U.S. Supreme Court McCleskey v. Kemp, 481
U.S. 279 (1987) McCleskey v. Kemp No. 84-6811 Argued October 15,
1986 Decided April 22,
1987 481
U.S. 279 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT Syllabus In 1978, petitioner, a black man, was convicted in a Georgia
trial court of armed robbery and murder, arising from the killing
of a white police officer during the robbery of a store. Pursuant
to Georgia statutes, the jury at the penalty hearing considered the
mitigating and aggravating circumstances of petitioner's conduct,
and recommended the death penalty on the murder charge. The trial
court followed the recommendation, and the Georgia Supreme Court
affirmed. After unsuccessfully seeking postconviction relief in
state courts, petitioner sought habeas corpus relief in Federal
District Court. His petition included a claim that the Georgia
capital sentencing process was administered in a racially
discriminatory manner in violation of the Eighth and Fourteenth
Amendments. In support of the claim, petitioner proffered a
statistical study (the Baldus study) that purports to show a
disparity in the imposition of the death sentence in Georgia based
on the murder victim's race and, to a lesser extent, the
defendant's race. The study is based on over 2,000 murder cases
that occurred in Georgia during the 1970's, and involves data
relating to the victim's race, the defendant's race, and the
various combinations of such persons' races. The study indicates
that black defendants who killed white victims have the greatest
likelihood of receiving the death penalty. Rejecting petitioner's
constitutional claims, the court denied his petition insofar as it
was based on the Baldus study, and the Court of Appeals affirmed
the District Court's decision on this issue. It assumed the
validity of the Baldus study, but found the statistics insufficient
to demonstrate unconstitutional discrimination in the Fourteenth
Amendment context or to show irrationality, arbitrariness, and
capriciousness under Eighth Amendment analysis. Held: 1. The Baldus study does not establish that the administration
of the Georgia capital punishment system violates the Equal
Protection Clause. Pp. 481 U. S.
291 -299.

															(a) To prevail under that Clause, petitioner must prove that the
decisionmakers in his case acted with discriminatory
purpose. Petitioner offered no evidence specific to his own case
that would support an Page 481 U. S. 280 inference that racial considerations played a part in his
sentence, and the Baldus study is insufficient to support an
inference that any of the decisionmakers in his case acted with
discriminatory purpose. This Court has accepted statistics as proof
of intent to discriminate in the context of a State's selection of
the jury venire, and in the context of statutory violations under
Title VII of the Civil Rights Act of 1964. However, 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.
Petitioner's statistical proffer must be viewed in the context of
his challenge to decisions at the heart of the State's criminal
justice system. Because discretion is essential to the criminal
justice process, exceptionally clear proof is required before this
Court will infer that the discretion has been abused. Pp. 481 U. S.
292 -297.

															(b) There is no merit to petitioner's argument that the Baldus
study proves that the State has violated the Equal Protection
Clause by adopting the capital punishment statute and allowing it
to remain in force despite its allegedly discriminatory
application. For this claim to prevail, petitioner would have to
prove that the Georgia Legislature enacted or maintained the death
penalty statute because of an anticipated racially
discriminatory effect. There is no evidence that the legislature
either enacted the statute to further a racially discriminatory
purpose or maintained the statute because of the racially
disproportionate impact suggested by the Baldus study. Pp. 481 U. S.
297 -299.

															2. Petitioner's argument that the Baldus study demonstrates that
the Georgia capital sentencing system violates the Eighth
Amendment's prohibition of cruel and unusual punishment must be
analyzed in the light of this Court's prior decisions under that
Amendment. Decisions since Furman v. Georgia, 408 U.
S. 238 , 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, and 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. Second, States
cannot limit the sentencer's consideration of any relevant
circumstance that could cause it to decline to impose the death
penalty. In this respect, the State cannot channel the sentencer's
discretion, but must allow it to consider any relevant information
offered by the defendant. Pp. 481 U. S.
299 -306.

															3. The Baldus study does not demonstrate that the Georgia
capital sentencing system violates the Eighth Amendment. Pp. 481 U. S.
306 -313.

															(a) Petitioner cannot successfully argue that the sentence in
his case is disproportionate to the sentences in other murder
cases. On the one Page 481 U. S. 281 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. The Georgia Supreme Court found that his
death sentence was not disproportionate to other death sentences
imposed in the State. On the other hand, absent a showing that the
Georgia capital punishment system operates in an arbitrary and
capricious manner, petitioner cannot prove a constitutional
violation by demonstrating that other defendants who may be
similarly situated did not receive the death penalty. The
opportunities for discretionary leniency under state law do not
render the capital sentences imposed arbitrary and capricious.
Because petitioner's sentence was imposed under Georgia sentencing
procedures that focus discretion "on the particularized nature of
the crime and the particularized characteristics of the individual
defendant," it may be presumed that his death sentence was not
"wantonly and freakishly" imposed, and thus that the sentence is
not disproportionate within any recognized meaning under the Eighth
Amendment. Gregg v. Georgia, 428 U.
S. 153 , 428 U. S. 206 , 428 U. S. 207 .
Pp. 481 U. S.
306 -308.

															(b) There is no merit to the contention that the Baldus study
shows that Georgia's capital punishment system is arbitrary and
capricious in application. The statistics do not prove that race enters into any capital sentencing
decisions or that race was a factor in petitioner's case. The
likelihood of racial prejudice allegedly shown by the study does
not constitute the constitutional measure of an unacceptable risk
of racial prejudice. The inherent lack of predictability of jury
decisions does not justify their condemnation. On the contrary, it
is the jury's function to make the difficult and uniquely human
judgments that defy codification and that build discretion, equity,
and flexibility into the legal system. Pp. 481 U. S.
308 -312.

															(c) At most, the Baldus study indicates a discrepancy that
appears to correlate with race, but this discrepancy does not
constitute a major systemic defect. Any mode for determining guilt
or punishment has its weaknesses and the potential for misuse.
Despite such imperfections, constitutional guarantees are met when
the mode for determining guilt or punishment has been surrounded
with safeguards to make it as fair as possible. Pp. 481 U. S.
312 -313.

															4. Petitioner's claim, taken to its logical conclusion, throws
into serious question the principles that underlie the entire
criminal justice system. His claim easily could be extended to
apply to other types of penalties and to claims based on
unexplained discrepancies correlating to membership in other
minority groups and even to gender. The Constitution does not
require that a State eliminate any demonstrable disparity that
correlates with a potentially irrelevant factor in order to Page 481 U. S. 282 operate a criminal justice system that includes capital
punishment. Petitioner's arguments are best presented to the
legislative bodies, not the courts. Pp. 481 U. S.
314 -319.

															753 F.2d 877, affirmed.

															POWELL, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined.
BRENNAN, J., filed a dissenting opinion in which MARSHALL, J.,
joined, and in all but Part I of which BLACKMUN and STEVENS, JJ.,
joined, post, p. 481 U. S. 320 .
BLACKMUN, J., filed a dissenting opinion in which MARSHALL and
STEVENS, JJ., joined, and in all but Part IV-B of which BRENNAN,
J., joined, post, p. 481 U. S. 345 .
STEVENS, J., filed a dissenting opinion in which BLACKMUN, J.,
joined, post, p. 481 U. S.
366 .

															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 Page 481 U. S. 283 into capital sentencing determinations proves that petitioner
McCleskey's capital sentence is unconstitutional under the Eighth
or Fourteenth Amendment. I 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. Page 481 U. S. 284 The jury convicted McCleskey of murder. [ Footnote 1 ] At the penalty hearing, [ Footnote 2 ] the jury heard arguments as to
the appropriate sentence. Under Georgia law, the jury could not
consider imposing the death penalty unless it found beyond a
reasonable doubt that the murder was accompanied by one of the
statutory aggravating circumstances. Ga.Code Ann. § 17-10-30(c)
(1982). [ Footnote 3 ] The jury
in this case found two aggravating Page 481 U. S. 285 circumstances to exist beyond a reasonable doubt: the murder was
committed during the course of an armed robbery, § 17-10-30(b)(2);
and the murder was committed upon a peace officer engaged in the
performance of his duties, § 17-10-30(b)(8). In making its decision
whether to impose the death sentence, the jury considered the
mitigating and aggravating circumstances of McCleskey's conduct. §
17-10-2(c). McCleskey offered no mitigating evidence. The jury
recommended that he be sentenced to death on the murder charge, and
to consecutive life sentences on the armed robbery charges. The
court followed the jury's recommendation and sentenced McCleskey to
death. [ Footnote 4 ]

															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 Page 481 U. S. 286 Superior Court of Butts County. After holding an evidentiary
hearing, the Superior Court denied relief. McCleskey v.
Zant, No. 4909 (Apr. 8, 1981). The Supreme Court of Georgia
denied McCleskey's application for a certificate of probable cause
to appeal the Superior Court's denial of his petition, No. 81-5523,
and this Court again denied certiorari. McCleskey v. Zant, 454 U.S. 1093 (1981).

															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. Page 481 U. S. 287 Similarly, Baldus found that prosecutors sought the death
penalty in 70% of the cases involving black defendants and white
victims; 32% of the cases involving white defendants and white
victims; 15% of the cases involving black defendants and black
victims; and 19% of the cases involving white defendants and 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. [ Footnote 5 ]

															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, 678 F.2d 682, 612-616 (1978), cert. denied, 440 U.S. 976 (1979), it nevertheless
considered the Baldus study with care. It concluded Page 481 U. S. 288 that McCleskey's

															"statistics do not demonstrate a prima facie case in
support of the contention that the death penalty was imposed upon
him because of his race, because of the race of the victim, or
because of any Eighth Amendment concern." McCleskey v. Zant, 580 F.
Supp. 338 , 379 (ND Ga.1984). As to McCleskey's Fourteenth
Amendment claim, the court found that the methodology of the Baldus
study was flawed in several respects. [ Footnote 6 ] Because of these defects, Page 481 U. S. 289 the court held that the Baldus study "fail[ed] to contribute
anything of value" to McCleskey's claim. Id. at 372
(emphasis omitted). Accordingly, the court denied the petition
insofar as it was based upon the Baldus study.

															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 very exercise of discretion means that persons exercising
discretion may reach different results from exact duplicates.
Assuming each result is within the range of discretion, all are
correct in the eyes of the law. It would not make sense for the
system to require the exercise of discretion in order to be
facially constitutional, Page 481 U. S. 290 and at the same time hold a system unconstitutional in
application where that discretion achieved different results for
what appear to be exact duplicates, absent the state showing the
reasons for the difference."

															"The Baldus approach . . . would take the cases with different
results on what are contended to be duplicate facts, where the
differences could not be otherwise explained, and conclude that the
different result was based on race alone. . . . This approach
ignores the realities. . . . There are, in fact, no exact
duplicates in capital crimes and capital defendants. The type of
research submitted here tends to show which of the directed factors
were effective, but is of restricted use in showing what undirected
factors control the exercise of constitutionally required
discretion." Id. at 898-899. The court concluded:

															"Viewed broadly, it would seem that the statistical evidence
presented here, assuming its validity, confirms, rather than
condemns, the system. . . . The marginal disparity based on the
race of the victim tends to support the state's contention that the
system is working far differently from the one which Furman [v.
Georgia, 408 U. S. 238 (1972)] condemned.
In pre- Furman days, there was no rhyme or reason as to who
got the death penalty and who did not. But now, in the vast
majority of cases, the reasons for a difference are well
documented. That they are not so clear in a small percentage of the
cases is no reason to declare the entire system
unconstitutional." Id. at 899. The Court of Appeals affirmed the denial by
the District Court of McCleskey's petition for a writ of habeas
corpus insofar as the petition was based upon the Baldus study,
with three judges dissenting as to McCleskey's claims based on Page 481 U. S. 291 the Baldus study. We granted certiorari, 478 U.S. 1019 (1986),
and now affirm. II McCleskey's first claim is that the Georgia capital punishment
statute violates the Equal Protection Clause of the Fourteenth
Amendment. [ Footnote 7 ] He
argues that race has infected the administration of Georgia's
statute in two ways: persons who murder whites are more likely to
be sentenced to death than persons who murder blacks, and black
murderers are more likely to be sentenced to death than white
murderers. [ Footnote 8 ] Page 481 U. S. 292 As a black defendant who killed a white victim, McCleskey claims
that the Baldus study demonstrates that he was discriminated
against because of his race and because of the race of his victim.
In its broadest form, McCleskey's claim of discrimination extends
to every actor in the Georgia capital sentencing process, from the
prosecutor who sought the death penalty and the jury that imposed
the sentence to the State itself that enacted the capital
punishment statute and allows it to remain in effect despite its
allegedly discriminatory application. We agree with the Court of
Appeals, and every other court that has considered such a
challenge, [ Footnote 9 ] that
this claim must fail. A 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 , 385 U. S. 550 (1967). [ Footnote 10 ] A
corollary to this principle is that a criminal defendant must prove
that the purposeful discrimination "had a discriminatory effect" on
him. Wayte v. United States, 470 U.
S. 598 , 470 U. S. 608 (1985). Thus, to prevail under the Equal Protection Clause,
McCleskey must prove that the decisionmakers in his case
acted with discriminatory purpose. He offers no evidence specific
to his own case that would support an inference that racial Page 481 U. S. 293 considerations played a part in his sentence. Instead, he relies
solely on the Baldus study. [ Footnote 11 ] McCleskey argues that the Baldus study
compels an inference that his sentence rests on purposeful
discrimination. McCleskey's claim that these statistics are
sufficient proof of discrimination, without regard to the facts of
a particular case, would extend to all capital cases in Georgia, at
least where the victim was white and the defendant is black.

															The Court has accepted statistics as proof of intent to
discriminate in certain limited contexts. First, this Court has
accepted statistical disparities as proof of an equal protection
violation in the selection of the jury venire in a particular
district. Although statistical proof normally must present a
"stark" pattern to be accepted as the sole proof of discriminatory
intent under the Constitution, [ Footnote 12 ] Arlington Heights
v. Page 481 U. S. 294 Metropolitan Housing Dev. Corp., 429 U.
S. 252 , 429 U. S. 266 (1977),

															"[b]ecause of the nature of the jury-selection task, . . . we
have permitted a finding of constitutional violation even when the
statistical pattern does not approach [such] extremes." Id. at 429 U. S. 266 ,
n. 13. [ Footnote 13 ] Second,
this Court has accepted statistics in the form of
multiple-regression analysis to prove statutory violations under
Title VII of the Civil Rights Act of 1964. Bazemore v.
Friday, 478 U. S. 385 , 478 U. S.
400 -401 (1986) (opinion of BRENNAN, J., concurring in
part).

															But the nature of the capital sentencing decision, and the
relationship of the statistics to that decision, are fundamentally
different from the corresponding elements in the venire selection
or Title VII cases. Most importantly, each particular decision to
impose the death penalty is made by a petit jury selected from a
properly constituted venire. Each jury is unique in its
composition, and the Constitution requires that its decision rest
on consideration of innumerable factors that vary according to the
characteristics of the individual defendant and the facts of the
particular capital offense. See Hitchcock v. Dugger, post, at 481 U. S.
398 -399; Lockett v. Ohio, 438 U.
S. 586 , 438 U. S.
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 Page 481 U. S. 295 or Title VII case. In those cases, the statistics relate to
fewer entities, [ Footnote
14 ] and fewer variables are relevant to the challenged
decisions. [ Footnote 15 ] Page 481 U. S. 296 Another important difference between the cases in which we have
accepted statistics as proof of discriminatory intent and this case
is that, in the venire-selection and Title VII contexts, the
decisionmaker has an opportunity to explain the statistical
disparity. See Whitus v. Georgia, 385 U.S. at 385 U. S. 552 ; Texas Dept. of Community Affairs v. Burdine, 450 U.
S. 248 , 450 U. S. 254 (1981); McDonnell Douglas Corp. v. Green, 411 U.
S. 792 , 411 U. S. 802 (1973). Here, the State has no practical opportunity to rebut the
Baldus study. "[C]ontrolling considerations of . . . public
policy," McDonald v. Pless, 238 U.
S. 264 , 238 U. S. 267 (1915), dictate that jurors "cannot be called . . . to testify to
the motives and influences that led to their verdict." Chicago,
B. & Q. R. Co. v. Babcock, 204 U.
S. 585 , 204 U. S. 593 (1907). Similarly, the policy considerations behind a prosecutor's
traditionally "wide discretion" [ Footnote 16 ] suggest the impropriety of our requiring
prosecutors to defend their decisions to seek death penalties,
"often years after they were made." [ Footnote 17 ] See Imbler v. Pachtman, 424 U. S. 409 , 424 U. S.
425 -426 (1976). [ Footnote 18 ] Moreover, absent far stronger proof, it is
unnecessary Page 481 U. S. 297 to seek such a rebuttal, because a legitimate and unchallenged
explanation for the decision is apparent from the record: McCleskey
committed an act for which the United States Constitution and
Georgia laws permit imposition of the death penalty. [ Footnote 19 ]

															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 , 428 U. S. 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. B 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 Page 481 U. S. 298 Protection Clause by adopting the capital punishment statute and
allowing it to remain in force despite its allegedly discriminatory
application. But

															"'[d]iscriminatory purpose' . . . implies more than intent as
volition or intent as awareness of consequences. It implies that
the decisionmaker, in this case a state legislature, selected or
reaffirmed a particular course of action at least in part 'because
of,' not merely 'in spite of,' its adverse effects upon an
identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256 , 442 U. S. 279 (1979) (footnote and citation omitted). See Wayte v. United
States, 470 U.S. at 470 U. S.
608 -609. For this claim to prevail, McCleskey would have
to prove that the Georgia Legislature enacted or maintained the
death penalty statute because of an anticipated racially
discriminatory effect. In Gregg v. Georgia, supra, this
Court found that the Georgia capital sentencing system could
operate in a fair and neutral manner. There was no evidence then,
and there is none now, that the Georgia Legislature enacted the
capital punishment statute to further a racially discriminatory
purpose. [ Footnote 20 ] 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 Page 481 U. S. 299 legitimate reasons for the Georgia Legislature to adopt and
maintain capital punishment, see Gregg v. Georgia, supra, at 428 U. S.
183 -187 (joint opinion of Stewart, POWELL, and STEVENS,
JJ.), we will not infer a discriminatory purpose on the part of the
State of Georgia. [ Footnote
21 ] Accordingly, we reject McCleskey's equal protection
claims. III McCleskey also argues that the Baldus study demonstrates that
the Georgia capital sentencing system violates the Eighth
Amendment. [ Footnote 22 ] We
begin our analysis of this claim by reviewing the restrictions on
death sentences established by our prior decisions under that
Amendment. A 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 428 U. S. 170 . See In re Kemmler, 136 U. S. 436 (1890) (electrocution); Page 481 U. S. 300 Wilkerson v. Utah, 99 U. S. 130 (1879)
(public shooting). Subsequently, the Court recognized that the
constitutional prohibition against cruel and unusual punishments
"is not fastened to the obsolete, but may acquire meaning as public
opinion becomes enlightened by a humane justice." Weems v.
United States, 217 U. S. 349 , 217 U. S. 378 (1910). In Weems, the Court identified a second principle
inherent in the Eighth Amendment, "that punishment for crime should
be graduated and proportioned to offense." Id. at 217 U. S.
367 .

															Chief Justice Warren, writing for the plurality in Trop v.
Dulles, 356 U. S. 86 , 356 U. S. 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 356 U. S. 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 356 U. S. 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 428 U. S. 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 428 U. S. 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 428 U. S. 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 , 458 U. S.
789 -796 (1982) (felony murder); Coker v.
Georgia, 433 U. S. 584 , 433 U. S.
592 -597 (1977) (plurality opinion of WHITE, J.) (rape); Gregg v. Georgia, supra, at 428 U. S.
179 -182 (murder). Page 481 U. S. 301 B 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 428 U. S. 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 428 U. S. 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 428 U. S. 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 428 U. S. 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 428 U. S.
179 -180. [ Footnote
23 ] The "actions of juries" were "fully compatible with the
legislative judgments." Id. at 428 U. S. 182 .
We noted that any punishment might be unconstitutionally severe if
inflicted without penological justification, but
concluded: Page 481 U. S. 302 "Considerations of federalism, as well as respect for the
ability of a legislature to evaluate, in terms of its particular
State, the moral consensus concerning the death penalty and its
social utility as a sanction, require us to conclude, in the
absence of more convincing evidence, that the infliction of death
as a punishment for murder is not without justification, and thus
is not unconstitutionally severe." Id. at 428 U. S.
186 -187.

															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 428 U. S. 189 .
Numerous features of the then-new Georgia statute met the concerns
articulated in Furman. [ Footnote 24 ] The Georgia system bifurcates guilt and
sentencing proceedings, so that the jury can receive all relevant
information for sentencing without the risk that evidence
irrelevant to the defendant's guilt will influence the jury's
consideration of that issue. The statute narrows the class of
murders subject to the death penalty to cases in which the jury
finds at least one statutory aggravating circumstance beyond a
reasonable doubt. Conversely, it allows the defendant to introduce
any relevant mitigating evidence that might influence the jury not
to impose a death sentence. See 428 U.S. at 428 U. S.
163 -164. The procedures also require a particularized
inquiry into " the circumstances of the offense, together with
the character and propensities of the offender.'" Id. at 428 U. S. 189 (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51 , 302 U. S. 55 (1937)). Thus, "while some jury discretion still exists, 'the Page 481 U. S. 303 discretion to be exercised is controlled by clear and objective
standards, so as to produce nondiscriminatory application.'"

															428 U.S. at 428 U. S.
197 -198 (quoting Coley v. State, 231 Ga. 829,
834, 204 S.E.2d
612 , 615 (1974)). Moreover, the Georgia system adds "an
important additional safeguard against arbitrariness and caprice"
in a provision for automatic appeal of a death sentence to the
State Supreme Court. 428 U.S. at 428 U. S. 198 .
The statute requires that court to review each sentence to
determine whether it was imposed under the influence of passion or
prejudice, whether the evidence supports the jury's finding of a
statutory aggravating circumstance, and whether the sentence is
disproportionate to sentences imposed in generally similar murder
cases. To aid the court's review, the trial judge answers a
questionnaire about the trial, including detailed questions as to
"the quality of the defendant's representation [and] whether race
played a role in the trial." Id. at 428 U. S.
167 . C 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 428 U. S. 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 428 U. S. 196 ,
by providing "specific and detailed guidance" to the sentencer.
[ Footnote 25 ] Page 481 U. S. 304 Proffitt v. Florida, 428 U. S. 242 , 428 U. S. 253 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.).

															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. [ Footnote 26 ]

															"[T]he sentencer . . . [cannot] be precluded from considering, as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than
death." Lockett v. Ohio, 438 U.S. at 438 U. S. 604 (plurality opinion of Burger, C.J.) (emphasis in original; footnote
omitted). See Skipper v. South Carolina, 476 U. S.
1 (1986). Any exclusion of the "compassionate or
mitigating factors stemming from the diverse frailties of
humankind" that are relevant to the sentencer's decision would fail
to treat all persons as "uniquely individual human beings." Woodson v. North Carolina, supra, at 428 U. S.
304 .

															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 Page 481 U. S. 305 of statutes to particular cases. For example, in Godfrey v.
Georgia, 446 U. S. 420 (1980), the Court invalidated a Georgia Supreme Court
interpretation of the statutory aggravating circumstance that the
murder be

															"outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to
the victim."

															Ga.Code § 27-2534.1(b)(7) (1978). [ Footnote 27 ] Although that court had articulated an
adequate limiting definition of this phrase, we concluded that its
interpretation in Godfrey was so broad that it may have
vitiated the role of the aggravating circumstance in guiding the
sentencing jury's discretion.

															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. D 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 Page 481 U. S. 306 to a particular offense prevents a State from imposing the death
penalty for that offense. Second, States cannot limit the
sentencer's consideration of any relevant circumstance that could
cause it to decline to impose the penalty. In this respect, the
State cannot channel the sentencer's discretion, but must allow it
to consider any relevant information offered by the defendant. IV A 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 , 465 U. S. 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 428 U. S. 187 .
His disproportionality claim "is of a different sort." Pulley
v. Harris, supra, at 465 U. S. 43 .
McCleskey argues that the sentence 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 465 U. S.
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 Page 481 U. S. 307 violation by demonstrating that other defendants who may be
similarly situated did not receive the death penalty. In Gregg, the Court confronted the argument that "the
opportunities for discretionary action that are inherent in the
processing of any murder case under Georgia law," 428 U.S. at 428 U. S. 199 ,
specifically the opportunities for discretionary leniency, rendered
the capital sentences imposed arbitrary and capricious. We rejected
this contention:

															"The existence of these discretionary stages is not
determinative of the issues before us. At each of these stages, an
actor in the criminal justice system makes a decision which may
remove a defendant from consideration as a candidate for the death
penalty. Furman, in contrast, dealt with the decision to
impose the death sentence on a specific individual who had been
convicted of a capital offense. Nothing in any of our cases
suggests that the decision to afford an individual defendant mercy
violates the Constitution. Furman held only that, in order
to minimize the risk that the death penalty would be imposed on a
capriciously selected group of offenders, the decision to impose it
had to be guided by standards, so that the sentencing authority
would focus on the particularized circumstances of the crime and
the defendant." Ibid. [ Footnote
28 ] Page 481 U. S. 308 Because McCleskey's sentence was imposed under Georgia
sentencing procedures that focus discretion "on the particularized
nature of the crime and the particularized characteristics of the
individual defendant," id. at 428 U. S. 206 ,
we lawfully may presume that McCleskey's death sentence was not
"wantonly and freakishly" imposed, id. at 428 U. S. 207 ,
and thus that the sentence is not disproportionate within any
recognized meaning under the Eighth Amendment. B 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. [ Footnote 29 ] Statistics, at most, may show only a
likelihood that a particular factor entered into some decisions.
There is, of course, some risk of racial prejudice influencing a
jury's decision in a criminal case. There are similar risks that
other kinds of prejudice will influence other criminal trials. See infra at 481 U. S.
315 -318. The question Page 481 U. S. 309 "is at what point that risk becomes constitutionally
unacceptable," Turner v. Murray, 476 U. S.
28 , 476 U. S. 36 , n.
8 (1986). McCleskey asks us to accept the likelihood allegedly
shown by the Baldus study as the constitutional measure of an
unacceptable risk of racial prejudice influencing capital
sentencing decisions. This we decline to do.

															Because of the risk that the factor of race may enter the
criminal justice process, we have engaged in "unceasing efforts" to
eradicate racial prejudice from our criminal justice system. Batson v. Kentucky, 476 U. S. 79 , 476 U. S. 85 (1986). [ Footnote 30 ] Our
efforts have been guided by our recognition that

															"the inestimable privilege of trial by jury . . . is a vital
principle, underlying the whole administration of criminal
justice," Ex parte
Milligan , 4 Wall. 2, 71 U. S. 123 (1866). See Duncan v. Page 481 U. S. 310 Louisiana, 391 U. S. 145 , 391 U. S. 155 (1968). [ Footnote 31 ] Thus,
it is the jury that is a criminal defendant's fundamental
"protection of life and liberty against race or color prejudice." Strauder v. West Virginia, 100 U.
S. 303 , 100 U. S. 309 (1880). Specifically, a capital sentencing jury representative of a
criminal defendant's community assures a " diffused
impartiality,'" Taylor v. Louisiana, 419 U.
S. 522 , 419 U. S. 530 (1975) (quoting Thiel v. Southern Pacific Co., 328 U. S. 217 , 328 U. S. 227 (1946) (Frankfurter, J., dissenting)), in the jury's task of
"express[ing] the conscience of the community on the ultimate
question of life or death," Witherspoon v. Illinois, 391 U. S. 510 , 391 U. S. 519 (1968). [ Footnote
32 ] Page 481 U. S. 311 Individual jurors bring to their deliberations "qualities of
human nature and varieties of human experience, the range of which
is unknown and perhaps unknowable." Peters v. Kiff, 407 U. S. 493 , 407 U. S. 503 (1972) (opinion of MARSHALL, J.). The capital sentencing decision
requires the individual jurors to focus their collective judgment
on the unique characteristics of a particular criminal defendant.
It is not surprising that such collective judgments often are
difficult to explain. But the inherent lack of predictability of
jury decisions does not justify their condemnation. On the
contrary, it is the jury's function to make the difficult and
uniquely human judgments that defy codification, and that "buil[d]
discretion, equity, and flexibility into a legal system." H. Kalven
& H. Zeisel, The American Jury 498 (1966).

															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. [ Footnote
33 ] Similarly, the capacity of prosecutorial discretion Page 481 U. S. 312 to provide individualized justice is "only entrenched in
American law." 2 W. LaFave & J. Israel, Criminal Procedure §
13.2(a), p. 160 (1984). As we have noted, a prosecutor can decline
to charge, offer a plea bargain, [ Footnote 34 ] or decline to seek a death sentence in any
particular case. See n 28, supra. Of course, "the power to be lenient
[also] is the power to discriminate," K. Davis, Discretionary
Justice 170 (1973), but a capital punishment system that did not
allow for discretionary acts of leniency "would be totally alien to
our notions of criminal justice." Gregg v. Georgia, 428
U.S. at 428 U. S. 200 ,
n. 50. C 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. [ Footnote 35 ] Page 481 U. S. 313 The discrepancy indicated by the Baldus study is "a far cry from
the major systemic defects identified in Furman, " Pulley v. Harris, 465 U.S. at 465 U. S. 54 .
[ Footnote 36 ] As this Court
has recognized, any mode for determining guilt or punishment "has
its weaknesses and the potential for misuse." Singer v. United
States, 380 U. S. 24 , 380 U. S. 35 (1965). See Bordenkircher v. Hayes, 434 U.
S. 357 , 434 U. S. 365 (1978). Specifically, "there can be no perfect procedure for
deciding in which cases governmental authority should be used to
impose death.'" Zant v. Stephens, 462 U.
S. 862 , 462 U. S. 884 (1983) (quoting Lockett v. Ohio, 438 U.S. at 438 U. S. 605 (plurality opinion of Burger, C.J.)). Despite these imperfections,
our consistent rule has been that constitutional guarantees are met
when "the mode [for determining guilt or punishment] itself has
been surrounded with safeguards to make it as fair as possible." Singer v. United States, supra, at 380 U. S. 35 .
Where the discretion that is fundamental to our criminal process is
involved, we decline to assume that what is unexplained is
invidious. In light of the safeguards designed to minimize racial
bias in the process, the fundamental value of jury trial in our
criminal justice system, and the benefits that discretion provides
to criminal defendants, we hold that the Baldus study does not
demonstrate a constitutionally significant risk of racial bias
affecting the Georgia capital sentencing process. [ Footnote 37 ] Page 481 U. S. 314 V Two additional concerns inform our decision in this case. First,
McCleskey's claim, taken to its logical conclusion, Page 481 U. S. 315 throws into serious question the principles that underlie our
entire criminal justice system. The Eighth Amendment is not limited
in application to capital punishment, but applies to all penalties. Solem v. Helm, 463 U. S. 277 , 463 U. S.
289 -290 (1983); see Rummel v. Estelle, 445 U. S. 263 , 445 U. S. 293 (1980) (POWELL, J., dissenting). Thus, if we accepted McCleskey's
claim that racial bias has impermissibly tainted the capital
sentencing decision, we could soon be faced with similar claims as
to other types of penalty. [ Footnote 38 ] Moreover, the claim that his sentence Page 481 U. S. 316 rests on the irrelevant factor of race easily could be extended
to apply to claims based on unexplained discrepancies that
correlate to membership in other minority groups, [ Footnote 39 ] and Page 481 U. S. 317 even to gender. [ Footnote
40 ] Similarly, since McCleskey's claim relates to the race of
his victim, other claims could apply with equally logical force to
statistical disparities that correlate with the race or sex of
other actors in the criminal justice system, such as defense
attorneys [ Footnote 41 ] or
judges. [ Footnote 42 ] Also,
there is no logical reason that such a claim need be limited to
racial or sexual bias. If arbitrary and capricious punishment is
the touchstone under the Eighth Amendment, such a claim could -- at
least in theory -- be based upon any arbitrary variable, such as
the defendant's facial characteristics, [ Footnote 43 ] or the physical attractiveness of the
defendant or the victim, [ Footnote 44 ] that some statistical Page 481 U. S. 318 study indicates may be influential in jury decisionmaking. As
these examples illustrate, there is no limiting principle to the
type of challenge brought by McCleskey. [ Footnote 45 ] Page 481 U. S. 319 The Constitution does not require that a State eliminate any
demonstrable disparity that correlates with a potentially
irrelevant factor in order to operate a criminal justice system
that includes capital punishment. As we have stated specifically in
the context of capital punishment, the Constitution does not
"plac[e] totally unrealistic conditions on its use." Gregg v.
Georgia, 428 U.S. at 428 U. S. 199 ,
n. 50.

															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 408 U. S. 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 428 U. S. 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 481 U. S.
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. Page 481 U. S. 320 Accordingly, we affirm the judgment of the Court of Appeals for
the Eleventh Circuit. It is so ordered. [ Footnote 1 ]

															The Georgia Code has been revised and renumbered since
McCleskey's trial. The changes do not alter the substance of the
sections relevant to this case. For convenience, references in this
opinion are to the current sections.

															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).

															[ Footnote 2 ]

															Georgia Code Ann. § 17-10-2(c) (1982) provides that, when a jury
convicts a defendant of murder, "the court shall resume the trial
and conduct a presentence hearing before the jury." This subsection
suggests that a defendant convicted of murder always is subjected
to a penalty hearing at which the jury considers imposing a death
sentence. But as a matter of practice, penalty hearings seem to be
held only if the prosecutor affirmatively seeks the death penalty.
If he does not, the defendant receives a sentence of life
imprisonment. See Baldus Pulaski, & Woodworth,
Comparative Review of Death Sentences: An Empirical Study of the
Georgia Experience, 74 J.Crim.L. & C. 661, 674, n. 56
(1983).

															[ Footnote 3 ]

															A jury cannot sentence a defendant to death for murder unless it
finds that one of the following aggravating circumstances exists
beyond a reasonable doubt:

															"(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).

															[ Footnote 4 ]

															Georgia law provides that

															"[w]here a statutory aggravating circumstance is found and a
recommendation of death is made, the court shall sentence the
defendant to death."

															§ 17-10-31.

															[ Footnote 5 ]

															Baldus' 230 variable model divided cases into eight different
ranges, according to the estimated aggravation level of the
offense. Baldus argued in his testimony to the District Court that
the effects of racial bias were most striking in the mid-range
cases.

															"[W]hen the cases become tremendously aggravated, so that
everybody would agree that, if we're going to have a death
sentence, these are the cases that should get it, the race effects
go away. It's only in the mid-range of cases where the
decisionmakers have a real choice as to what to do. If there's room
for the exercise of discretion, then the [racial] factors begin to
play a role."

															App. 36. Under this model, Baldus found that 14.4% of the
black-victim mid-range cases received the death penalty, and 34.4%
of the white-victim cases received the death penalty. See Exhibit DB 90, reprinted in Supplemental Exhibits 54. According to
Baldus, the facts of McCleskey's case placed it within the
mid-range. App. 45-46.

															[ Footnote 6 ]

															Baldus, among other experts, testified at the evidentiary
hearing. The District Court "was impressed with the learning of all
of the experts." 580 F. Supp. at 353 (emphasis omitted).
Nevertheless, the District Court noted that, in many respects, the
data were incomplete. In its view, the questionnaires used to
obtain the data failed to capture the full degree of the
aggravating or mitigating circumstances. Id. at 356. The
court criticized the researcher's decisions regarding unknown
variables. Id. at 357-358. The researchers could not
discover whether penalty trials were held in many of the cases,
thus undercutting the value of the study's statistics as to
prosecutorial decisions. Id. at 369. In certain cases, the
study lacked information on the race of the victim in cases
involving multiple victims, on whether or not the prosecutor
offered a plea bargain, and on credibility problems with witnesses. Id. at 360. The court concluded that McCleskey had failed
to establish by a preponderance of the evidence that the data were
trustworthy.

															"It is a major premise of a statistical case that the database
numerically mirrors reality. If it does not in substantial degree
mirror reality, any inferences empirically arrived at are
untrustworthy." Ibid. 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 "r2" to measure
what portion of the variance in the dependent variable (death
sentencing rate, in this case) is accounted for by the independent
variables of the model. A perfectly predictive model would have an
r2 value of 1.0. A model with no predictive power would have an r2
value of O. The r2 value of Baldus' most complex model, the
230-variable model, was between .46 and .48. Thus, as the court
explained, "the 230-variable model does not predict the outcome in
half of the cases." Id. at 361.

															[ Footnote 7 ]

															Although the District Court rejected the findings of the Baldus
study as flawed, the Court of Appeals assumed that the study is
valid, and reached the constitutional issues. Accordingly, those
issues are before us. As did the Court of Appeals, we assume the
study is valid statistically, without reviewing the factual
findings of the District Court. Our assumption that the Baldus
study is statistically valid does not include the assumption that
the study shows that racial considerations actually enter into any
sentencing decisions in Georgia. Even a sophisticated
multiple-regression analysis such as the Baldus study can only
demonstrate a risk that the factor of race entered into
some capital sentencing decisions, and a necessarily lesser risk
that race entered into any particular sentencing decision.

															[ Footnote 8 ]

															Although McCleskey has standing to claim that he suffers
discrimination because of his own race, the State argues that he
has no standing to contend that he was discriminated against on the
basis of his victim's race. While it is true that we are reluctant
to recognize "standing to assert the rights of third persons," Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 263 (1977), this does not appear to be the nature of McCleskey's claim.
He does not seek to assert some right of his victim, or the rights
of black murder victims in general. Rather, McCleskey argues that
application of the State's statute has created a classification
that is "an irrational exercise of governmental power," Brief for
Petitioner 41, because it is not "necessary to the accomplishment
of some permissible state objective." Loving v. Virginia, 388 U. S. 1 , 388 U. S. 11 (1967). See McGowan v. Maryland, 366 U.
S. 420 , 366 U. S. 425 (1961) (statutory classification cannot be "wholly irrelevant to
the achievement of the State's objective"). It would violate the
Equal Protection Clause for a State to base enforcement of its
criminal laws on "an unjustifiable standard such as race, religion,
or other arbitrary classification." Oyler v. Boles, 368 U. S. 448 , 368 U. S. 456 (1962). See Cleveland Bd. of Ed. v. Lafleur, 414 U.
S. 632 , 414 U. S.
652 -653 (1974) (POWELL, J., concurring). Because
McCleskey raises such a claim, he has standing.

															[ Footnote 9 ] See, e.g., Shaw v. Martin, 733 F.2d 304, 311-314 (CA4), cert. denied, 469 U.S. 873 (1984); Adams v.
Wainwright, 709 F.2d 1443 (CA11 1983) (per curiam), cert.
denied, 464 U.S. 1063 (1984); Smith v. Balkcom, 660
F.2d 573, 584-585, modified, 671 F.2d 858, 859-860 (CA5
Unit B 1981) (per curiam), cert. denied, 459 U.S. 882
(1982); Spinkellink v. Wainwright, 578 F.2d 582, 612-616
(CA5 1978), cert. denied, 440 U.S. 976 (1979)

															[ Footnote 10 ] See Arlington Heights v. Metropolitan Housing Dev. Corp.,
supra, at 429 U. S. 265 ; Washington v. Davis, 426 U. S. 229 , 426 U. S. 240 (1976).

															[ Footnote 11 ]

															McCleskey's expert testified:

															"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.

															[ Footnote 12 ] Gomillion v. Lightfoot, 364 U.
S. 339 (1960), and Yick Wo v. Hopkins, 118 U. S. 356 (1886), are examples of those rare cases in which a statistical
pattern of discriminatory impact demonstrated a constitutional
violation. In Gomillion, a state legislature violated the
Fifteenth Amendment by altering the boundaries of a particular city
"from a square to an uncouth twenty-eight-sided figure." 364 U.S.
at 364 U. S. 340 .
The alterations excluded 395 of 400 black voters without excluding
a single white voter. In Yick Wo, an ordinance prohibited
operation of 310 laundries that were housed in wooden buildings,
but allowed such laundries to resume operations if the operator
secured a permit from the government. When laundry operators
applied for permits to resume operation, all but one of the white
applicants received permits, but none of the over 200 Chinese
applicants was successful. In those cases, the Court found the
statistical disparities "to warrant and require," Yick Wo v.
Hopkins, supra, at 118 U. S. 373 ,
a "conclusion [that was] irresistible, tantamount for all practical
purposes to a mathematical demonstration," Gomillion v.
Lightfoot, supra, at 364 U. S. 341 ,
that the State acted with a discriminatory purpose.

															[ Footnote 13 ] See, e.g., Castaneda v. Partida, 430 U.
S. 482 , 430 U. S. 495 (1977) (2-to-1 disparity between Mexican-Americans in county
population and those summoned for grand jury duty); Turner v.
Fouche, 396 U. S. 346 , 396 U. S. 369 (1970) (1.6-to-1 disparity between blacks in county population and
those on grand jury lists); Whitus v. Georgia, 385 U. S. 545 , 385 U. S. 552 (1967) (3-to-1 disparity between eligible blacks in county and
blacks on grand jury venire).

															[ Footnote 14 ]

															In venire-selection cases, the factors that may be considered
are limited, usually by state statute. See Castaneda v.
Partida, supra, at 430 U. S. 485 ("A grand juror must be a citizen of Texas and of the county, be a
qualified voter in the county, be of sound mind and good moral
character,' be literate, have no prior felony conviction, and be
under no pending indictment `or other legal accusation for theft or
of any felony'"); Turner v. Fouche, supra, at 396 U. S. 354 (jury commissioners may exclude any not "upright" and "intelligent"
from grand jury service); Whitus v. Georgia, supra, at 385 U. S. 548 (same). These considerations are uniform for all potential jurors,
and although some factors may be said to be subjective, they are
limited and, to a great degree, objectively verifiable. While
employment decisions may involve a number of relevant variables,
these variables are to a great extent uniform for all employees,
because they must all have a reasonable relationship to the
employee's qualifications to perform the particular job at issue.
Identifiable qualifications for a single job provide a common
standard by which to assess each employee. In contrast, a capital
sentencing jury may consider any factor relevant to the
defendant's background, character, and the offense. See Eddings
v. Oklahoma, 455 U. S. 104 , 455 U. S. 112 (1982). There is no common standard by which to evaluate all
defendants who have or have not received the death
penalty. [ Footnote 15 ]

															We refer here not to the number of entities involved in any
particular decision, but to the number of entities whose decisions
necessarily are reflected in a statistical display such as the
Baldus study. The decisions of a jury commission or of an employer
over time are fairly attributable to the commission or the
employer. Therefore, an unexplained statistical discrepancy can be
said to indicate a consistent policy of the decisionmaker. The
Baldus study seeks to deduce a state "policy" by studying the
combined effects of the decisions of hundreds of juries that are
unique in their composition. It is incomparably more difficult to
deduce a consistent policy by studying the decisions of these many
unique entities. It is also questionable whether any consistent
policy can be derived by studying the decisions of prosecutors. The
District Attorney is elected by the voters in a particular county. See Ga.Const., Art. 6, § 8, 111. Since decisions whether
to prosecute and what to charge necessarily are individualized, and
involve infinite factual variations, coordination among district
attorney offices across a State would be relatively meaningless.
Thus, any inference from statewide statistics to a prosecutorial
"policy" is of doubtful relevance. Moreover, the statistics in
Fulton County alone represent the disposition of far fewer cases
than the statewide statistics. Even assuming the statistical
validity of the Baldus study as a whole, the weight to be given the
results gleaned from this small sample is limited.

															[ Footnote 16 ] See Wayte v. United States, 470 U.
S. 598 , 470 U. S. 607 (1986); United States v. Goodwin, 457 U.
S. 368 , 457 U. S. 380 ,
n. 11 (1982); Bordenkircher v. Hayes, 434 U.
S. 357 , 434 U. S. 365 (1978). See also ABA Standards for Criminal Justice 3-3.8,
3-3.9 (2d ed.1982).

															[ Footnote 17 ]

															Requiring a prosecutor to rebut a study that analyzes the past
conduct of scores of prosecutors is quite different from requiring
a prosecutor to rebut a contemporaneous challenge to his own acts. See Batson v. Kentucky, 476 U. S. 79 (1986).

															[ Footnote 18 ]

															Although Imbler was decided in the context of damages
actions under 42 U.S.C. § 1983 brought against prosecutors, the
considerations that led the Court to hold that a prosecutor should
not be required to explain his decisions apply in this case as
well:

															"[I]f the prosecutor could be made to answer in court each time
. . . a person charged him with wrongdoing, his energy and
attention would be diverted from the pressing duty of enforcing the
criminal law."

															424 U.S. at 424 U. S. 425 .
Our refusal to require that the prosecutor provide an explanation
for his decisions in this case is completely consistent with this
Court's longstanding precedents that hold that a prosecutor need
not explain his decisions unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect
to his case. See, e.g., Batson v. Kentucky, supra; Wayte v.
United States, supra. [ Footnote 19 ]

															In his dissent, JUSTICE BLACKMUN misreads this statement. See post at 481 U. S.
348 -349. We do not suggest that McCleskey's conviction
and sentencing by a jury bears on the prosecutor's motivation.
Rather, the fact that the United States Constitution and the laws
of Georgia authorized the prosecutor to seek the death penalty
under the circumstances of this case is a relevant factor
to be weighed in determining whether the Baldus study demonstrates
a constitutionally significant risk that this decision was
motivated by racial considerations.

															[ Footnote 20 ]

															McCleskey relies on "historical evidence" to support his claim
of purposeful discrimination by the State. This evidence focuses on
Georgia laws in force during and just after the Civil War. Of
course, the "historical background of the decision is one
evidentiary source" for proof of intentional discrimination. Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U.S. at 429 U. S. 267 .
But unless historical evidence is reasonably contemporaneous with
the challenged decision, it has little probative value. Cf.
Hunter v. Underwood, 471 U. S. 222 , 471 U. S.
228 -233 (1986) (relying on legislative history to
demonstrate discriminatory motivation behind state statute).
Although the history of racial discrimination in this country is
undeniable, we cannot accept official actions taken long ago as
evidence of current intent.

															[ Footnote 21 ]

															JUSTICE BLACKMUN suggests that our

															"reliance on legitimate interests underlying the Georgia
Legislature's enactment of its capital punishment statute is . . .
inappropriate [because] it has no relevance in a case dealing with
a challenge to the Georgia capital sentencing system as
applied in McCleskey's case." Post at 481 U. S. 349 (emphasis in original). As the dissent suggests, this evidence is
not particularly probative when assessing the application of
Georgia's capital punishment system through the actions of
prosecutors and juries, as we did in 481 U.
S. supra. But that is not the challenge that we
are addressing here. As indicated above, the question we are
addressing is whether the legislature maintains its capital
punishment statute because of the racially disproportionate impact
suggested by the Baldus study. McCleskey has introduced no evidence
to support this claim. It is entirely appropriate to rely on the
legislature's legitimate reasons for enacting and maintaining a
capital punishment statute to address a challenge to the legislature's intent.

															[ Footnote 22 ]

															The Eighth Amendment applies to the States through the Due
Process Clause of the Fourteenth Amendment. Robinson v.
California, 370 U. S. 660 , 370 U. S. 667 (1962).

															[ Footnote 23 ]

															Thirty-seven States now have capital punishment statutes that
were enacted since our decision in Furman. Thirty-three of
these States have imposed death sentences under the new statutes.
NAACP Legal Defense and Educational Fund, Death Row, U.S.A. 1 (Oct.
1, 1986). A federal statute, amended in relevant part in 1974,
authorizes the death penalty for aircraft piracy in which a death
occurs. 49 U.S.C.App. § 1472(i)(1)(b).

															[ Footnote 24 ]

															We have noted that the Georgia statute generally follows the
standards of the ALI Model Penal Code § 201.6 (Proposed Official
Draft No. 13, 1961). Gregg v. Georgia, 428 U.S. at 428 U. S. 194 ,
n. 44.

															[ Footnote 25 ]

															Although the Court has recognized that jury sentencing in a
capital case "can perform an important societal function;" Proffitt v. Florida, 428 U. S. 242 , 428 U. S. 252 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.) (citing Witherspoon v. Illinois, 391 U. S. 510 , 391 U. S. 519 ,
n. 15 (1968)), it "has never suggested that jury sentencing [in a
capital case] is constitutionally required." 428 U.S. at 428 U. S. 252 .
Under the Florida capital punishment system at issue in Proffitt, the jury's verdict is only advisory. The trial
judge determines the final sentence. Unlike in Georgia, a Florida
trial judge may impose the death penalty even when the jury
recommends otherwise. In Proffitt, we found that the
Florida capital sentencing procedures adequately channeled the
trial judge's discretion so that the Florida system, like the
Georgia system, on its face "satisfie[d] the constitutional
deficiencies identified in Furman. " Id. at 428 U. S.
253 .

															[ Footnote 26 ]

															We have not yet decided whether the Constitution permits a
mandatory death penalty in certain narrowly defined circumstances,
such as when an inmate serving a life sentence without possibility
of parole commits murder. See Shuman v. Wolff, 791 F.2d
788 (CA9), cert. granted sub nom. Sumner v. Shuman, 479
U.S. 948 (1986).

															[ Footnote 27 ]

															This section is substantially identical to the current Georgia
Code Ann. § 17-10-30(b)(7) (1982), which is reprinted in n 3, supra. [ Footnote 28 ]

															The Constitution is not offended by inconsistency in results
based on the objective circumstances of the crime. Numerous
legitimate factors may influence the outcome of a trial and a
defendant's ultimate sentence, even though they may be irrelevant
to his actual guilt. If sufficient evidence to link a suspect to a
crime cannot be found, he will not be charged. The capability of
the responsible law enforcement agency can vary widely. Also, the
strength of the available evidence remains a variable throughout
the criminal justice process, and may influence a prosecutor's
decision to offer a plea bargain or to go to trial. Witness
availability, credibility, and memory also influence the results of
prosecutions. Finally, sentencing in state courts is generally
discretionary, so a defendant's ultimate sentence necessarily will
vary according to the judgment of the sentencing authority. The
foregoing factors necessarily exist in varying degrees throughout
our criminal justice system.

															[ Footnote 29 ]

															According to Professor Baldus:

															"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.

															[ Footnote 30 ]

															This Court has repeatedly stated that prosecutorial discretion
cannot be exercised on the basis of race. Wayte v. United
States, 470 U.S. at 470 U. S. 608 ; United States v. Batcheder, 442 U.
S. 114 (1979); Oyler v. Boles, 368 U.
S. 448 (1962). Nor can a prosecutor exercise peremptory
challenges on the basis of race. Batson v. Kentucky, 476 U. S. 79 (1986); Swain v. Alabama, 380 U.
S. 202 (1966). More generally, this Court has condemned
state efforts to exclude blacks from grand and petit juries, Vasquez v. Hillery, 474 U. S. 254 (1986); Alexander v. Louisiana, 405 U.
S. 625 , 405 U. S.
628 -629 (1972); Whitus v. Georgia, 385 U.S. at 385 U. S.
549 -660; Norris v. Alabama, 294 U.
S. 587 , 294 U. S. 589 (1935); Neal v. Delaware, 103 U.
S. 370 , 103 U. S. 394 (1881); Strauder v. West Virginia, 100 U.
S. 303 , 100 U. S. 308 (1880); Ex parte Virginia, 100 U.
S. 339 (1880).

															Other protections apply to the trial and jury deliberation
process. Widespread bias in the community can make a change of
venue constitutionally required. Irvin v. Dowd, 366 U. S. 717 (1961). The Constitution prohibits racially biased prosecutorial
arguments. Donnelly v. DeChristoforo, 416 U.
S. 637 , 416 U. S. 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 , 424 U. S. 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).

															[ Footnote 31 ]

															In advocating the adoption of the Constitution, Alexander
Hamilton stated:

															"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).

															[ Footnote 32 ]

															In Witherspoon, JUSTICE BRENNAN joined the opinion of
the Court written by Justice Stewart. The Court invalidated a
statute that permitted a prosecutor to eliminate prospective jurors
by challenging all who expressed qualms about the death penalty.
The Court expressly recognized that the purpose of the "broad
discretion" given to a sentencing jury is "to decide whether or not
death is the proper penalty' in a given case," noting that "a
juror's general views about capital punishment play an inevitable
role in any such decision." 391 U.S. at 391 U. S. 519 (emphasis omitted). Thus, a sentencing jury must be composed of
persons capable of expressing the "conscience of the community on
the ultimate question of life or death." Ibid. The Court
referred specifically to the plurality opinion of Chief Justice
Warren in Trop v. Dulles, 356 U. S.
86 (1958), to the effect that it is the jury that must
"maintain a link between contemporary community values and the
penal system. . . ." 391 U.S. at 391 U. S. 519 ,
n. 15. 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.

															[ Footnote 33 ]

															In the guilt phase of a trial, the Double Jeopardy Clause bars
reprosecution after an acquittal, even if the acquittal is
" based upon an egregiously erroneous foundation.'" United
States v. DiFrancesco, 449 U. S. 117 , 449 U. S. 129 (1980) (quoting Fong Foo v. United States, 369 U.
S. 141 , 369 U. S. 143 (1962)). See Powell, Jury Trial of Crimes, 23 Wash. &
Lee L.Rev. 1, 7-8 (1966) (Despite the apparent injustice of such an
acquittal, "[t]he founding fathers, in light of history, decided
that the balance here should be struck in favor of the
individual"). In the penalty hearing, Georgia law provides that, "unless the
jury . . . recommends the death sentence in its verdict, the court
shall not sentence the defendant to death." Georgia Code Ann. §
17-10-31 (1982). In Bullinton v. Missouri, 451 U.
S. 430 (1981), this Court held that the Double Jeopardy
Clause of the Constitution prohibits a State from asking for a
sentence of death at a second trial when the jury at the first
trial recommended a lesser sentence.

															[ Footnote 34 ]

															In this case, for example, McCleskey declined to enter a guilty
plea. According to his trial attorney:

															"[T]he Prosecutor was indicating that we might be able to work
out a life sentence if he were willing to enter a plea. But we
never reached any concrete stage on that, because Mr. McCleskey's
attitude was that he didn't want to enter a plea. So it never got
any further than just talking about it."

															Tr. in No. 4909, p. 56 (Jan. 30, 1981).

															[ Footnote 35 ]

															Congress has acknowledged the existence of such discrepancies in
criminal sentences, and, in 1984, created the United States
Sentencing Commission to develop sentencing guidelines. The
objective.of the guidelines

															"is to avoid unwarranted sentencing disparities among
defendants with similar records who have been found guilty of
similar criminal conduct, while maintaining sufficient flexibility
to permit individualized sentencing when warranted by mitigating or
aggravating factors not taken into account in the guidelines."

															62 Fed.Reg. 3920 (1987) (emphasis added). No one contends that
all sentencing disparities can be eliminated. The guidelines, like
the safeguards in the Gregg -type statute, further an
essential need of the Anglo-American criminal justice system -- to
balance the desirability of a high degree of uniformity against the
necessity for the exercise of discretion.

															[ Footnote 36 ]

															The Baldus study in fact confirms that the Georgia system
results in a reasonable level of proportionality among the class of
murderers eligible for the death penalty. As Professor Baldus
confirmed, the system sorts out cases where the sentence of death
is highly likely and highly unlikely, leaving a mid-range of cases
where the imposition of the death penalty in any particular case is
less predictable. App. 35-36. See n 5, supra. [ Footnote 37 ]

															JUSTICE BRENNAN's eloquent dissent of course reflects his often
repeated opposition to the death sentence. His views, that also are
shared by JUSTICE MARSHALL, are principled, and entitled to
respect. Nevertheless, since Gregg was decided in 1976,
seven Members of this Court consistently have upheld sentences of
death under Gregg -type statutes providing for meticulous
review of each sentence in both state and federal courts. The
ultimate thrust of JUSTICE BRENNAN's dissent is that Gregg and its progeny should be overruled. He does not, however,
expressly call for the overruling of any prior decision. Rather,
relying on the Baldus study, JUSTICE BRENNAN, joined by JUSTICES
MARSHALL, BLACKMUN, and STEVENS, questions the very heart of our
criminal justice system: the traditional discretion that
prosecutors and juries necessarily must have.

															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 481 U. S.
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 481 U. S. 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 455 U. S. 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 428 U. S. 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 481 U. S. 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 428 U. S. 199 ,
n. 50.

															[ Footnote 38 ]

															Studies already exist that allegedly demonstrate a racial
disparity in the length of prison sentences. See, e.g., Spohn, Gruhl, & Welch, The Effect of Race on Sentencing: A
Reexamination of an Unsettled Question, 16 Law & Soc. Rev. 71
(1981-1982); Unnever, Frazier, & Henretta, Race Differences in
Criminal Sentencing, 21 Sociological Q. 197 (1980).

															[ Footnote 39 ]

															In Regents of the University of California v. Bakke, 438 U. S. 265 , 438 U. S. 295 (1978) (opinion of POWELL, J.), we recognized that the national
"majority"

															"is composed of various minority groups, most of which can lay
claim to a history of prior discrimination at the hands of the
State and private individuals." See id. at 438 U. S. 292 (citing Strauder v. West Virginia, 100 U.S. at 100 U. S. 308 (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (Chinese); Truax v. Raich, 239 U. S.
33 , 239 U. S. 36 , 239 U. S. 41 -42
(1915) (Austrian resident aliens); Korematsu v. United
States, 323 U. S. 214 , 323 U. S. 216 (1944) (Japanese); Hernandez v. Texas, 347 U.
S. 475 (1954) (Mexican-Americans)). See also Uniform Guidelines on Employee Selection Procedures (1978), 29 CFR
§ 1607.4(B) (1986) (employer must keep records as to the "following
races and ethnic groups: Blacks, American Indians (including
Alaskan Natives), Asians (including Pacific Islanders), Hispanics
(including persons of Mexican, Puerto Rican, Cuban, Central or
South American, or other Spanish origin or culture regardless of
race), and whites (Caucasians) other than Hispanics"); U.S. Bureau
of the Census, 1980 Census of the Population, Vol. 1, ch. B
(PC80-1-B), reprinted in 1986 Statistical Abstract of the United
States 29 (dividing United States population by "race and Spanish
origin" into the following groups: White, Black, American Indian,
Chinese, Filipino, Japanese, Korean, Vietnamese, Spanish origin,
and all other races); U.S. Bureau of the Census, 1980 Census of the
Population, Supplementary Report, series PC80-S1-10, reprinted in
1986 Statistical Abstract of the United States 34 (listing 44
ancestry groups and noting that many individuals reported
themselves to belong to multiple ancestry groups).

															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 458 U. S. 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).

															[ Footnote 40 ] See Chamblin, The Effect of Sex on the Imposition of
the Death Penalty (speech given at a symposium of the American
Psychological Association, entitled "Extra-legal Attributes
Affecting Death Penalty Sentencing," New York City, Sept., 1979);
Steffensmeier, Effects of Judge's and Defendant's Sex on the
Sentencing of Offenders, 14 Psychology, Journal of Human Behavior,
3 (Aug.1977).

															[ Footnote 41 ] See Johnson, Black Innocence and the White Jury, 83
Mich.L.Rev. 1611, 1625-1640, and n. 115 (1985) (citing Cohen &
Peterson, Bias in the Courtroom: Race and Sex Effects of Attorneys
on Juror Verdicts, 9 Social Behavior & Personality 81 (1981));
Hodgson & Pryor, Sex Discrimination in the Courtroom:
Attorney's Gender and Credibility, 55 Psychological Rep. 483
(1984).

															[ Footnote 42 ] See Steffensmeier, supra, at 7.

															[ Footnote 43 ] See Kerr, Bull, MacCoun, & Rathborn, Effects of
victim attractiveness, care and disfigurement on the judgements of
American and British mock jurors, 24 Brit.J.Social Psych. 47
(1985); Johnson, supra, at 1638, n. 128 (citing Shoemaker,
South, & Lowe, Facial Stereotypes of Deviants and Judgments of
Guilt or Innocence, 51 Social Forces 427 (1973)).

															[ Footnote 44 ]

															Some studies indicate that physically attractive defendants
receive greater leniency in sentencing than unattractive
defendants, and that offenders whose victims are physically
attractive receive harsher sentences than defendants with less
attractive victims. Smith & Hed, Effects of Offenders' Age and
Attractiveness on Sentencing by Mock Juries, 44 Psychological Rep.
691 (1979); Kerr, Beautiful and Blameless: Effects of Victim
Attractiveness and Responsibility on Mock Jurors' Verdicts, 4
Personality and Social Psych.Bull. 479 (1978). But see Baumeister & Darley, Reducing the Biasing Effect of Perpetrator
Attractiveness in Jury Simulation, 8 Personality and Social
Psych.Bull. 286 (1982); Schwibbe & Schwibbe, Judgment and
Treatment of People of Varied Attractiveness, 48 Psychological Rep.
11 (1981); Weiten, The Attraction-Leniency Effect in Jury Research:
An Examination of External Validity, 10 J.Applied Social Psych. 340
(1980).

															[ Footnote 45 ]

															JUSTICE STEVENS, who would not overrule Gregg, suggests
in his dissent that the infirmities alleged by McCleskey could be
remedied by narrowing the class of death-eligible defendants to
categories identified by the Baldus study where

															"prosecutors consistently seek, and juries consistently impose,
the death penalty without regard to the race of the victim or the
race of the offender." Post at 481 U. S. 367 .
This proposed solution is unconvincing. First, "consistently" is a
relative term, and narrowing the category of death-eligible
defendants would simply shift the borderline between those
defendants who received the death penalty and those who did not. A
borderline area would continue to exist and vary in its boundaries.
Moreover, because the discrepancy between borderline cases would be
difficult to explain, the system would likely remain open to
challenge on the basis that the lack of explanation rendered the
sentencing decisions unconstitutionally arbitrary.

															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.

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom
JUSTICE BLACKMUN and JUSTICE STEVENS join in all but Part I,
dissenting. I 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 , 428 U. S. 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 481 U. S. 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 , 446 U. S. 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 Page 481 U. S. 321 McCleskey has also demonstrated precisely the type of risk of
irrationality in sentencing that we have consistently condemned in
our Eighth Amendment jurisprudence. II 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 Page 481 U. S. 322 large shadow on the capital sentencing process. The Court
arrives at this conclusion by stating that the Baldus study cannot
" prove that race enters into any capital sentencing
decisions or that race was a factor in McCleskey's particular
case." Ante at 481 U. S. 308 (emphasis in original). Since, according to Professor Baldus, we
cannot say "to a moral certainty" that race influenced a decision, ante at 481 U. S. 308 ,
n. 29, we can identify only "a likelihood that a particular factor
entered into some decisions," ante at 481 U. S. 308 ,
and "a discrepancy that appears to correlate with race." Ante at 481 U. S. 312 .
This "likelihood" and "discrepancy," holds the Court, is
insufficient to establish a constitutional violation. The Court
reaches this conclusion by placing four factors on the scales
opposite McCleskey's evidence: the desire to encourage sentencing
discretion, the existence of "statutory safeguards" in the Georgia
scheme, the fear of encouraging widespread challenges to other
sentencing decisions, and the limits of the judicial role. The
Court's evaluation of the significance of petitioner's evidence is
fundamentally at odds with our consistent concern for rationality
in capital sentencing, and the considerations that the majority
invokes to discount that evidence cannot justify ignoring its
force. III 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 446 U. S. 427 .
As JUSTICE O'CONNOR observed Page 481 U. S. 323 in Caldwell v. Mississippi, 472 U.
S. 320 , 472 U. S. 343 (1985), a death sentence must be struck down when the circumstances
under which it has been imposed

															"creat[e] an unacceptable risk that 'the death penalty
[may have been] meted out arbitrarily or capriciously,' or through
'whim or mistake'"

															(emphasis added) (quoting California v. Ramos, 463 U. S. 992 , 463 U. S. 999 (1983)). This emphasis on risk acknowledges the difficulty of
divining the jury's motivation in an individual case. In addition,
it reflects the fact that concern for arbitrariness focuses on the
rationality of the system as a whole, and that a system that
features a significant probability that sentencing decisions are
influenced by impermissible considerations cannot be regarded as
rational. [ Footnote 2/1 ] As we said
in Gregg v. Georgia, 428 U.S. at 428 U. S. 200 ,
"the petitioner looks to the sentencing system as a whole (as the
Court did in Furman and we do today)": a constitutional
violation is established if a plaintiff demonstrates a
" pattern of arbitrary and capricious sentencing." Id. at 428 U. S. 195 ,
n. 46 (emphasis added) (joint opinion of Stewart, POWELL, and
STEVENS, JJ.).

															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 Page 481 U. S. 324 or other impermissible influences might have infected the sentencing decision. In vacating the sentence, we did not ask
whether it was likely that Godfrey's own sentence reflected the
operation of irrational considerations. Nor did we demand a
demonstration that such considerations had actually entered into
other sentencing decisions involving heinous crimes. Similarly, in Roberts v. Louisiana, 428 U. S. 325 (1976), and Woodson v. North Carolina, 428 U.
S. 280 (1976), we struck down death sentences in part
because mandatory imposition of the death penalty created the risk that a jury might rely on arbitrary
considerations in deciding which persons should be convicted of
capital crimes. Such a risk would arise, we said, because of the
likelihood that jurors, reluctant to impose capital punishment on a
particular defendant, would refuse to return a conviction, so that
the effect of mandatory sentencing would be to recreate the
unbounded sentencing discretion condemned in Furman. Roberts, supra, at 428 U. S.
334 -335 (plurality opinion); Woodson, supra, at 428 U. S. 303 (plurality opinion). We did not ask whether the death sentences in
the cases before us could have reflected the jury's rational
consideration and rejection of mitigating factors. Nor did we
require proof that juries had actually acted irrationally in other
cases.

															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 481 U. S. 291 ,
n. 7. Nonetheless, it finds the probability of prejudice
insufficient to create constitutional concern. Page 481 U. S. 325 Ante at 481 U. S. 313 .
Close analysis of the Baldus study, however, in light of both
statistical principles and human experience, reveals that the risk
that race influenced McCleskey's sentence is intolerable by any
imaginable standard. B 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; [ Footnote 2/2 ] and (2) cases reflecting an
"intermediate" level of aggravation, in which the jury has
considerable discretion in choosing a sentence. [ Footnote 2/3 ] McCleskey's case falls into the
intermediate range. In such cases, death is imposed in 34% of
white-victim crimes and 14% of black-victim crimes, a difference of
139% in the rate of imposition of the death penalty. Supp. Exh. 54.
In other words, just under 59% -- almost 6 in 10 -- defendants
comparable to McCleskey would not have received the death penalty
if their victims had been black. [ Footnote 2/4 ] Page 481 U. S. 326 Furthermore, even examination of the sentencing system as a
whole, factoring in those cases in which the jury exercises little
discretion, indicates the influence of race on capital sentencing.
For the Georgia system as a whole, race accounts for a six
percentage point difference in the rate at which capital punishment
is imposed. Since death is imposed in 11% of all white-victim
cases, the rate in comparably aggravated black-victim cases is 5%.
The rate of capital sentencing in a white-victim case is thus 120%
greater than the rate in a black-victim case. Put another way, over
half -- 55% -- of defendants in white-victim crimes in Georgia
would not have been sentenced to die if their victims had been
black. Of the more than 200 variables potentially relevant to a
sentencing decision, race of the victim is a powerful explanation
for variation in death sentence rates -- as powerful as nonracial
aggravating factors such as a prior murder conviction or acting as
the principal planner of the homicide. [ Footnote 2/5 ]

															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 Page 481 U. S. 327 the rate for black-victim cases. Supp. Exh. 47. Furthermore,
blacks who kill whites are sentenced to death at nearly 22
times the rate of blacks who kill blacks, and more than 7
times the rate of whites who kill blacks. Ibid. In
addition, prosecutors seek the death penalty for 70% of black
defendants with white victims, but for only 15% of black defendants
with black victims, and only 19% of white defendants with black
victims. Id. at 56. Since our decision upholding the
Georgia capital sentencing system in Gregg, the State has
executed seven persons. All of the seven were convicted of killing
whites, and six of the seven executed were black. [ Footnote 2/6 ] Such execution figures are especially
striking in light of the fact that, during the period encompassed
by the Baldus study, only 9.2% of Georgia homicides involved black
defendants and white victims, while 60.7% involved black
victims.

															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. [ Footnote 2/7 ] While the decisionmaking process of a
body such as a jury may be complex, the Baldus study provides a
massive compilation of the details that are most relevant to that
decision. As we held in the context of Title VII of the Civil
Rights Act of 1964 last Term in Bazemore v. Friday, 478 U. S. 385 (1986), a multiple-regression analysis need not include every
conceivable variable to establish a party's case, as long as it
includes those variables that account for the Page 481 U. S. 328 major factors that are likely to influence decisions. In this
case, Professor Baldus in fact conducted additional regression
analyses in response to criticisms and suggestions by the District
Court, all of which confirmed, and some of which even strengthened,
the study's original conclusions.

															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 , 476 U. S. 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 , 430 U. S. 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. C 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 Page 481 U. S. 329 this Court's own recognition of the persistent danger that
racial attitudes may affect criminal proceedings, indicates that
McCleskey's claim is not a fanciful product of mere statistical
artifice.

															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). [ Footnote 2/8 ]

															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 Page 481 U. S. 330 a prison term not less than 2 nor more than 20 years. The rape
of blacks was punishable "by fine and imprisonment, at the
discretion of the court." § 4249. A black convicted of assaulting a
free white person with intent to murder could be put to death at
the discretion of the court, § 4708, but the same offense committed
against a black, slave or free, was classified as a "minor" offense
whose punishment lay in the discretion of the court, as long as
such punishment did not "extend to life, limb, or health." Art.
III, §§ 4714, 4718. Assault with intent to murder by a white person
was punishable by a prison term of from 2 to 10 years. Div. 4, §
4258. While sufficient provocation could reduce a charge of murder
to manslaughter, the code provided that

															"[o]bedience and submission being the duty of a slave, much
greater provocation is necessary to reduce a homicide of a white
person by him to voluntary manslaughter, than is prescribed for
white persons."

															Art. II, § 4711.

															In more recent times, some 40 years ago, Gunnar Myrdal's epochal
study of American race relations produced findings mirroring
McCleskey's evidence:

															"As long as only Negroes are concerned and no whites are
disturbed, great leniency will be shown in most cases. . . . The
sentences for even major crimes are ordinarily reduced when the
victim is another Negro."

															" * * * *" "For offenses which involve any actual or potential danger to
whites, however, Negroes are punished more severely than
whites."

															" * * * *" "On the other hand, it is quite common for a white criminal to
be set free if his crime was against a Negro."

															G. Myrdal, An American Dilemma 551-552, (1944).

															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. Page 481 U. S. 331 Justice Douglas cited studies suggesting imposition of the death
penalty in racially discriminatory fashion, and found the
standardless statutes before the Court "pregnant with
discrimination." 408 U.S. at 408 U. S. 257 (concurring opinion). JUSTICE MARSHALL pointed to statistics
indicating that

															"Negroes [have been] executed far more often than whites in
proportion to their percentage of the population. Studies indicate
that, while the higher rate of execution among Negroes is partially
due to a higher rate of crime, there is evidence of racial
discrimination." Id. at 408 U. S. 364 (concurring opinion). Although Justice Stewart declined to conclude
that racial discrimination had been plainly proved, he stated
that

															"[m]y concurring Brothers have demonstrated that, if any basis
can be discerned for the selection of these few to be sentenced to
die, it is the constitutionally impermissible basis of race." Id. at 408 U. S. 310 (concurring opinion). In dissent, Chief Justice Burger acknowledged
that statistics

															"suggest, at least as a historical matter, that Negroes have
been sentenced to death with greater frequency than whites in
several States, particularly for the crime of interracial
rape." Id. at 408 U. S. 289 ,
n. 12. Finally, also in dissent, JUSTICE POWELL intimated that an
Equal Protection Clause argument would be available for a black

															"who could demonstrate that members of his race were being
singled out for more severe punishment than others charged with the
same offense." Id. at 408 U. S. 449 .
He noted that, although the Eighth Circuit had rejected a claim of
discrimination in Maxwell v. Bishop, 398 F.2d 138 (1968), vacated and remanded on other grounds, 398 U.
S. 262 (1970), the statistical evidence in that case

															"tend[ed] to show a pronounced disproportion in the number of
Negroes receiving death sentences for rape in parts of Arkansas and
elsewhere in the South."

															408 U.S. at 408 U. S. 449 .
It is clear that the Court regarded the opportunity for the
operation of racial prejudice a particularly troublesome aspect of
the unbounded discretion afforded by the Georgia sentencing
scheme. Page 481 U. S. 332 Five years later, the Court struck down the imposition of the
death penalty in Georgia for the crime of rape. Coker v.
Georgia, 433 U. S. 584 (1977). Although the Court did not explicitly mention race, the
decision had to have been informed by the specific observations on
rape by both the Chief Justice and JUSTICE POWELL in Furman. Furthermore, evidence submitted to the Court
indicated that black men who committed rape, particularly of white
women, were considerably more likely to be sentenced to death than
white rapists. For instance, by 1977, Georgia had executed 62 men
for rape since the Federal Government began compiling statistics in
1930. Of these men, 58 were black and 4 were white. See Brief for Petitioner in Coker v. Georgia, O.T. 1976, No.
75-5444, p. 56; see also Wolfgang & Riedel, Rape,
Race, and the Death Penalty in Georgia, 45 Am.J.Orthopsychiatry 658
(1975).

															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 446 U. S. 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 446 U. S. 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.Rev. Page 481 U. S. 333 327 (1987). See generally id. at 328-344 (describing
the psychological dynamics of unconscious racial motivation). As we
said in Rose v. Mitchell, 443 U.
S. 545 , 443 U. S.
558 -559 (1979):

															"[W]e . . . cannot deny that, 114 years after the close of the
War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still
remain a fact of life, in the administration of justice as in our
society as a whole. Perhaps today that discrimination takes a form
more subtle than before. But it is not less real or
pernicious."

															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 481 U. S. 309 (quoting Batson v. Kentucky, 476 U. S.
79 , 476 U. S. 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 Page 481 U. S. 334 provides considerable opportunity for racial considerations,
however subtle and unconscious, to influence charging and
sentencing decisions. [ Footnote
2/9 ]

															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 476 U. S. 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. Page 481 U. S. 335 The majority thus misreads our Eighth Amendment jurisprudence in
concluding that McCleskey has not demonstrated a degree of risk
sufficient to raise constitutional concern. The determination of
the significance of his evidence is at its core an exercise in
human moral judgment, not a mechanical statistical analysis. It
must first and foremost be informed by awareness of the fact that
death is irrevocable, and that, as a result,

															"the qualitative difference of death from all other punishments
requires a greater degree of scrutiny of the capital sentencing
determination." California v. Ramos, 463 U.S. at 463 U. S.
998 -999. For this reason, we have demanded a uniquely
high degree of rationality in imposing the death penalty. A capital
sentencing system in which race more likely than not plays a role
does not meet this standard. It is true that every nuance of
decision cannot be statistically captured, nor can any individual
judgment be plumbed with absolute certainty. Yet the fact that we
must always act without the illumination of complete knowledge
cannot induce paralysis when we confront what is literally an issue
of life and death. Sentencing data, history, and experience all
counsel that Georgia has provided insufficient assurance of the
heightened rationality we have required in order to take a human
life. IV 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 Page 481 U. S. 336 system." Ante at 481 U. S. 311 .
It states that "[w]here the discretion that is fundamental to our
criminal process is involved, we decline to assume that what is
unexplained is invidious." Ante at 481 U. S.
313 .

															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 , 438 U. S. 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 428 U. S. 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 428 U. S.
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. Page 481 U. S. 337 Our desire for individualized moral judgments may lead us to
accept some inconsistencies in sentencing outcomes. Since such
decisions are not reducible to mathematical formulae, we are
willing to assume that a certain degree of variation reflects the
fact that no two defendants are completely alike. There is thus a
presumption that actors in the criminal justice system exercise
their discretion in responsible fashion, and we do not
automatically infer that sentencing patterns that do not comport
with ideal rationality are suspect.

															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 476 U. S. 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. Page 481 U. S. 338 The Court also declines to find McCleskey's evidence sufficient
in view of "the safeguards designed to minimize racial bias in the
[capital sentencing] process." Ante at 481 U. S. 313 . Gregg v. Georgia, 428 U.S. at 428 U. S. 226 ,
upheld the Georgia capital sentencing statute against a facial
challenge which JUSTICE WHITE described in his concurring opinion
as based on "simply an assertion of lack of faith" that the system
could operate in a fair manner (opinion concurring in judgment).
JUSTICE WHITE observed that the claim that prosecutors might act in
an arbitrary fashion was "unsupported by any facts," and that
prosecutors must be assumed to exercise their charging duties
properly "[a]bsent facts to the contrary. " Id. at 428 U. S. 225 .
It is clear that Gregg bestowed no permanent approval on
the Georgia system. It simply held that the State's statutory
safeguards were assumed sufficient to channel discretion without
evidence otherwise.

															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). Page 481 U. S. 339 The Court next states that its unwillingness to regard
petitioner's evidence as sufficient is based in part on the fear
that recognition of McCleskey's claim would open the door to
widespread challenges to all aspects of criminal sentencing. Ante at 481 U. S.
314 -315. Taken on its face, such a statement seems to
suggest a fear of too much justice. Yet surely the majority would
acknowledge that, if striking evidence indicated that other
minority groups, or women, or even persons with blond hair, were
disproportionately sentenced to death, such a state of affairs
would be repugnant to deeply rooted conceptions of fairness. The
prospect that there may be more widespread abuse than McCleskey
documents may be dismaying, but it does not justify complete
abdication of our judicial role. The Constitution was framed
fundamentally as a bulwark against governmental power, and
preventing the arbitrary administration of punishment is a basic
ideal of any society that purports to be governed by the rule of
law. [ Footnote 2/10 ]

															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 Page 481 U. S. 340 properly be taken into account in determining whether various
punishments are "cruel and unusual." Furthermore, it fails to take
account of the unprecedented refinement and strength of the Baldus
study.

															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 428 U. S. 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 Page 481 U. S. 341 proscribed. We have expressed a moral commitment, as embodied in
our fundamental law, that this specific characteristic should not
be the basis for allotting burdens and benefits. Three
constitutional amendments, and numerous statutes, have been
prompted specifically by the desire to address the effects of
racism.

															"Over the years, this Court has consistently repudiated
'[d]istinctions between citizens solely because of their ancestry'
as being 'odious to a free people whose institutions are founded
upon the doctrine of equality.'" Loving v. Virginia, 388 U. S. 1 , 388 U. S. 11 (1967) (quoting Hirabayashi v. United States, 320 U. S.
81 , 320 U. S. 100 (1943)). Furthermore, we have explicitly acknowledged the
illegitimacy of race as a consideration in capital sentencing, Zant v. Stephens, 462 U. S. 862 , 462 U. S. 885 (1983). That a decision to impose the death penalty could be
influenced by race is thus a particularly repugnant prospect, and
evidence that race may play even a modest role in levying a death
sentence should be enough to characterize that sentence as "cruel
and unusual."

															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 481 U. S.
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 Page 481 U. S. 342 far and away the most refined data ever assembled on any system
of punishment, data not readily replicated through casual effort.
Moreover, that evidence depicts not merely arguable tendencies, but
striking correlations, all the more powerful because nonracial
explanations have been eliminated. Acceptance of petitioner's
evidence would therefore establish a remarkably stringent standard
of statistical evidence unlikely to be satisfied with any
frequency.

															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 481 U. S. 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:

															"It is a premise we deduce not merely from the fact of a written
constitution but from the history of the race, and ultimately as a
moral judgment of the good society, that government should serve
not only what we conceive Page 481 U. S. 343 from time to time to be our immediate material needs, but also
certain enduring values. This in part is what is meant by
government under law."

															The Least Dangerous Branch 24 (1962).

															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 408 U. S. 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 , 369 U. S. 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). V 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 , Page 481 U. S. 344 19 How. 393, 60 U. S. 407 (1857). Only 130 years ago, this Court relied on these observations
to deny American citizenship to blacks. Ibid. A mere three
generations ago, this Court sanctioned racial segregation, stating
that "[i]f one race be inferior to the other socially, the
Constitution of the United States cannot put them upon the same
plane." Plessy v. Ferguson, 163 U.
S. 537 , 163 U. S. 552 (1896).

															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 163 U. S. 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 Page 481 U. S. 345 will not have obtained judicial acceptance, but that will not
affect what is said on death row. However many criticisms of
today's decision may be rendered, these painful conversations will
serve as the most eloquent dissents of all.

															[ Footnote 2/1 ]

															Once we can identify a pattern of arbitrary sentencing outcomes,
we can say that a defendant runs a risk of being sentenced
arbitrarily. It is thus immaterial whether the operation of an
impermissible influence such as race is intentional. While the
Equal Protection Clause forbids racial discrimination, and intent
may be critical in a successful claim under that provision, the
Eighth Amendment has its own distinct focus: whether punishment
comports with social standards of rationality and decency. It may
be, as in this case, that on occasion an influence that makes
punishment arbitrary is also proscribed under another
constitutional provision. That does not mean, however, that the
standard for determining an Eighth Amendment violation is
superseded by the standard for determining a violation under this
other provision. Thus, the fact that McCleskey presents a viable
equal protection claim does not require that he demonstrate
intentional racial discrimination to establish his Eighth Amendment
claim.

															[ Footnote 2/2 ]

															The first two and the last of the study's eight case categories
represent those cases in which the jury typically sees little
leeway in deciding on a sentence. Cases in the first two categories
are those that feature aggravating factors so minimal that juries
imposed no death sentences in the 88 cases with these factors
during the period of the study. Supp. Exh. 54. Cases in the eighth
category feature aggravating factors so extreme that the jury
imposed the death penalty in 88% of the 58 cases with these factors
in the same period. Ibid. [ Footnote 2/3 ]

															In the five categories characterized as intermediate, the rate
at which the death penalty was imposed ranged from 8% to 41%. The
overall rate for the 326 cases in these categories was 20%. Ibid. [ Footnote 2/4 ]

															The considerable racial disparity in sentencing rates among
these cases is consistent with the "liberation hypothesis" of H.
Kalven and H. Zeisel in their landmark work, The American Jury
(1966). These authors found that, in close cases in which jurors
were most often in disagreement,

															"[t]he closeness of the evidence makes it possible for the jury
to respond to sentiment by liberating it from the
discipline of the evidence." Id. at 165. While

															"the jury does not often consciously and explicitly yield to
sentiment in the teeth of the law . . . it yields to sentiment in
the apparent process of resolving doubts as to evidence. The jury,
therefore, is able to conduct its revolt from the law within the
etiquette of resolving issues of fact." Ibid. Thus, it is those cases in which sentencing
evidence seems to dictate neither life imprisonment nor the death
penalty that impermissible factors such as race play the most
prominent role.

															[ Footnote 2/5 ]

															The fact that a victim was white accounts for a nine percentage
point difference in the rate at which the death penalty is imposed,
which is the same difference attributable to a prior murder
conviction or the fact that the defendant was the "prime mover" in
planning a murder. Supp. Exh. 50.

															[ Footnote 2/6 ]

															NAACP Legal Defense and Educational Fund, Death Row, U.S.A. 4
(Aug. 1, 1986).

															[ Footnote 2/7 ] See generally Fisher, Multiple Regression in Legal
Proceedings, 80 Colum.L.Rev. 701 (1980).

															[ Footnote 2/8 ]

															Death could also be inflicted upon a slave who "grievously
wound[ed], maim[ed], or bruis[ed] any white person," who was
convicted for the third time of striking a white person, or who
attempted to run away out of the province. A. Higginbotham, In the
Matter of Color: Race in the American Legal Process 256 (1978). On
the other hand, a person who willfully murdered a slave was not
punished until the second offense, and then was responsible simply
for restitution to the slave owner. Furthermore, conviction for
willful murder of a slave was subject to the difficult requirement
of the oath of two white witnesses. Id. at 253-254, and
n.190.

															[ Footnote 2/9 ]

															The Court contends that it is inappropriate to take into account
the wide latitude afforded actors in the Georgia capital sentencing
system, since "[w]e have held that discretion in a capital
punishment system is necessary to satisfy the Constitution," ante at 481 U. S. 314 ,
n. 37, and "no suggestion is made as to how greater rationality' could be achieved under any type of statute that
authorizes capital punishment." Ibid. The first point is
true, but of course the Court struck down the death penalty in Furman v. Georgia, 408 U. S. 238 (1972), because the sentencing systems before it provided too
much discretion. Since Gregg v. Georgia, 428 U.
S. 153 (1976), the Court's death penalty jurisprudence
has rested on the premise that it is possible to establish a system
of guided discretion that will both permit individualized
moral evaluation and prevent impermissible considerations from
being taken into account. As JUSTICE BLACKMUN has persuasively
demonstrated, post at 481 U. S.
357 -358, Georgia provides no systematic guidelines for
prosecutors to utilize in determining for which defendants the
death penalty should be sought. Furthermore, whether a State has
chosen an effective combination of guidance and discretion in its
capital sentencing system as a whole cannot be established in the
abstract, as the Court insists on doing, but must be determined
empirically, as the Baldus study has done. With respect to the Court's criticism that McCleskey has not
shown how Georgia could do a better job, ante at 481 U. S. 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.

															[ Footnote 2/10 ]

															As Maitland said of the provision of the Magna Carta regulating
the discretionary imposition of fines, "[v]ery likely there was no
clause in Magna Carta more grateful to the mass of the people." F.
Maitland, Pleas of the Crown For the County of Gloucester xxxiv
(1884). In our own country, the point is underscored by Patrick
Henry's remarks in support of the adoption of a Bill of Rights:

															"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).

															JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE STEVENS
join, and with whom JUSTICE BRENNAN joins in all but Part IV-B,
dissenting.

															The Court today sanctions the execution of a man despite his
presentation of evidence that establishes a constitutionally
intolerable level of racially based discrimination leading to the
imposition of his death sentence. I am disappointed with the
Court's action not only because of its denial of constitutional
guarantees to petitioner McCleskey individually, but also because
of its departure from what seems to me to be well-developed
constitutional 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, [ Footnote 3/1 ]
there exists in the Georgia capital sentencing scheme a risk of
racially based discrimination that is so acute that it violates the
Eighth Amendment. His analysis of McCleskey's case in terms of the
Eighth Amendment is consistent with this Court's recognition that,
because capital cases involve the State's imposition of a
punishment that is unique both in kind and degree, the decision in
such cases must reflect a heightened degree of reliability under
the Amendment's prohibition of the infliction of cruel and unusual
punishments. See Woodson v. North Carolina, 428 U.
S. 280 , 428 U. S. 305 (1976) (plurality opinion). I therefore join Parts II through V of
JUSTICE BRENNAN's dissenting opinion. Page 481 U. S. 346 Yet McCleskey's case raises concerns that are central not only
to the principles underlying the Eighth Amendment, but also to the
principles underlying the Fourteenth Amendment. Analysis of his
case in terms of the Fourteenth Amendment is consistent with this
Court's recognition that racial discrimination is fundamentally at
odds with our constitutional guarantee of equal protection. The
protections afforded by the Fourteenth Amendment are not left at
the courtroom door. Hill v. Texas, 316 U.
S. 400 , 316 U. S. 406 (1942). Nor is equal protection denied to persons convicted of
crimes. Lee v. Washington, 390 U.
S. 333 (1968) (per curiam). The Court in the past has
found that racial discrimination within the criminal justice system
is particularly abhorrent: "Discrimination on the basis of race,
odious in all aspects, is especially pernicious in the
administration of justice." Rose v. Mitchell, 443 U.
S. 545 , 443 U. S. 555 (1979). Disparate enforcement of criminal sanctions "destroys the
appearance of justice, and thereby casts doubt on the integrity of
the judicial process." Id. at 443 U. S.
555 -556. And only last Term, JUSTICE POWELL, writing for
the Court, noted:

															"Discrimination within the judicial system is most pernicious
because it is"

															"a stimulant to that race prejudice which is an impediment to
securing to [black citizens] that equal justice which the law aims
to secure to all others." Batson v. Kentucky, 476 U. S. 79 , 476 U. S. 87 -88
(1986), quoting Strauder v. West Virginia, 100 U.
S. 303 , 100 U. S. 308 (1880).

															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., lst Sess., p. XVII
(1866). Witnesses who testified before Page 481 U. S. 347 the Committee presented accounts of criminal acts of violence
against black persons that were not prosecuted despite evidence as
to the identity of the perpetrators. [ Footnote 3/2 ] I A The Court today seems to give a new meaning to our recognition
that death is different. Rather than requiring Page 481 U. S. 348 "a correspondingly greater degree of scrutiny of the capital
sentencing determination," California v. Ramos, 463 U. S. 992 , 463 U. S.
998 -999 (1983), the Court relies on the very fact that
this is a case involving capital punishment to apply a lesser standard of scrutiny under the Equal Protection
Clause. The Court concludes that "legitimate" explanations outweigh
McCleskey's claim that his death sentence reflected a
constitutionally impermissible risk of racial discrimination. The
Court explains that McCleskey's evidence is too weak to require
rebuttal

															"because a legitimate and unchallenged explanation for the
decision is apparent from the record: McCleskey committed an act
for which the United States Constitution and Georgia laws permit
imposition of the death penalty." Ante at 481 U. S. 297 .
The Court states that it will not infer a discriminatory purpose on
the part of the state legislature, because "there were legitimate
reasons for the Georgia Legislature to adopt and maintain capital
punishment." Ante at 481 U. S.
298 -299.

															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 443 U. S. 559 ; Whitus v. Georgia, 385 U. S. 545 , 385 U. S.
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 316 U. S. 406 .
The Court has maintained a per se reversal Page 481 U. S. 349 rule rejecting application of harmless error analysis in cases
involving racial discrimination that "strikes at the fundamental
values of our judicial system and our society as a whole." Rose
v. Mitchell, 443 U.S. at 443 U. S. 556 .
We have noted that a conviction "in no way suggests that the
discrimination did not impermissibly infect" earlier phases of the
criminal prosecution "and, consequently, the nature or very
existence of the proceedings to come." Vasquez v. Hillery, 474 U.S. at 474 U. S. 263 .
Hence, McCleskey's conviction and the imposition of his death
sentence by the jury do not suggest that discrimination did not
impermissibly infect the earlier steps in the prosecution of his
case, such as the prosecutor's decision to seek the death
penalty.

															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 476 U. S. 88 ,
quoting Norris v. Alabama, 294 U.
S. 587 , 294 U. S. 589 (1935). B 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 , 430 U. S.
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 Page 481 U. S. 350 sought the death penalty and the jury that imposed the sentence,
to the State itself that enacted the capital punishment statute and
allows it to remain in effect despite its allegedly discriminatory
application." Ante at 481 U. S. 292 .
Having recognized the complexity of McCleskey's claim, however, the
Court proceeds to ignore a significant element of that claim. The
Court treats the case as if it is limited to challenges to the
actions of two specific decisionmaking bodies -- the petit jury and
the state legislature. Ante at 481 U.S. 294 -295, 481 U. S.
297 -298. This self-imposed restriction enables the Court
to distinguish this case from the venire-selection cases and cases
under Title VII of the Civil Rights Act of 1964 in which it long
has accepted statistical evidence and has provided an easily
applicable framework for review. See e.g., Castaneda v.
Partida, supra; Bazemore v. Friday, 478 U.
S. 385 (1986) (BRENNAN, J., joined by all other Members
of the Court, concurring in part). Considering McCleskey's claim in
its entirety, however, reveals that the claim fits easily within
that same framework. A significant aspect of his claim is that
racial factors impermissibly affected numerous steps in the Georgia
capital sentencing scheme between his indictment and the jury's
vote to sentence him to death. The primary decisionmaker at each of
the intervening steps of the process is the prosecutor, the
quintessential state actor in a criminal proceeding. [ Footnote 3/3 ] The District Court expressly
stated Page 481 U. S. 351 that there were "two levels of the system that matter to
[McCleskey], the decision to seek the death penalty and the
decision to impose the death penalty." 580 F.
Supp. 338 , 379-380 (ND Ga.1984). I agree with this statement of
McCleskey's case. Hence, my analysis in this dissenting opinion
takes into account the role of the prosecutor in the Georgia
capital sentencing system. I certainly do not address all the
alternative methods of proof in the Baldus study. Nor do I review
each step in the process which McCleskey challenges. I concentrate
on the decisions within the prosecutor's office through which the
State decided to seek the death penalty and, in particular, the
point at which the State proceeded to the penalty phase after
conviction. This is a step at which the evidence of the effect of
the racial factors was especially strong, see Supplemental
Exhibits (Supp. Exh.) 56, 57; Transcript of Federal Habeas Corpus
Hearing in No. C81-2434A (Tr.) 894-926, but is ignored by the
Court. II A A criminal defendant alleging an equal protection violation must
prove the existence of purposeful discrimination. Washington v.
Davis, 426 U. S. 229 , 426 U. S.
239 -240 (1976); Whitus v. Georgia, 385 U.S. at 385 U. S. 550 .
He may establish a prima facie case [ Footnote 3/4 ] of purposeful discrimination "by showing
that the Page 481 U. S. 352 totality of the relevant facts gives rise to an inference of
discriminatory purpose." Batson v. Kentucky, 476 U.S. at 476 U. S. 94 .
[ Footnote 3/5 ] Once the defendant
establishes a prima facie case, the burden shifts to the
prosecution to rebut that case.

															"The State cannot meet this burden on mere general assertions
that its officials did not discriminate, or that they properly
performed their official duties." Ibid. The State must demonstrate that the challenged
effect was due to " permissible racially neutral selection
criteria.'" Ibid., quoting Alexander v.
Louisiana, 405 U. S. 625 , 405 U. S. 632 (1972). 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 430 U. S. 494 .
Second, he must make a showing of a substantial degree of
differential treatment. [ Footnote
3/6 ] Third, he must establish that the allegedly Page 481 U. S. 353 discriminatory procedure is susceptible to abuse or is not
racially neutral. Ibid. B 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 481 U. S. 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 , 471 U. S. 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). Page 481 U. S. 354 The question remaining, therefore, is at what point does that
disparity become constitutionally unacceptable. See Turner v.
Murray, 476 U. S. 28 , 476 U. S. 36 , n.
8 (1986) (plurality opinion). Recognizing that additional factors
can enter into the decisionmaking process that yields a death
sentence, the authors of the Baldus study collected data concerning
the presence of other relevant factors in homicide cases in Georgia
during the time period relevant to McCleskey's case. They then
analyzed the data in a manner that would permit them to ascertain
the independent effect of the racial factors. [ Footnote 3/7 ]

															McCleskey demonstrated the degree to which his death sentence
was affected by racial factors by introducing multiple Page 481 U. S. 355 regression analyses that explain how much of the statistical
distribution of the cases analyzed is attributable to the racial
factors. McCleskey established that, because he was charged with
killing a white person, he was 4.3 times as likely to be sentenced
to death as he would have been had he been charged with killing a
black person. Petitioner's Exhibit DB 82. McCleskey also
demonstrated that it was more likely than not that the fact that
the victim he was charged with killing was white determined that he
received a sentence of death -- 20 out of every 34 defendants in
McCleskey's mid-range category would not have been sentenced to be
executed if their victims had been black. Supp. Exh. 54. [ Footnote 3/8 ] The most persuasive evidence
of the constitutionally significant effect of racial factors in the
Georgia capital sentencing system is McCleskey's proof that the
race of the victim is more important in explaining the imposition
of a death sentence than is the factor whether the defendant was a
prime mover in the homicide. Petitioner's Exhibit DB 82. [ Footnote 3/9 ] Similarly, the race-of-victim
factor is nearly as crucial as the statutory aggravating
circumstance whether the defendant had a prior record of a
conviction for a capital crime. [ Footnote 3/10 ] Ibid. See Ga.Code Ann.
§ 17-10-30(b) (1982), ante at 481 U. S.
284 -285, n. 3. The Court has noted elsewhere that
Georgia could not attach

															"the 'aggravating' label to factors that are constitutionally
impermissible or totally irrelevant to the sentencing process, such
as for example the race, religion, or political affiliation of the
defendant." Zant v. Stephens, 462 U. S. 862 , 462 U. S. 885 (1983). What we have held to be unconstitutional if included in
the Page 481 U. S. 356 language of the statute surely cannot be constitutional, because
it is a de facto characteristic of the system.

															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. [ Footnote 3/11 ]

															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 Page 481 U. S. 357 McCleskey, who were arrested and charged with homicide of a
police officer in Fulton County during the 1973-1979 period,
McCleskey, alone, was sentenced to death. The only other defendant
whose case even proceeded to the penalty phase received a sentence
of life imprisonment. That defendant had been convicted of killing
a black police officer. See id. at 61-63; Tr.
1050-1062.

															As to the final element of the prima facie case,
McCleskey showed that the process by which the State decided to
seek a death penalty in his case and to pursue that sentence
throughout the prosecution was susceptible to abuse. Petitioner
submitted the deposition of Lewis R. Slaton, who, as of the date of
the deposition, had been the District Attorney for 18 years in the
county in which McCleskey was tried and sentenced. Deposition in
No. 84-8176 of Lewis R. Slaton, Aug. 4, 1983, p. 5; see
McCleskey v. Zant, 580 F.
Supp. 338 , 377, n. 15 (1984); Tr. 1316. As Mr. Slaton
explained, the duties and responsibilities of that office are the
prosecution of felony charges within the Atlanta Judicial Circuit
that comprises Fulton County. Deposition 7-8. He testified that,
during his years in the office, there were no guidelines informing
the Assistant District Attorneys who handled the cases how they
should proceed at any particular stage of the prosecution. There
were no guidelines as to when they should seek an indictment for
murder, as opposed to lesser charges, id. at 10-11; when
they should recommend acceptance of a guilty plea to murder,
acceptance of a guilty plea to a lesser charge, reduction of
charges, or dismissal of charges at the
postindictment-preconviction stage, id. at 25-26, 31; or
when they should seek the death penalty, id. at 31. Slaton
testified that these decisions were left to the discretion of the
individual attorneys, who then informed Slaton of their decisions
as they saw fit. Id. at 13, 24-25, 37-38.

															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." Page 481 U. S. 358 Id. at 20. Addressing plea bargaining, for example,
Slaton stated that "through the training that the assistant DA's
get, I think we pretty much think alike on the cases, on what we
suggest." Id. at 25. The sole effort to provide any
consistency was Slaton's periodic pulling of files at random to
check on the progress of cases. Id. at 28-29. Slaton
explained that, as far as he knew, he was the only one aware of
this checking. Id. at 28. The files contained information
only as to the evidence in the case, not any indication as to why
an attorney made a particular decision. The attorneys were not
required to record why they sought an indictment for murder as
opposed to a lesser charge, id. at 19, or why they
recommended a certain plea, id. at 29-30. [ Footnote 3/12 ] The attorneys were not
required to report to Slaton the cases in which they decided not to
seek the death penalty, id. at 34-36, 38, or the cases in
which they did seek the death penalty, id. at 41.

															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 Page 481 U. S. 359 history of prior discrimination in the Georgia system. JUSTICE
BRENNAN has reviewed much of this history in detail in his
dissenting opinion, ante at 481 U. S.
328 -334, including the history of Georgia's racially
based dual system of criminal justice. This historical background
of the state action challenged "is one evidentiary source" in this
equal protection case. Arlington Heights v. Metropolitan
Housing Development Corp., 429 U. S. 252 , 429 U. S. 267 (1977); see also Rogers v. Lodge, 458 U.
S. 613 , 458 U. S. 618 , 458 U. S.
623 -625 (1982). Although I would agree that evidence of
"official actions taken long ago" could not alone establish that
the current system is applied in an unconstitutionally
discriminatory manner, I disagree with the Court's statement that
such evidence is now irrelevant. Ante at 481 U. S. 298 ,
n. 20.

															The above-described evidence, considered in conjunction with the
other record evidence outlined by JUSTICE BRENNAN, ante at 481 U. S.
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 426 U. S.
239 -242. As in the context of the rule of exclusion, see 481
U.S. 279 fn3/6|>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 430 U. S. 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 Page 481 U. S. 360 "one by one, demonstrating that, in life sentence cases, to the
extent that any aggravating circumstance is more prevalent in one
group than the other, there are more aggravating features in the
group of white-victim cases than in the group of black-victim
cases. Conversely, there were more mitigating circumstances in
which black-victim cases had a higher proportion of that
circumstance than in white-victim cases." Ibid. The District Court found that the State's
suggestion was plausible. It concluded, however, that the State did
not conclusively disprove McCleskey's case; yet it reasoned that
the State's theory "stands to contradict any prima facie case." Ibid. I find that reasoning wrong as a matter of
law, and the conclusion clearly erroneous.

															The State did not test its hypothesis to determine if
white-victim and black-victim cases at the same level of
aggravating circumstances were similarly treated. Tr. 1613-1614,
1664. McCleskey's experts, however, performed this test on their
data. Id. at 1297, 1729-1732, 1756-1761. They demonstrated
that the racial disparities in the system were not the result of
the differences in the average aggravation levels between
white-victim and black-victim cases. See Supp. Exh. 72;
Tr. 1291-1296; Petitioner's Exhibit DB 92. The State's meager and
unsophisticated evidence cannot withstand the extensive scrutiny
given the Baldus evidence. [ Footnote
3/13 ] Page 481 U. S. 361 Here, as in Bazemore v. Friday, the State did not
"demonstrate that, when th[e] factors were properly organized and
accounted for, there was no significant disparity" between the
death sentences imposed on defendants convicted of killing white
victims and those imposed on defendants convicted of killing black
victims. 478 U.S. at 478 U. S.
403 -404, n. 14. In Castaneda, we rejected a
similar effort by the State to rely on an unsupported
countervailing theory to rebut the evidence. 430 U.S. at 430 U. S. 500 .
In sum, McCleskey has demonstrated a clear pattern of differential
treatment according to race that is "unexplainable on grounds other
than race." Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. at 429 U. S.
266 . III 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 Page 481 U. S. 362 case." Ante at 481 U.S.
294 -295. According to the Court, the statistical evidence is
less relevant because, in the two latter situations, there are
fewer variables relevant to the decision and the "statistics relate
to fewer entities." Ante at 481 U. S.
295 .

															I disagree with the Court's assertion that there are fewer
variables relevant to the decisions of jury commissioners or
prosecutors in their selection of jurors, or to the decisions of
employers in their selection, promotion, or discharge of employees.
Such decisions involve a multitude of factors, some rational, some
irrational. Second, I disagree with the comment that the
venire-selection and employment decisions are "made by fewer
entities." Certainly in the employment context, personnel decisions
are often the product of several levels of decisionmaking within
the business or government structure. The Court's statement that
the decision to impose death is made by the petit jury also
disregards the fact that the prosecutor screens the cases
throughout the pretrial proceedings and decides to seek the death
penalty and to pursue a capital case to the penalty phase where a
death sentence can be imposed. McCleskey's claim in this regard
lends itself to analysis under the framework we apply in assessing
challenges to other prosecutorial actions. See Batson v.
Kentucky, 476 U. S. 79 (1986); see also Wayte v. United States, 470 U.
S. 598 , 470 U. S. 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 470 U. S.
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 481 U. S. 296 .
According to the Court, this is because jurors cannot be called to
testify about their verdict, and because Page 481 U. S. 363 policy considerations render it improper to require "prosecutors
to defend their decisions to seek death penalties, often years
after they were made.'" Ibid., quoting Imbler v
Pachtman, 424 U. S. 409 , 424 U. S. 425 (1976). I agree with the Court's observation as to the difficulty of
examining the jury's decisionmaking process. There perhaps is an
inherent tension between the discretion accorded capital sentencing
juries and the guidance for use of that discretion that is
constitutionally required. In his dissenting opinion, JUSTICE
BRENNAN demonstrates that the Eighth Amendment analysis is
well-suited to address that aspect of the case. Ante at 481 U. S. 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 424 U. S. 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 Page 481 U. S. 364 that prosecutors' actions are not unreviewable. See
ante at 481 U. S. 296 ,
n. 17. I agree with the Court's observation that this case is
"quite different" from the Batson case. Ibid. The
irony is that McCleskey presented proof in this case that would
have satisfied the more burdensome standard of Swain v.
Alabama, 380 U. S. 202 (1965), a standard that was described in Batson as having
placed on defendants a "crippling burden of proof." 476 U.S. at 476 U. S. 92 . As
discussed above, McCleskey presented evidence of numerous decisions
impermissibly affected by racial factors over a significant number
of cases. The exhaustive evidence presented in this case certainly
demands an inquiry into the prosecutor's actions.

															The Court's assertion that, because of the necessity of
discretion in the criminal justice system, it "would demand
exceptionally clear proof," ante at 481 U. S. 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 481 U. S.
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 481 U. S. 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 , 434 U. S. 364 (1978), quoting Oyler v. Boles, 368 U.
S. 448 , 368 U. S. 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 , 476 U. S. 35 (1986); see 481
U.S. 279 fn3/13|>n. 13, supra. The Court's rejection
of McCleskey's equal protection claims is Page 481 U. S. 365 a far cry from the "sensitive inquiry" mandated by the
Constitution. IV A 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 481 U. S.
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. B Like JUSTICE STEVENS, I do not believe acceptance of McCleskey's
claim would eliminate capital punishment in Georgia. Post at 481 U. S. 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 Page 481 U. S. 366 have infected petitioner's capital sentencing unacceptable in
light of the ease with which that risk could have been
minimized."

															476 U.S. at 476 U. S. 36 . I
dissent.

															[ Footnote 3/1 ]

															I agree with JUSTICE STEVENS' position that the proper course is
to remand this case to the Court of Appeals for determination of
the validity of the statistical evidence presented. Post at 481 U. S. 367 .
Like JUSTICE STEVENS, however, I am persuaded that the Baldus study
is valid, and would remand merely in the interest of orderly
procedure.

															[ Footnote 3/2 ] See, e.g., H.R.Joint Comm.Rep. No. 30, 39th Cong., 1st
Sess., pt. II, p. 25 (1866) (testimony of George Tucker, Virginia
attorney) ("They have not any idea of prosecuting white men for
offenses against colored people; they do not appreciate the idea"); id. at 209 (testimony of Dexter H. Clapp) ("Of the
thousand cases of murder, robbery, and maltreatment of freedmen
that have come before me, . . . I have never yet known a single
case in which the local authorities or police or citizens made any
attempt or exhibited any inclination to redress any of these wrongs
or to protect such persons"); id. at 213 (testimony of J.
A. Campbell) (although identities of men suspected of killing two
blacks known, no arrest or trial had occurred); id., pt.
III, p. 141 (testimony of Brev. Maj. Gen. Wager Swayne) ("I have
not known, after six months' residence at the capital of the State,
a single instance of a white man's being convicted and hung or sent
to the penitentiary for crime against a negro, while many cases of
crime warranting such punishment have been reported to me"); id. pt. IV, p. 75 (testimony of Maj. Gen. George A.
Custer) ("[I]t is of weekly, if not of daily, occurrence that
freedmen are murdered. . . . [S]ometimes it is not known who the
perpetrators are; but when that is known, no action is taken
against them. I believe a white man has never been hung for murder
in Texas, although it is the law").

															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 , 476 U. S. 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").

															[ Footnote 3/3 ]

															The Court refers to the prosecutor's role in the capital
sentencing process without analyzing the import of the statistical
evidence concerning the steps of the process at which the
prosecutor determines the future of the case. The Court recognizes
that the prosecutor determines whether a case even will proceed to
the penalty phase. If the prosecutor does not pursue the death
penalty, a mandatory sentence of life imprisonment is imposed. See ante at 481 U. S. 284 ,
n. 2. It lists many of the factors that prosecutors take into
account in making their decisions, ante at 481 U. S.
307 -308, n. 28, and recognizes that, in each case, the
prosecutor can decline to charge, or to offer a plea bargain, or to
seek a death sentence, ante at 481 U. S. 312 .
It also notes that the Baldus study

															"found that prosecutors sought the death penalty in 70% of the
cases involving black defendants and white victims; 32% of the
cases involving white defendants and white victims; 15% of the
cases involving black defendants and black victims; and 19% of the
cases involving white defendants and black victims," ante at 481 U. S.
287 .

															The Court relies heavily on its assertion that prosecutorial
discretion should not be reviewed, ante at 481 U. S.
296 -297, 481 U. S.
311 -312, but elsewhere concedes that such discretion may
not be exercised in a racially discriminatory manner, ante at 481 U. S. 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).

															[ Footnote 3/4 ]

															The use of the prima facie case method to structure
proof in cases charging racial discrimination is appropriate
because it "progressively . . . sharpen[s] the inquiry into the
elusive factual question of intentional discrimination." Texas
Dept. of Community Affairs v. Burdine, 450 U.
S. 248 , 450 U. S. 255 ,
n. 8 (1981); see McCleskey v. Kemp, 753 F.2d 877, 912
(CA11 1985) (Johnson, J., dissenting in part and concurring in
part) (where the "prosecutor has considerable discretion and the
jury has bounded but irreducible discretion," the discretion could
easily mask conscious or unconscious racial discrimination and
indirect methods of proof are therefore required as outlined in Washington v. Davis, 426 U. S. 229 , 426 U. S.
241 -242 (1976), and Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.
S. 252 , 429 U. S. 266 ,
n. 13 (1977)).

															[ Footnote 3/5 ]

															The Court recently explained:

															"In deciding if the defendant has carried his burden of
persuasion, a court must undertake 'a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available.' Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. at 429 U. S. 266 .
Circumstantial evidence of invidious intent may include proof of
disproportionate impact. Washington v. Davis, 426 U.S. at 426 U. S. 242 . We have
observed that, under some circumstances, proof of discriminatory
impact"

															"may, for all practical purposes, demonstrate
unconstitutionality, because, in various circumstances, the
discrimination is very difficult to explain on nonracial
grounds."

															" Ibid. " Batson v. Kentucky, 476 U.S. at 476 U. S.
93 .

															[ Footnote 3/6 ]

															In Castaneda, we explained that in jury selection cases
where the criminal defendant is attempting to prove that there was
discriminatory exclusion of potential jurors we apply the "rule of
exclusion" method of proof. 430 U.S. at 430 U. S. 494 .
The underlying rationale is that,

															"[i]f a disparity is sufficiently large, then it is unlikely
that it is due solely to chance or accident, and, in the absence of
evidence to the contrary, one must conclude that racial or other
class-related factors entered into the selection process." Id. at 430 U. S. 494 ,
n. 13.

															[ Footnote 3/7 ]

															Although the Court states that it assumes the validity of the
Baldus study for purposes of its analysis, because of its detailed
discussion of the District Court's reasons for rejecting its
validity, I am compelled to record my disagreement with the
District Court's reasoning. As a member of the United States Court
of Appeals, I was confronted in 1968 with a challenge to the
constitutionality of a State's capital sentencing system based on
allegations of racial discrimination supported by statistical
evidence. Writing for a panel of the court, I rejected that
challenge for reasons similar to those espoused by the Court today. Maxwell v. Bishop, 398 F.2d 138 (CA8), vacated and
remanded, sua sponte, on grounds not raised below, 398 U. S. 262 (1970) (per curiam).

															The Court of Appeals found the evidence presented by Maxwell
incomplete, not directly relevant to his individual claim, and
statistically insufficient. McCleskey's evidence, however, is of
such a different level of sophistication and detail that it simply
cannot be rejected on those grounds. Unlike the evidence presented
by Maxwell, which did not contain data from the jurisdiction in
which he was tried and sentenced, McCleskey's evidence includes
data from the relevant jurisdiction. Whereas the analyses presented
by Maxwell did not take into account a significant number of
variables, and were based on a universe of 65 cases, the analyses
presented by McCleskey's evidence take into account more than 400
variables and are based on data concerning all offenders arrested
for homicide in Georgia from 1973 through 1978, a total of 2,484
cases. Moreover, the sophistication of McCleskey's evidence permits
consideration of the existence of racial discrimination at various
decision points in the process, not merely at the jury decision. It
is this experience, in part, that convinces me of the significance
of the Baldus study.

															[ Footnote 3/8 ] See Brief for Dr. Franklin M. Fisher et al. as Amici Curiae 19.

															[ Footnote 3/9 ]

															A defendant's chances of receiving a death sentence increase by
a factor of 4.3 if the victim is white, but only by 2.3 if the
defendant was the prime mover behind the homicide.

															[ Footnote 3/10 ]

															A prior record of a conviction for murder, armed robbery, rape,
or kidnaping with bodily injury increases the chances of a
defendant's receiving a death sentence by a factor of 4.9.

															[ Footnote 3/11 ]

															The universe of cases from Fulton County analyzed by Baldus
included 629 killings, 581 of which yielded murder indictments.
Supp. Exh. 59, 60; Tr. 978-981. The evidence indicated that, at
each step in the process from indictment to sentence, there is a
differential treatment in the disposition of white-victim and
black-victim cases, with the white-victim cases having a higher
likelihood of being retained in the system and risking a death
sentence. Supp.Exh. 60; Tr. 978-981.

															[ Footnote 3/12 ]

															In his deposition, Russell Parker, the Assistant District
Attorney who prosecuted McCleskey's case, contradicted the
statement cited by the Court, ante at 481 U. S. 312 ,
n. 34, concerning plea negotiations during McCleskey's trial.
Parker testified that he never discussed a plea with McCleskey.
Deposition in No. 84-8176 of Russell Parker, Feb. 16, 1981, p.
15.

															[ Footnote 3/13 ]

															As a result of McCleskey's discovery efforts, the record also
contains relevant testimonial evidence by two state officials. The
Fulton County District Attorney testified that he did not recall
any instance in which race was a factor in a death penalty case in
his office. Deposition in No. 84-8176 of Lewis R. Slaton, Aug. 4,
1983, p. 78. He later recalled one case that was in the office when
he first began, in which the office set aside the death penalty
because of the possibility that race had been involved. Id. at 79-80. The Assistant District Attorney who
prosecuted McCleskey's case testified that race did not influence
his decision to seek the death penalty in the present case.
Deposition of Russell Parker, Feb. 16, 1981, p. 17.

															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 , 405 U. S.
631 -632 (1972); Whitus v. Georgia, 385 U.
S. 545 , 385 U. S.
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).

															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 , 462 U. S.
884 -885 (1983), quoting Woodson v. North
Carolina, 428 U. S. 280 , 428 U. S. 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 , 430 U. S. 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 462 U. S.
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 , 468 U. S. 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 Page 481 U. S. 367 imposed fairly, and with reasonable consistency, or not at all." Eddings v. Oklahoma, 455 U. S. 104 , 455 U. S. 112 (1982).

															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.