This chapter recounts how death penalty lawyers attempted to raise constitutional challenges to capital punishment based upon racial discrimination. 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. 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. La loi de. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. at 266. at 79-80. McCleskey's evidence [p345] will not have obtained judicial acceptance, but that will not affect what is said on death row. Facebook gives people the power to share and makes the world more open and connected. In making its decision whether to impose the death sentence, the jury considered the mitigating and aggravating circumstances of McCleskey's conduct. Loi is extremely hardworking and dedicated, and volunteers to take on additional and more challenging work on a regular basis. 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 facial characteristics, [n43] or the physical attractiveness of the defendant or the victim, [n44] that some statistical [p318] study indicates may be influential in jury decisionmaking. in LAw AND THE IMAGE 32 (Costas Douzinas and Lynda Nead, eds., The University of Chicago Press 1999). Even assuming the statistical validity of the Baldus study as a whole, the weight to be given the results gleaned from this small sample is limited. 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. 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. Under the Florida capital punishment system at issue in Proffitt, the jury's verdict is only advisory. One approach was to use statistics to show that capital punishment was racially biased. See Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978). Because McCleskey raises such a claim, he has standing. 1 Close When McCleskey was nine years old attending his segregated school in Cobb County, the U.S. Supreme Court evaluated the yellow-ticket practice in a capital case involving Amos Reece. The New Jim Crow. We have held that discretion in a capital punishment system is necessary to satisfy the Constitution. See Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. See Supp. may, for all practical purposes, demonstrate unconstitutionality, because, in various circumstances, the discrimination is very difficult to explain on nonracial grounds. Numerous studies conducted in the 20 years that followed. Gregg v. Georgia, 428 U.S. 153, 226 (1976) (WHITE, J., concurring). Eventually, the Sixth Amendment issue went to the U.S. Supreme Court. 701 (1980). Id. First, there is a required threshold below which the death penalty cannot be imposed. Id. Conversely, it allows the defendant to introduce any relevant mitigating evidence that might influence the jury not to impose a death sentence. Ante at 297. Id. Godfrey v. Georgia, 446 U.S. 420, 442 (1980) (MARSHALL, J., concurring in judgment). 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 jurisprudence. 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. I agree with the Court's observation that this case is "quite different" from the Batson case. His claim easily could be extended to apply to other types of penalties and to claims based on unexplained discrepancies correlating to membership in other minority groups and even to gender. Individual jurors bring to their deliberations "qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is . 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. 978-981. The Court also declines to find McCleskey's evidence sufficient in view of "the safeguards designed to minimize racial bias in the [capital sentencing] process." 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. flyleaf guitar tabs. [w]here a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Ibid. In dissent, Chief Justice Burger acknowledged that statistics. (citing Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15 (1968)), it "has never suggested that jury sentencing [in a capital case] is constitutionally required." . [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. at 530, n. 1. endstream endobj startxref "The destinies of the two races in this country are indissolubly linked together," id. Batson dealt with another arena in which considerable discretion traditionally has been afforded, the exercise of peremptory challenges. STEVENS, J., filed a dissenting opinion in which BLACKMUN, J., joined, post, p. 366. II, p. 25 (1866) (testimony of George Tucker, Virginia attorney) ("They have not any idea of prosecuting white men for offenses against colored people; they do not appreciate the idea"); id. See infra at 315-318. 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. at 1297, 1729-1732, 1756-1761. Ibid. FY 2016-2021. If you are a member of an institution with an active account, you may be able to access content in one of the following ways: Typically, access is provided across an institutional network to a range of IP addresses. (a) To prevail under that Clause, petitioner must prove that the decisionmakers in his case acted with discriminatory purpose. [n6] Third, he must establish that the allegedly [p353] discriminatory procedure is susceptible to abuse or is not racially neutral. Petitioner's statistical proffer must be viewed in the context of his challenge to decisions at the heart of the State's criminal justice system. In contrast, a capital sentencing jury may consider any factor relevant to the defendant's background, character, and the offense. Read about our approach to external linking. United States history is riddled with cases that show racial discrimination in the court system, including Rosales vs Quarterman, Buck vs Davis, and Abu-Jamal vs Beard. Ibid. 2 W. LaFave & J. Israel, Criminal Procedure 13.2(a), p. 160 (1984). Her calm and professional demeanor is an asset to our agency.". 3920 (1987) (emphasis added). . The alterations excluded 395 of 400 black voters without excluding a single white voter. Rather, McCleskey argues that application of the State's statute has created a classification that is "an irrational exercise of governmental power," Brief for Petitioner 41, because it is not "necessary to the accomplishment of some permissible state objective." Id. McCleskey, Harriger, Brazill & Graf is one of the oldest and largest law firms in West Texas, and we pride ourselves on our heritage and contributions to this region. Ibid. 18. appointed Judith F. Bonilla as an immigration judge in March 2020. 2d 517, 1991 U.S. LEXIS 2218 Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information. It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. This description matched the description of the gun that McCleskey had carried during the robbery. Although the evidence presented by LDF gave the Court the opportunity to acknowledge and renounce the arbitrary influence of race on the administration of the death penalty, the Court found no constitutional error in a system where African-Americans and whites were treated unequally. United States v. DiFrancesco, 449 U.S. 117, 129 (1980) (quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962)). It is not surprising that such collective judgments often are difficult to explain. . Ibid., quoting Imbler v Pachtman, 424 U.S. 409, 425 (1976). Provide your bank information, by following the on-screen instructions. The Court invalidated a statute that permitted a prosecutor to eliminate prospective jurors by challenging all who expressed qualms about the death penalty. 23. A federal statute, amended in relevant part in 1974, authorizes the death penalty for aircraft piracy in which a death occurs. The State cannot meet this burden on mere general assertions that its officials did not discriminate, or that they properly performed their official duties. 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. Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. Ibid. at 353 (emphasis omitted). McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment. This we decline to do. The exhaustive evidence presented in this case certainly demands an inquiry into the prosecutor's actions. In those cases, the Court found the statistical disparities "to warrant and require," Yick Wo v. Hopkins, supra, at 373, a "conclusion [that was] irresistible, tantamount for all practical purposes to a mathematical demonstration," Gomillion v. Lightfoot, supra, at 341, that the State acted with a discriminatory purpose. When confronted with evidence that race more likely than not plays such a role in a capital sentencing system, it is plainly insufficient to say that the importance of discretion demands that the risk be higher before we will act -- for, in such a case, the very end that discretion is designed to serve is being undermined. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment. L. R. EV. The trial judge determines the final sentence. Petitioner's arguments are best presented to the legislative bodies, not the courts. That is, the court assumed that the study. Id. & Q. R. Co. v. Babcock, 204 U.S. 585, 593 (1907). If you believe you should have access to that content, please contact your librarian. 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. at 34-36, 38, or the cases in which they did seek the death penalty, id. McCleskey now acts as a substantial barrier to the elimination of racial inequalities in the criminal justice system, perpetuating an unfair racial imbalance that has come to define criminal justice in America. 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. McCleskey's claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate. McCleskey v. Zant, No. respect for 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. You do not currently have access to this chapter. Justice . The second question before the Court in Gregg was the constitutionality of the particular procedures embodied in the Georgia capital punishment statute. Batson v. Kentucky, 476 U.S. 79, 87-88 (1986), quoting Strauder v. West Virginia, 100 U.S. 303, 308 (1880). Case: 14-41127 Document: 00513601530 Page: 2 Date Filed: 07/20/2016 [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. 7.See generally Fisher, Multiple Regression in Legal Proceedings, 80 Colum.L.Rev. Our desire for individualized moral judgments may lead us to accept some inconsistencies in sentencing outcomes. Loving v. Virginia, 388 U.S. 1, 11 (1967). 11. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. [S]ometimes it is not known who the perpetrators are; but when that is known, no action is taken against them. 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. If you believe you should have access to that content, please contact your librarian. Certainly, a factor that we would regard as morally irrelevant, such as hair color, at least theoretically could be associated with sentencing results to such an extent that we would regard as arbitrary a system in which that factor played a significant role. Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the death penalty. 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. Since decisions whether to prosecute and what to charge necessarily are individualized, and involve infinite factual variations, coordination among district attorney offices across a State would be relatively meaningless. McCleskey v. Zant, 454 U.S. 1093 (1981). Widespread bias in the community can make a change of venue constitutionally required. at 213 (testimony of J. Gregg v. Georgia, supra, at 170. Read about our approach to external linking. Because we deliver quality workmanship and consistently meet our clients expectations; Some societies use Oxford Academic personal accounts to provide access to their members. Loi L. McCleskey was appointed as an Immigration Judge to begin hearing cases in July 2021. . 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. Ante at 298-299. Turner v. Murray, 476 U.S. 28 (1986). . Ibid. Ibid. 1. 197 (1980). [p320]. [n31] Thus, it is the jury that is a criminal defendant's fundamental "protection of life and liberty against race or color prejudice." mccleskey loi l immigration judge. Some societies use Oxford Academic personal accounts to provide access to their members. 4, Tit. at 28-29. at 362. r/baseball. It is appropriate to judge claims of racially discriminatory prosecutorial selection of cases according to ordinary equal protection standards. [n8], By the time of the Civil War, a dual system of crime and punishment was well established in Georgia. Increasingly, whites are becoming a minority in many of the larger American cities. 1, Div. 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. 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. Pp. The Baldus study in fact confirms that the Georgia system results in a reasonable level of proportionality among the class of murderers eligible for the death penalty. IJs preside in formal judicial hearings and make decisions that are final, unless formally appealed. Robinson v. California, 370 U.S. 660, 667 (1962). 3. 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." 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. Joining him on the briefs were Julius Chambers, James Nabrit III, Anthony G. Amsterdam, Deval Patrick, Robert Stroup, Vivian Berger, and Timothy Ford. (b) There is no merit to the contention that the Baldus study shows that Georgia's capital punishment system is arbitrary and capricious in application. Batson v. Kentucky, 476 U.S. at 94. . In Witherspoon, JUSTICE BRENNAN joined the opinion of the Court written by Justice Stewart. Do not use an Oxford Academic personal account. 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." As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. Petitioner's Exhibit DB 82. 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. After holding an evidentiary hearing, the Superior Court denied relief. 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. 424 U.S. at 429. Go to your 'Wallet'. The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. 47. 17-10-30(b)(7) (1982), which is reprinted in n. 3, supra. See In re Kemmler, 136 U.S. 436 (1890) (electrocution); [p300]Wilkerson v. Utah, 99 U.S. 130 (1879) (public shooting). See id. 393, 407 (1857). As a result of McCleskey's discovery efforts, the record also contains relevant testimonial evidence by two state officials. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. While I join Parts I through IV-A of JUSTICE BLACKMUN's dissenting opinion discussing petitioner's Fourteenth Amendment claim, I write separately to emphasize how conclusively [p321] McCleskey has also demonstrated precisely the type of risk of irrationality in sentencing that we have consistently condemned in our Eighth Amendment jurisprudence. Ante at 312. 306-313. Id. McCleskey appealed his conviction and sentence, relying on the Eighth Amendments ban on cruel and unusual punishment and the Fourteenth Amendments guarantee of Equal Protection to argue that the death penalty in Georgia was administered in a racially discriminatory and therefore unconstitutionalmanner. 292-297. Thirty-seven States now have capital punishment statutes that were enacted since our decision in Furman. as "perhaps one of the best pieces of writing describing mass incarceration, the War on Drugs, and the role of systemic racism in perpetuating the two"); Norrinda Brown Hayat, Section 8 Is the New N-Word: Policing Integration in the Age of Black Mobility, 51 W. ASH. 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. The very exercise of discretion means that persons exercising discretion may reach different results from exact duplicates. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. It's only in the mid-range of cases where the decisionmakers have a real choice as to what to do. Immigration judges (IJs) are a type of federal administrative adjudicator sometimes collectively referred to as administrative judges, or non-ALJ adjudicators. 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. 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 code established that the rape of a free white female by a black "shall be" punishable by death. A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions. 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. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. The sole effort to provide any consistency was Slaton's periodic pulling of files at random to check on the progress of cases. Pt. 341 0 obj <>/Filter/FlateDecode/ID[<16855F6BE722C0468FE731A2E2AD9B6A>]/Index[324 32]/Info 323 0 R/Length 87/Prev 183310/Root 325 0 R/Size 356/Type/XRef/W[1 2 1]>>stream the "aggravating" 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. As a result, it fails to do justice to a claim in which both those elements are intertwined -- an occasion calling for the most sensitive inquiry a court can conduct. The universe of cases from Fulton County analyzed by Baldus included 629 killings, 581 of which yielded murder indictments. Moreover, there are many ways in which racial factors can enter indirectly into prosecutorial decisions. The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery. Over the past year, in the heat of a border migration crisis, 45 judges have left, moved into new roles in the immigration court system - which is run by the Justice Department - or passed . Smith & Hed, Effects of Offenders' Age and Attractiveness on Sentencing by Mock Juries, 44 Psychological Rep. 691 (1979); Kerr, Beautiful and Blameless: Effects of Victim Attractiveness and Responsibility on Mock Jurors' Verdicts, 4 Personality and Social Psych.Bull. The fact that a victim was white accounts for a nine percentage point difference in the rate at which the death penalty is imposed, which is the same difference attributable to a prior murder conviction or the fact that the defendant was the "prime mover" in planning a murder. If he does not, the defendant receives a sentence of life imprisonment. & C. 661, 674, n. 56 (1983). McCleskey v. Kemp , 481 U.S. 279 (1987), is a United States Supreme Court case, in which the death penalty sentencing of Warren McCleskey for armed robbery and murder was upheld. This chapter discusses the post-conviction review process for capital cases, explaining how McCleskey v. Zant went to the Supreme Court and how the Co In such cases, death is imposed in 34% of white-victim crimes and 14% of black-victim crimes, a difference of 139% in the rate of imposition of the death penalty. The Court can indulge in such speculation only by ignoring its own jurisprudence demanding the highest scrutiny on issues of death and race. Indeed, the dissent suggests no such guidelines for prosecutorial discretion. 1, and for all other persons, Pt. Wayte v. United States, 470 U.S. 598, 608 (1985). As discussed above, McCleskey presented evidence of numerous decisions impermissibly affected by racial factors over a significant number of cases. The Court refers to the prosecutor's role in the capital sentencing process without analyzing the import of the statistical evidence concerning the steps of the process at which the prosecutor determines the future of the case. Longtime Cardinals right-hander Carlos Martinez has agreed to a deal with the Giants, as Martinez himself announced this evening on Instagram. "[C]ontrolling considerations of . Gregg v. Georgia, 428 U.S. at 200, n. 50. JUSTICE BRENNAN's condemnation of the results of the Georgia capital punishment system must be viewed against this background. [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. See Baldus Pulaski, & Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J.Crim.L. See n. 28, supra. [T]he sentencer . IV, p. 75 (testimony of Maj. Gen. George A. Custer) ("[I]t is of weekly, if not of daily, occurrence that freedmen are murdered. That were enacted since our decision in Furman ( 1978 ) for discretion... Court 's observation that this case is `` quite different '' from Batson. 581 of which yielded murder indictments this evening on Instagram prosecutorial discretion contains relevant testimonial evidence by state! This description matched the description of the Georgia Experience, 74 J.Crim.L enacted since decision... Expressed qualms about the death penalty lawyers attempted to raise constitutional challenges to punishment. U.S. 660, 667 ( 1962 ) to do statistics as proof of to. 629 killings, 581 of which yielded murder indictments MARSHALL, J. joined! That followed raise constitutional challenges to capital punishment statute is particular procedures embodied in the can. The type of federal administrative adjudicator sometimes collectively referred to as administrative judges, non-ALJ! U.S. 28 ( 1986 ) begin hearing cases in which a death occurs concurring ) in Georgia used get! 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