JUSTICE POWELL delivered the opinion of the Court.
This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter
McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia, on October 12, 1978. McCleskey's convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. All four were armed. McCleskey entered the front of the store while the other three entered the rear. McCleskey secured the front of the store by rounding up the customers and forcing them to lie face down on the floor. The other three rounded up the employees in the rear and tied them up with tape. The manager was forced at gunpoint to turn over the store receipts, his watch, and $6. During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As he was walking down the center aisle of the store, two shots were fired. Both struck the officer. One hit him in the face and killed him.
Several weeks later, McCleskey was arrested in connection with an unrelated offense. He confessed that he had participated in the furniture store robbery, but denied that he had shot the police officer. At trial, the State introduced evidence that at least one of the bullets that struck the officer was fired from a .38 caliber Rossi revolver. This description matched the description of the gun that McCleskey had carried during the robbery. The State also introduced the testimony of two witnesses who had heard McCleskey admit to the shooting.
On appeal, the Supreme Court of Georgia affirmed the convictions and the sentences. McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980). This Court denied a petition for a writ of certiorari. McCleskey v. Georgia, 449 U.S. 891 (1980). The Superior Court of Fulton County denied McCleskey's extraordinary motion for a new trial. McCleskey then filed a petition for a writ of habeas corpus in the
McCleskey next filed a petition for a writ of habeas corpus in the Federal District Court for the Northern District of Georgia. His petition raised 18 claims, one of which was that the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.
Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims.
Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.
The District Court held an extensive evidentiary hearing on McCleskey's petition. Although it believed that McCleskey's Eighth Amendment claim was foreclosed by the Fifth Circuit's decision in Spinkellink v. Wainwright, 578 F.2d 582, 612-616 (1978), cert. denied, 440 U.S. 976 (1979), it nevertheless considered the Baldus study with care. It concluded
The Court of Appeals for the Eleventh Circuit, sitting en banc, carefully reviewed the District Court's decision on McCleskey's claim. 753 F.2d 877 (1985). It assumed the validity of the study itself and addressed the merits of McCleskey's Eighth and Fourteenth Amendment claims. That is, the court assumed that the study "showed that systematic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." Id., at 895. Even assuming the study's validity, the Court of Appeals found the statistics "insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis." Id., at 891. The court noted:
The court concluded:
The Court of Appeals affirmed the denial by the District Court of McCleskey's petition for a writ of habeas corpus insofar as the petition was based upon the Baldus study, with three judges dissenting as to McCleskey's claims based on
McCleskey's first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.
Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." Whitus v. Georgia, 385 U.S. 545, 550 (1967).
The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a "stark" pattern to be accepted as the sole proof of discriminatory intent under the Constitution,
But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire-selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. See Hitchcock v. Dugger, post, at 398-399; Lockett v. Ohio, 438 U.S. 586, 602-605 (1978) (plurality opinion of Burger, C. J.). Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection
Finally, McCleskey's statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State's criminal justice system. "[O]ne of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder." Gregg v. Georgia, 428 U.S. 153, 226 (1976) (WHITE, J., concurring). Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose.
McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal
Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were
McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment.
The Eighth Amendment prohibits infliction of "cruel and unusual punishments." This Court's early Eighth Amendment cases examined only the "particular methods of execution to determine whether they were too cruel to pass constitutional muster." Gregg v. Georgia, supra, at 170. See In re Kemmler, 136 U.S. 436 (1890) (electrocution);
Chief Justice Warren, writing for the plurality in Trop v. Dulles, 356 U.S. 86, 99 (1958), acknowledged the constitutionality of capital punishment. In his view, the "basic concept underlying the Eighth Amendment" in this area is that the penalty must accord with "the dignity of man." Id., at 100. In applying this mandate, we have been guided by his statement that "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Id., at 101. Thus, our constitutional decisions have been informed by "contemporary values concerning the infliction of a challenged sanction," Gregg v. Georgia, 428 U. S., at 173. In assessing contemporary values, we have eschewed subjective judgment, and instead have sought to ascertain "objective indicia that reflect the public attitude toward a given sanction." Ibid. First among these indicia are the decisions of state legislatures, "because the . . . legislative judgment weighs heavily in ascertaining" contemporary standards, id., at 175. We also have been guided by the sentencing decisions of juries, because they are "a significant and reliable objective index of contemporary values," id., at 181. Most of our recent decisions as to the constitutionality of the death penalty for a particular crime have rested on such an examination of contemporary values. E. g., Enmund v. Florida, 458 U.S. 782, 789-796 (1982) (felony murder); Coker v. Georgia, 433 U.S. 584, 592-597 (1977) (plurality opinion of WHITE, J.) (rape); Gregg v. Georgia, supra, at 179-182 (murder).
Two principal decisions guide our resolution of McCleskey's Eighth Amendment claim. In Furman v. Georgia, 408 U.S. 238 (1972), the Court concluded that the death penalty was so irrationally imposed that any particular death sentence could be presumed excessive. Under the statutes at issue in Furman, there was no basis for determining in any particular case whether the penalty was proportionate to the crime: "[T]he death penalty [was] exacted with great infrequency even for the most atrocious crimes and . . . there [was] no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not." Id., at 313 (WHITE, J., concurring).
In Gregg, the Court specifically addressed the question left open in Furman — whether the punishment of death for murder is "under all circumstances, `cruel and unusual' in violation of the Eighth and Fourteenth Amendments of the Constitution." 428 U. S., at 168. We noted that the imposition of the death penalty for the crime of murder "has a long history of acceptance both in the United States and in England." Id., at 176 (joint opinion of Stewart, POWELL, and STEVENS, JJ.). "The most marked indication of society's endorsement of the death penalty for murder [was] the legislative response to Furman." Id., at 179. During the 4-year period between Furman and Gregg, at least 35 States had reenacted the death penalty, and Congress had authorized the penalty for aircraft piracy. 428 U. S., at 179-180.
The second question before the Court in Gregg was the constitutionality of the particular procedures embodied in the Georgia capital punishment statute. We explained the fundamental principle of Furman, that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 428 U. S., at 189. Numerous features of the then new Georgia statute met the concerns articulated in Furman.
In the cases decided after Gregg, the Court has imposed a number of requirements on the capital sentencing process to ensure that capital sentencing decisions rest on the individualized inquiry contemplated in Gregg. In Woodson v. North Carolina, 428 U.S. 280 (1976), we invalidated a mandatory capital sentencing system, finding that the "respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id., at 304 (plurality opinion of Stewart, POWELL, and STEVENS, JJ.) (citation omitted). Similarly, a State must "narrow the class of murderers subject to capital punishment," Gregg v. Georgia, supra, at 196, by providing "specific and detailed guidance" to the sentencer.
In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence.
Although our constitutional inquiry has centered on the procedures by which a death sentence is imposed, we have not stopped at the face of a statute, but have probed the application
Finally, where the objective indicia of community values have demonstrated a consensus that the death penalty is disproportionate as applied to a certain class of cases, we have established substantive limitations on its application. In Coker v. Georgia, 433 U.S. 584 (1977), the Court held that a State may not constitutionally sentence an individual to death for the rape of an adult woman. In Enmund v. Florida, 458 U.S. 782 (1982), the Court prohibited imposition of the death penalty on a defendant convicted of felony murder absent a showing that the defendant possessed a sufficiently culpable mental state. Most recently, in Ford v. Wainwright, 477 U.S. 399 (1986), we prohibited execution of prisoners who are insane.
In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate
In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is "disproportionate to the crime in the traditional sense." See Pulley v. Harris, 465 U.S. 37, 43 (1984). He does not deny that he committed a murder in the course of a planned robbery, a crime for which this Court has determined that the death penalty constitutionally may be imposed. Gregg v. Georgia, 428 U. S., at 187. His disproportionality claim "is of a different sort." Pulley v. Harris, supra, at 43. McCleskey argues that the sentences in his case is disproportionate to the sentences in other murder cases.
On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty. On automatic appeal, the Georgia Supreme Court found that McCleskey's death sentence was not disproportionate to other death sentences imposed in the State. McCleskey v. State, 245 Ga. 108, 263 S.E.2d 146 (1980). The court supported this conclusion with an appendix containing citations to 13 cases involving generally similar murders. See Ga. Code Ann. § 17-10-35(e) (1982). Moreover, where the statutory procedures adequately channel the sentencer's discretion, such proportionality review is not constitutionally required. Pulley v. Harris, supra, at 50-51.
On the other hand, absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional
Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey's disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. We now address this claim.
To evaluate McCleskey's challenge, we must examine exactly what the Baldus study may show. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case.
Because of the risk that the factor of race may enter the criminal justice process, we have engaged in "unceasing efforts" to eradicate racial prejudice from our criminal justice system. Batson v. Kentucky, 476 U.S. 79, 85 (1986).
McCleskey's argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant's interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable.
At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.
Two additional concerns inform our decision in this case. First, McCleskey's claim, taken to its logical conclusion,
Second, McCleskey's arguments are best presented to the legislative bodies. It is not the responsibility — or indeed even the right — of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people." Furman v. Georgia, 408 U. S., at 383 (Burger, C. J., dissenting). Legislatures also are better qualified to weigh and "evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts," Gregg v. Georgia, supra, at 186. Capital punishment is now the law in more than two-thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey's wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society, the only question before us is whether in his case, see supra, at 283-285, the law of Georgia was properly applied. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case.
Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit.
It is so ordered.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the decision below insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting). The Court observes that "[t]he Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment," which "ensure a degree of care in the imposition of the death penalty that can be described only as unique." Ante, at 315, n. 37. Notwithstanding these efforts, murder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims. Petitioner's Exhibit DB 82. Nothing could convey more powerfully the intractable reality of the death penalty: "that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether." Godfrey v. Georgia, 446 U.S. 420, 442 (1980) (MARSHALL, J., concurring in judgment).
Even if I did not hold this position, however, I would reverse the Court of Appeals, for petitioner McCleskey has clearly demonstrated that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments. While I join Parts I through IV-A of JUSTICE BLACKMUN'S dissenting opinion discussing petitioner's Fourteenth Amendment claim, I write separately to emphasize how conclusively
At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white. Petitioner's Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner's Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.
The Court today holds that Warren McCleskey's sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a
It is important to emphasize at the outset that the Court's observation that McCleskey cannot prove the influence of race on any particular sentencing decision is irrelevant in evaluating his Eighth Amendment claim. Since Furman v. Georgia, 408 U.S. 238 (1972), the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty "may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner." Godfrey v. Georgia, supra, at 427. As JUSTICE O'CONNOR observed
As a result, our inquiry under the Eighth Amendment has not been directed to the validity of the individual sentences before us. In Godfrey, for instance, the Court struck down the petitioner's sentence because the vagueness of the statutory definition of heinous crimes created a risk that prejudice
Defendants challenging their death sentences thus never have had to prove that impermissible considerations have actually infected sentencing decisions. We have required instead that they establish that the system under which they were sentenced posed a significant risk of such an occurrence. McCleskey's claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate.
The Court assumes the statistical validity of the Baldus study, and acknowledges that McCleskey has demonstrated a risk that racial prejudice plays a role in capital sentencing in Georgia, ante, at 291, n. 7. Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern.
The Baldus study indicates that, after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey's life had his victim been black. The study distinguishes between those cases in which (1) the jury exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is appropriate;
These adjusted figures are only the most conservative indication of the risk that race will influence the death sentences of defendants in Georgia. Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than
McCleskey's statistics have particular force because most of them are the product of sophisticated multiple-regression analysis. Such analysis is designed precisely to identify patterns in the aggregate, even though we may not be able to reconstitute with certainty any individual decision that goes to make up that pattern. Multiple-regression analysis is particularly well suited to identify the influence of impermissible considerations in sentencing, since it is able to control for permissible factors that may explain an apparent arbitrary pattern.
The statistical evidence in this case thus relentlessly documents the risk that McCleskey's sentence was influenced by racial considerations. This evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black. In determining whether this risk is acceptable, our judgment must be shaped by the awareness that "[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence," Turner v. Murray, 476 U.S. 28, 35 (1986), and that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion," Gardner v. Florida, 430 U.S. 349, 358 (1977). In determining the guilt of a defendant, a State must prove its case beyond a reasonable doubt. That is, we refuse to convict if the chance of error is simply less likely than not. Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. In light of the gravity of the interest at stake, petitioner's statistics on their face are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned.
Evaluation of McCleskey's evidence cannot rest solely on the numbers themselves. We must also ask whether the conclusion suggested by those numbers is consonant with our understanding of history and human experience. Georgia's legacy of a race-conscious criminal justice system, as well as
For many years, Georgia operated openly and formally precisely the type of dual system the evidence shows is still effectively in place. The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery. During the colonial period, black slaves who killed whites in Georgia, regardless of whether in self-defense or in defense of another, were automatically executed. A. Higginbotham, In the Matter of Color: Race in the American Legal Process 256 (1978).
By the time of the Civil War, a dual system of crime and punishment was well established in Georgia. See Ga. Penal Code (1861). The state criminal code contained separate sections for "Slaves and Free Persons of Color," Pt. 4, Tit. 3, Ch. 1, and for all other persons, Pt. 4, Tit. 1, Divs. 1-16. The code provided, for instance, for an automatic death sentence for murder committed by blacks, Pt. 4, Tit. 1, Art. II, § 4704, but declared that anyone else convicted of murder might receive life imprisonment if the conviction were founded solely on circumstantial testimony or simply if the jury so recommended. Pt. 4, Tit. 1, Div. 4, § 4220. The code established that the rape of a free white female by a black "shall be" punishable by death. § 4704. However, rape by anyone else of a free white female was punishable by
In more recent times, some 40 years ago, Gunnar Myrdal's epochal study of American race relations produced findings mirroring McCleskey's evidence:
This Court has invalidated portions of the Georgia capital sentencing system three times over the past 15 years. The specter of race discrimination was acknowledged by the Court in striking down the Georgia death penalty statute in Furman.
Three years later, the Court in Godfrey found one of the State's statutory aggravating factors unconstitutionally vague, since it resulted in "standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury . . . ." 446 U. S., at 429. JUSTICE MARSHALL, concurring in the judgment, noted that "[t]he disgraceful distorting effects of racial discrimination and poverty continue to be painfully visible in the imposition of death sentences." Id., at 439 (footnote omitted).
This historical review of Georgia criminal law is not intended as a bill of indictment calling the State to account for past transgressions. Citation of past practices does not justify the automatic condemnation of current ones. But it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey's evidence. "[A]mericans share a historical experience that has resulted in individuals within the culture ubiquitously attaching a significance to race that is irrational and often outside their awareness." Lawrence, The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L.
The ongoing influence of history is acknowledged, as the majority observes, by our " `unceasing efforts' to eradicate racial prejudice from our criminal justice system." Ante, at 309 (quoting Batson v. Kentucky, 476 U.S. 79, 85 (1986)). These efforts, however, signify not the elimination of the problem but its persistence. Our cases reflect a realization of the myriad of opportunities for racial considerations to influence criminal proceedings: in the exercise of peremptory challenges, Batson v. Kentucky, supra; in the selection of the grand jury, Vasquez v. Hillery, 474 U.S. 254 (1986); in the selection of the petit jury, Whitus v. Georgia, 385 U.S. 545 (1967); in the exercise of prosecutorial discretion, Wayte v. United States, 470 U.S. 598 (1985); in the conduct of argument, Donnelly v. DeChristoforo, 416 U.S. 637 (1974); and in the conscious or unconscious bias of jurors, Turner v. Murray, 476 U.S. 28 (1986), Ristaino v. Ross, 424 U.S. 589 (1976).
The discretion afforded prosecutors and jurors in the Georgia capital sentencing system creates such opportunities. No guidelines govern prosecutorial decisions to seek the death penalty, and Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another. Once a jury identifies one aggravating factor, it has complete discretion in choosing life or death, and need not articulate its basis for selecting life imprisonment. The Georgia sentencing system therefore
History and its continuing legacy thus buttress the probative force of McCleskey's statistics. Formal dual criminal laws may no longer be in effect, and intentional discrimination may no longer be prominent. Nonetheless, as we acknowledged in Turner, "subtle, less consciously held racial attitudes" continue to be of concern, 476 U. S., at 35, and the Georgia system gives such attitudes considerable room to operate. The conclusions drawn from McCleskey's statistical evidence are therefore consistent with the lessons of social experience.
The Court cites four reasons for shrinking from the implications of McCleskey's evidence: the desirability of discretion for actors in the criminal justice system, the existence of statutory safeguards against abuse of that discretion, the potential consequences for broader challenges to criminal sentencing, and an understanding of the contours of the judicial role. While these concerns underscore the need for sober deliberation, they do not justify rejecting evidence as convincing as McCleskey has presented.
The Court maintains that petitioner's claim "is antithetical to the fundamental role of discretion in our criminal justice
Reliance on race in imposing capital punishment, however, is antithetical to the very rationale for granting sentencing discretion. Discretion is a means, not an end. It is bestowed in order to permit the sentencer to "trea[t] each defendant in a capital case with that degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U.S. 586, 605 (1978). The decision to impose the punishment of death must be based on a "particularized consideration of relevant aspects of the character and record of each convicted defendant." Woodson v. North Carolina, 428 U. S., at 303. Failure to conduct such an individualized moral inquiry "treats all persons convicted of a designated offense not as unique individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Id., at 304.
Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with this concern that an individual be evaluated as a unique human being. Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess. Enhanced willingness to impose the death sentence on black defendants, or diminished willingness to render such a sentence when blacks are victims, reflects a devaluation of the lives of black persons. When confronted with evidence that race more likely than not plays such a role in a capital sentencing system, it is plainly insufficient to say that the importance of discretion demands that the risk be higher before we will act — for in such a case the very end that discretion is designed to serve is being undermined.
As we made clear in Batson v. Kentucky, 476 U.S. 79 (1986), however, that presumption is rebuttable. Batson dealt with another arena in which considerable discretion traditionally has been afforded, the exercise of peremptory challenges. Those challenges are normally exercised without any indication whatsoever of the grounds for doing so. The rationale for this deference has been a belief that the unique characteristics of particular prospective jurors may raise concern on the part of the prosecution or defense, despite the fact that counsel may not be able to articulate that concern in a manner sufficient to support exclusion for cause. As with sentencing, therefore, peremptory challenges are justified as an occasion for particularized determinations related to specific individuals, and, as with sentencing, we presume that such challenges normally are not made on the basis of a factor such as race. As we said in Batson, however, such features do not justify imposing a "crippling burden of proof," id., at 92, in order to rebut that presumption. The Court in this case apparently seeks to do just that. On the basis of the need for individualized decisions, it rejects evidence, drawn from the most sophisticated capital sentencing analysis ever performed, that reveals that race more likely than not infects capital sentencing decisions. The Court's position converts a rebuttable presumption into a virtually conclusive one.
It has now been over 13 years since Georgia adopted the provisions upheld in Gregg. Professor Baldus and his colleagues have compiled data on almost 2,500 homicides committed during the period 1973-1979. They have taken into account the influence of 230 nonracial variables, using a multitude of data from the State itself, and have produced striking evidence that the odds of being sentenced to death are significantly greater than average if a defendant is black or his or her victim is white. The challenge to the Georgia system is not speculative or theoretical; it is empirical. As a result, the Court cannot rely on the statutory safeguards in discounting McCleskey's evidence, for it is the very effectiveness of those safeguards that such evidence calls into question. While we may hope that a model of procedural fairness will curb the influence of race on sentencing, "we cannot simply assume that the model works as intended; we must critique its performance in terms of its results." Hubbard, "Reasonable Levels of Arbitrariness" in Death Sentencing Patterns: A Tragic Perspective on Capital Punishment, 18 U. C. D. L. Rev. 1113, 1162 (1985).
In fairness, the Court's fear that McCleskey's claim is an invitation to descend a slippery slope also rests on the realization that any humanly imposed system of penalties will exhibit some imperfection. Yet to reject McCleskey's powerful evidence on this basis is to ignore both the qualitatively different character of the death penalty and the particular repugnance of racial discrimination, considerations which may
It hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death. "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment." Woodson, 428 U. S., at 305. Furthermore, the relative interests of the state and the defendant differ dramatically in the death penalty context. The marginal benefits accruing to the state from obtaining the death penalty rather than life imprisonment are considerably less than the marginal difference to the defendant between death and life in prison. Such a disparity is an additional reason for tolerating scant arbitrariness in capital sentencing. Even those who believe that society can impose the death penalty in a manner sufficiently rational to justify its continuation must acknowledge that the level of rationality that is considered satisfactory must be uniquely high. As a result, the degree of arbitrariness that may be adequate to render the death penalty "cruel and unusual" punishment may not be adequate to invalidate lesser penalties. What these relative degrees of arbitrariness might be in other cases need not concern us here; the point is that the majority's fear of wholesale invalidation of criminal sentences is unfounded.
The Court also maintains that accepting McCleskey's claim would pose a threat to all sentencing because of the prospect that a correlation might be demonstrated between sentencing outcomes and other personal characteristics. Again, such a view is indifferent to the considerations that enter into a determination whether punishment is "cruel and unusual." Race is a consideration whose influence is expressly constitutionally
Certainly, a factor that we would regard as morally irrelevant, such as hair color, at least theoretically could be associated with sentencing results to such an extent that we would regard as arbitrary a system in which that factor played a significant role. As I have said above, however, supra, at 328-329, the evaluation of evidence suggesting such a correlation must be informed not merely by statistics, but by history and experience. One could hardly contend that this Nation has on the basis of hair color inflicted upon persons deprivation comparable to that imposed on the basis of race. Recognition of this fact would necessarily influence the evaluation of data suggesting the influence of hair color on sentencing, and would require evidence of statistical correlation even more powerful than that presented by the Baldus study.
Furthermore, the Court's fear of the expansive ramifications of a holding for McCleskey in this case is unfounded because it fails to recognize the uniquely sophisticated nature of the Baldus study. McCleskey presents evidence that is
The Court's projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated. The Court can indulge in such speculation only by ignoring its own jurisprudence demanding the highest scrutiny on issues of death and race. As a result, it fails to do justice to a claim in which both those elements are intertwined — an occasion calling for the most sensitive inquiry a court can conduct. Despite its acceptance of the validity of Warren McCleskey's evidence, the Court is willing to let his death sentence stand because it fears that we cannot successfully define a different standard for lesser punishments. This fear is baseless.
Finally, the Court justifies its rejection of McCleskey's claim by cautioning against usurpation of the legislatures' role in devising and monitoring criminal punishment. The Court is, of course, correct to emphasize the gravity of constitutional intervention and the importance that it be sparingly employed. The fact that "[c]apital punishment is now the law in more than two thirds of our States," ante, at 319, however, does not diminish the fact that capital punishment is the most awesome act that a State can perform. The judiciary's role in this society counts for little if the use of governmental power to extinguish life does not elicit close scrutiny. It is true that society has a legitimate interest in punishment. Yet, as Alexander Bickel wrote:
Our commitment to these values requires fidelity to them even when there is temptation to ignore them. Such temptation is especially apt to arise in criminal matters, for those granted constitutional protection in this context are those whom society finds most menacing and opprobrious. Even less sympathetic are those we consider for the sentence of death, for execution "is a way of saying, `You are not fit for this world, take your chance elsewhere.' " Furman, 408 U. S., at 290 (BRENNAN, J., concurring) (quoting Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763 (1864)).
For these reasons, "[t]he methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." Coppedge v. United States, 369 U.S. 438, 449 (1962). Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of "sober second thought." Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 25 (1936).
At the time our Constitution was framed 200 years ago this year, blacks "had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect." Dred Scott v. Sandford,
In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court's first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.
It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. "The destinies of the two races in this country are indissolubly linked together," id., at 560 (Harlan, J., dissenting), and the way in which we choose those who will die reveals the depth of moral commitment among the living.
The Court's decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey's evidence
The Court today sanctions the execution of a man despite his presentation of evidence that establishes a constitutionally intolerable level of racially based discrimination leading to the imposition of his death sentence. I am disappointed with the Court's action not only because of its denial of constitutional guarantees to petitioner McCleskey individually, but also because of its departure from what seems to me to be well-developed constitutional jurisprudence.
JUSTICE BRENNAN has thoroughly demonstrated, ante, that, if one assumes that the statistical evidence presented by petitioner McCleskey is valid, as we must in light of the Court of Appeals' assumption,
Moreover, the legislative history of the Fourteenth Amendment reminds us that discriminatory enforcement of States' criminal laws was a matter of great concern for the drafters. In the introductory remarks to its Report to Congress, the Joint Committee on Reconstruction, which reported out the Joint Resolution proposing the Fourteenth Amendment, specifically noted: "This deep-seated prejudice against color . . . leads to acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish." H. R. Joint Comm. Rep. No. 30, 39th Cong., 1st Sess., p. XVII (1866). Witnesses who testified before
The Court today seems to give a new meaning to our recognition that death is different. Rather than requiring
The Court's assertion that the fact of McCleskey's conviction undermines his constitutional claim is inconsistent with a long and unbroken line of this Court's case law. The Court on numerous occasions during the past century has recognized that an otherwise legitimate basis for a conviction does not outweigh an equal protection violation. In cases where racial discrimination in the administration of the criminal justice system is established, it has held that setting aside the conviction is the appropriate remedy. See, e. g., Rose v. Mitchell, 443 U. S., at 559; Whitus v. Georgia, 385 U.S. 545, 549-550 (1967); Strauder v. West Virginia, 100 U.S. 303 (1880). The Court recently reaffirmed the propriety of invalidating a conviction in order to vindicate federal constitutional rights. Vasquez v. Hillery, 474 U.S. 254 (1986). Invalidation of a criminal conviction on federal constitutional grounds does not necessarily preclude retrial and resentencing of the defendant by the State. Hill v. Texas, 316 U. S., at 406. The Court has maintained a per se reversal
The Court's reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is likewise inappropriate. Although that reasoning may be relevant in a case involving a facial challenge to the constitutionality of a statute, it has no relevance in a case dealing with a challenge to the Georgia capital sentencing system as applied in McCleskey's case. In Batson v. Kentucky, supra, we rejected such reasoning: "The Constitution requires . . . that we look beyond the face of the statute . . . and also consider challenged selection practices to afford `protection against action of the State through its administrative officers in effecting the prohibited discrimination.' " 476 U. S., at 88, quoting Norris v. Alabama, 294 U.S. 587, 589 (1935).
In analyzing an equal protection claim, a court must first determine the nature of the claim and the responsibilities of the state actors involved to determine what showing is required for the establishment of a prima facie case. Castaneda v. Partida, 430 U.S. 482, 493-494 (1977). The Court correctly points out: "In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who
A criminal defendant alleging an equal protection violation must prove the existence of purposeful discrimination. Washington v. Davis, 426 U.S. 229, 239-240 (1976); Whitus v. Georgia, 385 U. S., at 550. He may establish a prima facie case
Under Batson v. Kentucky and the framework established in Castaneda v. Partida, McCleskey must meet a three-factor standard. First, he must establish that he is a member of a group "that is a recognizable, distinct class, singled out for different treatment." 430 U. S., at 494. Second, he must make a showing of a substantial degree of differential treatment.
There can be no dispute that McCleskey has made the requisite showing under the first prong of the standard. The Baldus study demonstrates that black persons are a distinct group that are singled out for different treatment in the Georgia capital sentencing system. The Court acknowledges, as it must, that the raw statistics included in the Baldus study and presented by petitioner indicate that it is much less likely that a death sentence will result from a murder of a black person than from a murder of a white person. Ante, at 286. White-victim cases are nearly 11 times more likely to yield a death sentence than are black-victim cases. Supp. Exh. 46. The raw figures also indicate that even within the group of defendants who are convicted of killing white persons and are thereby more likely to receive a death sentence, black defendants are more likely than white defendants to be sentenced to death. Supp. Exh. 47.
With respect to the second prong, McCleskey must prove that there is a substantial likelihood that his death sentence is due to racial factors. See Hunter v. Underwood, 471 U.S. 222, 228 (1985). The Court of Appeals assumed the validity of the Baldus study and found that it "showed that systemic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." 753 F.2d 877, 895 (CA11 1985).
McCleskey demonstrated the degree to which his death sentence was affected by racial factors by introducing multiple-regression
McCleskey produced evidence concerning the role of racial factors at the various steps in the decisionmaking process, focusing on the prosecutor's decision as to which cases merit the death sentence. McCleskey established that the race of the victim is an especially significant factor at the point where the defendant has been convicted of murder and the prosecutor must choose whether to proceed to the penalty phase of the trial and create the possibility that a death sentence may be imposed or to accept the imposition of a sentence of life imprisonment. McCleskey demonstrated this effect at both the statewide level, see Supp. Exh. 56, 57, Tr. 897-910, and in Fulton County where he was tried and sentenced, see Supp. Exh. 59, 60, Tr. 978-981. The statewide statistics indicated that black-defendant/white-victim cases advanced to the penalty trial at nearly five times the rate of the black-defendant/black-victim cases (70% v. 15%), and over three times the rate of white-defendant/ black-victim cases (70% v. 19%). See Supp. Exh. 56. The multiple-regression analysis demonstrated that racial factors had a readily identifiable effect at a statistically significant level. See id., at 57; Tr. 905. The Fulton County statistics were consistent with this evidence although they involved fewer cases. See Supp. Exh. 59, 60.
Individualized evidence relating to the disposition of the Fulton County cases that were most comparable to McCleskey's case was consistent with the evidence of the race-of-victim effect as well. Of the 17 defendants, including
As to the final element of the prima facie case, McCleskey showed that the process by which the State decided to seek a death penalty in his case and to pursue that sentence throughout the prosecution was susceptible to abuse. Petitioner submitted the deposition of Lewis R. Slaton, who, as of the date of the deposition, had been the District Attorney for 18 years in the county in which McCleskey was tried and sentenced. Deposition in No. 84-8176 of Lewis R. Slaton, Aug. 4, 1983, p. 5; see McCleskey v. Zant, 580 F.Supp. 338, 377, n. 15 (1984); Tr. 1316. As Mr. Slaton explained, the duties and responsibilities of that office are the prosecution of felony charges within the Atlanta Judicial Circuit that comprises Fulton County. Deposition 7-8. He testified that during his years in the office, there were no guidelines informing the Assistant District Attorneys who handled the cases how they should proceed at any particular stage of the prosecution. There were no guidelines as to when they should seek an indictment for murder as opposed to lesser charges, id., at 10-11; when they should recommend acceptance of a guilty plea to murder, acceptance of a guilty plea to a lesser charge, reduction of charges, or dismissal of charges at the postindictment-preconviction stage, id., at 25-26, 31; or when they should seek the death penalty, id., at 31. Slaton testified that these decisions were left to the discretion of the individual attorneys who then informed Slaton of their decisions as they saw fit. Id., at 13, 24-25, 37-38.
Slaton's deposition proves that, at every stage of a prosecution, the Assistant District Attorney exercised much discretion. The only guidance given was "on-the-job training."
When questioned directly as to how the office decided whether to seek the death penalty, Slaton listed several factors he thought relevant to that decision, including the strength of the evidence, the atrociousness of the crime, and the likelihood that a jury would impose the death sentence. Id., at 59. He explained that the attorneys did not seek the death penalty in every case in which statutory aggravating factors existed. Id., at 38-39. Slaton testified that his office still operated in the same manner as it did when he took office in 1965, except that it has not sought the death penalty in any rape cases since this Court's decision in Coker v. Georgia, 433 U.S. 584 (1977). Deposition 60.
In addition to this showing that the challenged system was susceptible to abuse, McCleskey presented evidence of the
The above-described evidence, considered in conjunction with the other record evidence outlined by JUSTICE BRENNAN, ante, at 325-328, and discussed in opinions dissenting from the judgment of the Court of Appeals, 753 F. 2d, at 919 (Hatchett, J., dissenting in part and concurring in part); id., at 920-923 (Clark, J., dissenting in part and concurring in part), gives rise to an inference of discriminatory purpose. See Washington v. Davis, 426 U. S., at 239-242. As in the context of the rule of exclusion, see n. 6, supra, McCleskey's showing is of sufficient magnitude that, absent evidence to the contrary, one must conclude that racial factors entered into the decisionmaking process that yielded McCleskey's death sentence. See Castaneda v. Partida, 430 U. S., at 494, n. 13. The burden, therefore, shifts to the State to explain the racial selections. It must demonstrate that legitimate racially neutral criteria and procedures yielded this racially skewed result.
In rebuttal, the State's expert suggested that if the Baldus thesis was correct then the aggravation level in black-victim cases where a life sentence was imposed would be higher than in white-victim cases. See 580 F. Supp., at 373. The expert analyzed aggravating and mitigating circumstances
The State did not test its hypothesis to determine if white-victim and black-victim cases at the same level of aggravating circumstances were similarly treated. Tr. 1613-1614, 1664. McCleskey's experts, however, performed this test on their data. Id., at 1297, 1729-1732, 1756-1761. They demonstrated that the racial disparities in the system were not the result of the differences in the average aggravation levels between white-victim and black-victim cases. See Supp. Exh. 72; Tr. 1291-1296; Petitioner's Exhibit DB 92. The State's meager and unsophisticated evidence cannot withstand the extensive scrutiny given the Baldus evidence.
The Court's explanations for its failure to apply this well-established equal protection analysis to this case are not persuasive. It first reasons that "each particular decision to impose the death penalty is made by a petit jury" and that the "application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection or Title VII
I disagree with the Court's assertion that there are fewer variables relevant to the decisions of jury commissioners or prosecutors in their selection of jurors, or to the decisions of employers in their selection, promotion, or discharge of employees. Such decisions involve a multitude of factors, some rational, some irrational. Second, I disagree with the comment that the venire-selection and employment decisions are "made by fewer entities." Certainly in the employment context, personnel decisions are often the product of several levels of decisionmaking within the business or government structure. The Court's statement that the decision to impose death is made by the petit jury also disregards the fact that the prosecutor screens the cases throughout the pretrial proceedings and decides to seek the death penalty and to pursue a capital case to the penalty phase where a death sentence can be imposed. McCleskey's claim in this regard lends itself to analysis under the framework we apply in assessing challenges to other prosecutorial actions. See Batson v. Kentucky, 476 U.S. 79 (1986); see also Wayte v. United States, 470 U.S. 598, 608, n. 10 (1985) (applying Castaneda framework in challenge to prosecutor's allegedly selective enforcement of criminal sanction). It is appropriate to judge claims of racially discriminatory prosecutorial selection of cases according to ordinary equal protection standards. 470 U. S., at 608.
The Court's other reason for treating this case differently from venire-selection and employment cases is that in these latter contexts, "the decisionmaker has an opportunity to explain the statistical disparity," but in the instant case the State had no practical opportunity to rebut the Baldus study. Ante, at 296. According to the Court, this is because jurors cannot be called to testify about their verdict and because
I agree with the Court's observation as to the difficulty of examining the jury's decisionmaking process. There perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required. In his dissenting opinion, JUSTICE BRENNAN demonstrates that the Eighth Amendment analysis is well suited to address that aspect of the case. Ante, at 323. The Court's refusal to require that the prosecutor provide an explanation for his actions, however, is completely inconsistent with this Court's longstanding precedents. The Court misreads Imbler v. Pachtman. In that case, the Court held that a prosecutor who acted within the scope of his duties was entitled to absolute immunity in an action under 42 U. S. C. § 1983 for damages. We recognized that immunity from damages actions was necessary to prevent harassing litigation and to avoid the threat of civil litigation undermining the prosecutor's independence of judgment. We clearly specified, however, that the policy considerations that compelled civil immunity did not mean that prosecutors could not be called to answer for their actions. We noted the availability of both criminal sanctions and professional ethical discipline. 424 U. S., at 429. Prosecutors undoubtedly need adequate discretion to allocate the resources of their offices and to fulfill their responsibilities to the public in deciding how best to enforce the law, but this does not place them beyond the constraints imposed on state action under the Fourteenth Amendment. Cf. Ex parte Virginia, 100 U.S. 339 (1880) (upholding validity of conviction of state judge for discriminating on the basis of race in his selection of jurors).
The Court attempts to distinguish the present case from Batson v. Kentucky, in which we recently reaffirmed the fact
The Court's assertion that, because of the necessity of discretion in the criminal justice system, it "would demand exceptionally clear proof," ante, at 297, before inferring abuse of that discretion thus misses the point of the constitutional challenge in this case. Its conclusory statement that "the capacity of prosecutorial discretion to provide individualized justice is `firmly entrenched in American law,' " ante, at 311-312, quoting 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(a), p. 160 (1984), is likewise not helpful. The issue in this case is the extent to which the constitutional guarantee of equal protection limits the discretion in the Georgia capital sentencing system. As the Court concedes, discretionary authority can be discriminatory authority. Ante, at 312. Prosecutorial decisions may not be " `deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' " Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), quoting Oyler v. Boles, 368 U.S. 448, 456 (1962). Judicial scrutiny is particularly appropriate in McCleskey's case because "[m]ore subtle, less consciously held racial attitudes could also influence" the decisions in the Georgia capital sentencing system. Turner v. Murray, 476 U.S. 28, 35 (1986); see n. 13, supra. The Court's rejection of McCleskey's equal protection claims is
One of the final concerns discussed by the Court may be the most disturbing aspect of its opinion. Granting relief to McCleskey in this case, it is said, could lead to further constitutional challenges. Ante, at 314-319. That, of course, is no reason to deny McCleskey his rights under the Equal Protection Clause. If a grant of relief to him were to lead to a closer examination of the effects of racial considerations throughout the criminal justice system, the system, and hence society, might benefit. Where no such factors come into play, the integrity of the system is enhanced. Where such considerations are shown to be significant, efforts can be made to eradicate their impermissible influence and to ensure an evenhanded application of criminal sanctions.
Like JUSTICE STEVENS, I do not believe acceptance of McCleskey's claim would eliminate capital punishment in Georgia. Post, at 367. JUSTICE STEVENS points out that the evidence presented in this case indicates that in extremely aggravated murders the risk of discriminatory enforcement of the death penalty is minimized. Ibid. I agree that narrowing the class of death-eligible defendants is not too high a price to pay for a death penalty system that does not discriminate on the basis of race. Moreover, the establishment of guidelines for Assistant District Attorneys as to the appropriate basis for exercising their discretion at the various steps in the prosecution of a case would provide at least a measure of consistency. The Court's emphasis on the procedural safeguards in the system ignores the fact that there are none whatsoever during the crucial process leading up to trial. As JUSTICE WHITE stated for the plurality in Turner v. Murray, I find "the risk that racial prejudice may
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.
There "is a qualitative difference between death and any other permissible form of punishment," and hence, " `a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.' " Zant v. Stephens, 462 U.S. 862, 884-885 (1983), quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion of Stewart, POWELL, and STEVENS, JJ.). Even when considerations far less repugnant than racial discrimination are involved, we have recognized the "vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U.S. 349, 358 (1977). "[A]lthough not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error." Zant, supra, at 885.
In this case it is claimed — and the claim is supported by elaborate studies which the Court properly assumes to be valid — that the jury's sentencing process was likely distorted by racial prejudice. The studies demonstrate a strong probability that McCleskey's sentencing jury, which expressed "the community's outrage — its sense that an individual has lost his moral entitlement to live," Spaziano v. Florida, 468 U.S. 447, 469 (1984) (STEVENS, J., dissenting) — was influenced by the fact that McCleskey is black and his victim was white, and that this same outrage would not have been generated if he had killed a member of his own race. This sort of disparity is constitutionally intolerable. It flagrantly violates the Court's prior "insistence that capital punishment be
The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain. Eddings v. Oklahoma, supra. But the Court's fear is unfounded. One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated. As JUSTICE BRENNAN has demonstrated in his dissenting opinion, such a restructuring of the sentencing scheme is surely not too high a price to pay.
Like JUSTICE BRENNAN, I would therefore reverse the judgment of the Court of Appeals. I believe, however, that further proceedings are necessary in order to determine whether McCleskey's death sentence should be set aside. First, the Court of Appeals must decide whether the Baldus study is valid. I am persuaded that it is, but orderly procedure requires that the Court of Appeals address this issue before we actually decide the question. Second, it is necessary for the District Court to determine whether the particular facts of McCleskey's crime and his background place this case within the range of cases that present an unacceptable risk that race played a decisive role in McCleskey's sentencing.
Accordingly, I respectfully dissent.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Ira Reiner, Harry B. Sondheim, John K. Van de Kamp, Attorney General, Michael C. Wellington, Supervising Deputy Attorney General, and Susan Lee Frierson, Deputy Attorney General; and for the Washington Legal Foundation et al. by Daniel J. Popeo and George C. Smith.
Martin F. Richman filed a brief for Dr. Franklin M. Fisher et al. as amici curiae.
The Georgia Code contains only one degree of murder. A person commits murder "when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Ga. Code Ann. § 16-5-1(a) (1984). A person convicted of murder "shall be punished by death or by imprisonment for life." § 16-5-1(d).
"(1) The offense . . . was committed by a person with a prior record of conviction for a capital felony;
"(2) The offense . . . was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree;
"(3) The offender, by his act of murder . . . knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;
"(4) The offender committed the offense . . . for himself or another, for the purpose of receiving money or any other thing of monetary value;
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor, or former district attorney or solicitor was committed during or because of the exercise of his official duties;
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person;
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;
"(8) The offense . . . was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duties;
"(9) The offense . . . was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; or
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." § 17-10-30(b).
The District Court noted other problems with Baldus' methodology. First, the researchers assumed that all of the information available from the questionnaires was available to the juries and prosecutors when the case was tried. The court found this assumption "questionable." Id., at 361. Second, the court noted the instability of the various models. Even with the 230-variable model, consideration of 20 further variables caused a significant drop in the statistical significance of race. In the court's view, this undermined the persuasiveness of the model that showed the greatest racial disparity, the 39-variable model. Id., at 362. Third, the court found that the high correlation between race and many of the nonracial variables diminished the weight to which the study was entitled. Id., at 363-364.
Finally, the District Court noted the inability of any of the models to predict the outcome of actual cases. As the court explained, statisticians use a measure called an "r" to measure what portion of the variance in the dependent variable (death sentencing rate, in this case) is accounted for by the independent variables of the model. A perfectly predictive model would have an r value of 1.0. A model with no predictive power would have an r value of 0. The r value of Baldus' most complex model, the 230-variable model, was between .46 and .48. Thus, as the court explained, "the 230-variable model does not predict the outcome in half of the cases." Id., at 361.
"Models that are developed talk about the effect on the average. They do not depict the experience of a single individual. What they say, for example, [is] that on the average, the race of the victim, if it is white, increases on the average the probability . . . (that) the death sentence would be given.
"Whether in a given case that is the answer, it cannot be determined from statistics." 580 F. Supp., at 372.
"McCleskey's case falls in [a] grey area where . . . you would find the greatest likelihood that some inappropriate consideration may have come to bear on the decision.
"In an analysis of this type, obviously one cannot say that we can say to a moral certainty what it was that influenced the decision. We can't do that." App. 45-46.
Other protections apply to the trial and jury deliberation process. Widespread bias in the community can made a change of venue constitutionally required. Irvin v. Dowd, 366 U.S. 717 (1961). The Constitution prohibits racially biased prosecutorial arguments. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). If the circumstances of a particular case indicate a significant likelihood that racial bias may influence a jury, the Constitution requires questioning as to such bias. Ristaino v. Ross, 424 U.S. 589, 596 (1976). Finally, in a capital sentencing hearing, a defendant convicted of an interracial murder is entitled to such questioning without regard to the circumstances of the particular case. Turner v. Murray, 476 U.S. 28 (1986).
"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them, it consists in this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government." The Federalist No. 83, p. 519 (J. Gideon ed. 1818).
JUSTICE BRENNAN's condemnation of the results of the Georgia capital punishment system must be viewed against this background. As to community values and the constitutionality of capital punishment in general, we have previously noted, n. 23, supra, that the elected representatives of the people in 37 States and the Congress have enacted capital punishment statutes, most of which have been enacted or amended to conform generally to the Gregg standards, and that 33 States have imposed death sentences thereunder. In the individual case, a jury sentence reflects the conscience of the community as applied to the circumstances of a particular offender and offense. We reject JUSTICE BRENNAN's contention that this important standard for assessing the constitutionality of a death penalty should be abandoned.
In the penalty hearing, Georgia law provides that "unless the jury . . . recommends the death sentence in its verdict, the court shall not sentence the defendant to death." Georgia Code Ann. § 17-10-31 (1982). In Bullington v. Missouri, 451 U.S. 430 (1981), this Court held that the Double Jeopardy Clause of the Constitution prohibits a State from asking for a sentence of death at a second trial when the jury at the first trial recommended a lesser sentence.
We have held that discretion in a capital punishment system is necessary to satisfy the Constitution. Woodson v. North Carolina, 428 U.S. 280 (1976). See supra, at 303-306. Yet, the dissent now claims that the "discretion afforded prosecutors and jurors in the Georgia capital sentencing system" violates the Constitution by creating "opportunities for racial considerations to influence criminal proceedings." Post, at 333. The dissent contends that in Georgia "[n]o guidelines govern prosecutorial decisions. . . and [that] Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another." Ibid. Prosecutorial decisions necessarily involve both judgmental and factual decisions that vary from case to case. See ABA Standards for Criminal Justice 3-3.8, 3-3.9 (2d ed. 1982). Thus, it is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice. Indeed, the dissent suggests no such guidelines for prosecutorial discretion.
The reference to the failure to provide juries with the list of aggravating and mitigating factors is curious. The aggravating circumstances are set forth in detail in the Georgia statute. See n. 3, supra. The jury is not provided with a list of aggravating circumstances because not all of them are relevant to any particular crime. Instead, the prosecutor must choose the relevant circumstances and the State must prove to the jury that at least one exists beyond a reasonable doubt before the jury can even consider imposing the death sentence. It would be improper and often prejudicial to allow jurors to speculate as to aggravating circumstances wholly without support in the evidence.
The dissent's argument that a list of mitigating factors is required is particularly anomalous. We have held that the Constitution requires that juries be allowed to consider "any relevant mitigating factor," even if it is not included in a statutory list. Eddings v. Oklahoma, 455 U. S., at 112. See Lockett v. Ohio, 438 U.S. 586 (1978). The dissent does not attempt to harmonize its criticism with this constitutional principle. The dissent also does not suggest any standard, much less a workable one, for balancing aggravating and mitigating factors. If capital defendants are to be treated as "uniquely individual human beings," Woodson v. North Carolina, supra, at 304, then discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed is essential.
The dissent repeatedly emphasizes the need for "a uniquely high degree of rationality in imposing the death penalty." Post, at 335. Again, no suggestion is made as to how greater "rationality" could be achieved under any type of statute that authorizes capital punishment. The Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment. These include: (i) a bifurcated sentencing proceeding; (ii) the threshold requirement of one or more aggravating circumstances; and (iii) mandatory State Supreme Court review. All of these are administered pursuant to this Court's decisions interpreting the limits of the Eighth Amendment on the imposition of the death penalty, and all are subject to ultimate review by this Court. These ensure a degree of care in the imposition of the sentence of death that can be described only as unique. Given these safeguards already inherent in the imposition and review of capital sentences, the dissent's call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution. As we reiterate, infra, the requirement of heightened rationality in the imposition of capital punishment does not "plac[e] totally unrealistic conditions on its use." Gregg v. Georgia, 428 U. S., at 199, n. 50.
We also have recognized that the ethnic composition of the Nation is ever shifting. Crawford v. Board of Ed. of Los Angeles, 458 U.S. 527 (1982), illustrates demographic facts that we increasingly find in our country, namely, that populations change in composition, and may do so in relatively short timespans. We noted: "In 1968 when the case went to trial, the [Los Angeles] District was 53.6% white, 22.6% black, 20% Hispanic, and 3.8% Asian and other. By October 1980, the demographic composition had altered radically: 23.7% white, 23.3% black, 45.3% Hispanic, and 7.7% Asian and other." Id., at 530, n. 1. Increasingly whites are becoming a minority in many of the larger American cities. There appears to be no reason why a white defendant in such a city could not make a claim similar to McCleskey's if racial disparities in sentencing arguably are shown by a statistical study.
Finally, in our heterogeneous society the lower courts have found the boundaries of race and ethnicity increasingly difficult to determine. See Shaare Tefila Congregation v. Cobb, 785 F.2d 523 (CA4), cert. granted, 479 U.S. 812 (1986), and Al-Khazraji v. Saint Francis College, 784 F.2d 505 (CA3), cert. granted, 479 U.S. 812 (1986) (argued Feb. 25, 1987) (presenting the questions whether Jews and Arabs, respectively, are "races" covered by 42 U. S. C. §§ 1981 and 1982).
Second, even assuming that a category with theoretically consistent results could be identified, it is difficult to imagine how JUSTICE STEVENS' proposal would or could operate on a case-by-case basis. Whenever a victim is white and the defendant is a member of a different race, what steps would a prosecutor be required to take — in addition to weighing the customary prosecutorial considerations — before concluding in the particular case that he lawfully could prosecute? In the absence of a current, Baldus-type study focused particularly on the community in which the crime was committed, where would he find a standard? Would the prosecutor have to review the prior decisions of community prosecutors and determine the types of cases in which juries in his jurisdiction "consistently" had imposed the death penalty when the victim was white and the defendant was of a different race? And must he rely solely on statistics? Even if such a study were feasible, would it be unlawful for the prosecutor, in making his final decision in a particular case, to consider the evidence of guilt and the presence of aggravating and mitigating factors? However conscientiously a prosecutor might attempt to identify death-eligible defendants under the dissent's suggestion, it would be a wholly speculative task at best, likely to result in less rather than more fairness and consistency in the imposition of the death penalty.
With respect to the Court's criticism that McCleskey has not shown how Georgia could do a better job, ante, at 315, n. 37, once it is established that the particular system of guided discretion chosen by a State is not achieving its intended purpose, the burden is on the State, not the defendant, to devise a more rational system if it wishes to continue to impose the death penalty.
"Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives." 3 J. Elliot's Debates on the Constitution 447 (1854).
In Brown v. Board of Education, 347 U.S. 483 (1954), this Court held that, despite the fact that the legislative history of the Fourteenth Amendment indicated that Congress did not view racial discrimination in public education as a specific target, the Amendment nevertheless prohibited such discrimination. The Court today holds that even though the Fourteenth Amendment was aimed specifically at eradicating discrimination in the enforcement of criminal sanctions, allegations of such discrimination supported by substantial evidence are not constitutionally cognizable. But see Batson v. Kentucky, 476 U.S. 79, 85 (1986) (allegations of racially discriminatory exercise of peremptory challenges by prosecutor subject to review under Fourteenth Amendment because "[e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure").
The Court relies heavily on its assertion that prosecutorial discretion should not be reviewed, ante, at 296-297, 311-312, but elsewhere concedes that such discretion may not be exercised in a racially discriminatory manner, ante, at 309, n. 30. It nowhere explains why this limitation on prosecutorial discretion does not require the same analysis that we apply in other cases involving equal protection challenges to the exercise of prosecutorial discretion. See, e. g., Batson v. Kentucky, 476 U.S. 79 (1986).
The Court of Appeals found the evidence presented by Maxwell incomplete, not directly relevant to his individual claim, and statistically insufficient. McCleskey's evidence, however, is of such a different level of sophistication and detail that it simply cannot be rejected on those grounds. Unlike the evidence presented by Maxwell, which did not contain data from the jurisdiction in which he was tried and sentenced, McCleskey's evidence includes data from the relevant jurisdiction. Whereas the analyses presented by Maxwell did not take into account a significant number of variables and were based on a universe of 55 cases, the analyses presented by McCleskey's evidence take into account more than 400 variables and are based on data concerning all offenders arrested for homicide in Georgia from 1973 through 1978, a total of 2,484 cases. Moreover, the sophistication of McCleskey's evidence permits consideration of the existence of racial discrimination at various decision points in the process, not merely at the jury decision. It is this experience, in part, that convinces me of the significance of the Baldus study.
These general assertions by state officials that they did not discriminate or that they properly performed their official duties, however, cannot meet the State's burden of rebuttal of the prima facie case. See Alexander v. Louisiana, 405 U.S. 625, 631-632 (1972); Whitus v. Georgia, 385 U.S. 545, 551-552 (1967). Moreover, there are many ways in which racial factors can enter indirectly into prosecutorial decisions. For example, the authors of a study similar to that of Baldus explained: "Since death penalty prosecutions require large allocations of scarce prosecutorial resources, prosecutors must choose a small number of cases to receive this expensive treatment. In making these choices they may favor homicides that are visible and disturbing to the majority of the community, and these will tend to be white-victim homicides." Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 106-107 (1984); see generally Johnson, Race and the Decision to Detain a Suspect, 93 Yale L. J. 214 (1983); Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987).