POWELL, J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
McCleskey v. Kemp
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
15, 1986 --- Decided:
April 22, 1987
JUSTICE POWELL delivered the opinion of the Court.
presents the question whether a complex statistical
study that indicates a risk that racial
considerations enter [p283]
into capital sentencing determinations proves that
petitioner McCleskey's capital sentence is
unconstitutional under the Eighth or Fourteenth
black man, was convicted of two counts of armed
robbery and one count of murder in the Superior
Court of Fulton County, Georgia, on October 12,
1978. McCleskey's convictions arose out of the
robbery of a furniture store and the killing of a
white police officer during the course of the
robbery. The evidence at trial indicated that
McCleskey and three accomplices planned and carried
out the robbery. All four were armed. McCleskey
entered the front of the store while the other three
entered the rear. McCleskey secured the front of the
store by rounding up the customers and forcing them
to lie face down on the floor. The other three
rounded up the employees in the rear and tied them
up with tape. The manager was forced at gunpoint to
turn over the store receipts, his watch, and $6.
During the course of the robbery, a police officer,
answering a silent alarm, entered the store through
the front door. As he was walking down the center
aisle of the store, two shots were fired. Both
struck the officer. One hit him in the face and
later, McCleskey was arrested in connection with an
unrelated offense. He confessed that he had
participated in the furniture store robbery, but
denied that he had shot the police officer. At trial,
the State introduced evidence that at least one of
the bullets that struck the officer was fired from a
.38 caliber Rossi revolver. This description matched
the description of the gun that McCleskey had
carried during the robbery. The State also
introduced the testimony of two witnesses who had
heard McCleskey admit to the shooting.
convicted McCleskey of murder.
[n1] At the penalty hearing,
[n2] the jury heard arguments as to
the appropriate sentence. Under Georgia law, the
jury could not consider imposing the death penalty
unless it found beyond a reasonable doubt that the
murder was accompanied by one of the statutory
aggravating circumstances. Ga.Code Ann.
§ 17-10-30(c) (1982).
[n3] The jury in this case found two
circumstances to exist beyond a reasonable doubt:
the murder was committed during the course of an
armed robbery, § 17-10-30(b)(2); and the murder was
committed upon a peace officer engaged in the
performance of his duties, § 17-10-30(b)(8). In
making its decision whether to impose the death
sentence, the jury considered the mitigating and
aggravating circumstances of McCleskey's conduct.
§ 17-10-2(c). McCleskey offered no mitigating
evidence. The jury recommended that he be sentenced
to death on the murder charge, and to consecutive
life sentences on the armed robbery charges. The
court followed the jury's recommendation and
sentenced McCleskey to death.
On appeal, the
Supreme Court of Georgia affirmed the convictions
and the sentences. McCleskey v. State, 245
Ga. 108, 263 S.E.2d 146 (1980). This Court denied a
petition for a writ of certiorari. McCleskey v.
Georgia, 449 U.S. 891 (1980). The
Superior Court of Fulton County denied McCleskey's
extraordinary motion for a new trial. McCleskey then
filed a petition for a writ of habeas corpus in the
[p286] Superior Court of
Butts County. After holding an evidentiary hearing,
the Superior Court denied relief. McCleskey v.
Zant, No. 4909 (Apr. 8, 1981). The Supreme Court
of Georgia denied McCleskey's application for a
certificate of probable cause to appeal the Superior
Court's denial of his petition, No. 81-5523, and
this Court again denied certiorari. McCleskey v.
Zant, 454 U.S. 1093 (1981).
filed a petition for a writ of habeas corpus in the
Federal District Court for the Northern District of
Georgia. His petition raised 18 claims, one of which
was that the Georgia capital sentencing process is
administered in a racially discriminatory manner in
violation of the Eighth and Fourteenth Amendments
to the United States Constitution. In support of his
claim, McCleskey proffered a statistical study
performed by Professors David C. Baldus, Charles
Pulaski, and George Woodworth (the Baldus study)
that purports to show a disparity in the imposition
of the death sentence in Georgia based on the race
of the murder victim and, to a lesser extent, the
race of the defendant. The Baldus study is actually
two sophisticated statistical studies that examine
over 2,000 murder cases that occurred in Georgia
during the 1970's. The raw numbers collected by
Professor Baldus indicate that defendants charged
with killing white persons received the death
penalty in 11% of the cases, but defendants charged
with killing blacks received the death penalty in
only 1% of the cases. The raw numbers also indicate
a reverse racial disparity according to the race of
the defendant: 4% of the black defendants received
the death penalty, as opposed to 7% of the white
divided the cases according to the combination of
the race of the defendant and the race of the victim.
He found that the death penalty was assessed in 22%
of the cases involving black defendants and white
victims; 8% of the cases involving white defendants
and white victims; 1% of the cases involving black
defendants and black victims; and 3% of the cases
involving white defendants and black victims.
[p287] Similarly, Baldus
found that 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
his data to an extensive analysis, taking account of
230 variables that could have explained the
disparities on nonracial grounds. One of his models
concludes that, even after taking account of 39
nonracial variables, defendants charged with killing
white victims were 4.3 times as likely to receive a
death sentence as defendants charged with killing
blacks. According to this model, black defendants
were 1.1 times as likely to receive a death sentence
as other defendants. Thus, the Baldus study
indicates that black defendants, such as McCleskey,
who kill white victims have the greatest likelihood
of receiving the death penalty.
Court held an extensive evidentiary hearing on
McCleskey's petition. Although it believed that
McCleskey's Eighth Amendment claim was
foreclosed by the Fifth Circuit's decision in
Spinkellink v. Wainwright, 678 F.2d 682, 612-616
(1978), cert. denied, 440 U.S. 976
(1979), it nevertheless considered the Baldus study
with care. It concluded [p288]
not demonstrate a prima facie case in support
of the contention that the death penalty was imposed
upon him because of his race, because of the race of
the victim, or because of any Eighth Amendment
Zant, 580 F.Supp. 338, 379 (ND Ga.1984). As to
McCleskey's Fourteenth Amendment claim, the
court found that the methodology of the Baldus study
was flawed in several respects.
[n6] Because of these defects,
[p289] the court held
that the Baldus study "fail[ed] to contribute
anything of value" to McCleskey's claim. Id.
at 372 (emphasis omitted). Accordingly, the court
denied the petition insofar as it was based upon the
The Court of
Appeals for the Eleventh Circuit, sitting en banc,
carefully reviewed the District Court's decision on
McCleskey's claim. 753 F.2d 877 (1985). It assumed
the validity of the study itself, and addressed the
merits of McCleskey's Eighth and Fourteenth
Amendment claims. That is, the court assumed
that the study
systematic 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.
895. Even assuming the study's validity, the Court
of Appeals found the statistics
to demonstrate discriminatory intent or
unconstitutional discrimination in the Fourteenth
Amendment context, [and] insufficient to show
irrationality, arbitrariness and capriciousness
under any kind of Eighth Amendment analysis.
891. The court noted:
exercise of discretion means that persons exercising
discretion may reach different results from exact
duplicates. Assuming each result is within the range
of discretion, all are correct in the eyes of the
law. It would not make sense for the system to
require the exercise of discretion in order to be
facially constitutional, [p290]
and at the same time hold a system unconstitutional
in application where that discretion achieved
different results for what appear to be exact
duplicates, absent the state showing the reasons for
approach . . . would take the cases with different
results on what are contended to be duplicate facts,
where the differences could not be otherwise
explained, and conclude that the different result
was based on race alone. . . . This approach ignores
the realities. . . . There are, in fact, no exact
duplicates in capital crimes and capital defendants.
The type of research submitted here tends to show
which of the directed factors were effective, but is
of restricted use in showing what undirected factors
control the exercise of constitutionally required
898-899. The court concluded:
it would seem that the statistical evidence
presented here, assuming its validity, confirms,
rather than condemns, the system. . . . The marginal
disparity based on the race of the victim tends to
support the state's contention that the system is
working far differently from the one which Furman
[v. Georgia, 408 U.S. 238 (1972)]
condemned. In pre-Furman days, there was no
rhyme or reason as to who got the death penalty and
who did not. But now, in the vast majority of cases,
the reasons for a difference are well documented.
That they are not so clear in a small percentage of
the cases is no reason to declare the entire system
899. The Court of Appeals affirmed the denial by the
District Court of McCleskey's petition for a writ of
habeas corpus insofar as the petition was based upon
the Baldus study, with three judges dissenting as to
McCleskey's claims based on
[p291] the Baldus study. We granted
certiorari, 478 U.S. 1019 (1986), and now
first claim is that the Georgia capital punishment
statute violates the Equal Protection Clause of the
[n7] He argues that race has infected
the administration of Georgia's statute in two ways:
persons who murder whites are more likely to be
sentenced to death than persons who murder blacks,
and black murderers are more likely to be sentenced
to death than white murderers.
As a black defendant who killed a white victim,
McCleskey claims that the Baldus study demonstrates
that he was discriminated against because of his
race and because of the race of his victim. In its
broadest form, McCleskey's claim of discrimination
extends to every actor in the Georgia capital
sentencing process, from the prosecutor who 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. We agree with the Court of Appeals, and
every other court that has considered such a
[n9] that this claim must fail.
begins with the basic principle that a defendant who
alleges an equal protection violation has the burden
of proving "the existence of purposeful
discrimination." Whitus v. Georgia, 385
U.S. 545, 550 (1967).
[n10] A corollary to this principle is
that a criminal defendant must prove that the
purposeful discrimination "had a discriminatory
effect" on him. Wayte v. United States,
470 U.S. 598, 608 (1985). Thus, to prevail under
the Equal Protection Clause, McCleskey must prove
that the decisionmakers in his case acted
with discriminatory purpose. He offers no evidence
specific to his own case that would support an
inference that racial [p293]
considerations played a part in his sentence.
Instead, he relies solely on the Baldus study.
[n11] McCleskey argues that the Baldus
study compels an inference that his sentence rests
on purposeful discrimination. McCleskey's claim that
these statistics are sufficient proof of
discrimination, without regard to the facts of a
particular case, would extend to all capital cases
in Georgia, at least where the victim was white and
the defendant is black.
The Court has
accepted statistics as proof of intent to
discriminate in certain limited contexts. First,
this Court has accepted statistical disparities as
proof of an equal protection violation in the
selection of the jury venire in a particular
district. Although statistical proof normally must
present a "stark" pattern to be accepted as the sole
proof of discriminatory intent under the
[n12] Arlington Heights v.
Housing Dev. Corp., 429 U.S. 252, 266
the nature of the jury-selection task, . . . we have
permitted a finding of constitutional violation even
when the statistical pattern does not approach [such]
266, n. 13.
[n13] Second, this Court has accepted
statistics in the form of multiple-regression
analysis to prove statutory violations under Title
VII of the Civil Rights Act of 1964. Bazemore v.
Friday, 478 U.S. 385, 400-401 (1986) (opinion
of BRENNAN, J., concurring in part).
But the nature
of the capital sentencing decision, and the
relationship of the statistics to that decision, are
fundamentally different from the corresponding
elements in the venire selection or Title VII cases.
Most importantly, each particular decision to impose
the death penalty is made by a petit jury selected
from a properly constituted venire. Each jury is
unique in its composition, and the Constitution
requires that its decision rest on consideration of
innumerable factors that vary according to the
characteristics of the individual defendant and the
facts of the particular capital offense. See
Hitchcock v. Dugger, post, at 398-399;
Lockett v. Ohio, 438 U.S. 586, 602-605
(1978) (plurality opinion of Burger, C.J.). Thus,
the application of 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
[p295] or Title VII
case. In those cases, the statistics relate to fewer
[n14] and fewer variables are relevant
to the challenged decisions.
important difference between the cases in which we
have accepted statistics as proof of discriminatory
intent and this case is that, in the venire-selection
and Title VII contexts, the decisionmaker has an
opportunity to explain the statistical disparity.
See Whitus v. Georgia, 385 U.S. at 552; Texas
Dept. of Community Affairs v. Burdine, 450
U.S. 248, 254 (1981); McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). Here,
the State has no practical opportunity to rebut the
Baldus study. "[C]ontrolling considerations of . . .
public policy," McDonald v. Pless, 238
U.S. 264, 267 (1915), dictate that jurors "cannot
be called . . . to testify to the motives and
influences that led to their verdict." Chicago,
B. & Q. R. Co. v. Babcock, 204 U.S. 585,
593 (1907). Similarly, the policy considerations
behind a prosecutor's traditionally "wide discretion"
[n16] suggest the impropriety of our
requiring prosecutors to defend their decisions to
seek death penalties, "often years after they were
[n17] See Imbler v. Pachtman,
424 U.S. 409, 425-426 (1976).
[n18] Moreover, absent far stronger
proof, it is unnecessary [p297]
to seek such a rebuttal, because a 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.
McCleskey's statistical proffer must be viewed in
the context of his challenge. McCleskey challenges
decisions at the heart of the State's criminal
society's most basic tasks is that of protecting the
lives of its citizens, and one of the most basic
ways in which it achieves the task is through
criminal laws against murder.
Georgia, 428 U.S. 153, 226 (1976) (WHITE,
J., concurring). Implementation of these laws
necessarily requires discretionary judgments.
Because discretion is essential to the criminal
justice process, we would demand exceptionally clear
proof before we would infer that the discretion has
been abused. The unique nature of the decisions at
issue in this case also counsels against adopting
such an inference from the disparities indicated by
the Baldus study. Accordingly, we hold that the
Baldus study is clearly insufficient to support an
inference that any of the decisionmakers in
McCleskey's case acted with discriminatory purpose.
suggests that the Baldus study proves that the State
as a whole has acted with a discriminatory purpose.
He appears to argue that the State has violated the
Equal [p298] Protection
Clause by adopting the capital punishment statute
and allowing it to remain in force despite its
allegedly discriminatory application. But
purpose" . . . implies more than intent as volition
or intent as awareness of consequences. It implies
that the decisionmaker, in this case a state
legislature, selected or reaffirmed a particular
course of action at least in part "because of," not
merely "in spite of," its adverse effects upon an
Administrator of Massachusetts v. Feeney, 442
U.S. 256, 279 (1979) (footnote and citation
omitted). See Wayte v. United States, 470
U.S. at 608-609. For this claim to prevail,
McCleskey would have to prove that the Georgia
Legislature enacted or maintained the death penalty
statute because of an anticipated racially
discriminatory effect. In Gregg v. Georgia, supra,
this Court found that the Georgia capital sentencing
system could operate in a fair and neutral manner.
There was no evidence then, and there is none now,
that the Georgia Legislature enacted the capital
punishment statute to further a racially
[n20] Nor has McCleskey demonstrated
that the legislature maintains the capital
punishment statute because of the racially
disproportionate impact suggested by the Baldus
study. As legislatures necessarily have wide
discretion in the choice of criminal laws and
penalties, and as there were
[p299] legitimate reasons for the Georgia
Legislature to adopt and maintain capital punishment,
see Gregg v. Georgia, supra, at 183-187 (joint
opinion of Stewart, POWELL, and STEVENS, JJ.), we
will not infer a discriminatory purpose on the part
of the State of Georgia.
[n21] Accordingly, we reject
McCleskey's equal protection claims.
argues that the Baldus study demonstrates that the
Georgia capital sentencing system violates the
[n22] We begin our analysis of this
claim by reviewing the restrictions on death
sentences established by our prior decisions under
Amendment prohibits infliction of "cruel and
unusual punishments." This Court's early Eighth
Amendment cases examined only the "particular
methods of execution to determine whether they were
too cruel to pass constitutional muster." Gregg
v. Georgia, supra, at 170. See In re Kemmler,
136 U.S. 436 (1890) (electrocution);
[p300] Wilkerson v.
Utah, 99 U.S. 130 (1879) (public shooting).
Subsequently, the Court recognized that the
constitutional prohibition against cruel and unusual
punishments "is not fastened to the obsolete, but
may acquire meaning as public opinion becomes
enlightened by a humane justice." Weems v. United
States, 217 U.S. 349, 378 (1910). In
Weems, the Court identified a second principle
inherent in the Eighth Amendment, "that
punishment for crime should be graduated and
proportioned to offense." Id. at 367.
Warren, writing for the plurality in Trop v.
Dulles, 356 U.S. 86, 99 (1958),
acknowledged the constitutionality of capital
punishment. In his view, the "basic concept
underlying the Eighth Amendment" in this area
is that the penalty must accord with "the dignity of
man." Id. at 100. In applying this mandate,
we have been guided by his statement that "[t]he
Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a
maturing society." Id. at 101. Thus, our
constitutional decisions have been informed by "contemporary
values concerning the infliction of a challenged
sanction," Gregg v. Georgia, 428 U.S. at 173.
In assessing contemporary values, we have eschewed
subjective judgment, and instead have sought to
ascertain "objective indicia that reflect the public
attitude toward a given sanction." Ibid.
First among these indicia are the decisions of state
legislatures, "because the . . . legislative
judgment weighs heavily in ascertaining"
contemporary standards, id. at 175. We also
have been guided by the sentencing decisions of
juries, because they are "a significant and reliable
objective index of contemporary values," id.
at 181. Most of our recent decisions as to the
constitutionality of the death penalty for a
particular crime have rested on such an examination
of contemporary values. E.g., Enmund v. Florida,
458 U.S. 782, 789-796 (1982) (felony murder);
Coker v. Georgia, 433 U.S. 584,
592-597 (1977) (plurality opinion of WHITE, J.)
(rape); Gregg v. Georgia, supra, at 179-182 (murder).
decisions guide our resolution of McCleskey's
Eighth Amendment claim. In Furman v. Georgia,
408 U.S. 238 (1972), the Court concluded that
the death penalty was so irrationally imposed that
any particular death sentence could be presumed
excessive. Under the statutes at issue in Furman,
there was no basis for determining in any particular
case whether the penalty was proportionate to the
penalty [was] exacted with great infrequency even
for the most atrocious crimes, and . . . there [was]
no meaningful basis for distinguishing the few cases
in which it [was] imposed from the many cases in
which it [was] not.
313 (WHITE, J., concurring).
the Court specifically addressed the question left
open in Furman -- whether the punishment of
death for murder is "under all circumstances, ‘cruel
and unusual' in violation of the Eighth and
Fourteenth Amendments of the Constitution." 428
U.S. at 168. We noted that the imposition of the
death penalty for the crime of murder "has a long
history of acceptance both in the United States and
in England." Id. at 176 (joint opinion of
Stewart, POWELL, and STEVENS, JJ.). "The most marked
indication of society's endorsement of the death
penalty for murder [was] the legislative response to
Furman." Id. at 179. During the 4-year
period between Furman and Gregg, at
least 35 States had reenacted the death penalty, and
Congress had authorized the penalty for aircraft
piracy. 428 U.S. at 179-180.
[n23] The "actions of juries" were "fully
compatible with the legislative judgments." Id.
at 182. We noted that any punishment might be
unconstitutionally severe if inflicted without
penological justification, but concluded:
of federalism, as well as respect for the ability of
a legislature to evaluate, in terms of its
particular State, the moral consensus concerning the
death penalty and its social utility as a sanction,
require us to conclude, in the absence of more
convincing evidence, that the infliction of death as
a punishment for murder is not without justification,
and thus is not unconstitutionally severe.
question before the Court in Gregg was the
constitutionality of the particular procedures
embodied in the Georgia capital punishment statute.
We explained the fundamental principle of Furman,
discretion is afforded a sentencing body on a matter
so grave as the determination of whether a human
life should be taken or spared, that discretion must
be suitably directed and limited so as to minimize
the risk of wholly arbitrary and capricious action.
428 U.S. at 189.
Numerous features of the then-new Georgia statute
met the concerns articulated in Furman.
[n24] The Georgia system bifurcates
guilt and sentencing proceedings, so that the jury
can receive all relevant information for sentencing
without the risk that evidence irrelevant to the
defendant's guilt will influence the jury's
consideration of that issue. The statute narrows the
class of murders subject to the death penalty to
cases in which the jury finds at least one statutory
aggravating circumstance beyond a reasonable doubt.
Conversely, it allows the defendant to introduce any
relevant mitigating evidence that might influence
the jury not to impose a death sentence. See
428 U.S. at 163-164. The procedures also require a
particularized inquiry into "‘the circumstances of
the offense, together with the character and
propensities of the offender.'" Id. at 189 (quoting
Pennsylvania ex rel. Sullivan v. Ashe, 302
U.S. 51, 55 (1937)). Thus,
jury discretion still exists, "the
[p303] discretion to be exercised is
controlled by clear and objective standards, so as
to produce nondiscriminatory application."
428 U.S. at
197-198 (quoting Coley v. State, 231 Ga. 829,
834, 204 S.E.2d 612, 615 (1974)). Moreover, the
Georgia system adds "an important additional
safeguard against arbitrariness and caprice" in a
provision for automatic appeal of a death sentence
to the State Supreme Court. 428 U.S. at 198. The
statute requires that court to review each sentence
to determine whether it was imposed under the
influence of passion or prejudice, whether the
evidence supports the jury's finding of a statutory
aggravating circumstance, and whether the sentence
is disproportionate to sentences imposed in
generally similar murder cases. To aid the court's
review, the trial judge answers a questionnaire
about the trial, including detailed questions as to
"the quality of the defendant's representation [and]
whether race played a role in the trial." Id.
In the cases
decided after Gregg, the Court has imposed a
number of requirements on the capital sentencing
process to ensure that capital sentencing decisions
rest on the individualized inquiry contemplated in
Gregg. In Woodson v. North Carolina,
428 U.S. 280 (1976), we invalidated a
mandatory capital sentencing system, finding that
humanity underlying the Eighth Amendment
requires consideration of the character and record
of the individual offender and the circumstances of
the particular offense as a constitutionally
indispensable part of the process of inflicting the
penalty of death.
304 (plurality opinion of Stewart, POWELL, and
STEVENS, JJ.) (citation omitted). Similarly, a State
must "narrow the class of murderers subject to
capital punishment," Gregg v. Georgia, supra,
at 196, by providing "specific and detailed guidance"
to the sentencer.
Proffitt v. Florida, 428 U.S. 242, 253
(1976) (joint opinion of Stewart, POWELL, and
In contrast to
the carefully defined standards that must narrow a
sentencer's discretion to impose the death
sentence, the Constitution limits a State's ability
to narrow a sentencer's discretion to consider
relevant evidence that might cause it to decline
to impose the death sentence.
sentencer . . . [cannot] be precluded from
considering, as a mitigating factor, any
aspect of a defendant's character or record and any
of the circumstances of the offense that the
defendant proffers as a basis for a sentence less
Ohio, 438 U.S. at 604 (plurality opinion of
Burger, C.J.) (emphasis in original; footnote
omitted). See Skipper v. South Carolina,
476 U.S. 1 (1986). Any exclusion of the "compassionate
or mitigating factors stemming from the diverse
frailties of humankind" that are relevant to the
sentencer's decision would fail to treat all persons
as "uniquely individual human beings." Woodson v.
North Carolina, supra, at 304.
constitutional inquiry has centered on the
procedures by which a death sentence is imposed, we
have not stopped at the face of a statute, but have
probed the application [p305]
of statutes to particular cases. For example, in
Godfrey v. Georgia, 446 U.S. 420 (1980),
the Court invalidated a Georgia Supreme Court
interpretation of the statutory aggravating
circumstance that the murder be
or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an
aggravated battery to the victim.
§ 27-2534.1(b)(7) (1978).
[n27] Although that court had
articulated an adequate limiting definition of this
phrase, we concluded that its interpretation in
Godfrey was so broad that it may have vitiated
the role of the aggravating circumstance in guiding
the sentencing jury's discretion.
the objective indicia of community values have
demonstrated a consensus that the death penalty is
disproportionate as applied to a certain class of
cases, we have established substantive limitations
on its application. In Coker v. Georgia,
433 U.S. 584 (1977), the Court held that a State
may not constitutionally sentence an individual to
death for the rape of an adult woman. In Enmund
v. Florida, 458 U.S. 782 (1982), the
Court prohibited imposition of the death penalty on
a defendant convicted of felony murder absent a
showing that the defendant possessed a sufficiently
culpable mental state. Most recently, in Ford v.
Wainwright, 477 U.S. 399 (1986), we
prohibited execution of prisoners who are insane.
In sum, our
decisions since Furman have identified a
constitutionally permissible range of discretion in
imposing the death penalty. First, there is a
required threshold below which the death penalty
cannot be imposed. In this context, the State must
establish rational criteria that narrow the
decisionmaker's judgment as to whether the
circumstances of a particular defendant's case meet
the threshold. Moreover, a societal consensus that
the death penalty is disproportionate
[p306] to a particular
offense prevents a State from imposing the death
penalty for that offense. Second, States cannot
limit the sentencer's consideration of any relevant
circumstance that could cause it to decline to
impose the penalty. In this respect, the State
cannot channel the sentencer's discretion, but must
allow it to consider any relevant information
offered by the defendant.
In light of our
precedents under the Eighth Amendment,
McCleskey cannot argue successfully that his
sentence is "disproportionate to the crime in the
traditional sense." See Pulley v. Harris,
465 U.S. 37, 43 (1984). He does not deny that he
committed a murder in the course of a planned
robbery, a crime for which this Court has determined
that the death penalty constitutionally may be
imposed. Gregg v. Georgia, 428 U.S. at 187.
His disproportionality claim "is of a different sort."
Pulley v. Harris, supra, at 43. McCleskey
argues that the sentence in his case is
disproportionate to the sentences in other murder
On the one hand,
he cannot base a constitutional claim on an argument
that his case differs from other cases in which
defendants did receive the death penalty. On
automatic appeal, the Georgia Supreme Court found
that McCleskey's death sentence was not
disproportionate to other death sentences imposed in
the State. McCleskey v. State, 245 Ga. 108,
263 S.E.2d 146 (1980). The court supported this
conclusion with an appendix containing citations to
13 cases involving generally similar murders. See
Ga.Code Ann. § 17-10-35(e) (1982). Moreover, where
the statutory procedures adequately channel the
sentencer's discretion, such proportionality review
is not constitutionally required. Pulley v.
Harris, supra, at 50-51.
On the other
hand, absent a showing that the Georgia capital
punishment system operates in an arbitrary and
capricious manner, McCleskey cannot prove a
violation by demonstrating that other defendants who
may be similarly situated did not receive the
death penalty. In Gregg, the Court confronted
the argument that "the opportunities for
discretionary action that are inherent in the
processing of any murder case under Georgia law,"
428 U.S. at 199, specifically the opportunities for
discretionary leniency, rendered the capital
sentences imposed arbitrary and capricious. We
rejected this contention:
of these discretionary stages is not determinative
of the issues before us. At each of these stages, an
actor in the criminal justice system makes a
decision which may remove a defendant from
consideration as a candidate for the death penalty.
Furman, in contrast, dealt with the decision
to impose the death sentence on a specific
individual who had been convicted of a capital
offense. Nothing in any of our cases suggests that
the decision to afford an individual defendant mercy
violates the Constitution. Furman held only
that, in order to minimize the risk that the death
penalty would be imposed on a capriciously selected
group of offenders, the decision to impose it had to
be guided by standards, so that the sentencing
authority would focus on the particularized
circumstances of the crime and the defendant.
McCleskey's sentence was imposed under Georgia
sentencing procedures that focus discretion "on the
particularized nature of the crime and the
particularized characteristics of the individual
defendant," id. at 206, we lawfully may
presume that McCleskey's death sentence was not "wantonly
and freakishly" imposed, id. at 207, and thus
that the sentence is not disproportionate within any
recognized meaning under the Eighth Amendment.
decision in Gregg as to the facial validity
of the Georgia capital punishment statute appears to
foreclose McCleskey's disproportionality argument,
he further contends that the Georgia capital
punishment system is arbitrary and capricious in
application, and therefore his sentence is
excessive, because racial considerations may
influence capital sentencing decisions in Georgia.
We now address this claim.
McCleskey's challenge, we must examine exactly what
the Baldus study may show. Even Professor Baldus
does not contend that his statistics prove
that race enters into any capital sentencing
decisions, or that race was a factor in McCleskey's
[n29] Statistics, at most, may show
only a likelihood that a particular factor entered
into some decisions. There is, of course, some risk
of racial prejudice influencing a jury's decision in
a criminal case. There are similar risks that other
kinds of prejudice will influence other criminal
trials. See infra at 315-318. The question
[p309] "is at what point
that risk becomes constitutionally unacceptable,"
Turner v. Murray, 476 U.S. 28, 36, n. 8
(1986). McCleskey asks us to accept the likelihood
allegedly shown by the Baldus study as the
constitutional measure of an unacceptable risk of
racial prejudice influencing capital sentencing
decisions. This we decline to do.
Because of the
risk that the factor of race may enter the criminal
justice process, we have engaged in "unceasing
efforts" to eradicate racial prejudice from our
criminal justice system. Batson v. Kentucky,
476 U.S. 79, 85 (1986).
[n30] Our efforts have been guided by
our recognition that
inestimable privilege of trial by jury . . . is a
vital principle, underlying the whole administration
of criminal justice,
Milligan, 4 Wall. 2, 123 (1866). See Duncan
Louisiana, 391 U.S. 145, 155 (1968).
[n31] Thus, it is the jury that is a
criminal defendant's fundamental "protection of life
and liberty against race or color prejudice."
Strauder v. West Virginia, 100 U.S. 303,
309 (1880). Specifically, a capital sentencing jury
representative of a criminal defendant's community
assures a "‘diffused impartiality,'" Taylor v.
Louisiana, 419 U.S. 522, 530 (1975) (quoting
Thiel v. Southern Pacific Co., 328 U.S.
217, 227 (1946) (Frankfurter, J., dissenting)),
in the jury's task of "express[ing] the conscience
of the community on the ultimate question of life or
death," Witherspoon v. Illinois, 391 U.S.
510, 519 (1968).
jurors bring to their deliberations "qualities of
human nature and varieties of human experience, the
range of which is unknown and perhaps unknowable."
Peters v. Kiff, 407 U.S. 493, 503
(1972) (opinion of MARSHALL, J.). The capital
sentencing decision requires the individual jurors
to focus their collective judgment on the unique
characteristics of a particular criminal defendant.
It is not surprising that such collective judgments
often are difficult to explain. But the inherent
lack of predictability of jury decisions does not
justify their condemnation. On the contrary, it is
the jury's function to make the difficult and
uniquely human judgments that defy codification, and
that "buil[d] discretion, equity, and flexibility
into a legal system." H. Kalven & H. Zeisel, The
American Jury 498 (1966).
argument that the Constitution condemns the
discretion allowed decisionmakers in the Georgia
capital sentencing system is antithetical to the
fundamental role of discretion in our criminal
justice system. Discretion in the criminal justice
system offers substantial benefits to the criminal
defendant. Not only can a jury decline to impose the
death sentence, it can decline to convict or choose
to convict of a lesser offense. Whereas decisions
against a defendant's interest may be reversed by
the trial judge or on appeal, these discretionary
exercises of leniency are final and unreviewable.
[n33] Similarly, the capacity of
prosecutorial discretion [p312]
to provide individualized justice is "only
entrenched in American law." 2 W. LaFave & J.
Israel, Criminal Procedure § 13.2(a), p. 160 (1984).
As we have noted, a prosecutor can decline to charge,
offer a plea bargain,
[n34] or decline to seek a death
sentence in any particular case. See n. 28,
supra. Of course, "the power to be lenient [also]
is the power to discriminate," K. Davis,
Discretionary Justice 170 (1973), but a capital
punishment system that did not allow for
discretionary acts of leniency "would be totally
alien to our notions of criminal justice." Gregg
v. Georgia, 428 U.S. at 200, n. 50.
At most, the
Baldus study indicates a discrepancy that appears to
correlate with race. Apparent disparities in
sentencing are an inevitable part of our criminal
The discrepancy indicated by the Baldus study is "a
far cry from the major systemic defects identified
in Furman," Pulley v. Harris, 465 U.S.
[n36] As this Court has recognized,
any mode for determining guilt or punishment "has
its weaknesses and the potential for misuse."
Singer v. United States, 380 U.S. 24, 35
(1965). See Bordenkircher v. Hayes, 434
U.S. 357, 365 (1978). Specifically, "there can
be ‘no perfect procedure for deciding in which cases
governmental authority should be used to impose
death.'" Zant v. Stephens, 462 U.S. 862,
884 (1983) (quoting Lockett v. Ohio, 438 U.S.
at 605 (plurality opinion of Burger, C.J.)). Despite
these imperfections, our consistent rule has been
that constitutional guarantees are met when "the
mode [for determining guilt or punishment] itself
has been surrounded with safeguards to make it as
fair as possible." Singer v. United States, supra,
at 35. Where the discretion that is fundamental to
our criminal process is involved, we decline to
assume that what is unexplained is invidious. In
light of the safeguards designed to minimize racial
bias in the process, the fundamental value of jury
trial in our criminal justice system, and the
benefits that discretion provides to criminal
defendants, we hold that the Baldus study does not
demonstrate a constitutionally significant risk of
racial bias affecting the Georgia capital sentencing
concerns inform our decision in this case. First,
McCleskey's claim, taken to its logical conclusion,
[p315] throws into
serious question the principles that underlie our
entire criminal justice system. The Eighth
Amendment is not limited in application to
capital punishment, but applies to all penalties.
Solem v. Helm, 463 U.S. 277, 289-290
(1983); see Rummel v. Estelle, 445 U.S.
263, 293 (1980) (POWELL, J., dissenting). Thus,
if we accepted McCleskey's claim that racial bias
has impermissibly tainted the capital sentencing
decision, we could soon be faced with similar claims
as to other types of penalty.
[n38] Moreover, the claim that his
sentence [p316] rests on
the irrelevant factor of race easily could be
extended to apply to claims based on unexplained
discrepancies that correlate to membership in other
[n39] and [p317]
even to gender.
[n40] Similarly, since McCleskey's
claim relates to the race of his victim, other
claims could apply with equally logical force to
statistical disparities that correlate with the race
or sex of other actors in the criminal justice
system, such as defense attorneys
[n41] or judges.
[n42] Also, there is no logical reason
that such a claim need be limited to racial or
sexual bias. If arbitrary and capricious punishment
is the touchstone under the Eighth Amendment,
such a claim could -- at least in theory -- be based
upon any arbitrary variable, such as the defendant's
[n43] or the physical attractiveness
of the defendant or the victim,
[n44] that some statistical
[p318] study indicates
may be influential in jury decisionmaking. As these
examples illustrate, there is no limiting principle
to the type of challenge brought by McCleskey.
The Constitution does not require that a State
eliminate any demonstrable disparity that correlates
with a potentially irrelevant factor in order to
operate a criminal justice system that includes
capital punishment. As we have stated specifically
in the context of capital punishment, the
Constitution does not "plac[e] totally unrealistic
conditions on its use." Gregg v. Georgia, 428
U.S. at 199, n. 50.
McCleskey's arguments are best presented to the
legislative bodies. It is not the responsibility --
or indeed even the right -- of this Court to
determine the appropriate punishment for particular
crimes. It is the legislatures, the elected
representatives of the people, that are "constituted
to respond to the will and consequently the moral
values of the people." Furman v. Georgia, 408
U.S. at 383 (Burger, C.J., dissenting). Legislatures
also are better qualified to weigh and
results of statistical studies in terms of their own
local conditions and with a flexibility of approach
that is not available to the courts,
Gregg v. Georgia, supra,
at 186. Capital punishment is now the law in more
than two-thirds of our States. It is the ultimate
duty of courts to determine on a case-by-case basis
whether these laws are applied consistently with the
Constitution. Despite McCleskey's wide-ranging
arguments that basically challenge the validity of
capital punishment in our multiracial society, the
only question before us is whether, in his case,
see supra, at 283-285, the law of Georgia was
properly applied. We agree with the District Court
and the Court of Appeals for the Eleventh Circuit
that this was carefully and correctly done in this
affirm the judgment of the Court of Appeals for the
It is so
The Georgia Code
contains only one degree of murder. A person commits
murder "when he unlawfully and with malice
aforethought, either express or implied, causes the
death of another human being." Ga.Code Ann.
§ 16-5-1(a) (1984). A person convicted of murder "shall
be punished by death or by imprisonment for life."
offense . . . was committed by a person with a prior
record of conviction for a capital felony;
offense . . . was committed while the offender was
engaged in the commission of another capital felony
or aggravated battery, or the offense of murder was
committed while the offender was engaged in the
commission of burglary or arson in the first degree;
offender, by his act of murder . . . knowingly
created a great risk of death to more than one
person in a public place by means of a weapon or
device which would normally be hazardous to the
lives of more than one person;
offender committed the offense . . . for himself or
another, for the purpose of receiving money or any
other thing of monetary value;
(5) The murder
of a judicial officer, former judicial officer,
district attorney or solicitor, or former district
attorney or solicitor was committed during or
because of the exercise of his official duties;
offender caused or directed another to commit murder
or committed murder as an agent or employee of
offense of murder, rape, armed robbery, or
kidnapping was outrageously or wantonly vile,
horrible, or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the
offense . . . was committed against any peace
officer, corrections employee, or fireman while
engaged in the performance of his official duties;
offense . . . was committed by a person in, or who
has escaped from, the lawful custody of a peace
officer or place of lawful confinement; or
murder was committed for the purpose of avoiding,
interfering with, or preventing a lawful arrest or
custody in a place of lawful confinement, of himself
statutory aggravating circumstance is found and a
recommendation of death is made, the court shall
sentence the defendant to death.
cases become tremendously aggravated, so that
everybody would agree that, if we're going to have a
death sentence, these are the cases that should get
it, the race effects go away. It's only in the mid-range
of cases where the decisionmakers have a real choice
as to what to do. If there's room for the exercise
of discretion, then the [racial] factors begin to
play a role.
App. 36. Under
this model, Baldus found that 14.4% of the black-victim
mid-range cases received the death penalty, and
34.4% of the white-victim cases received the death
penalty. See Exhibit DB 90, reprinted in
Supplemental Exhibits 54. According to Baldus, the
facts of McCleskey's case placed it within the mid-range.
It is a major
premise of a statistical case that the database
numerically mirrors reality. If it does not in
substantial degree mirror reality, any inferences
empirically arrived at are untrustworthy.
Court noted other problems with Baldus' methodology.
First, the researchers assumed that all of the
information available from the questionnaires was
available to the juries and prosecutors when the
case was tried. The court found this assumption "questionable."
Id. at 361. Second, the court noted the
instability of the various models. Even with the
230-variable model, consideration of 20 further
variables caused a significant drop in the
statistical significance of race. In the court's
view, this undermined the persuasiveness of the
model that showed the greatest racial disparity, the
39-variable model. Id. at 362. Third, the
court found that the high correlation between race
and many of the nonracial variables diminished the
weight to which the study was entitled. Id.
District Court noted the inability of any of the
models to predict the outcome of actual cases. As
the court explained, statisticians use a measure
called an "r2" to measure what portion of the
variance in the dependent variable (death sentencing
rate, in this case) is accounted for by the
independent variables of the model. A perfectly
predictive model would have an r2 value of 1.0. A
model with no predictive power would have an r2
value of O. The r2 value of Baldus' most complex
model, the 230-variable model, was between .46 and
.48. Thus, as the court explained, "the 230-variable
model does not predict the outcome in half of the
cases." Id. at 361.
are developed talk about the effect on the average.
They do not depict the experience of a single
individual. What they say, for example, [is] that,
on the average, the race of the victim, if it is
white, increases on the average the probability . .
. (that) the death sentence would be given.
Whether, in a
given case, that is the answer, it cannot be
determined from statistics.
580 F.Supp. at
prosecutor could be made to answer in court each
time . . . a person charged him with wrongdoing, his
energy and attention would be diverted from the
pressing duty of enforcing the criminal law.
424 U.S. at 425.
Our refusal to require that the prosecutor provide
an explanation for his decisions in this case is
completely consistent with this Court's longstanding
precedents that hold that a prosecutor need not
explain his decisions unless the criminal defendant
presents a prima facie case of
unconstitutional conduct with respect to his case.
See, e.g., Batson v. Kentucky, supra; Wayte v.
United States, supra.
349 (emphasis in original). As the dissent suggests,
this evidence is not particularly probative when
assessing the application of Georgia's capital
punishment system through the actions of prosecutors
and juries, as we did in Part II-A, supra.
But that is not the challenge that we are addressing
here. As indicated above, the question we are
addressing is whether the legislature maintains its
capital punishment statute because of the racially
disproportionate impact suggested by the Baldus
study. McCleskey has introduced no evidence to
support this claim. It is entirely appropriate to
rely on the legislature's legitimate reasons for
enacting and maintaining a capital punishment
statute to address a challenge to the
case falls in [a] grey area where . . . you would
find the greatest likelihood that some inappropriate
consideration may have come to bear on the decision.
In an analysis
of this type, obviously one cannot say that we can
say to a moral certainty what it was that influenced
the decision. We can't do that.
protections apply to the trial and jury deliberation
process. Widespread bias in the community can make a
change of venue constitutionally required. Irvin
v. Dowd, 366 U.S. 717 (1961). The
Constitution prohibits racially biased prosecutorial
arguments. Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974). If the circumstances of a
particular case indicate a significant likelihood
that racial bias may influence a jury, the
Constitution requires questioning as to such bias.
Ristaino v. Ross, 424 U.S. 589, 596
(1976). Finally, in a capital sentencing hearing, a
defendant convicted of an interracial murder is
entitled to such questioning without regard to the
circumstances of the particular case. Turner v.
Murray, 476 U.S. 28 (1986).
and adversaries of the plan of the convention, if
they agree in nothing else, concur at least in the
value they set upon the trial by jury; or if there
is any difference between them, it consists in this:
the former regard it as a valuable safeguard to
liberty, the latter represent it as the very
palladium of free government.
No. 83, p. 519 (J. Gideon ed. 1818).
BRENNAN's condemnation of the results of the Georgia
capital punishment system must be viewed against
this background. As to community values and the
constitutionality of capital punishment in general,
we have previously noted, n. 23, supra, that
the elected representatives of the people in 37
States and the Congress have enacted capital
punishment statutes, most of which have been enacted
or amended to conform generally to the Gregg
standards, and that 33 States have imposed death
sentences thereunder. In the individual case, a jury
sentence reflects the conscience of the community as
applied to the circumstances of a particular
offender and offense. We reject JUSTICE BRENNAN's
contention that this important standard for
assessing the constitutionality of a death penalty
should be abandoned.
In the penalty
hearing, Georgia law provides that, "unless the jury
. . . recommends the death sentence in its verdict,
the court shall not sentence the defendant to death."
Georgia Code Ann. § 17-10-31 (1982). In Bullinton
v. Missouri, 451 U.S. 430 (1981), this
Court held that the Double Jeopardy Clause of the
Constitution prohibits a State from asking for a
sentence of death at a second trial when the jury at
the first trial recommended a lesser sentence.
Prosecutor was indicating that we might be able to
work out a life sentence if he were willing to enter
a plea. But we never reached any concrete stage on
that, because Mr. McCleskey's attitude was that he
didn't want to enter a plea. So it never got any
further than just talking about it.
Tr. in No. 4909,
p. 56 (Jan. 30, 1981).
is to avoid
unwarranted sentencing disparities among
defendants with similar records who have been found
guilty of similar criminal conduct, while
maintaining sufficient flexibility to permit
individualized sentencing when warranted by
mitigating or aggravating factors not taken into
account in the guidelines.
62 Fed.Reg. 3920
(1987) (emphasis added). No one contends that all
sentencing disparities can be eliminated. The
guidelines, like the safeguards in the Gregg-type
statute, further an essential need of the
Anglo-American criminal justice system -- to balance
the desirability of a high degree of uniformity
against the necessity for the exercise of discretion.
We have held
that discretion in a capital punishment system is
necessary to satisfy the Constitution. Woodson v.
North Carolina, 428 U.S. 280 (1976).
See supra at 303-306. Yet the dissent now claims
that the "discretion afforded prosecutors and jurors
in the Georgia capital sentencing system" violates
the Constitution by creating "opportunities for
racial considerations to influence criminal
proceedings." Post at 333. The dissent
contends that, in Georgia,
guidelines govern prosecutorial decisions . . . and
[that] Georgia provides juries with no list of
aggravating and mitigating factors, nor any standard
for balancing them against one another.
Prosecutorial decisions necessarily involve both
judgmental and factual decisions that vary from case
to case. See ABA Standards for Criminal
Justice 3-3.8, 3-3.9 (2d ed.1982). Thus, it is
difficult to imagine guidelines that would produce
the predictability sought by the dissent without
sacrificing the discretion essential to a humane and
fair system of criminal justice. Indeed, the dissent
suggests no such guidelines for prosecutorial
The reference to
the failure to provide juries with the list of
aggravating and mitigating factors is curious. The
aggravating circumstances are set forth in detail in
the Georgia statute. See n. 3, supra.
The jury is not provided with a list of aggravating
circumstances because not all of them are relevant
to any particular crime. Instead, the prosecutor
must choose the relevant circumstances, and the
State must prove to the jury that at least one
exists beyond a reasonable doubt before the jury can
even consider imposing the death sentence. It would
be improper, and often prejudicial, to allow jurors
to speculate as to aggravating circumstances wholly
without support in the evidence.
argument that a list of mitigating factors is
required is particularly anomalous. We have held
that the Constitution requires that juries be
allowed to consider "any relevant mitigating
factor," even if it is not included in a statutory
list. Eddings v. Oklahoma, 455 U.S. at 112.
See Lockett v. Ohio, 438 U.S. 586
(1978). The dissent does not attempt to harmonize
its criticism with this constitutional principle.
The dissent also does not suggest any standard, much
less a workable one, for balancing aggravating and
mitigating factors. If capital defendants are to be
treated as "uniquely individual human beings,"
Woodson v. North Carolina, supra, at 304, then
discretion to evaluate and weigh the circumstances
relevant to the particular defendant and the crime
he committed is essential.
repeatedly emphasizes the need for "a uniquely high
degree of rationality in imposing the death
penalty." Post at 335. Again, no suggestion
is made as to how greater "rationality" could be
achieved under any type of statute that authorizes
capital punishment. The Gregg-type statute
imposes unprecedented safeguards in the special
context of capital punishment. These include: (i) a
bifurcated sentencing proceeding; (ii) the threshold
requirement of one or more aggravating circumstances;
and (iii) mandatory State Supreme Court review. All
of these are administered pursuant to this Court's
decisions interpreting the limits of the Eighth
Amendment on the imposition of the death
penalty, and all are subject to ultimate review by
this Court. These ensure a degree of care in the
imposition of the sentence of death that can be
described only as unique. Given these safeguards
already inherent in the imposition and review of
capital sentences, the dissent's call for greater
rationality is no less than a claim that a capital
punishment system cannot be administered in accord
with the Constitution. As we reiterate infra,
the requirement of heightened rationality in the
imposition of capital punishment does not "plac[e]
totally unrealistic conditions on its use." Gregg
v. Georgia, 428 U.S. at 199, n. 50.
is composed of
various minority groups, most of which can lay claim
to a history of prior discrimination at the hands of
the State and private individuals.
at 292 (citing Strauder v. West Virginia, 100
U.S. at 308 (Celtic Irishmen) (dictum); Yick Wo
v. Hopkins, 118 U.S. 356 (1886) (Chinese);
Truax v. Raich, 239 U.S. 33, 36, 41-42
(1915) (Austrian resident aliens); Korematsu v.
United States, 323 U.S. 214, 216 (1944) (Japanese);
Hernandez v. Texas, 347 U.S. 475
(1954) (Mexican-Americans)). See also Uniform
Guidelines on Employee Selection Procedures (1978),
29 CFR § 1607.4(B) (1986) (employer must keep
records as to the "following races and ethnic groups:
Blacks, American Indians (including Alaskan Natives),
Asians (including Pacific Islanders), Hispanics (including
persons of Mexican, Puerto Rican, Cuban, Central or
South American, or other Spanish origin or culture
regardless of race), and whites (Caucasians) other
than Hispanics"); U.S. Bureau of the Census, 1980
Census of the Population, Vol. 1, ch. B (PC80-1-B),
reprinted in 1986 Statistical Abstract of the United
States 29 (dividing United States population by "race
and Spanish origin" into the following groups:
White, Black, American Indian, Chinese, Filipino,
Japanese, Korean, Vietnamese, Spanish origin, and
all other races); U.S. Bureau of the Census, 1980
Census of the Population, Supplementary Report,
series PC80-S1-10, reprinted in 1986 Statistical
Abstract of the United States 34 (listing 44
ancestry groups and noting that many individuals
reported themselves to belong to multiple ancestry
We also have
recognized that the ethnic composition of the Nation
is ever-shifting. Crawford v. Board of Ed. of Los
Angeles, 458 U.S. 527 (1982), illustrates
demographic facts that we increasingly find in our
country, namely, that populations change in
composition, and may do so in relatively short
timespans. We noted:
In 1968 when
the case went to trial, the [Los Angeles] District
was 53.6% white, 22.6% black, 20% Hispanic, and 3.8%
Asian and other. By October, 1980, the demographic
composition had altered radically: 23.7% white,
23.3% black, 45.3% Hispanic, and 7.7% Asian and
530, n. 1. Increasingly, whites are becoming a
minority in many of the larger American cities.
There appears to be no reason why a white defendant
in such a city could not make a claim similar to
McCleskey's if racial disparities in sentencing
arguably are shown by a statistical study.
Finally, in our
heterogeneous society, the lower courts have found
the boundaries of race and ethnicity increasingly
difficult to determine. See Shaare Tefila
Congregation v. Cobb, 785 F.2d 523 (CA4),
cert. granted, 479 U.S. 812 (1986),
and Al-Khazraji v. Saint Francis College, 784
F.2d 505 (CA3), cert. granted, 479 U.S.
812 (1986) (argued Feb. 25, 1987) (presenting
the questions whether Jews and Arabs, respectively,
are "races" covered by 42 U.S.C. §§ 1981 and
consistently seek, and juries consistently impose,
the death penalty without regard to the race of the
victim or the race of the offender.
367. This proposed solution is unconvincing. First,
"consistently" is a relative term, and narrowing the
category of death-eligible defendants would simply
shift the borderline between those defendants who
received the death penalty and those who did not. A
borderline area would continue to exist and vary in
its boundaries. Moreover, because the discrepancy
between borderline cases would be difficult to
explain, the system would likely remain open to
challenge on the basis that the lack of explanation
rendered the sentencing decisions unconstitutionally
Second, even assuming that a
category with theoretically consistent results could
be identified, it is difficult to imagine how
JUSTICE STEVENS' proposal would or could operate on
a case-by-case basis. Whenever a victim is white and
the defendant is a member of a different race, what
steps would a prosecutor be required to take -- in
addition to weighing the customary prosecutorial
considerations -- before concluding in the
particular case that he lawfully could prosecute? In
the absence of a current, Baldus-type study focused
particularly on the community in which the crime was
committed, where would he find a standard? Would the
prosecutor have to review the prior decisions of
community prosecutors and determine the types of
cases in which juries in his jurisdiction "consistently"
had imposed the death penalty when the victim was
white and the defendant was of a different race? And
must he rely solely on statistics? Even if such a
study were feasible, would it be unlawful for the
prosecutor, in making his final decision in a
particular case, to consider the evidence of guilt
and the presence of aggravating and mitigating
factors? However conscientiously a prosecutor might
attempt to identify death-eligible defendants under
the dissent's suggestion, it would be a wholly
speculative task at best, likely to result in less,
rather than more, fairness and consistency in the
imposition of the death penalty.