1. McCleskey v. Kemp Facts Facts McCleskey was a black defendant McCleskey was a black defendant Charged with two counts of armed robbery and one count of murder Charged with two counts of armed robbery and one count of murder Robbed a furniture store Robbed a furniture store During the robbery, killed a police officer, Frank Schlatt, who was white During the robbery, killed a police officer, Frank Schlatt, who was white During commission of the robbery During commission of the robbery McCleskey had three accomplices, all four were armed McCleskey had three accomplices, all four were armed McCleskey carried a.38 caliber Rossi nickel-plated revolver - the others carried a sawed-off shotgun & pistols McCleskey carried a.38 caliber Rossi nickel-plated revolver - the others carried a sawed-off shotgun & pistols Three accomplices rounded up and tied up the employees Three accomplices rounded up and tied up the employees Manager was forced at gunpoint to turn over store receipts, his watch and $6 Manager was forced at gunpoint to turn over store receipts, his watch and $6 The police officer entered the store while responding to a tripped silent alarm The police officer entered the store while responding to a tripped silent alarm Officer Schlatt was shot twice, once in the face, and was killed Officer Schlatt was shot twice, once in the face, and was killed

2. McCleskey v. Kemp continued Facts Continued Facts Continued McCleskey was subsequently arrested on unrelated charges McCleskey was subsequently arrested on unrelated charges Admitted participating in the robbery but denied shooting the officer Admitted participating in the robbery but denied shooting the officer At trial, state entered ballistics evidence which showed that Schlatt had been shot with a.38 caliber Rossi revolver At trial, state entered ballistics evidence which showed that Schlatt had been shot with a.38 caliber Rossi revolver However, McCleskey’s revolver was never located However, McCleskey’s revolver was never located State also entered two witness statements that McCleskey admitted the shooting State also entered two witness statements that McCleskey admitted the shooting One such witness was one of his accomplices, the other was a jailhouse informant who overheard McCleskey admit to the shooting* One such witness was one of his accomplices, the other was a jailhouse informant who overheard McCleskey admit to the shooting* Jury found two aggravating factors during mitigation/penalty phase Jury found two aggravating factors during mitigation/penalty phase Murder was committed during the course of an armed robbery Murder was committed during the course of an armed robbery Murder was committed against a “peace officer” during the course of his duties Murder was committed against a “peace officer” during the course of his duties McCleskey offered no mitigating evidence McCleskey offered no mitigating evidence And, obviously, was sentenced to death And, obviously, was sentenced to death Under Georgia law, judge must follow jury recommendation Under Georgia law, judge must follow jury recommendation Trial Jury – consisted of eleven white and one black juror Trial Jury – consisted of eleven white and one black juror

3. McCleskey v. Kemp continued Before the Supreme Court, McCleskey made two separate claims Before the Supreme Court, McCleskey made two separate claims First, claimed that Georgia’s capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment First, claimed that Georgia’s capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment Argued that racial discrimination had infected the whole institutional adjudication of the death penalty process and every actor therein* Argued that racial discrimination had infected the whole institutional adjudication of the death penalty process and every actor therein* Second, claimed that Georgia’s capital punishment system is arbitrary and capricious in application and therefore is excessive because racial considerations may influence capital sentencing decisions and is contrary to the Eighth Amendment Second, claimed that Georgia’s capital punishment system is arbitrary and capricious in application and therefore is excessive because racial considerations may influence capital sentencing decisions and is contrary to the Eighth Amendment Argued that the risk of prejudice under Georgia’s capital punishment system rose to the level of being constitutionally unacceptable* Argued that the risk of prejudice under Georgia’s capital punishment system rose to the level of being constitutionally unacceptable*

4. McCleskey v. Kemp continued Justice Powell Majority Justice Powell Majority Equal Protection Claim – to prevail under this clause, McCleskey must prove that the actors in his case acted with discriminatory purpose Equal Protection Claim – to prevail under this clause, McCleskey must prove that the actors in his case acted with discriminatory purpose He offered no such evidence He offered no such evidence Instead, he relied on an inference from the Baldus Study that he suffered purposeful discrimination as evidenced by statistical racial disparities Instead, he relied on an inference from the Baldus Study that he suffered purposeful discrimination as evidenced by statistical racial disparities Court had accepted statistical proof in other Equal Protection cases (during voir dire challenges and under Title VII of the Civil Rights Act) but declines to accept it here because of the particularities of the process for capital sentencing* Court had accepted statistical proof in other Equal Protection cases (during voir dire challenges and under Title VII of the Civil Rights Act) but declines to accept it here because of the particularities of the process for capital sentencing* McCleskey’s Capital Sentence Actors/Factors McCleskey’s Capital Sentence Actors/Factors Each properly composed jury is unique Each properly composed jury is unique Weighs innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular offense Weighs innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular offense State has no opportunity to rebut the Study - impractical State has no opportunity to rebut the Study - impractical Ultimately, finds that there are too many decisionmakers involved for statistical proof to be be relevant under an equal protection clause challenge Ultimately, finds that there are too many decisionmakers involved for statistical proof to be be relevant under an equal protection clause challenge

5. McCleskey v. Kemp continued Justice Powell Majority Justice Powell Majority McCleskey’s Equal Protection Claim McCleskey’s Equal Protection Claim Implementation of the criminal justice laws necessarily requires discretionary judgments Implementation of the criminal justice laws necessarily requires discretionary judgments Proof must be exceptionally clear before the Court will infer that the discretion was abused Proof must be exceptionally clear before the Court will infer that the discretion was abused Holds – the Baldus Study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose Holds – the Baldus Study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose Implies that statistical proof may support such an inference but does not state how much statistical proof or what additional/alternative kind of evidence may be necessarily sufficient Implies that statistical proof may support such an inference but does not state how much statistical proof or what additional/alternative kind of evidence may be necessarily sufficient This is an unanswered question and has resulted in some of the problems with Lower Courts implementing the McCleskey decision – applied erratically and inconsistently This is an unanswered question and has resulted in some of the problems with Lower Courts implementing the McCleskey decision – applied erratically and inconsistently

6. McCleskey v. Kemp continued Justice Powell Majority Justice Powell Majority McCleskey’s Eighth Amendment Claim McCleskey’s Eighth Amendment Claim At what point does the risk of prejudice become constitutionally unacceptable, i.e., “excessive” amounting to “cruel and unusual” punishment? At what point does the risk of prejudice become constitutionally unacceptable, i.e., “excessive” amounting to “cruel and unusual” punishment? Capital sentencing decision requires jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant Capital sentencing decision requires jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant Jury’s very function is to make the difficult and uniquely human judgments that defy codification and that build discretion, equity, and flexibility into a legal system Jury’s very function is to make the difficult and uniquely human judgments that defy codification and that build discretion, equity, and flexibility into a legal system Discretion has a fundamental role in the criminal justice system Discretion has a fundamental role in the criminal justice system When a jury exercises its discretion to acquit or to convict of a lesser charge, these decisions are not reviewable* When a jury exercises its discretion to acquit or to convict of a lesser charge, these decisions are not reviewable* Likewise, prosecutorial discretion is firmly entrenched in the American legal system Likewise, prosecutorial discretion is firmly entrenched in the American legal system “The power to be lenient is also the power to discriminate, but a capital punishment system that did not allow for discretionary acts of leniency would be totally alien to our notions of criminal justice”* “The power to be lenient is also the power to discriminate, but a capital punishment system that did not allow for discretionary acts of leniency would be totally alien to our notions of criminal justice”* Reinforces the Court’s position against a mandatory death penalty Reinforces the Court’s position against a mandatory death penalty

7. McCleskey v. Kemp continued Justice Powell Majority Justice Powell Majority McCleskey’s Eighth Amendment Claim continued McCleskey’s Eighth Amendment Claim continued At most, the Baldus study indicates a discrepancy that appears to correlate with race At most, the Baldus study indicates a discrepancy that appears to correlate with race Apparent disparities are an inevitable part of our criminal justice system Apparent disparities are an inevitable part of our criminal justice system There can be no perfect procedure for deciding in which cases governmental authority should be used to impose death There can be no perfect procedure for deciding in which cases governmental authority should be used to impose death Jury system, with necessary discretion, is the best we’ve got Jury system, with necessary discretion, is the best we’ve got 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* 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* Holds – 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, the Baldus Study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process Holds – 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, the Baldus Study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process

8. McCleskey v. Kemp continued Justice Powell Majority Justice Powell Majority States two additional concerns States two additional concerns First, McCleskey’s claim, if successful, would extend to all other areas of the criminal justice system including other types of penalties First, McCleskey’s claim, if successful, would extend to all other areas of the criminal justice system including other types of penalties Second, it is not the responsibility, or even the right, of the Court to determine the appropriate punishment for particular crimes Second, it is not the responsibility, or even the right, of the Court to determine the appropriate punishment for particular crimes That is the role of the legislature That is the role of the legislature It is only the Court’s role, in situations such as this, to determine what laws are applied consistent with the Constitution It is only the Court’s role, in situations such as this, to determine what laws are applied consistent with the Constitution

9. McCleskey v. Kemp continued Majority joined by Justices Rehnquist, White, O'Connor & Scalia Majority joined by Justices Rehnquist, White, O'Connor & Scalia Justice Brennan’s dissent Justice Brennan’s dissent (Justices Blackmun and Stevens also wrote dissents – Justice Marshall also dissent but did not author an opinion)* (Justices Blackmun and Stevens also wrote dissents – Justice Marshall also dissent but did not author an opinion)* Hypothetical advice of counsel to McCleskey Hypothetical advice of counsel to McCleskey Few of the details of the crime were more important than the fact that his victim was white* Few of the details of the crime were more important than the fact that his victim was white* Defendants charged with killing white victims in Georgia are 4.3 times more likely to be sentenced to death as defendants charged with killing blacks Defendants charged with killing white victims in Georgia are 4.3 times more likely to be sentenced to death as defendants charged with killing blacks It was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence It was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence 6 out of 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black* 6 out of 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black* 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* 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* Reviews history of Georgia’s “dual-system” of justice that has historically discriminated against black offenders* Reviews history of Georgia’s “dual-system” of justice that has historically discriminated against black offenders* Criticizes majority’s concern that a claim such as McCleskey’s could extend to other areas by asking what the majority is afraid of – too much justice? Criticizes majority’s concern that a claim such as McCleskey’s could extend to other areas by asking what the majority is afraid of – too much justice? Warren McCleskey was executed on September 25, 1991 Warren McCleskey was executed on September 25, 1991

10. He took into consideration 230 variables that could have explained the data on nonracial grounds He took into consideration 230 variables that could have explained the data on nonracial grounds Examples are number of prior felonies, number or prior violent crimes, motive (i.e. Insurance), role in the crime (i.e. how many assistants), victim relationship to defendant, contemporaneous offences, method of killing, aggravating and mitigating factors. Examples are number of prior felonies, number or prior violent crimes, motive (i.e. Insurance), role in the crime (i.e. how many assistants), victim relationship to defendant, contemporaneous offences, method of killing, aggravating and mitigating factors. He sorted out cases where the sentence of death was highly likely or highly unlikely, leaving a midrange of cases where the outcome was less predictable. He sorted out cases where the sentence of death was highly likely or highly unlikely, leaving a midrange of cases where the outcome was less predictable. The Baldus study examined over 2,000 murders that occurred in Georgia during the 1970s. The Baldus study examined over 2,000 murders that occurred in Georgia during the 1970s.

11. Baldus also found that prosecutors sought the death penalty in: Baldus also found that prosecutors sought the death penalty in: 70% of the cases involving black defendants and white victims 70% of the cases involving black defendants and white victims 32% of the cases involving white defendants and white victims 32% of the cases involving white defendants and white victims 19% of the cases involving white defendants and black victims; and 19% of the cases involving white defendants and black victims; and 15% of the cases involving black defendants and black victims 15% of the cases involving black defendants and black victims

12. Capital Punishment was Imposed in: 22% of the cases with black defendants and white victims 22% of the cases with black defendants and white victims 8% of the cases with white defendants and white victims 8% of the cases with white defendants and white victims 3% of the cases with white defendants and black victims 3% of the cases with white defendants and black victims 1% of the cases with black defendants and black victims 1% of the cases with black defendants and black victims

13. Baldus concluded that defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing African Americans, and that Black defendants were 1.1 times more likely to receive the death penalty than other defendants. Baldus concluded that defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing African Americans, and that Black defendants were 1.1 times more likely to receive the death penalty than other defendants. = Black defendant who had killed a white victim had the greatest likelihood of receiving a death sentence. = Black defendant who had killed a white victim had the greatest likelihood of receiving a death sentence.

14. Homicides in 2004 (excluding “others”) Offender-HVictim-VWhite ~68% of US Pop. Black ~13% of US Pop. Total White4,7588805,638 Black3584,1984,556 Total5,1165,078

15. Executions since 1976 – Race of Victim Victim Number Percentage Victim Number PercentageBlack22514%Hispanic784.7% White1,26879.3% Other322%

16. Executions since 1976 – Race of Defendant Defendant Number Percentage Black36334.1% Hispanic726.6% White60757% Other242.3%

17. Current Death Row Population by Race Race Number Percent Race Number PercentBlack ~13% of Total Pop. 1,39641.8%Hispanic35810.7% White ~68% of Total Pop. 1,51245.2% Other782.3%

18. 2004 Executions by Race/Victim Race Def # % Victim # % Black1932.2%1013.3% White3661%6181.3% Hispanic35%34% Other11.6%11.3%

19. 2005 Executions by Race/Victim Race Def # % Victim # % Race Def # % Victim # % Black1830%1919.4% White3863.3%6667% Hispanic35%99.2% Other11.7%44.1%

20. A parallel study using newer data and covering other states (Gross S, Mauro R. 1989. Death and Discrimination. Boston: Northeast. Univ. Press) came to very similar conclusions. No later research has seriously questioned these results A parallel study using newer data and covering other states (Gross S, Mauro R. 1989. Death and Discrimination. Boston: Northeast. Univ. Press) came to very similar conclusions. No later research has seriously questioned these results

21. From the Death Penalty Information Center

23. An analysis of death sentences in Philadelphia between 1983 and 1993: determination by prosecutor of whether the death penalty should be sought

24. Philadelphia makes up 14% of the population of Pennsylvania but produces more than half of the death sentences in the state. Philadelphia makes up 14% of the population of Pennsylvania but produces more than half of the death sentences in the state. 83% of the Philly death row population are African American. (US census says Blacks make up 43.22% of the population in Philadelphia) 83% of the Philly death row population are African American. (US census says Blacks make up 43.22% of the population in Philadelphia) Baldus and Woodworth found that even after controlling for case differences, Black defendants faced were 3.9 times more likely to receive a death sentence than other similarly situated defendants in the years 1983 to 1993. Baldus and Woodworth found that even after controlling for case differences, Black defendants faced were 3.9 times more likely to receive a death sentence than other similarly situated defendants in the years 1983 to 1993. - DPIC ------------------------------------------------- Philadelphia's District Attorney, Lynne Abraham, was called "The Deadliest D.A." in a 1995 New York Times article. Philadelphia's District Attorney, Lynne Abraham, was called "The Deadliest D.A." in a 1995 New York Times article. “Prosecutors in other cities seek death more often when the victim is white. But Abraham seeks it regardless of the victim's color or status. But because the killers of blacks tend to be black, that also means that Philadelphia's death row has the highest percentage of African-Americans in the country.” Former Assistant D.A. and Homicide Chief Barbara Christie frequently had her convictions reversed by higher courts for withholding evidence that demonstrated the defendant's innocence and for keeping blacks off juries. Former Assistant D.A. and Homicide Chief Barbara Christie frequently had her convictions reversed by higher courts for withholding evidence that demonstrated the defendant's innocence and for keeping blacks off juries.

25. Other Interpretations of the Statistics Other Interpretations of the Statistics In his article, Racial Disparity and the Death Sentence, John McAdams accepts that the death penalty is sought more often in cases where the victim is white. In his article, Racial Disparity and the Death Sentence, John McAdams accepts that the death penalty is sought more often in cases where the victim is white. But he says “Given the studies we have reviewed showing that the system is lenient on those who kill blacks, and knowing that the vast majority of murders are intraracial, we might conclude that white suspects get tougher treatment because they have overwhelmingly killed whites.” But he says “Given the studies we have reviewed showing that the system is lenient on those who kill blacks, and knowing that the vast majority of murders are intraracial, we might conclude that white suspects get tougher treatment because they have overwhelmingly killed whites.”

26. More conflicting data: In 2000, Alabama’s death row had 97 whites and 86 blacks. In 2000, Alabama’s death row had 97 whites and 86 blacks. African Americans are 26% of Alabama's population, but 47% of death row African Americans are 26% of Alabama's population, but 47% of death row Using a statistic that “a black is between 7 and 8 times more likely than a white to be a murderer” Using a statistic that “a black is between 7 and 8 times more likely than a white to be a murderer” A figure that matches with A figure that matches with http://www.ojp.usdoj.gov/bjs/homicide/race.htm Based on this, 72.9% of Alabama's death row should be black Based on this, 72.9% of Alabama's death row should be black The authors come to the conclusion that “With only 86 blacks under sentence of death, Alabama's death row is too white -- much too white!” The authors come to the conclusion that “With only 86 blacks under sentence of death, Alabama's death row is too white -- much too white!” http://www.lagriffedulion.f2s.com/DP.htm http://www.lagriffedulion.f2s.com/DP.htm

27. Applying this Formula to Each State:

28. Researchers found 44 cases from Philadelphia from 1979 to 1999 that involved Black male defendants who were convicted of murdering White victims. They obtained the photographs of these defendants and presented them to raters who did not know that the photographs depicted convicted murderers. Raters were asked to rate the stereotypicality of each Black defendant’s appearance and were told they could use any number of features (e.g., lips, nose, hair texture, skin tone). Thirty-two raters (26 White, 4 Asian, and 2 of other ethnicities) participated in the first session, and 19 raters (6 White, 11 Asian, and 2 of other ethnicities) participated in the second session. The raters were shown a black-and-white photograph of each defendant’s face. Participants recorded stereotypicality ratings using a scale from 1 (not at all stereotypical) to 11 (extremely stereotypical). 24.4% of those Black defendants who fell in the lower half of the stereotypicality distribution received a death sentence, whereas 57.5% of those Black defendants who fell in the upper half received a death sentence. Eberhardt, Davies, Purdie-Vaughs, and Johnson Study: “Looking Deathworthy: Perceived Steriotypicality of Black Defendants Predicts Capital Sentencing Outcomes”

29. John H. Blume, Theodore Eisenberg, & Sheri Lynn Johnson argue that lower court’s have applied McCleskey too broadly 83 Cornell L. Rev. 1771 John H. Blume, Theodore Eisenberg, & Sheri Lynn Johnson argue that lower court’s have applied McCleskey too broadly 83 Cornell L. Rev. 1771 1st example: Earl Matthews, a Black South Carolina death row inmate Earl Matthews, a Black South Carolina death row inmate In Charleston County, the prosecutor was far more likely to seek a death sentence for a Black defendant accused of killing a white victim than for any other racial combination, and also that these Black defendants were more likely to actually receive a death sentence. In Charleston County, the prosecutor was far more likely to seek a death sentence for a Black defendant accused of killing a white victim than for any other racial combination, and also that these Black defendants were more likely to actually receive a death sentence. Testimony from former Charleston County police officers, prosecutors, defense lawyers, and community leaders indicated that racial considerations affected the prosecution of capital cases in Charleston County. Testimony from former Charleston County police officers, prosecutors, defense lawyers, and community leaders indicated that racial considerations affected the prosecution of capital cases in Charleston County. He also presented additional circumstantial evidence of racial discrimination, including information suggesting that certain hiring and firing practices and other prosecutorial actions in his case were racially motivated. He also presented additional circumstantial evidence of racial discrimination, including information suggesting that certain hiring and firing practices and other prosecutorial actions in his case were racially motivated. The Federal district Court judge dismissed these claims, saying that McCleskey precluded this type of racial objection to the death penalty The Federal district Court judge dismissed these claims, saying that McCleskey precluded this type of racial objection to the death penalty “In this case, the petitioner has pointed to no evidence or facts that the solicitor sought the death penalty in his case for a discriminatory purpose. In addition, the [McCleskey] Court indicated a reluctance to question the discretionary decisions of prosecutors and stated that a legitimate explanation exists for seeking the death penalty, that is, that the petitioner committed a crime for which the laws permit the imposition of the death penalty.” “In this case, the petitioner has pointed to no evidence or facts that the solicitor sought the death penalty in his case for a discriminatory purpose. In addition, the [McCleskey] Court indicated a reluctance to question the discretionary decisions of prosecutors and stated that a legitimate explanation exists for seeking the death penalty, that is, that the petitioner committed a crime for which the laws permit the imposition of the death penalty.”

30. 2nd Example: Raymond Patterson, an African American death row inmate Raymond Patterson, an African American death row inmate Patterson had robbed and murdered a white man from West Virginia. Patterson had robbed and murdered a white man from West Virginia. There had been 174 homicide victims in Lexington County since 1977 There had been 174 homicide victims in Lexington County since 1977 Of those, the state had never sought the death penalty where the victim was black, in contrast to seeking the death penalty in 10.2% of cases where the homicide victim had been white. Of those, the state had never sought the death penalty where the victim was black, in contrast to seeking the death penalty in 10.2% of cases where the homicide victim had been white. Blacks made up a disproportionably high percent of homicide victims in the county. Blacks made up a disproportionably high percent of homicide victims in the county. Patterson also introduced evidence of evidence a “racist innuendo from the solicitor prior to trial, the racist attitudes of the victim, and the solicitor's disparate treatment of Black and white jurors.” Patterson also introduced evidence of evidence a “racist innuendo from the solicitor prior to trial, the racist attitudes of the victim, and the solicitor's disparate treatment of Black and white jurors.” Q: What did [the police] ask you about? A: … And they asked me the color, you know, whether he was black, and I said yes, he was black. That's what made me so afraid. Q: Why would that make you afraid? A:I am just totally afraid of them. I mean as long as they keep a distance from me, I'm all right, but I don't want their hands on me; I don't want anything, you know. Q:This is black people generally, you mean? A:Yes. The Court wrote that “Appellant must provide "exceptionally clear evidence" that the decision to prosecute was for an improper reason. In McCleskey, the Court held similar statistics did not establish discrimination. Further, as we noted above, these statistics do not take the defendant's race or the aggravating or mitigating circumstances into consideration. Appellant has not proven discriminatory purpose by exceptionally clear evidence. Therefore, we hold the trial judge did not err in denying appellant's motion. “ The Court wrote that “Appellant must provide "exceptionally clear evidence" that the decision to prosecute was for an improper reason. In McCleskey, the Court held similar statistics did not establish discrimination. Further, as we noted above, these statistics do not take the defendant's race or the aggravating or mitigating circumstances into consideration. Appellant has not proven discriminatory purpose by exceptionally clear evidence. Therefore, we hold the trial judge did not err in denying appellant's motion. “ 83 Cornell L. Rev. 1771, continued:

31. Kentucky Racial Justice Act (1) No person shall be subject to or given a sentence of death that was sought on the basis of race. (1) No person shall be subject to or given a sentence of death that was sought on the basis of race. (2) A finding that race was the basis of the decision to seek a death sentence may be established if the court finds that race was a significant factor in decisions to seek the sentence of death in the Commonwealth at the time the death sentence was sought. (2) A finding that race was the basis of the decision to seek a death sentence may be established if the court finds that race was a significant factor in decisions to seek the sentence of death in the Commonwealth at the time the death sentence was sought. (3) Evidence relevant to establish a finding that race was the basis of the decision to seek a death sentence may include statistical evidence or other evidence, or both, that death sentences were sought significantly more frequently: (3) Evidence relevant to establish a finding that race was the basis of the decision to seek a death sentence may include statistical evidence or other evidence, or both, that death sentences were sought significantly more frequently: (a) Upon persons of one race than upon persons of another race; or (a) Upon persons of one race than upon persons of another race; or (b) As punishment for capital offenses against persons of one race than as punishment for capital offenses against persons of another race. (b) As punishment for capital offenses against persons of one race than as punishment for capital offenses against persons of another race. (4) The defendant shall state with particularity how the evidence supports a claim that racial considerations played a significant part in the decision to seek a death sentence in his or her case. The claim shall be raised by the defendant at the pre-trial conference. The court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties. If the court finds that race was the basis of the decision to seek the death sentence, the court shall order that a death sentence shall not be sought. (4) The defendant shall state with particularity how the evidence supports a claim that racial considerations played a significant part in the decision to seek a death sentence in his or her case. The claim shall be raised by the defendant at the pre-trial conference. The court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties. If the court finds that race was the basis of the decision to seek the death sentence, the court shall order that a death sentence shall not be sought. (5) The defendant has the burden of proving by clear and convincing evidence that race was the basis of the decision to seek the death penalty. The Commonwealth may offer evidence in rebuttal of the claims or evidence of the defendant. (5) The defendant has the burden of proving by clear and convincing evidence that race was the basis of the decision to seek the death penalty. The Commonwealth may offer evidence in rebuttal of the claims or evidence of the defendant.

32. Ernest van den Haag Quote “Guilt is individual. If guilty whites or wealthy people escape the gallows and guilty poor people do not, the poor or black do not become less guilty because the others escaped their deserved punishment. Whether due to willful discrimination, capriciousness, or unavoidable accidental circumstances, some people will always get away with murder. Is that a reason to deny the justice of the punishment of those guilty persons who did not get away? Their guilt is not diminished by the escape of the others, nor do they deserve less punishment because others did not get the punishment they deserve. Justice involves punishment according to what is deserved by the crime and the guilt of the criminal -- regardless of whether others guilty of the same crime escape.” “Guilt is individual. If guilty whites or wealthy people escape the gallows and guilty poor people do not, the poor or black do not become less guilty because the others escaped their deserved punishment. Whether due to willful discrimination, capriciousness, or unavoidable accidental circumstances, some people will always get away with murder. Is that a reason to deny the justice of the punishment of those guilty persons who did not get away? Their guilt is not diminished by the escape of the others, nor do they deserve less punishment because others did not get the punishment they deserve. Justice involves punishment according to what is deserved by the crime and the guilt of the criminal -- regardless of whether others guilty of the same crime escape.”