S. 584
(1977). Deposition 60.
In addition to
this showing that the challenged system was
susceptible to abuse, McCleskey presented evidence
of the [p359] history of
prior discrimination in the Georgia system. JUSTICE
BRENNAN has reviewed much of this history in detail
in his dissenting opinion, ante at 328-334,
including the history of Georgia's racially based
dual system of criminal justice. This historical
background of the state action challenged "is one
evidentiary source" in this equal protection case.
Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 267
(1977); see also Rogers v. Lodge, 458 U.S.
613, 618, 623-625 (1982). Although I would agree
that evidence of "official actions taken long ago"
could not alone establish that the current system is
applied in an unconstitutionally discriminatory
manner, I disagree with the Court's statement that
such evidence is now irrelevant. Ante at 298,
evidence, considered in conjunction with the other
record evidence outlined by JUSTICE BRENNAN, ante
at 325-328, and discussed in opinions dissenting
from the judgment of the Court of Appeals, 753 F.2d
at 919 (Hatchett, J., dissenting in part and
concurring in part); id. at 920-923 (Clark,
J., dissenting in part and concurring in part),
gives rise to an inference of discriminatory purpose.
See Washington v. Davis, 426 U.S. at 239-242.
As in the context of the rule of exclusion, see
n. 6, supra, 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. See Castaneda v.
Partida, 430 U.S. at 494, n. 13. The burden,
therefore, shifts to the State to explain the racial
selections. It must demonstrate that legitimate
racially neutral criteria and procedures yielded
this racially skewed result.
In rebuttal, the
State's expert suggested that, if the Baldus thesis
was correct, then the aggravation level in black-victim
cases where a life sentence was imposed would be
higher than in white-victim cases. See 580
F.Supp. at 373. The expert analyzed aggravating and
mitigating circumstances [p360]
one by one,
demonstrating that, in life sentence cases, to the
extent that any aggravating circumstance is more
prevalent in one group than the other, there are
more aggravating features in the group of
white-victim cases than in the group of black-victim
cases. Conversely, there were more mitigating
circumstances in which black-victim cases had a
higher proportion of that circumstance than in
District Court found that the State's suggestion was
plausible. It concluded, however, that the State did
not conclusively disprove McCleskey's case; yet it
reasoned that the State's theory "stands to
contradict any prima facie case." Ibid.
I find that reasoning wrong as a matter of law, and
the conclusion clearly erroneous.
The State did
not test its hypothesis to determine if white-victim
and black-victim cases at the same level of
aggravating circumstances were similarly treated. Tr.
1613-1614, 1664. McCleskey's experts, however,
performed this test on their data. Id. at
1297, 1729-1732, 1756-1761. They demonstrated that
the racial disparities in the system were not the
result of the differences in the average aggravation
levels between white-victim and black-victim cases.
See Supp. Exh. 72; Tr. 1291-1296;
Petitioner's Exhibit DB 92. The State's meager and
unsophisticated evidence cannot withstand the
extensive scrutiny given the Baldus evidence.
Here, as in Bazemore v. Friday, the State did
not "demonstrate that, when th[e] factors were
properly organized and accounted for, there was no
significant disparity" between the death sentences
imposed on defendants convicted of killing white
victims and those imposed on defendants convicted of
killing black victims. 478 U.S. at 403-404, n. 14.
In Castaneda, we rejected a similar effort by
the State to rely on an unsupported countervailing
theory to rebut the evidence. 430 U.S. at 500. In
sum, McCleskey has demonstrated a clear pattern of
differential treatment according to race that is "unexplainable
on grounds other than race." Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S.
The Court's explanations for its failure to apply
this well-established equal protection analysis to
this case are not persuasive. It first reasons that
"each particular decision to impose the death
penalty is made by a petit jury," and that the
an inference drawn from the general statistics to a
specific decision in a trial and sentencing simply
is not comparable to the application of an inference
drawn from general statistics to a specific venire-selection
or Title VII [p362]
294-295. According to the Court, the statistical
evidence is less relevant because, in the two latter
situations, there are fewer variables relevant to
the decision and the "statistics relate to fewer
entities." Ante at 295.
I disagree with
the Court's assertion that there are fewer variables
relevant to the decisions of jury commissioners or
prosecutors in their selection of jurors, or to the
decisions of employers in their selection, promotion,
or discharge of employees. Such decisions involve a
multitude of factors, some rational, some irrational.
Second, I disagree with the comment that the venire-selection
and employment decisions are "made by fewer entities."
Certainly in the employment context, personnel
decisions are often the product of several levels of
decisionmaking within the business or government
structure. The Court's statement that the decision
to impose death is made by the petit jury also
disregards the fact that the prosecutor screens the
cases throughout the pretrial proceedings and
decides to seek the death penalty and to pursue a
capital case to the penalty phase where a death
sentence can be imposed. McCleskey's claim in this
regard lends itself to analysis under the framework
we apply in assessing challenges to other
prosecutorial actions. See Batson v. Kentucky,
476 U.S. 79 (1986); see also Wayte v.
United States, 470 U.S. 598, 608, n. 10
(1985) (applying Castaneda framework in
challenge to prosecutor's allegedly selective
enforcement of criminal sanction). It is appropriate
to judge claims of racially discriminatory
prosecutorial selection of cases according to
ordinary equal protection standards. 470 U.S. at
other reason for treating this case differently from
venire-selection and employment cases is that, in
these latter contexts, "the decisionmaker has an
opportunity to explain the statistical disparity,"
but in the instant case, the State had no practical
opportunity to rebut the Baldus study. Ante
at 296. According to the Court, this is because
jurors cannot be called to testify about their
verdict, and because [p363]
policy considerations render it improper to require
"prosecutors to defend their decisions to seek death
penalties, ‘often years after they were made.'"
Ibid., quoting Imbler v Pachtman, 424
U.S. 409, 425 (1976).
I agree with the
Court's observation as to the difficulty of
examining the jury's decisionmaking process. There
perhaps is an inherent tension between the
discretion accorded capital sentencing juries and
the guidance for use of that discretion that is
constitutionally required. In his dissenting opinion,
JUSTICE BRENNAN demonstrates that the Eighth
Amendment analysis is well-suited to address
that aspect of the case. Ante at 323. The
Court's refusal to require that the prosecutor
provide an explanation for his actions, however, is
completely inconsistent with this Court's
longstanding precedents. The Court misreads
Imbler v. Pachtman. In that case, the Court held
that a prosecutor who acted within the scope of his
duties was entitled to absolute immunity in an
action under 42 U.S.C. § 1983 for damages.
We recognized that immunity from damages actions was
necessary to prevent harassing litigation and to
avoid the threat of civil litigation undermining the
prosecutor's independence of judgment. We clearly
specified, however, that the policy considerations
that compelled civil immunity did not mean that
prosecutors could not be called to answer for their
actions. We noted the availability of both criminal
sanctions and professional ethical discipline. 424
U.S. at 429. Prosecutors undoubtedly need adequate
discretion to allocate the resources of their
offices and to fulfill their responsibilities to the
public in deciding how best to enforce the law, but
this does not place them beyond the constraints
imposed on state action under the Fourteenth
Amendment. Cf. Ex parte Virginia, 100
U.S. 339 (1880) (upholding validity of
conviction of state judge for discriminating on the
basis of race in his selection of jurors).
attempts to distinguish the present case from
Batson v. Kentucky, in which we recently
reaffirmed the fact [p364]
that prosecutors' actions are not unreviewable.
See ante at 296, n. 17. I agree with the Court's
observation that this case is "quite different" from
the Batson case. Ibid. The irony is
that McCleskey presented proof in this case that
would have satisfied the more burdensome standard of
Swain v. Alabama, 380 U.S. 202 (1965),
a standard that was described in Batson as
having placed on defendants a "crippling burden of
proof." 476 U.S. at 92. As discussed above,
McCleskey presented evidence of numerous decisions
impermissibly affected by racial factors over a
significant number of cases. The exhaustive evidence
presented in this case certainly demands an inquiry
into the prosecutor's actions.
assertion that, because of the necessity of
discretion in the criminal justice system, it "would
demand exceptionally clear proof," ante at
297, before inferring abuse of that discretion thus
misses the point of the constitutional challenge in
this case. Its conclusory statement that "the
capacity of prosecutorial discretion to provide
individualized justice is ‘firmly entrenched in
American law,'" ante at 311-312, quoting 2 W.
LaFave & J. Israel, Criminal Procedure § 13.2(a), p.
160 (1984), is likewise not helpful. The issue in
this case is the extent to which the constitutional
guarantee of equal protection limits the discretion
in the Georgia capital sentencing system. As the
Court concedes, discretionary authority can be
discriminatory authority. Ante at 312.
Prosecutorial decisions may not be "‘deliberately
based upon an unjustifiable standard such as race,
religion, or other arbitrary classification.'"
Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978), quoting Oyler v. Boles, 368 U.S.
448, 456 (1962). Judicial scrutiny is
particularly appropriate in McCleskey's case because
"[m]ore subtle, less consciously held racial
attitudes could also influence" the decisions in the
Georgia capital sentencing system. Turner v.
Murray, 476 U.S. 28, 35 (1986); see
n. 13, supra. The Court's rejection of
McCleskey's equal protection claims is
[p365] a far cry from
the "sensitive inquiry" mandated by the Constitution.
One of the final
concerns discussed by the Court may be the most
disturbing aspect of its opinion. Granting relief to
McCleskey in this case, it is said, could lead to
further constitutional challenges. Ante at
314-319. That, of course, is no reason to deny
McCleskey his rights under the Equal Protection
Clause. If a grant of relief to him were to lead to
a closer examination of the effects of racial
considerations throughout the criminal justice
system, the system, and hence society, might benefit.
Where no such factors come into play, the integrity
of the system is enhanced. Where such considerations
are shown to be significant, efforts can be made to
eradicate their impermissible influence and to
ensure an evenhanded application of criminal
STEVENS, I do not believe acceptance of McCleskey's
claim would eliminate capital punishment in Georgia.
Post at 367. JUSTICE STEVENS points out that
the evidence presented in this case indicates that,
in extremely aggravated murders, the risk of
discriminatory enforcement of the death penalty is
minimized. Ibid. I agree that narrowing the
class of death-eligible defendants is not too high a
price to pay for a death penalty system that does
not discriminate on the basis of race. Moreover, the
establishment of guidelines for Assistant District
Attorneys as to the appropriate basis for exercising
their discretion at the various steps in the
prosecution of a case would provide at least a
measure of consistency. The Court's emphasis on the
procedural safeguards in the system ignores the fact
that there are none whatsoever during the crucial
process leading up to trial. As JUSTICE WHITE stated
for the plurality in Turner v. Murray, I find
the risk that
racial prejudice may [p366]
have infected petitioner's capital sentencing
unacceptable in light of the ease with which that
risk could have been minimized.
476 U.S. at 36.
In Brown v.
Board of Education, 347 U.S. 483 (1954),
this Court held that, despite the fact that the
legislative history of the Fourteenth Amendment
indicated that Congress did not view racial
discrimination in public education as a specific
target, the Amendment nevertheless prohibited such
discrimination. The Court today holds that, even
though the Fourteenth Amendment was aimed
specifically at eradicating discrimination in the
enforcement of criminal sanctions, allegations of
such discrimination supported by substantial
evidence are not constitutionally cognizable. But
see Batson v. Kentucky, 476 U.S. 79, 85
(1986) (allegations of racially discriminatory
exercise of peremptory challenges by prosecutor
subject to review under Fourteenth Amendment
because "[e]xclusion of black citizens from service
as jurors constitutes a primary example of the evil
the Fourteenth Amendment was designed to
prosecutors sought the death penalty in 70% of the
cases involving black defendants and white victims;
32% of the cases involving white defendants and
white victims; 15% of the cases involving black
defendants and black victims; and 19% of the cases
involving white defendants and black victims,
The Court relies
heavily on its assertion that prosecutorial
discretion should not be reviewed, ante at
296-297, 311-312, but elsewhere concedes that such
discretion may not be exercised in a racially
discriminatory manner, ante at 309, n. 30. It
nowhere explains why this limitation on
prosecutorial discretion does not require the same
analysis that we apply in other cases involving
equal protection challenges to the exercise of
prosecutorial discretion. See, e.g., Batson v.
Kentucky, 476 U.S. 79 (1986).
In deciding if
the defendant has carried his burden of persuasion,
a court must undertake "a sensitive inquiry into
such circumstantial and direct evidence of intent as
may be available." Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S.
at 266. Circumstantial evidence of invidious intent
may include proof of disproportionate impact.
Washington v. Davis, 426 U.S. at 242. We have
observed that, under some circumstances, proof of
discriminatory impact may, for all practical
purposes, demonstrate unconstitutionality, because,
in various circumstances, the discrimination is very
difficult to explain on nonracial grounds.
Kentucky, 476 U.S. at 93.
disparity is sufficiently large, then it is unlikely
that it is due solely to chance or accident, and, in
the absence of evidence to the contrary, one must
conclude that racial or other class-related factors
entered into the selection process.
494, n. 13.
The Court of
Appeals found the evidence presented by Maxwell
incomplete, not directly relevant to his individual
claim, and statistically insufficient. McCleskey's
evidence, however, is of such a different level of
sophistication and detail that it simply cannot be
rejected on those grounds. Unlike the evidence
presented by Maxwell, which did not contain data
from the jurisdiction in which he was tried and
sentenced, McCleskey's evidence includes data from
the relevant jurisdiction. Whereas the analyses
presented by Maxwell did not take into account a
significant number of variables, and were based on a
universe of 65 cases, the analyses presented by
McCleskey's evidence take into account more than 400
variables and are based on data concerning all
offenders arrested for homicide in Georgia from 1973
through 1978, a total of 2,484 cases. Moreover, the
sophistication of McCleskey's evidence permits
consideration of the existence of racial
discrimination at various decision points in the
process, not merely at the jury decision. It is this
experience, in part, that convinces me of the
significance of the Baldus study.
assertions by state officials that they did not
discriminate or that they properly performed their
official duties, however, cannot meet the State's
burden of rebuttal of the prima facie case.
See Alexander v. Louisiana, 405 U.S. 625,
631-632 (1972); Whitus v. Georgia, 385
U.S. 545, 551-552 (1967). Moreover, there are
many ways in which racial factors can enter
indirectly into prosecutorial decisions. For example,
the authors of a study similar to that of Baldus
penalty prosecutions require large allocations of
scarce prosecutorial resources, prosecutors must
choose a small number of cases to receive this
expensive treatment. In making these choices, they
may favor homicides that are visible and disturbing
to the majority of the community, and these will
tend to be white-victim homicides.
Gross & Mauro, Patterns of Death:
An Analysis of Racial Disparities in Capital
Sentencing and Homicide Victimization, 37 Stan.L.Rev.
27, 106-107 (1984); see generally Johnson,
Race and the Decision to Detain a Suspect, 93 Yale
L.J. 214 (1983); Lawrence, The Id, the Ego, and
Equal Protection: Reckoning with Unconscious Racism,
39 Stan.L.Rev. 317 (1987).