mccleskey kemp argued october decided april petitioner black man convicted georgia trial armed robbery murder arising killing white police officer robbery store pursuant georgia statutes jury penalty hearing considered mitigating aggravating circumstances petitioner conduct recommended death penalty murder charge trial followed recommendation georgia affirmed unsuccessfully seeking postconviction relief state courts petitioner sought habeas corpus relief federal district petition included claim georgia capital sentencing process administered racially discriminatory manner violation eighth fourteenth amendments support claim petitioner proffered statistical study baldus study purports show disparity imposition death sentence georgia based murder victim race lesser extent defendant race study based murder cases occurred georgia involves data relating victim race defendant race various combinations persons races study indicates black defendants killed white victims greatest likelihood receiving death penalty rejecting petitioner constitutional claims denied petition insofar based baldus study appeals affirmed district decision issue assumed validity baldus study found statistics insufficient demonstrate unconstitutional discrimination fourteenth amendment context show irrationality arbitrariness capriciousness eighth amendment analysis held baldus study establish administration georgia capital punishment system violates equal protection clause pp prevail clause petitioner must prove decisionmakers case acted discriminatory purpose petitioner offered evidence specific case support inference racial considerations played part sentence baldus study insufficient support inference decisionmakers case acted discriminatory purpose accepted statistics proof intent discriminate context state selection jury venire context statutory violations title vii civil rights act however nature capital sentencing decision relationship statistics decision fundamentally different corresponding elements title vii cases petitioner statistical proffer must viewed context challenge decisions heart state criminal justice system discretion essential criminal justice process exceptionally clear proof required infer discretion abused pp merit petitioner argument baldus study proves state violated equal protection clause adopting capital punishment statute allowing remain force despite allegedly discriminatory application claim prevail petitioner prove georgia legislature enacted maintained death penalty statute anticipated racially discriminatory effect evidence legislature either enacted statute racially discriminatory purpose maintained statute racially disproportionate impact suggested baldus study pp petitioner argument baldus study demonstrates georgia capital sentencing system violates eighth amendment prohibition cruel unusual punishment must analyzed light prior decisions amendment decisions since furman georgia identified constitutionally permissible range discretion imposing death penalty first required threshold death penalty imposed state must establish rational criteria narrow decisionmaker judgment whether circumstances particular defendant case meet threshold second limit sentencer consideration relevant circumstance cause decline impose death penalty respect state channel sentencer discretion must allow consider relevant information offered defendant pp baldus study demonstrate georgia capital sentencing system violates eighth amendment pp petitioner successfully argue sentence case disproportionate sentences murder cases one hand base constitutional claim argument case differs cases defendants receive death penalty georgia found death sentence disproportionate death sentences imposed state hand absent showing georgia capital punishment system operates arbitrary capricious manner petitioner prove constitutional violation demonstrating defendants may similarly situated receive death penalty opportunities discretionary leniency state law render capital sentences imposed arbitrary capricious petitioner sentence imposed georgia sentencing procedures focus discretion particularized nature crime particularized characteristics individual defendant may presumed death sentence wantonly freakishly imposed thus sentence disproportionate within recognized meaning eighth amendment gregg georgia pp merit contention baldus study shows georgia capital punishment system arbitrary capricious application statistics prove race enters capital sentencing decisions race factor petitioner case likelihood racial prejudice allegedly shown study constitute constitutional measure unacceptable risk racial prejudice inherent lack predictability jury decisions justify condemnation contrary jury function make difficult uniquely human judgments defy codification build discretion equity flexibility legal system pp baldus study indicates discrepancy appears correlate race discrepancy constitute major systemic defect mode determining guilt punishment weaknesses potential misuse despite imperfections constitutional guarantees met mode determining guilt punishment surrounded safeguards make fair possible pp petitioner claim taken logical conclusion throws serious question principles underlie entire criminal justice system claim easily extended apply types penalties claims based unexplained discrepancies correlating membership minority groups even gender constitution require state eliminate demonstrable disparity correlates potentially irrelevant factor order operate criminal justice system includes capital punishment petitioner arguments best presented legislative bodies courts pp powell delivered opinion rehnquist white scalia joined brennan filed dissenting opinion marshall joined part blackmun stevens joined post blackmun filed dissenting opinion marshall stevens joined part brennan joined post stevens filed dissenting opinion blackmun joined post john charles boger argued cause petitioner briefs julius chambers james nabrit iii vivian berger robert stroup timothy ford anthony amsterdam mary beth westmoreland assistant attorney general georgia argued cause respondent brief michael bowers attorney general marion gordon first assistant attorney general william hill senior assistant attorney general briefs amici curiae urging reversal filed congressional black caucus et al seth waxman harold tyler james robertson norman redlich william robinson grover hankins international human rights law group ralph steinhardt briefs amici curiae urging affirmance filed state california et al ira reiner harry sondheim john van de kamp attorney general michael wellington supervising deputy attorney general susan lee frierson deputy attorney general washington legal foundation et al daniel popeo george smith martin richman filed brief franklin fisher et al amici curiae justice powell delivered opinion case presents question whether complex statistical study indicates risk racial considerations enter capital sentencing determinations proves petitioner mccleskey capital sentence unconstitutional eighth fourteenth amendment mccleskey black man convicted two counts armed robbery one count murder superior fulton county georgia october mccleskey convictions arose robbery furniture store killing white police officer course robbery evidence trial indicated mccleskey three accomplices planned carried robbery four armed mccleskey entered front store three entered rear mccleskey secured front store rounding customers forcing lie face floor three rounded employees rear tied tape manager forced gunpoint turn store receipts watch course robbery police officer answering silent alarm entered store front door walking center aisle store two shots fired struck officer one hit face killed several weeks later mccleskey arrested connection unrelated offense confessed participated furniture store robbery denied shot police officer trial state introduced evidence least one bullets struck officer fired caliber rossi revolver description matched description gun mccleskey carried robbery state also introduced testimony two witnesses heard mccleskey admit shooting jury convicted mccleskey murder penalty hearing jury heard arguments appropriate sentence georgia law jury consider imposing death penalty unless found beyond reasonable doubt murder accompanied one statutory aggravating circumstances code ann jury case found two aggravating circumstances exist beyond reasonable doubt murder committed course armed robbery murder committed upon peace officer engaged performance duties making decision whether impose death sentence jury considered mitigating aggravating circumstances mccleskey conduct mccleskey offered mitigating evidence jury recommended sentenced death murder charge consecutive life sentences armed robbery charges followed jury recommendation sentenced mccleskey death appeal georgia affirmed convictions sentences mccleskey state denied petition writ certiorari mccleskey georgia superior fulton county denied mccleskey extraordinary motion new trial mccleskey filed petition writ habeas corpus superior butts county holding evidentiary hearing superior denied relief mccleskey zant apr georgia denied mccleskey application certificate probable cause appeal superior denial petition denied certiorari mccleskey zant mccleskey next filed petition writ habeas corpus federal district northern district georgia petition raised claims one georgia capital sentencing process administered racially discriminatory manner violation eighth fourteenth amendments constitution support claim mccleskey proffered statistical study performed professors david baldus charles pulaski george woodworth baldus study purports show disparity imposition death sentence georgia based race murder victim lesser extent race defendant baldus study actually two sophisticated statistical studies examine murder cases occurred georgia raw numbers collected professor baldus indicate defendants charged killing white persons received death penalty cases defendants charged killing blacks received death penalty cases raw numbers also indicate reverse racial disparity according race defendant black defendants received death penalty opposed white defendants baldus also divided cases according combination race defendant race victim found death penalty assessed cases involving black defendants white victims cases involving white defendants white victims cases involving black defendants black victims cases involving white defendants black victims similarly baldus found prosecutors sought death penalty cases involving black defendants white victims cases involving white defendants white victims cases involving black defendants black victims cases involving white defendants black victims baldus subjected data extensive analysis taking account variables explained disparities nonracial grounds one models concludes even taking account nonracial variables defendants charged killing white victims times likely receive death sentence defendants charged killing blacks according model black defendants times likely receive death sentence defendants thus baldus study indicates black defendants mccleskey kill white victims greatest likelihood receiving death penalty district held extensive evidentiary hearing mccleskey petition although believed mccleskey eighth amendment claim foreclosed fifth circuit decision spinkellink wainwright cert denied nevertheless considered baldus study care concluded mccleskey statistics demonstrate prima facie case support contention death penalty imposed upon race race victim eighth amendment concern mccleskey zant supp nd mccleskey fourteenth amendment claim found methodology baldus study flawed several respects defects held baldus study fail ed contribute anything value mccleskey claim emphasis omitted accordingly denied petition insofar based upon baldus study appeals eleventh circuit sitting en banc carefully reviewed district decision mccleskey claim assumed validity study addressed merits mccleskey eighth fourteenth amendment claims assumed study showed systematic substantial disparities existed penalties imposed upon homicide defendants georgia based race homicide victim disparities existed less substantial rate death sentencing based race defendants factors race victim defendant work fulton county even assuming study validity appeals found statistics insufficient demonstrate discriminatory intent unconstitutional discrimination fourteenth amendment context insufficient show irrationality arbitrariness capriciousness kind eighth amendment analysis noted exercise discretion means persons exercising discretion may reach different results exact duplicates assuming result within range discretion correct eyes law make sense system require exercise discretion order facially constitutional time hold system unconstitutional application discretion achieved different results appear exact duplicates absent state showing reasons difference baldus approach take cases different results contended duplicate facts differences otherwise explained conclude different result based race alone approach ignores realities fact exact duplicates capital crimes capital defendants type research submitted tends show directed factors effective restricted use showing undirected factors control exercise constitutionally required discretion viewed broadly seem statistical evidence presented assuming validity confirms rather condemns system marginal disparity based race victim tends support state contention system working far differently one furman georgia condemned days rhyme reason got death penalty vast majority cases reasons difference well documented clear small percentage cases reason declare entire system unconstitutional ii mccleskey first claim georgia capital punishment statute violates equal protection clause fourteenth amendment argues race infected administration georgia statute two ways persons murder whites likely sentenced death persons murder blacks black murderers likely sentenced death white murderers black defendant killed white victim mccleskey claims baldus study demonstrates discriminated race race victim broadest form mccleskey claim discrimination extends every actor georgia capital sentencing process prosecutor sought death penalty jury imposed sentence state enacted capital punishment statute allows remain effect despite allegedly discriminatory application agree appeals every considered challenge claim must fail analysis begins basic principle defendant alleges equal protection violation burden proving existence purposeful discrimination whitus georgia corollary principle criminal defendant must prove purposeful discrimination discriminatory effect wayte thus prevail equal protection clause mccleskey must prove decisionmakers case acted discriminatory purpose offers evidence specific case support inference racial considerations played part sentence instead relies solely baldus study mccleskey argues baldus study compels inference sentence rests purposeful discrimination mccleskey claim statistics sufficient proof discrimination without regard facts particular case extend capital cases georgia least victim white defendant black accepted statistics proof intent discriminate certain limited contexts first accepted statistical disparities proof equal protection violation selection jury venire particular district although statistical proof normally must present stark pattern accepted sole proof discriminatory intent constitution arlington heights metropolitan housing dev ecause nature task permitted finding constitutional violation even statistical pattern approach extremes second accepted statistics form analysis prove statutory violations title vii civil rights act bazemore friday opinion brennan concurring part nature capital sentencing decision relationship statistics decision fundamentally different corresponding elements title vii cases importantly particular decision impose death penalty made petit jury selected properly constituted venire jury unique composition constitution requires decision rest consideration innumerable factors vary according characteristics individual defendant facts particular capital offense see hitchcock dugger post lockett ohio plurality opinion burger thus application inference drawn general statistics specific decision trial sentencing simply comparable application inference drawn general statistics specific title vii case cases statistics relate fewer entities fewer variables relevant challenged decisions another important difference cases accepted statistics proof discriminatory intent case title vii contexts decisionmaker opportunity explain statistical disparity see whitus georgia texas dept community affairs burdine mcdonnell douglas green state practical opportunity rebut baldus study ontrolling considerations public policy mcdonald pless dictate jurors called testify motives influences led verdict chicago babcock similarly policy considerations behind prosecutor traditionally wide discretion suggest impropriety requiring prosecutors defend decisions seek death penalties often years made see imbler pachtman moreover absent far stronger proof unnecessary seek rebuttal legitimate unchallenged explanation decision apparent record mccleskey committed act constitution georgia laws permit imposition death penalty finally mccleskey statistical proffer must viewed context challenge mccleskey challenges decisions heart state criminal justice system ne society basic tasks protecting lives citizens one basic ways achieves task criminal laws murder gregg georgia white concurring implementation laws necessarily requires discretionary judgments discretion essential criminal justice process demand exceptionally clear proof infer discretion abused unique nature decisions issue case also counsels adopting inference disparities indicated baldus study accordingly hold baldus study clearly insufficient support inference decisionmakers mccleskey case acted discriminatory purpose mccleskey also suggests baldus study proves state whole acted discriminatory purpose appears argue state violated equal protection clause adopting capital punishment statute allowing remain force despite allegedly discriminatory application iscriminatory purpose implies intent volition intent awareness consequences implies decisionmaker case state legislature selected reaffirmed particular course action least part merely spite adverse effects upon identifiable group personnel administrator massachusetts feeney citation omitted see wayte claim prevail mccleskey prove georgia legislature enacted maintained death penalty statute anticipated racially discriminatory effect gregg georgia supra found georgia capital sentencing system operate fair neutral manner evidence none georgia legislature enacted capital punishment statute racially discriminatory purpose mccleskey demonstrated legislature maintains capital punishment statute racially disproportionate impact suggested baldus study legislatures necessarily wide discretion choice criminal laws penalties legitimate reasons georgia legislature adopt maintain capital punishment see gregg georgia supra joint opinion stewart powell stevens jj infer discriminatory purpose part state georgia accordingly reject mccleskey equal protection claims iii mccleskey also argues baldus study demonstrates georgia capital sentencing system violates eighth amendment begin analysis claim reviewing restrictions death sentences established prior decisions amendment eighth amendment prohibits infliction cruel unusual punishments early eighth amendment cases examined particular methods execution determine whether cruel pass constitutional muster gregg georgia supra see kemmler electrocution wilkerson utah public shooting subsequently recognized constitutional prohibition cruel unusual punishments fastened obsolete may acquire meaning public opinion becomes enlightened humane justice weems weems identified second principle inherent eighth amendment punishment crime graduated proportioned offense chief justice warren writing plurality trop dulles acknowledged constitutionality capital punishment view basic concept underlying eighth amendment area penalty must accord dignity man applying mandate guided statement amendment must draw meaning evolving standards decency mark progress maturing society thus constitutional decisions informed contemporary values concerning infliction challenged sanction gregg georgia assessing contemporary values eschewed subjective judgment instead sought ascertain objective indicia reflect public attitude toward given sanction ibid first among indicia decisions state legislatures legislative judgment weighs heavily ascertaining contemporary standards also guided sentencing decisions juries significant reliable objective index contemporary values recent decisions constitutionality death penalty particular crime rested examination contemporary values enmund florida felony murder coker georgia plurality opinion white rape gregg georgia supra murder two principal decisions guide resolution mccleskey eighth amendment claim furman georgia concluded death penalty irrationally imposed particular death sentence presumed excessive statutes issue furman basis determining particular case whether penalty proportionate crime death penalty exacted great infrequency even atrocious crimes meaningful basis distinguishing cases imposed many cases white concurring gregg specifically addressed question left open furman whether punishment death murder circumstances cruel unusual violation eighth fourteenth amendments constitution noted imposition death penalty crime murder long history acceptance england joint opinion stewart powell stevens marked indication society endorsement death penalty murder legislative response furman period furman gregg least reenacted death penalty congress authorized penalty aircraft piracy actions juries fully compatible legislative judgments noted punishment might unconstitutionally severe inflicted without penological justification concluded considerations federalism well respect ability legislature evaluate terms particular state moral consensus concerning death penalty social utility sanction require us conclude absence convincing evidence infliction death punishment murder without justification thus unconstitutionally severe cases decided gregg imposed number requirements capital sentencing process ensure capital sentencing decisions rest individualized inquiry contemplated gregg woodson north carolina invalidated mandatory capital sentencing system finding respect humanity underlying eighth amendment requires consideration character record individual offender circumstances particular offense constitutionally indispensable part process inflicting penalty death plurality opinion stewart powell stevens jj citation omitted similarly state must narrow class murderers subject capital punishment gregg georgia supra providing specific detailed guidance sentencer proffitt florida joint opinion stewart powell stevens contrast carefully defined standards must narrow sentencer discretion impose death sentence constitution limits state ability narrow sentencer discretion consider relevant evidence might cause decline impose death sentence sentencer precluded considering mitigating factor aspect defendant character record circumstances offense defendant proffers basis sentence less death lockett ohio plurality opinion burger emphasis original omitted see skipper south carolina exclusion compassionate mitigating factors stemming diverse frailties humankind relevant sentencer decision fail treat persons uniquely individual human beings woodson north carolina supra although constitutional inquiry centered procedures death sentence imposed stopped face statute probed application statutes particular cases example godfrey georgia invalidated georgia interpretation statutory aggravating circumstance murder outrageously wantonly vile horrible inhuman involved torture depravity mind aggravated battery victim code although articulated adequate limiting definition phrase concluded interpretation godfrey broad may vitiated role aggravating circumstance guiding sentencing jury discretion finally objective indicia community values demonstrated consensus death penalty disproportionate applied certain class cases established substantive limitations application coker georgia held state may constitutionally sentence individual death rape adult woman enmund florida prohibited imposition death penalty defendant convicted felony murder absent showing defendant possessed sufficiently culpable mental state recently ford wainwright prohibited execution prisoners insane sum decisions since furman identified constitutionally permissible range discretion imposing death penalty first required threshold death penalty imposed context state must establish rational criteria narrow decisionmaker judgment whether circumstances particular defendant case meet threshold moreover societal consensus death penalty disproportionate particular offense prevents state imposing death penalty offense second limit sentencer consideration relevant circumstance cause decline impose penalty respect state channel sentencer discretion must allow consider relevant information offered defendant iv light precedents eighth amendment mccleskey argue successfully sentence disproportionate crime traditional sense see pulley harris deny committed murder course planned robbery crime determined death penalty constitutionally may imposed gregg georgia disproportionality claim different sort pulley harris supra mccleskey argues sentences case disproportionate sentences murder cases one hand base constitutional claim argument case differs cases defendants receive death penalty automatic appeal georgia found mccleskey death sentence disproportionate death sentences imposed state mccleskey state supported conclusion appendix containing citations cases involving generally similar murders see code ann moreover statutory procedures adequately channel sentencer discretion proportionality review constitutionally required pulley harris supra hand absent showing georgia capital punishment system operates arbitrary capricious manner mccleskey prove constitutional violation demonstrating defendants may similarly situated receive death penalty gregg confronted argument opportunities discretionary action inherent processing murder case georgia law specifically opportunities discretionary leniency rendered capital sentences imposed arbitrary capricious rejected contention existence discretionary stages determinative issues us stages actor criminal justice system makes decision may remove defendant consideration candidate death penalty furman contrast dealt decision impose death sentence specific individual convicted capital offense nothing cases suggests decision afford individual defendant mercy violates constitution furman held order minimize risk death penalty imposed capriciously selected group offenders decision impose guided standards sentencing authority focus particularized circumstances crime defendant ibid although decision gregg facial validity georgia capital punishment statute appears foreclose mccleskey disproportionality argument contends georgia capital punishment system arbitrary capricious application therefore sentence excessive racial considerations may influence capital sentencing decisions georgia address claim evaluate mccleskey challenge must examine exactly baldus study may show even professor baldus contend statistics prove race enters capital sentencing decisions race factor mccleskey particular case statistics may show likelihood particular factor entered decisions course risk racial prejudice influencing jury decision criminal case similar risks kinds prejudice influence criminal trials see infra question point risk becomes constitutionally unacceptable turner murray mccleskey asks us accept likelihood allegedly shown baldus study constitutional measure unacceptable risk racial prejudice influencing capital sentencing decisions decline risk factor race may enter criminal justice process engaged unceasing efforts eradicate racial prejudice criminal justice system batson kentucky efforts guided recognition inestimable privilege trial jury vital principle underlying whole administration criminal justice ex parte milligan wall see duncan louisiana thus jury criminal defendant fundamental protection life liberty race color prejudice strauder west virginia specifically capital sentencing jury representative criminal defendant community assures diffused impartiality taylor louisiana quoting thiel southern pacific frankfurter dissenting jury task express ing conscience community ultimate question life death witherspoon illinois individual jurors bring deliberations qualities human nature varieties human experience range unknown perhaps unknowable peters kiff opinion marshall capital sentencing decision requires individual jurors focus collective judgment unique characteristics particular criminal defendant surprising collective judgments often difficult explain inherent lack predictability jury decisions justify condemnation contrary jury function make difficult uniquely human judgments defy codification buil discretion equity flexibility legal system kalven zeisel american jury mccleskey argument constitution condemns discretion allowed decisionmakers georgia capital sentencing system antithetical fundamental role discretion criminal justice system discretion criminal justice system offers substantial benefits criminal defendant jury decline impose death sentence decline convict choose convict lesser offense whereas decisions defendant interest may reversed trial judge appeal discretionary exercises leniency final unreviewable similarly capacity prosecutorial discretion provide individualized justice firmly entrenched american law lafave israel criminal procedure noted prosecutor decline charge offer plea bargain decline seek death sentence particular case see supra course power lenient also power discriminate davis discretionary justice capital punishment system allow discretionary acts leniency totally alien notions criminal justice gregg georgia baldus study indicates discrepancy appears correlate race apparent disparities sentencing inevitable part criminal justice system discrepancy indicated baldus study far cry major systemic defects identified furman pulley harris recognized mode determining guilt punishment weaknesses potential misuse singer see bordenkircher hayes specifically perfect procedure deciding cases governmental authority used impose death zant stephens quoting lockett ohio plurality opinion burger despite imperfections consistent rule constitutional guarantees met mode determining guilt punishment surrounded safeguards make fair possible singer supra discretion fundamental criminal process involved decline assume unexplained invidious light safeguards designed minimize racial bias process fundamental value jury trial criminal justice system benefits discretion provides criminal defendants hold baldus study demonstrate constitutionally significant risk racial bias affecting georgia capital sentencing process two additional concerns inform decision case first mccleskey claim taken logical conclusion throws serious question principles underlie entire criminal justice system eighth amendment limited application capital punishment applies penalties solem helm see rummel estelle powell dissenting thus accepted mccleskey claim racial bias impermissibly tainted capital sentencing decision soon faced similar claims types penalty moreover claim sentence rests irrelevant factor race easily extended apply claims based unexplained discrepancies correlate membership minority groups even gender similarly since mccleskey claim relates race victim claims apply equally logical force statistical disparities correlate race sex actors criminal justice system defense attorneys judges also logical reason claim need limited racial sexual bias arbitrary capricious punishment touchstone eighth amendment claim least theory based upon arbitrary variable defendant facial characteristics physical attractiveness defendant victim statistical study indicates may influential jury decisionmaking examples illustrate limiting principle type challenge brought mccleskey constitution require state eliminate demonstrable disparity correlates potentially irrelevant factor order operate criminal justice system includes capital punishment stated specifically context capital punishment constitution plac totally unrealistic conditions use gregg georgia second mccleskey arguments best presented legislative bodies responsibility indeed even right determine appropriate punishment particular crimes legislatures elected representatives people constituted respond consequently moral values people furman georgia burger dissenting legislatures also better qualified weigh evaluate results statistical studies terms local conditions flexibility approach available courts gregg georgia supra capital punishment law ultimate duty courts determine basis whether laws applied consistently constitution despite mccleskey arguments basically challenge validity capital punishment multiracial society question us whether case see supra law georgia properly applied agree district appeals eleventh circuit carefully correctly done case vi accordingly affirm judgment appeals eleventh circuit ordered footnotes georgia code contains one degree murder person commits murder unlawfully malice aforethought either express implied causes death another human code ann person convicted murder shall punished death imprisonment life georgia code ann provides jury convicts defendant murder shall resume trial conduct presentence hearing jury subsection suggests defendant convicted murder always subjected penalty hearing jury considers imposing death sentence matter practice penalty hearings seem held prosecutor affirmatively seeks death penalty defendant receives sentence life imprisonment see baldus pulaski woodworth comparative review death sentences empirical study georgia experience crim jury sentence defendant death murder unless finds one following aggravating circumstances exists beyond reasonable doubt offense committed person prior record conviction capital felony offense committed offender engaged commission another capital felony aggravated battery offense murder committed offender engaged commission burglary arson first degree offender act murder knowingly created great risk death one person public place means weapon device normally hazardous lives one person offender committed offense another purpose receiving money thing monetary value murder judicial officer former judicial officer district attorney solicitor former district attorney solicitor committed exercise official duties offender caused directed another commit murder committed murder agent employee another person offense murder rape armed robbery kidnapping outrageously wantonly vile horrible inhuman involved torture depravity mind aggravated battery victim offense committed peace officer corrections employee fireman engaged performance official duties offense committed person escaped lawful custody peace officer place lawful confinement murder committed purpose avoiding interfering preventing lawful arrest custody place lawful confinement another georgia law provides statutory aggravating circumstance found recommendation death made shall sentence defendant death baldus model divided cases eight different ranges according estimated aggravation level offense baldus argued testimony district effects racial bias striking midrange cases hen cases become tremendously aggravated everybody agree going death sentence cases get race effects go away cases decisionmakers real choice room exercise discretion racial factors begin play role app model baldus found midrange cases received death penalty cases received death penalty see exhibit db reprinted supplemental exhibits according baldus facts mccleskey case placed within midrange app baldus among experts testified evidentiary hearing district impressed learning experts emphasis omitted nevertheless district noted many respects data incomplete view questionnaires used obtain data failed capture full degree aggravating mitigating circumstances criticized researcher decisions regarding unknown variables researchers discover whether penalty trials held many cases thus undercutting value study statistics prosecutorial decisions certain cases study lacked information race victim cases involving multiple victims whether prosecutor offered plea bargain credibility problems witnesses concluded mccleskey failed establish preponderance evidence data trustworthy major premise statistical case data base numerically mirrors reality substantial degree mirror reality inferences empirically arrived untrustworthy ibid district noted problems baldus methodology first researchers assumed information available questionnaires available juries prosecutors case tried found assumption questionable second noted instability various models even model consideration variables caused significant drop statistical significance race view undermined persuasiveness model showed greatest racial disparity model third found high correlation race many nonracial variables diminished weight study entitled finally district noted inability models predict outcome actual cases explained statisticians use measure called measure portion variance dependent variable death sentencing rate case accounted independent variables model perfectly predictive model value model predictive power value value baldus complex model model thus explained model predict outcome half cases although district rejected findings baldus study flawed appeals assumed study valid reached constitutional issues accordingly issues us appeals assume study valid statistically without reviewing factual findings district assumption baldus study statistically valid include assumption study shows racial considerations actually enter sentencing decisions georgia even sophisticated analysis baldus study demonstrate risk factor race entered capital sentencing decisions necessarily lesser risk race entered particular sentencing decision although mccleskey standing claim suffers discrimination race state argues standing contend discriminated basis victim race true reluctant recognize standing assert rights third persons arlington heights metropolitan housing dev appear nature mccleskey claim seek assert right victim rights black murder victims general rather mccleskey argues application state statute created classification irrational exercise governmental power brief petitioner necessary accomplishment permissible state objective loving virginia see mcgowan maryland statutory classification wholly irrelevant achievement state objective violate equal protection clause state base enforcement criminal laws unjustifiable standard race religion arbitrary classification oyler boles see cleveland bd ed lafleur powell concurring mccleskey raises claim standing see shaw martin cert denied adams wainwright per curiam cert denied smith balkcom modified unit per curiam cert denied spinkellink wainwright cert denied see arlington heights metropolitan housing dev supra washington davis mccleskey expert testified models developed talk effect average depict experience single individual say example average race victim white increases average probability death sentence given whether given case answer determined statistics gomillion lightfoot yick wo hopkins examples rare cases statistical pattern discriminatory impact demonstrated constitutional violation gomillion state legislature violated fifteenth amendment altering boundaries particular city square uncouth figure alterations excluded black voters without excluding single white voter yick wo ordinance prohibited operation laundries housed wooden buildings allowed laundries resume operations operator secured permit government laundry operators applied permits resume operation one white applicants received permits none chinese applicants successful cases found statistical disparities warrant require yick wo hopkins supra conclusion irresistible tantamount practical purposes mathematical demonstration gomillion lightfoot supra state acted discriminatory purpose see castaneda partida disparity county population summoned grand jury duty turner fouche disparity blacks county population grand jury lists whitus georgia disparity eligible blacks county blacks grand jury venire cases factors may considered limited usually state statute see castaneda partida supra grand juror must citizen texas county qualified voter county sound mind good moral character literate prior felony conviction pending indictment legal accusation theft felony turner fouche supra jury commissioners may exclude upright intelligent grand jury service whitus georgia supra considerations uniform potential jurors although factors may said subjective limited great degree objectively verifiable employment decisions may involve number relevant variables variables great extent uniform employees must reasonable relationship employee qualifications perform particular job issue identifiable qualifications single job provide common standard assess employee contrast capital sentencing jury may consider factor relevant defendant background character offense see eddings oklahoma common standard evaluate defendants received death penalty refer number entities involved particular decision number entities whose decisions necessarily reflected statistical display baldus study decisions jury commission employer time fairly attributable commission employer therefore unexplained statistical discrepancy said indicate consistent policy decisionmaker baldus study seeks deduce state policy studying combined effects decisions hundreds juries unique composition incomparably difficult deduce consistent policy studying decisions many unique entities also questionable whether consistent policy derived studying decisions prosecutors district attorney elected voters particular county see ga art since decisions whether prosecute charge necessarily individualized involve infinite factual variations coordination among district attorney offices across state relatively meaningless thus inference statewide statistics prosecutorial policy doubtful relevance moreover statistics fulton county alone represent disposition far fewer cases statewide statistics even assuming statistical validity baldus study whole weight given results gleaned small sample limited see wayte goodwin bordenkircher hayes see also aba standards criminal justice ed requiring prosecutor rebut study analyzes past conduct scores prosecutors quite different requiring prosecutor rebut contemporaneous challenge acts see batson kentucky although imbler decided context damages actions brought prosecutors considerations led hold prosecutor required explain decisions apply case well prosecutor made answer time person charged wrongdoing energy attention diverted pressing duty enforcing criminal law refusal require prosecutor provide explanation decisions case completely consistent longstanding precedents hold prosecutor need explain decisions unless criminal defendant presents prima facie case unconstitutional conduct respect case see batson kentucky supra wayte supra dissent justice blackmun misreads statement see post suggest mccleskey conviction sentencing jury bears prosecutor motivation rather fact constitution laws georgia authorized prosecutor seek death penalty circumstances case relevant factor weighed determining whether baldus study demonstrates constitutionally significant risk decision motivated racial considerations mccleskey relies historical evidence support claim purposeful discrimination state evidence focuses georgia laws force civil war course historical background decision one evidentiary source proof intentional discrimination arlington heights metropolitan housing dev unless historical evidence reasonably contemporaneous challenged decision little probative value cf hunter underwood relying legislative history demonstrate discriminatory motivation behind state statute although history racial discrimination country undeniable accept official actions taken long ago evidence current intent justice blackmun suggests reliance legitimate interests underlying georgia legislature enactment capital punishment statute inappropriate relevance case dealing challenge georgia capital sentencing system applied mccleskey case post emphasis original dissent suggests evidence particularly probative assessing application georgia capital punishment system actions prosecutors juries part supra challenge addressing indicated question addressing whether legislature maintains capital punishment statute racially disproportionate impact suggested baldus study mccleskey introduced evidence support claim entirely appropriate rely legislature legitimate reasons enacting maintaining capital punishment statute address challenge legislature intent eighth amendment applies due process clause fourteenth amendment robinson california capital punishment statutes enacted since decision furman imposed death sentences new statutes naacp legal defense educational fund death row federal statute amended relevant part authorizes death penalty aircraft piracy death occurs app noted georgia statute generally follows standards ali model penal code proposed official draft gregg georgia although recognized jury sentencing capital case perform important societal function proffitt florida joint opinion stewart powell stevens jj citing witherspoon illinois never suggested jury sentencing capital case constitutionally required florida capital punishment system issue proffitt jury verdict advisory trial judge determines final sentence unlike georgia florida trial judge may impose death penalty even jury recommends otherwise proffitt found florida capital sentencing procedures adequately channeled trial judge discretion florida system like georgia system face satisfie constitutional deficiencies identified furman yet decided whether constitution permits mandatory death penalty certain narrowly defined circumstances inmate serving life sentence without possibility parole commits murder see shuman wolff cert granted sub nom sumner shuman section substantially identical current georgia code ann reprinted supra constitution offended inconsistency results based objective circumstances crime numerous legitimate factors may influence outcome trial defendant ultimate sentence even though may irrelevant actual guilt sufficient evidence link suspect crime found charged capability responsible law enforcement agency vary widely also strength available evidence remains variable throughout criminal justice process may influence prosecutor decision offer plea bargain go trial witness availability credibility memory also influence results prosecutions finally sentencing state courts generally discretionary defendant ultimate sentence necessarily vary according judgment sentencing authority foregoing factors necessarily exist varying degrees throughout criminal justice system according professor baldus mccleskey case falls grey area find greatest likelihood inappropriate consideration may come bear decision analysis type obviously one say say moral certainty influenced decision ca app repeatedly stated prosecutorial discretion exercised basis race wayte batchelder oyler boles prosecutor exercise peremptory challenges basis race batson kentucky swain alabama generally condemned state efforts exclude blacks grand petit juries vasquez hillery alexander louisiana whitus georgia norris alabama neal delaware strauder west virginia ex parte virginia protections apply trial jury deliberation process widespread bias community made change venue constitutionally required irvin dowd constitution prohibits racially biased prosecutorial arguments donnelly dechristoforo circumstances particular case indicate significant likelihood racial bias may influence jury constitution requires questioning bias ristaino ross finally capital sentencing hearing defendant convicted interracial murder entitled questioning without regard circumstances particular case turner murray advocating adoption constitution alexander hamilton stated friends adversaries plan convention agree nothing else concur least value set upon trial jury difference consists former regard valuable safeguard liberty latter represent palladium free government federalist gideon ed witherspoon justice brennan joined opinion written justice stewart invalidated statute permitted prosecutor eliminate prospective jurors challenging expressed qualms death penalty expressly recognized purpose broad discretion given sentencing jury decide whether death proper penalty given case noting juror general views capital punishment play inevitable role decision emphasis omitted thus sentencing jury must composed persons capable expressing conscience community ultimate question life death ibid referred specifically plurality opinion chief justice warren trop dulles effect jury must maintain link contemporary community values penal system justice brennan condemnation results georgia capital punishment system must viewed background community values constitutionality capital punishment general previously noted supra elected representatives people congress enacted capital punishment statutes enacted amended conform generally gregg standards imposed death sentences thereunder individual case jury sentence reflects conscience community applied circumstances particular offender offense reject justice brennan contention important standard assessing constitutionality death penalty abandoned guilt phase trial double jeopardy clause bars reprosecution acquittal even acquittal based upon egregiously erroneous foundation difrancesco quoting fong foo see powell jury trial crimes lee rev despite apparent injustice acquittal founding fathers light history decided balance struck favor individual penalty hearing georgia law provides unless jury recommends death sentence verdict shall sentence defendant death georgia code ann bullington missouri held double jeopardy clause constitution prohibits state asking sentence death second trial jury first trial recommended lesser sentence case example mccleskey declined enter guilty plea according trial attorney prosecutor indicating might able work life sentence willing enter plea never reached concrete stage mccleskey attitude want enter plea never got talking tr congress acknowledged existence discrepancies criminal sentences created sentencing commission develop sentencing guidelines objective guidelines avoid unwarranted sentencing disparities among defendants similar records found guilty similar criminal conduct maintaining sufficient flexibility permit individualized sentencing warranted mitigating aggravating factors taken account guidelines fed reg emphasis added one contends sentencing disparities eliminated guidelines like safeguards statute essential need criminal justice system balance desirability high degree uniformity necessity exercise discretion baldus study fact confirms georgia system results reasonable level proportionality among class murderers eligible death penalty professor baldus confirmed system sorts cases sentence death highly likely highly unlikely leaving midrange cases imposition death penalty particular case less predictable app see supra justice brennan eloquent dissent course reflects often repeated opposition death sentence views also shared justice marshall principled entitled respect nevertheless since gregg decided seven members consistently upheld sentences death statutes providing meticulous review sentence state federal courts ultimate thrust justice brennan dissent gregg progeny overruled however expressly call overruling prior decision rather relying baldus study justice brennan joined justices marshall blackmun stevens questions heart criminal justice system traditional discretion prosecutors juries necessarily must held discretion capital punishment system necessary satisfy constitution woodson north carolina see supra yet dissent claims discretion afforded prosecutors jurors georgia capital sentencing system violates constitution creating opportunities racial considerations influence criminal proceedings post dissent contends georgia guidelines govern prosecutorial decisions georgia provides juries list aggravating mitigating factors standard balancing one another ibid prosecutorial decisions necessarily involve judgmental factual decisions vary case case see aba standards criminal justice ed thus difficult imagine guidelines produce predictability sought dissent without sacrificing discretion essential humane fair system criminal justice indeed dissent suggests guidelines prosecutorial discretion reference failure provide juries list aggravating mitigating factors curious aggravating circumstances set forth detail georgia statute see supra jury provided list aggravating circumstances relevant particular crime instead prosecutor must choose relevant circumstances state must prove jury least one exists beyond reasonable doubt jury even consider imposing death sentence improper often prejudicial allow jurors speculate aggravating circumstances wholly without support evidence dissent argument list mitigating factors required particularly anomalous held constitution requires juries allowed consider relevant mitigating factor even included statutory list eddings oklahoma see lockett ohio dissent attempt harmonize criticism constitutional principle dissent also suggest standard much less workable one balancing aggravating mitigating factors capital defendants treated uniquely individual human beings woodson north carolina supra discretion evaluate weigh circumstances relevant particular defendant crime committed essential dissent repeatedly emphasizes need uniquely high degree rationality imposing death penalty post suggestion made greater rationality achieved type statute authorizes capital punishment statute imposes unprecedented safeguards special context capital punishment include bifurcated sentencing proceeding ii threshold requirement one aggravating circumstances iii mandatory state review administered pursuant decisions interpreting limits eighth amendment imposition death penalty subject ultimate review ensure degree care imposition sentence death described unique given safeguards already inherent imposition review capital sentences dissent call greater rationality less claim capital punishment system administered accord constitution reiterate infra requirement heightened rationality imposition capital punishment plac totally unrealistic conditions use gregg georgia studies already exist allegedly demonstrate racial disparity length prison sentences see spohn gruhl welch effect race sentencing reexamination unsettled question law soc rev unnever frazier henretta race differences criminal sentencing sociological regents university california bakke opinion powell recognized national majority composed various minority groups lay claim history prior discrimination hands state private individuals see citing strauder west virginia celtic irishmen dictum yick wo hopkins chinese traux raich austrian resident aliens korematsu japanese hernandez texas see also uniform guidelines employee selection procedures cfr employer must keep records following races ethnic groups blacks american indians including alaskan natives asians including pacific islanders hispanics including persons mexican puerto rican cuban central south american spanish origin culture regardless race whites caucasians hispanics bureau census census population vol ch reprinted statistical abstract dividing population race spanish origin following groups white black american indian chinese filipino japanese korean vietnamese spanish origin races bureau census census population supplementary report series reprinted statistical abstract listing ancestry groups noting many individuals reported belong multiple ancestry groups also recognized ethnic composition nation ever shifting crawford board ed los angeles illustrates demographic facts increasingly find country namely populations change composition may relatively short timespans noted case went trial los angeles district white black hispanic asian october demographic composition altered radically white black hispanic asian increasingly whites becoming minority many larger american cities appears reason white defendant city make claim similar mccleskey racial disparities sentencing arguably shown statistical study finally heterogeneous society lower courts found boundaries race ethnicity increasingly difficult determine see shaare tefila congregation cobb cert granted saint francis college cert granted argued presenting questions whether jews arabs respectively races covered see chamblin effect sex imposition death penalty speech given symposium american psychological association entitled attributes affecting death penalty sentencing new york city steffensmeier effects judge defendant sex sentencing offenders psychology journal human behavior see johnson black innocence white jury rev citing cohen peterson bias courtroom race sex effects attorneys juror verdicts social behavior personality hodgson pryor sex discrimination courtroom attorney gender credibility psychological see steffensmeier supra see kerr bull maccoun rathborn effects victim attractiveness care disfigurement judgements american british mock jurors brit social psych johnson supra citing shoemaker south lowe facial stereotypes deviants judgments guilt innocence social forces studies indicate physically attractive defendants receive greater leniency sentencing unattractive defendants offenders whose victims physically attractive receive harsher sentences defendants less attractive victims smith hed effects offenders age attractiveness sentencing mock juries psychological kerr beautiful blameless effects victim attractiveness responsibility mock jurors verdicts personality social psych bull see baumeister darley reducing biasing effect perpetrator attractiveness jury simulation personality social psych bull schwibbe schwibbe judgment treatment people varied attractiveness psychological weiten effect jury research examination external validity applied social psych justice stevens overrule gregg suggests dissent infirmities alleged mccleskey remedied narrowing class defendants categories identified baldus study prosecutors consistently seek juries consistently impose death penalty without regard race victim race offender post proposed solution unconvincing first consistently relative term narrowing category defendants simply shift borderline defendants received death penalty borderline area continue exist vary boundaries moreover discrepancy borderline cases difficult explain system likely remain open challenge basis lack explanation rendered sentencing decisions unconstitutionally arbitrary second even assuming category theoretically consistent results identified difficult imagine justice stevens proposal operate basis whenever victim white defendant member different race steps prosecutor required take addition weighing customary prosecutorial considerations concluding particular case lawfully prosecute absence current study focused particularly community crime committed find standard prosecutor review prior decisions community prosecutors determine types cases juries jurisdiction consistently imposed death penalty victim white defendant different race must rely solely statistics even study feasible unlawful prosecutor making final decision particular case consider evidence guilt presence aggravating mitigating factors however conscientiously prosecutor might attempt identify defendants dissent suggestion wholly speculative task best likely result less rather fairness consistency imposition death penalty justice brennan justice marshall joins justice blackmun justice stevens join part dissenting adhering view death penalty circumstances cruel unusual punishment forbidden eighth fourteenth amendments vacate decision insofar left undisturbed death sentence imposed case gregg georgia brennan dissenting observes statute imposes unprecedented safeguards special context capital punishment ensure degree care imposition death penalty described unique ante notwithstanding efforts murder defendants georgia white victims four times likely receive death sentence defendants black victims petitioner exhibit db nothing convey powerfully intractable reality death penalty effort eliminate arbitrariness infliction ultimate sanction plainly doomed failure death penalty must abandoned altogether godfrey georgia marshall concurring judgment even hold position however reverse appeals petitioner mccleskey clearly demonstrated death sentence imposed violation eighth fourteenth amendments join parts justice blackmun dissenting opinion discussing petitioner fourteenth amendment claim write separately emphasize conclusively mccleskey also demonstrated precisely type risk irrationality sentencing consistently condemned eighth amendment jurisprudence ii point case warren mccleskey doubtless asked lawyer whether jury likely sentence die candid reply question disturbing first counsel tell mccleskey details crime mccleskey past criminal conduct important fact victim white petitioner supplemental exhibits supp exh furthermore counsel feel bound tell mccleskey defendants charged killing white victims georgia times likely sentenced death defendants charged killing blacks petitioner exhibit db addition frankness compel disclosure likely race mccleskey victim determine whether received death sentence every defendants convicted killing white person received death penalty victims black supp exh among defendants aggravating mitigating factors comparable mccleskey every sentenced die victims black finally assessment complete without information cases involving black defendants white victims likely result death sentence cases featuring racial combination defendant victim ibid story told variety ways mccleskey fail grasp essential narrative line significant chance race play prominent role determining lived died today holds warren mccleskey sentence constitutionally imposed finds fault system lawyers must tell clients race casts large shadow capital sentencing process arrives conclusion stating baldus study prove race enters capital sentencing decisions race factor mccleskey particular case ante emphasis original since according professor baldus say moral certainty race influenced decision ante identify likelihood particular factor entered decisions ante discrepancy appears correlate race ante likelihood discrepancy holds insufficient establish constitutional violation reaches conclusion placing four factors scales opposite mccleskey evidence desire encourage sentencing discretion existence statutory safeguards georgia scheme fear encouraging widespread challenges sentencing decisions limits judicial role evaluation significance petitioner evidence fundamentally odds consistent concern rationality capital sentencing considerations majority invokes discount evidence justify ignoring force iii important emphasize outset observation mccleskey prove influence race particular sentencing decision irrelevant evaluating eighth amendment claim since furman georgia concerned risk imposition arbitrary sentence rather proven fact one furman held death penalty may imposed sentencing procedures create substantial risk punishment inflicted arbitrary capricious manner godfrey georgia supra justice observed caldwell mississippi death sentence must struck circumstances imposed creat unacceptable risk death penalty may meted arbitrarily capriciously whim mistake emphasis added quoting california ramos emphasis risk acknowledges difficulty divining jury motivation individual case addition reflects fact concern arbitrariness focuses rationality system whole system features significant probability sentencing decisions influenced impermissible considerations regarded rational said gregg georgia petitioner looks sentencing system whole furman today constitutional violation established plaintiff demonstrates pattern arbitrary capricious sentencing emphasis added joint opinion stewart powell stevens result inquiry eighth amendment directed validity individual sentences us godfrey instance struck petitioner sentence vagueness statutory definition heinous crimes created risk prejudice impermissible influences might infected sentencing decision vacating sentence ask whether likely godfrey sentence reflected operation irrational considerations demand demonstration considerations actually entered sentencing decisions involving heinous crimes similarly roberts louisiana woodson north carolina struck death sentences part mandatory imposition death penalty created risk jury might rely arbitrary considerations deciding persons convicted capital crimes risk arise said likelihood jurors reluctant impose capital punishment particular defendant refuse return conviction effect mandatory sentencing recreate unbounded sentencing discretion condemned furman roberts supra plurality opinion woodson supra plurality opinion ask whether death sentences cases us reflected jury rational consideration rejection mitigating factors require proof juries actually acted irrationally cases defendants challenging death sentences thus never prove impermissible considerations actually infected sentencing decisions required instead establish system sentenced posed significant risk occurrence mccleskey claim differ however one respect earlier cases first base challenge speculation system might operate empirical documentation operate assumes statistical validity baldus study acknowledges mccleskey demonstrated risk racial prejudice plays role capital sentencing georgia ante nonetheless finds probability prejudice insufficient create constitutional concern ante close analysis baldus study however light statistical principles human experience reveals risk race influenced mccleskey sentence intolerable imaginable standard baldus study indicates taking account nonracial factors might legitimately influence sentencer jury likely spared mccleskey life victim black study distinguishes cases jury exercises virtually discretion strength weakness aggravating factors usually suggests one outcome appropriate cases reflecting intermediate level aggravation jury considerable discretion choosing sentence mccleskey case falls intermediate range cases death imposed crimes crimes difference rate imposition death penalty supp exh words almost defendants comparable mccleskey received death penalty victims black furthermore even examination sentencing system whole factoring cases jury exercises little discretion indicates influence race capital sentencing georgia system whole race accounts six percentage point difference rate capital punishment imposed since death imposed cases rate comparably aggravated cases rate capital sentencing case thus greater rate case put another way half defendants crimes georgia sentenced die victims black variables potentially relevant sentencing decision race victim powerful explanation variation death sentence rates powerful nonracial aggravating factors prior murder conviction acting principal planner homicide adjusted figures conservative indication risk race influence death sentences defendants georgia data unadjusted mitigating aggravating effect factors show even pronounced disparity race capital sentencing rate cases almost times greater rate cases supp exh furthermore blacks kill whites sentenced death nearly times rate blacks kill blacks times rate whites kill blacks ibid addition prosecutors seek death penalty black defendants white victims black defendants black victims white defendants black victims since decision upholding georgia capital sentencing system gregg state executed seven persons seven convicted killing whites six seven executed black execution figures especially striking light fact period encompassed baldus study georgia homicides involved black defendants white victims involved black victims mccleskey statistics particular force product sophisticated analysis analysis designed precisely identify patterns aggregate even though may able reconstitute certainty individual decision goes make pattern analysis particularly well suited identify influence impermissible considerations sentencing since able control permissible factors may explain apparent arbitrary pattern decisionmaking process body jury may complex baldus study provides massive compilation details relevant decision held context title vii civil rights act last term bazemore friday analysis need include every conceivable variable establish party case long includes variables account major factors likely influence decisions case professor baldus fact conducted additional regression analyses response criticisms suggestions district confirmed even strengthened study original conclusions statistical evidence case thus relentlessly documents risk mccleskey sentence influenced racial considerations evidence shows better even chance georgia race influence decision impose death penalty majority defendants crimes sentenced die victims black determining whether risk acceptable judgment must shaped awareness risk racial prejudice infecting capital sentencing proceeding especially serious light complete finality death sentence turner murray vital importance defendant community decision impose death sentence appear based reason rather caprice emotion gardner florida determining guilt defendant state must prove case beyond reasonable doubt refuse convict chance error simply less likely surely willing take person life chance death sentence irrationally imposed likely light gravity interest stake petitioner statistics face powerful demonstration type risk eighth amendment jurisprudence consistently condemned evaluation mccleskey evidence rest solely numbers must also ask whether conclusion suggested numbers consonant understanding history human experience georgia legacy criminal justice system well recognition persistent danger racial attitudes may affect criminal proceedings indicates mccleskey claim fanciful product mere statistical artifice many years georgia operated openly formally precisely type dual system evidence shows still effectively place criminal law expressly differentiated crimes committed blacks whites distinctions whose lineage traced back time slavery colonial period black slaves killed whites georgia regardless whether defense another automatically executed higginbotham matter color race american legal process time civil war dual system crime punishment well established georgia see ga penal code state criminal code contained separate sections slaves free persons color pt tit ch persons pt tit divs code provided instance automatic death sentence murder committed blacks pt tit art ii declared anyone else convicted murder might receive life imprisonment conviction founded solely circumstantial testimony simply jury recommended pt tit div code established rape free white female black shall punishable death however rape anyone else free white female punishable prison term less years rape blacks punishable fine imprisonment discretion black convicted assaulting free white person intent murder put death discretion offense committed black slave free classified minor offense whose punishment lay discretion long punishment extend life limb health art iii assault intent murder white person punishable prison term years div sufficient provocation reduce charge murder manslaughter code provided bedience submission duty slave much greater provocation necessary reduce homicide white person voluntary manslaughter prescribed white persons art ii recent times years ago gunnar myrdal epochal study american race relations produced findings mirroring mccleskey evidence long negroes concerned whites disturbed great leniency shown cases sentences even major crimes ordinarily reduced victim another negro offenses involve actual potential danger whites however negroes punished severely whites hand quite common white criminal set free crime negro myrdal american dilemma five years later struck imposition death penalty georgia crime rape coker georgia although explicitly mention race decision informed specific observations rape chief justice justice powell furman furthermore evidence submitted indicated black men committed rape particularly white women considerably likely sentenced death white rapists instance georgia executed men rape since federal government began compiling statistics men black white see brief petitioner coker georgia see also wolfgang riedel rape race death penalty georgia orthopsychiatry three years later godfrey found one state statutory aggravating factors unconstitutionally vague since resulted standardless unchanneled imposition death sentences uncontrolled discretion basically uninstructed jury justice marshall concurring judgment noted disgraceful distorting effects racial discrimination poverty continue painfully visible imposition death sentences omitted historical review georgia criminal law intended bill indictment calling state account past transgressions citation past practices justify automatic condemnation current ones unrealistic ignore influence history assessing plausible implications mccleskey evidence mericans share historical experience resulted individuals within culture ubiquitously attaching significance race irrational often outside awareness lawrence id ego equal protection reckoning unconscious racism stan rev see generally describing psychological dynamics unconscious racial motivation said rose mitchell deny years close war nearly years strauder racial forms discrimination still remain fact life administration justice society whole perhaps today discrimination takes form subtle less real pernicious discretion afforded prosecutors jurors georgia capital sentencing system creates opportunities guidelines govern prosecutorial decisions seek death penalty georgia provides juries list aggravating mitigating factors standard balancing one another jury identifies one aggravating factor complete discretion choosing life death need articulate basis selecting life imprisonment georgia sentencing system therefore provides considerable opportunity racial considerations however subtle unconscious influence charging sentencing decisions history continuing legacy thus buttress probative force mccleskey statistics formal dual criminal laws may longer effect intentional discrimination may longer prominent nonetheless acknowledged turner subtle less consciously held racial attitudes continue concern georgia system gives attitudes considerable room operate conclusions drawn mccleskey statistical evidence therefore consistent lessons social experience majority thus misreads eighth amendment jurisprudence concluding mccleskey demonstrated degree risk sufficient raise constitutional concern determination significance evidence core exercise human moral judgment mechanical statistical analysis must first foremost informed awareness fact death irrevocable result qualitative difference death punishments requires greater degree scrutiny capital sentencing determination california ramos reason demanded uniquely high degree rationality imposing death penalty capital sentencing system race likely plays role meet standard true every nuance decision statistically captured individual judgment plumbed absolute certainty yet fact must always act without illumination complete knowledge induce paralysis confront literally issue life death sentencing data history experience counsel georgia provided insufficient assurance heightened rationality required order take human life iv cites four reasons shrinking implications mccleskey evidence desirability discretion actors criminal justice system existence statutory safeguards abuse discretion potential consequences broader challenges criminal sentencing understanding contours judicial role concerns underscore need sober deliberation justify rejecting evidence convincing mccleskey presented maintains petitioner claim antithetical fundamental role discretion criminal justice system ante discretion fundamental criminal process involved decline assume unexplained invidious ante reliance race imposing capital punishment however antithetical rationale granting sentencing discretion discretion means end bestowed order permit sentencer trea defendant capital case degree respect due uniqueness individual lockett ohio decision impose punishment death must based particularized consideration relevant aspects character record convicted defendant woodson north carolina failure conduct individualized moral inquiry treats persons convicted designated offense unique individual human beings members faceless undifferentiated mass subjected blind infliction penalty death considering race defendant victim deciding death penalty imposed completely odds concern individual evaluated unique human decisions influenced race rest part categorical assessment worth human beings according color insensitive whatever qualities individuals question may possess enhanced willingness impose death sentence black defendants diminished willingness render sentence blacks victims reflects devaluation lives black persons confronted evidence race likely plays role capital sentencing system plainly insufficient say importance discretion demands risk higher act case end discretion designed serve undermined desire individualized moral judgments may lead us accept inconsistencies sentencing outcomes since decisions reducible mathematical formulae willing assume certain degree variation reflects fact two defendants completely alike thus presumption actors criminal justice system exercise discretion responsible fashion automatically infer sentencing patterns comport ideal rationality suspect made clear batson kentucky however presumption rebuttable batson dealt another arena considerable discretion traditionally afforded exercise peremptory challenges challenges normally exercised without indication whatsoever grounds rationale deference belief unique characteristics particular prospective jurors may raise concern part prosecution defense despite fact counsel may able articulate concern manner sufficient support exclusion cause sentencing therefore peremptory challenges justified occasion particularized determinations related specific individuals sentencing presume challenges normally made basis factor race said batson however features justify imposing crippling burden proof order rebut presumption case apparently seeks basis need individualized decisions rejects evidence drawn sophisticated capital sentencing analysis ever performed reveals race likely infects capital sentencing decisions position converts rebuttable presumption virtually conclusive one also declines find mccleskey evidence sufficient view safeguards designed minimize racial bias capital sentencing process ante gregg georgia upheld georgia capital sentencing statute facial challenge justice white described concurring opinion based simply assertion lack faith system operate fair manner opinion concurring judgment justice white observed claim prosecutors might act arbitrary fashion unsupported facts prosecutors must assumed exercise charging duties properly bsent facts contrary clear gregg bestowed permanent approval georgia system simply held state statutory safeguards assumed sufficient channel discretion without evidence otherwise years since georgia adopted provisions upheld gregg professor baldus colleagues compiled data almost homicides committed period taken account influence nonracial variables using multitude data state produced striking evidence odds sentenced death significantly greater average defendant black victim white challenge georgia system speculative theoretical empirical result rely statutory safeguards discounting mccleskey evidence effectiveness safeguards evidence calls question may hope model procedural fairness curb influence race sentencing simply assume model works intended must critique performance terms results hubbard reasonable levels arbitrariness death sentencing patterns tragic perspective capital punishment rev next unwillingness regard petitioner evidence sufficient based part fear recognition mccleskey claim open door widespread challenges aspects criminal sentencing ante taken face statement seems suggest fear much justice yet surely majority acknowledge striking evidence indicated minority groups women even persons blond hair disproportionately sentenced death state affairs repugnant deeply rooted conceptions fairness prospect may widespread abuse mccleskey documents may dismaying justify complete abdication judicial role constitution framed fundamentally bulwark governmental power preventing arbitrary administration punishment basic ideal society purports governed rule law fairness fear mccleskey claim invitation descend slippery slope also rests realization humanly imposed system penalties exhibit imperfection yet reject mccleskey powerful evidence basis ignore qualitatively different character death penalty particular repugnance racial discrimination considerations may properly taken account determining whether various punishments cruel unusual furthermore fails take account unprecedented refinement strength baldus study hardly needs reiteration consistently acknowledged uniqueness punishment death death finality differs life imprisonment prison term differs one year two qualitative difference corresponding difference need reliability determination death appropriate punishment woodson furthermore relative interests state defendant differ dramatically death penalty context marginal benefits accruing state obtaining death penalty rather life imprisonment considerably less marginal difference defendant death life prison disparity additional reason tolerating scant arbitrariness capital sentencing even believe society impose death penalty manner sufficiently rational justify continuation must acknowledge level rationality considered satisfactory must uniquely high result degree arbitrariness may adequate render death penalty cruel unusual punishment may adequate invalidate lesser penalties relative degrees arbitrariness might cases need concern us point majority fear wholesale invalidation criminal sentences unfounded also maintains accepting mccleskey claim pose threat sentencing prospect correlation might demonstrated sentencing outcomes personal characteristics view indifferent considerations enter determination whether punishment cruel unusual race consideration whose influence expressly constitutionally proscribed expressed moral commitment embodied fundamental law specific characteristic basis allotting burdens benefits three constitutional amendments numerous statutes prompted specifically desire address effects racism years consistently repudiated istinctions citizens solely ancestry odious free people whose institutions founded upon doctrine equality loving virginia quoting hirabayashi furthermore explicitly acknowledged illegitimacy race consideration capital sentencing zant stephens decision impose death penalty influenced race thus particularly repugnant prospect evidence race may play even modest role levying death sentence enough characterize sentence cruel unusual certainly factor regard morally irrelevant hair color least theoretically associated sentencing results extent regard arbitrary system factor played significant role said however supra evaluation evidence suggesting correlation must informed merely statistics history experience one hardly contend nation basis hair color inflicted upon persons deprivation comparable imposed basis race recognition fact necessarily influence evaluation data suggesting influence hair color sentencing require evidence statistical correlation even powerful presented baldus study furthermore fear expansive ramifications holding mccleskey case unfounded fails recognize uniquely sophisticated nature baldus study mccleskey presents evidence far away refined data ever assembled system punishment data readily replicated casual effort moreover evidence depicts merely arguable tendencies striking correlations powerful nonracial explanations eliminated acceptance petitioner evidence therefore establish remarkably stringent standard statistical evidence unlikely satisfied frequency projection apocalyptic consequences criminal sentencing thus greatly exaggerated indulge speculation ignoring jurisprudence demanding highest scrutiny issues death race result fails justice claim elements intertwined occasion calling sensitive inquiry conduct despite acceptance validity warren mccleskey evidence willing let death sentence stand fears successfully define different standard lesser punishments fear baseless finally justifies rejection mccleskey claim cautioning usurpation legislatures role devising monitoring criminal punishment course correct emphasize gravity constitutional intervention importance sparingly employed fact apital punishment law two thirds ante however diminish fact capital punishment awesome act state perform judiciary role society counts little use governmental power extinguish life elicit close scrutiny true society legitimate interest punishment yet alexander bickel wrote premise deduce merely fact written constitution history race ultimately moral judgment good society government serve conceive time time immediate material needs also certain enduring values part meant government law least dangerous branch reasons methods employ enforcement criminal law aptly called measures quality civilization may judged coppedge banish society human community often speak faint voice heard society demand punishment particular role courts hear voices constitution declares majoritarian chorus may alone dictate conditions social life thus fulfills rather disrupts scheme separation powers closely scrutinizing imposition death penalty decision society deserving sober second thought stone common law harv rev time constitution framed years ago year blacks century regarded beings inferior order altogether unfit associate white race either social political relations far inferior rights white man bound respect dred scott sandford years ago relied observations deny american citizenship blacks ibid mere three generations ago sanctioned racial segregation stating one race inferior socially constitution put upon plane plessy ferguson recent times sought free burden history yet scarcely generation since first decision striking racial segregation barely two decades since legislative prohibition racial discrimination major domains national life honorable steps pretend three decades completely escaped grip historical legacy spanning centuries warren mccleskey evidence confronts us subtle persistent influence past message disturbing one society formally repudiated racism frustrating one nation accustomed regarding destiny product nonetheless ignore peril remain imprisoned past long deny influence present tempting pretend minorities death row share fate way connected treatment sounds echoes beyond chambers die illusion ultimately corrosive reverberations injustice easily confined destinies two races country indissolubly linked together harlan dissenting way choose die reveals depth moral commitment among living decision today change attorneys georgia tell warren mccleskeys chances execution nothing soften harsh message must convey alter prospect race undoubtedly continue topic discussion mccleskey evidence obtained judicial acceptance affect said death row however many criticisms today decision may rendered painful conversations serve eloquent dissents identify pattern arbitrary sentencing outcomes say defendant runs risk sentenced arbitrarily thus immaterial whether operation impermissible influence race intentional equal protection clause forbids racial discrimination intent may critical successful claim provision eighth amendment distinct focus whether punishment comports social standards rationality decency may case occasion influence makes punishment arbitrary also proscribed another constitutional provision mean however standard determining eighth amendment violation superseded standard determining violation provision thus fact mccleskey presents viable equal protection claim require demonstrate intentional racial discrimination establish eighth amendment claim first two last study eight case categories represent cases jury typically sees little leeway deciding sentence cases first two categories feature aggravating factors minimal juries imposed death sentences cases factors period study supp exh cases eighth category feature aggravating factors extreme jury imposed death penalty cases factors period ibid five categories characterized intermediate rate death penalty imposed ranged overall rate cases categories ibid considerable racial disparity sentencing rates among cases consistent liberation hypothesis kalven zeisel landmark work american jury authors found close cases jurors often disagreement closeness evidence makes possible jury respond sentiment liberating discipline evidence jury often consciously explicitly yield sentiment teeth law yields sentiment apparent process resolving doubts evidence jury therefore able conduct revolt law within etiquette resolving issues fact ibid thus cases sentencing evidence seems dictate neither life imprisonment death penalty impermissible factors race play prominent role fact victim white accounts nine percentage point difference rate death penalty imposed difference attributable prior murder conviction fact defendant prime mover planning murder supp exh naacp legal defense educational fund death row see generally fisher multiple regression legal proceedings colum rev death also inflicted upon slave grievously wound ed maim ed bruis ed white person convicted third time striking white person attempted run away province higginbotham matter color race american legal process hand person willfully murdered slave punished second offense responsible simply restitution slave owner furthermore conviction willful murder slave subject difficult requirement oath two white witnesses contends inappropriate take account wide latitude afforded actors georgia capital sentencing system since held discretion capital punishment system necessary satisfy constitution ante suggestion made greater rationality achieved type statute authorizes capital punishment ibid first point true course struck death penalty furman georgia sentencing systems provided much discretion since gregg georgia death penalty jurisprudence rested premise possible establish system guided discretion permit individualized moral evaluation prevent impermissible considerations taken account justice blackmun persuasively demonstrated post georgia provides systematic guidelines prosecutors utilize determining defendants death penalty sought furthermore whether state chosen effective combination guidance discretion capital sentencing system whole established abstract insists must determined empirically baldus study done respect criticism mccleskey shown georgia better job ante established particular system guided discretion chosen state achieving intended purpose burden state defendant devise rational system wishes continue impose death penalty maitland said provision magna carta regulating discretionary imposition fines ery likely clause magna carta grateful mass people maitland pleas crown county gloucester xxxiv country point underscored patrick henry remarks support adoption bill rights congress general powers may fully go business human legislation may legislate criminal cases treason lowest offence petty larceny may define crimes prescribe punishments definition crimes trust directed wise representatives governed come punishments latitude left dependence put virtue representatives elliot debates constitution today sanctions execution man despite presentation evidence establishes constitutionally intolerable level racially based discrimination leading imposition death sentence disappointed action denial constitutional guarantees petitioner mccleskey individually also departure seems constitutional jurisprudence justice brennan thoroughly demonstrated ante one assumes statistical evidence presented petitioner mccleskey valid must light appeals assumption exists georgia capital sentencing scheme risk racially based discrimination acute violates eighth amendment analysis mccleskey case terms eighth amendment consistent recognition capital cases involve state imposition punishment unique kind degree decision cases must reflect heightened degree reliability amendment prohibition infliction cruel unusual punishments see woodson north carolina plurality opinion therefore join parts ii justice brennan dissenting opinion yet mccleskey case raises concerns central principles underlying eighth amendment also principles underlying fourteenth amendment analysis case terms fourteenth amendment consistent recognition racial discrimination fundamentally odds constitutional guarantee equal protection protections afforded fourteenth amendment left courtroom door hill texas equal protection denied persons convicted crimes lee washington per curiam past found racial discrimination within criminal justice system particularly abhorrent discrimination basis race odious aspects especially pernicious administration justice rose mitchell disparate enforcement criminal sanctions destroys appearance justice thereby casts doubt integrity judicial process last term justice powell writing noted discrimination within judicial system pernicious stimulant race prejudice impediment securing black citizens equal justice law aims secure others batson kentucky quoting strauder west virginia moreover legislative history fourteenth amendment reminds us discriminatory enforcement criminal laws matter great concern drafters introductory remarks report congress joint committee reconstruction reported joint resolution proposing fourteenth amendment specifically noted prejudice color leads acts cruelty oppression murder local authorities pains prevent punish joint comm xvii witnesses testified committee presented accounts criminal acts violence black persons prosecuted despite evidence identity perpetrators today seems give new meaning recognition death different rather requiring correspondingly greater degree scrutiny capital sentencing determination california ramos relies fact case involving capital punishment apply lesser standard scrutiny equal protection clause concludes legitimate explanations outweigh mccleskey claim death sentence reflected constitutionally impermissible risk racial discrimination explains mccleskey evidence weak require rebuttal legitimate unchallenged explanation decision apparent record mccleskey committed act constitution georgia laws permit imposition death penalty ante infer discriminatory purpose part state legislature legitimate reasons georgia legislature adopt maintain capital punishment ante assertion fact mccleskey conviction undermines constitutional claim inconsistent long unbroken line case law numerous occasions past century recognized otherwise legitimate basis conviction outweigh equal protection violation cases racial discrimination administration criminal justice system established held setting aside conviction appropriate remedy see rose mitchell whitus georgia strauder west virginia recently reaffirmed propriety invalidating conviction order vindicate federal constitutional rights vasquez hillery invalidation criminal conviction federal constitutional grounds necessarily preclude retrial resentencing defendant state hill texas maintained per se reversal rule rejecting application analysis cases involving racial discrimination strikes fundamental values judicial system society whole rose mitchell noted conviction way suggests discrimination impermissibly infect earlier phases criminal prosecution consequently nature existence proceedings come vasquez hillery hence mccleskey conviction imposition death sentence jury suggest discrimination impermissibly infect earlier steps prosecution case prosecutor decision seek death penalty reliance legitimate interests underlying georgia legislature enactment capital punishment statute likewise inappropriate although reasoning may relevant case involving facial challenge constitutionality statute relevance case dealing challenge georgia capital sentencing system applied mccleskey case batson kentucky supra rejected reasoning constitution requires look beyond face statute also consider challenged selection practices afford protection action state administrative officers effecting prohibited discrimination quoting norris alabama analyzing equal protection claim must first determine nature claim responsibilities state actors involved determine showing required establishment prima facie case castaneda partida correctly points broadest form mccleskey claim discrimination extends every actor georgia capital sentencing process prosecutor sought death penalty jury imposed sentence state enacted capital punishment statute allows remain effect despite allegedly discriminatory application ante recognized complexity mccleskey claim however proceeds ignore significant element claim treats case limited challenges actions two specific decisionmaking bodies petit jury state legislature ante restriction enables distinguish case cases cases title vii civil rights act long accepted statistical evidence provided easily applicable framework review see castaneda partida supra bazemore friday brennan joined members concurring part considering mccleskey claim entirety however reveals claim fits easily within framework significant aspect claim racial factors impermissibly affected numerous steps georgia capital sentencing scheme indictment jury vote sentence death primary decisionmaker intervening steps process prosecutor quintessential state actor criminal proceeding district expressly stated two levels system matter mccleskey decision seek death penalty decision impose death penalty supp nd agree statement mccleskey case hence analysis dissenting opinion takes account role prosecutor georgia capital sentencing system certainly address alternative methods proof baldus study review step process mccleskey challenges concentrate decisions within prosecutor office state decided seek death penalty particular point state proceeded penalty phase conviction step evidence effect racial factors especially strong see supplemental exhibits supp exh transcript federal habeas corpus hearing tr ignored ii criminal defendant alleging equal protection violation must prove existence purposeful discrimination washington davis whitus georgia may establish prima facie case purposeful discrimination showing totality relevant facts gives rise inference discriminatory purpose batson kentucky defendant establishes prima facie case burden shifts prosecution rebut case state meet burden mere general assertions officials discriminate properly performed official duties ibid state must demonstrate challenged effect due permissible racially neutral selection criteria quoting alexander louisiana batson kentucky framework established castaneda partida mccleskey must meet standard first must establish member group recognizable distinct class singled different treatment second must make showing substantial degree differential treatment third must establish allegedly discriminatory procedure susceptible abuse racially neutral ibid dispute mccleskey made requisite showing first prong standard baldus study demonstrates black persons distinct group singled different treatment georgia capital sentencing system acknowledges must raw statistics included baldus study presented petitioner indicate much less likely death sentence result murder black person murder white person ante cases nearly times likely yield death sentence cases supp exh raw figures also indicate even within group defendants convicted killing white persons thereby likely receive death sentence black defendants likely white defendants sentenced death supp exh respect second prong mccleskey must prove substantial likelihood death sentence due racial factors see hunter underwood appeals assumed validity baldus study found showed systemic substantial disparities existed penalties imposed upon homicide defendants georgia based race homicide victim disparities existed less substantial rate death sentencing based race defendants factors race victim defendant work fulton county question remaining therefore point disparity become constitutionally unacceptable see turner murray plurality opinion recognizing additional factors enter decisionmaking process yields death sentence authors baldus study collected data concerning presence relevant factors homicide cases georgia time period relevant mccleskey case analyzed data manner permit ascertain independent effect racial factors mccleskey demonstrated degree death sentence affected racial factors introducing analyses explain much statistical distribution cases analyzed attributable racial factors mccleskey established charged killing white person times likely sentenced death charged killing black person petitioner exhibit db mccleskey also demonstrated likely fact victim charged killing white determined received sentence death every defendants mccleskey midrange category sentenced executed victims black supp exh persuasive evidence constitutionally significant effect racial factors georgia capital sentencing system mccleskey proof race victim important explaining imposition death sentence factor whether defendant prime mover homicide petitioner exhibit db similarly factor nearly crucial statutory aggravating circumstance whether defendant prior record conviction capital crime ibid see code ann ante noted elsewhere georgia attach aggravating label factors constitutionally impermissible totally irrelevant sentencing process example race religion political affiliation defendant zant stephens held unconstitutional included language statute surely constitutional de facto characteristic system mccleskey produced evidence concerning role racial factors various steps decisionmaking process focusing prosecutor decision cases merit death sentence mccleskey established race victim especially significant factor point defendant convicted murder prosecutor must choose whether proceed penalty phase trial create possibility death sentence may imposed accept imposition sentence life imprisonment mccleskey demonstrated effect statewide level see supp exh tr fulton county tried sentenced see supp exh tr statewide statistics indicated cases advanced penalty trial nearly five times rate cases three times rate cases see supp exh analysis demonstrated racial factors readily identifiable effect statistically significant level see tr fulton county statistics consistent evidence although involved fewer cases see supp exh individualized evidence relating disposition fulton county cases comparable mccleskey case consistent evidence effect well defendants including mccleskey arrested charged homicide police officer fulton county period mccleskey alone sentenced death defendant whose case even proceeded penalty phase received sentence life imprisonment defendant convicted killing black police officer see tr final element prima facie case mccleskey showed process state decided seek death penalty case pursue sentence throughout prosecution susceptible abuse petitioner submitted deposition lewis slaton date deposition district attorney years county mccleskey tried sentenced deposition lewis slaton see mccleskey zant supp tr slaton explained duties responsibilities office prosecution felony charges within atlanta judicial circuit comprises fulton county deposition testified years office guidelines informing assistant district attorneys handled cases proceed particular stage prosecution guidelines seek indictment murder opposed lesser charges recommend acceptance guilty plea murder acceptance guilty plea lesser charge reduction charges dismissal charges stage seek death penalty slaton testified decisions left discretion individual attorneys informed slaton decisions saw fit slaton deposition proves every stage prosecution assistant district attorney exercised much discretion guidance given training addressing plea bargaining example slaton stated training assistant da get think pretty much think alike cases suggest sole effort provide consistency slaton periodic pulling files random check progress cases slaton explained far knew one aware checking files contained information evidence case indication attorney made particular decision attorneys required record sought indictment murder opposed lesser charge recommended certain plea attorneys required report slaton cases decided seek death penalty cases seek death penalty questioned directly office decided whether seek death penalty slaton listed several factors thought relevant decision including strength evidence atrociousness crime likelihood jury impose death sentence explained attorneys seek death penalty every case statutory aggravating factors existed slaton testified office still operated manner took office except sought death penalty rape cases since decision coker georgia deposition addition showing challenged system susceptible abuse mccleskey presented evidence history prior discrimination georgia system justice brennan reviewed much history detail dissenting opinion ante including history georgia racially based dual system criminal justice historical background state action challenged one evidentiary source equal protection case arlington heights metropolitan housing development see also rogers lodge although agree evidence official actions taken long ago alone establish current system applied unconstitutionally discriminatory manner disagree statement evidence irrelevant ante evidence considered conjunction record evidence outlined justice brennan ante discussed opinions dissenting judgment appeals hatchett dissenting part concurring part clark dissenting part concurring part gives rise inference discriminatory purpose see washington davis context rule exclusion see supra mccleskey showing sufficient magnitude absent evidence contrary one must conclude racial factors entered decisionmaking process yielded mccleskey death sentence see castaneda partida burden therefore shifts state explain racial selections must demonstrate legitimate racially neutral criteria procedures yielded racially skewed result rebuttal state expert suggested baldus thesis correct aggravation level cases life sentence imposed higher cases see expert analyzed aggravating mitigating circumstances one one demonstrating life sentence cases extent aggravating circumstance prevalent one group aggravating features group cases group cases conversely mitigating circumstances cases higher proportion circumstance cases ibid district found state suggestion plausible concluded however state conclusively disprove mccleskey case yet reasoned state theory stands contradict prima facie case ibid find reasoning wrong matter law conclusion clearly erroneous state test hypothesis determine cases level aggravating circumstances similarly treated tr mccleskey experts however performed test data demonstrated racial disparities system result differences average aggravation levels cases see supp exh tr petitioner exhibit db state meager unsophisticated evidence withstand extensive scrutiny given baldus evidence bazemore friday state demonstrate th factors properly organized accounted significant disparity death sentences imposed defendants convicted killing white victims imposed defendants convicted killing black victims castaneda rejected similar effort state rely unsupported countervailing theory rebut evidence sum mccleskey demonstrated clear pattern differential treatment according race unexplainable grounds race arlington heights metropolitan housing development iii explanations failure apply equal protection analysis case persuasive first reasons particular decision impose death penalty made petit jury application inference drawn general statistics specific decision trial sentencing simply comparable application inference drawn general statistics specific title vii case ante according statistical evidence less relevant two latter situations fewer variables relevant decision statistics relate fewer entities ante disagree assertion fewer variables relevant decisions jury commissioners prosecutors selection jurors decisions employers selection promotion discharge employees decisions involve multitude factors rational irrational second disagree comment employment decisions made fewer entities certainly employment context personnel decisions often product several levels decisionmaking within business government structure statement decision impose death made petit jury also disregards fact prosecutor screens cases throughout pretrial proceedings decides seek death penalty pursue capital case penalty phase death sentence imposed mccleskey claim regard lends analysis framework apply assessing challenges prosecutorial actions see batson kentucky see also wayte applying castaneda framework challenge prosecutor allegedly selective enforcement criminal sanction appropriate judge claims racially discriminatory prosecutorial selection cases according ordinary equal protection standards reason treating case differently employment cases latter contexts decisionmaker opportunity explain statistical disparity instant case state practical opportunity rebut baldus study ante according jurors called testify verdict policy considerations render improper require prosecutors defend decisions seek death penalties often years made quoting imbler pachtman agree observation difficulty examining jury decisionmaking process perhaps inherent tension discretion accorded capital sentencing juries guidance use discretion constitutionally required dissenting opinion justice brennan demonstrates eighth amendment analysis well suited address aspect case ante refusal require prosecutor provide explanation actions however completely inconsistent longstanding precedents misreads imbler pachtman case held prosecutor acted within scope duties entitled absolute immunity action damages recognized immunity damages actions necessary prevent harassing litigation avoid threat civil litigation undermining prosecutor independence judgment clearly specified however policy considerations compelled civil immunity mean prosecutors called answer actions noted availability criminal sanctions professional ethical discipline prosecutors undoubtedly need adequate discretion allocate resources offices fulfill responsibilities public deciding best enforce law place beyond constraints imposed state action fourteenth amendment cf ex parte virginia upholding validity conviction state judge discriminating basis race selection jurors attempts distinguish present case batson kentucky recently reaffirmed fact prosecutors actions unreviewable see ante agree observation case quite different batson case ibid irony mccleskey presented proof case satisfied burdensome standard swain alabama standard described batson placed defendants crippling burden proof discussed mccleskey presented evidence numerous decisions impermissibly affected racial factors significant number cases exhaustive evidence presented case certainly demands inquiry prosecutor actions assertion necessity discretion criminal justice system demand exceptionally clear proof ante inferring abuse discretion thus misses point constitutional challenge case conclusory statement capacity prosecutorial discretion provide individualized justice firmly entrenched american law ante quoting lafave israel criminal procedure likewise helpful issue case extent constitutional guarantee equal protection limits discretion georgia capital sentencing system concedes discretionary authority discriminatory authority ante prosecutorial decisions may deliberately based upon unjustifiable standard race religion arbitrary classification bordenkircher hayes quoting oyler boles judicial scrutiny particularly appropriate mccleskey case ore subtle less consciously held racial attitudes also influence decisions georgia capital sentencing system turner murray see supra rejection mccleskey equal protection claims far cry sensitive inquiry mandated constitution iv one final concerns discussed may disturbing aspect opinion granting relief mccleskey case said lead constitutional challenges ante course reason deny mccleskey rights equal protection clause grant relief lead closer examination effects racial considerations throughout criminal justice system system hence society might benefit factors come play integrity system enhanced considerations shown significant efforts made eradicate impermissible influence ensure evenhanded application criminal sanctions like justice stevens believe acceptance mccleskey claim eliminate capital punishment georgia post justice stevens points evidence presented case indicates extremely aggravated murders risk discriminatory enforcement death penalty minimized ibid agree narrowing class defendants high price pay death penalty system discriminate basis race moreover establishment guidelines assistant district attorneys appropriate basis exercising discretion various steps prosecution case provide least measure consistency emphasis procedural safeguards system ignores fact none whatsoever crucial process leading trial justice white stated plurality turner murray find risk racial prejudice may infected petitioner capital sentencing unacceptable light ease risk minimized dissent agree justice stevens position proper course remand case appeals determination validity statistical evidence presented post like justice stevens however persuaded baldus study valid remand merely interest orderly procedure see joint comm pt ii testimony george tucker virginia attorney idea prosecuting white men offenses colored people appreciate idea testimony dexter clapp thousand cases murder robbery maltreatment freedmen come never yet known single case local authorities police citizens made attempt exhibited inclination redress wrongs protect persons testimony campbell although identities men suspected killing two blacks known arrest trial occurred pt iii testimony brev wager swayne known six months residence capital state single instance white man convicted hung sent penitentiary crime negro many cases crime warranting punishment reported pt iv testimony george custer weekly daily occurrence freedmen murdered ometimes known perpetrators known action taken believe white man never hung murder texas although law brown board education held despite fact legislative history fourteenth amendment indicated congress view racial discrimination public education specific target amendment nevertheless prohibited discrimination today holds even though fourteenth amendment aimed specifically eradicating discrimination enforcement criminal sanctions allegations discrimination supported substantial evidence constitutionally cognizable see batson kentucky allegations racially discriminatory exercise peremptory challenges prosecutor subject review fourteenth amendment xclusion black citizens service jurors constitutes primary example evil fourteenth amendment designed cure refers prosecutor role capital sentencing process without analyzing import statistical evidence concerning steps process prosecutor determines future case recognizes prosecutor determines whether case even proceed penalty phase prosecutor pursue death penalty mandatory sentence life imprisonment imposed see ante lists many factors prosecutors take account making decisions ante recognizes case prosecutor decline charge offer plea bargain seek death sentence ante also notes baldus study found prosecutors sought death penalty cases involving black defendants white victims cases involving white defendants white victims cases involving black defendants black victims cases involving white defendants black victims ante relies heavily assertion prosecutorial discretion reviewed ante elsewhere concedes discretion may exercised racially discriminatory manner ante nowhere explains limitation prosecutorial discretion require analysis apply cases involving equal protection challenges exercise prosecutorial discretion see batson kentucky use prima facie case method structure proof cases charging racial discrimination appropriate progressively sharpen inquiry elusive factual question intentional discrimination texas dept community affairs burdine see mccleskey kemp johnson dissenting part concurring part prosecutor considerable discretion jury bounded irreducible discretion discretion easily mask conscious unconscious racial discrimination indirect methods proof therefore required outlined washington davis arlington heights metropolitan housing development recently explained deciding defendant carried burden persuasion must undertake sensitive inquiry circumstantial direct evidence intent may available arlington heights metropolitan housing development circumstantial evidence invidious intent may include proof disproportionate impact washington davis observed circumstances proof discriminatory impact may practical purposes demonstrate unconstitutionality various circumstances discrimination difficult explain nonracial grounds ibid batson kentucky castaneda explained cases criminal defendant attempting prove discriminatory exclusion potential jurors apply rule exclusion method proof underlying rationale disparity sufficiently large unlikely due solely chance accident absence evidence contrary one must conclude racial factors entered selection process although assumes validity baldus study purposes analysis detailed discussion district reasons rejecting validity compelled record disagreement district reasoning member appeals confronted challenge constitutionality state capital sentencing system based allegations racial discrimination supported statistical evidence writing panel rejected challenge reasons similar espoused today maxwell bishop vacated remanded sua sponte grounds raised per curiam appeals found evidence presented maxwell incomplete directly relevant individual claim statistically insufficient mccleskey evidence however different level sophistication detail simply rejected grounds unlike evidence presented maxwell contain data jurisdiction tried sentenced mccleskey evidence includes data relevant jurisdiction whereas analyses presented maxwell take account significant number variables based universe cases analyses presented mccleskey evidence take account variables based data concerning offenders arrested homicide georgia total cases moreover sophistication mccleskey evidence permits consideration existence racial discrimination various decision points process merely jury decision experience part convinces significance baldus study see brief franklin fisher et al amici curiae defendant chances receiving death sentence increase factor victim white defendant prime mover behind homicide prior record conviction murder armed robbery rape kidnaping bodily injury increases chances defendant receiving death sentence factor universe cases fulton county analyzed baldus included killings yielded murder indictments supp exh tr evidence indicated step process indictment sentence differential treatment disposition cases cases higher likelihood retained system risking death sentence supp exh tr deposition russell parker assistant district attorney prosecuted mccleskey case contradicted statement cited ante concerning plea negotiations mccleskey trial parker testified never discussed plea mccleskey deposition russell parker result mccleskey discovery efforts record also contains relevant testimonial evidence two state officials fulton county district attorney testified recall instance race factor death penalty case office deposition lewis slaton later recalled one case office first began office set aside death penalty possibility race involved assistant district attorney prosecuted mccleskey case testified race influence decision seek death penalty present case deposition russell parker general assertions state officials discriminate properly performed official duties however meet state burden rebuttal prima facie case see alexander louisiana whitus georgia moreover many ways racial factors enter indirectly prosecutorial decisions example authors study similar baldus explained since death penalty prosecutions require large allocations scarce prosecutorial resources prosecutors must choose small number cases receive expensive treatment making choices may favor homicides visible disturbing majority community tend homicides gross mauro patterns death analysis racial disparities capital sentencing homicide victimization stan rev see generally johnson race decision detain suspect yale lawrence id ego equal protection reckoning unconscious racism stan rev justice stevens justice blackmun joins dissenting qualitative difference death permissible form punishment hence corresponding difference need reliability determination death appropriate punishment specific case zant stephens quoting woodson north carolina plurality opinion stewart powell stevens even considerations far less repugnant racial discrimination involved recognized vital importance defendant community decision impose death sentence appear based reason rather caprice emotion gardner florida lthough every imperfection deliberative process sufficient even capital case set aside judgment severity sentence mandates careful scrutiny review colorable claim error zant supra case claimed claim supported elaborate studies properly assumes valid jury sentencing process likely distorted racial prejudice studies demonstrate strong probability mccleskey sentencing jury expressed community outrage sense individual lost moral entitlement live spaziano florida stevens dissenting influenced fact mccleskey black victim white outrage generated killed member race sort disparity constitutionally intolerable flagrantly violates prior insistence capital punishment imposed fairly reasonable consistency eddings oklahoma decision appears based fear acceptance mccleskey claim sound death knell capital punishment georgia society indeed forced choose racially discriminatory death penalty one provides heightened protection murder whites death penalty choice mandated constitution plain eddings oklahoma supra fear unfounded one lessons baldus study exist certain categories extremely serious crimes prosecutors consistently seek juries consistently impose death penalty without regard race victim race offender georgia narrow class defendants categories danger arbitrary discriminatory imposition death penalty significantly decreased eradicated justice brennan demonstrated dissenting opinion restructuring sentencing scheme surely high price pay like justice brennan therefore reverse judgment appeals believe however proceedings necessary order determine whether mccleskey death sentence set aside first appeals must decide whether baldus study valid persuaded orderly procedure requires appeals address issue actually decide question second necessary district determine whether particular facts mccleskey crime background place case within range cases present unacceptable risk race played decisive role mccleskey sentencing accordingly respectfully dissent