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Federal Court Turns Down Challenge To Georgia Death Penalty

January 30, 1985

ATLANTA (AP) _ The 11th U.S. Circuit Court of Appeals Tuesday rejected a constitutional challenge to Georgia’s death penalty law, saying there was insufficient statistical evidence that it discriminates against blacks.

In a 9-3 ruling, the court said the fact that blacks are more likely to be put to death than whites is not proof in itself that ″purposeful discrimination″ permeates the state’s judicial system.

Georgia has put to death four people, three blacks and one white, since the U.S. Supreme Court reinstated the death penalty in 1976, the fourth-highest number of executions in the country. The death penalty has been carried out 36 times in the nation during the same period. There are 118 people on the state’s death row.

The court upheld a ruling by U.S. District Court Judge J. Owen Forrester in the case of Warren McCleskey, a black who was convicted of murder for the shooting death of a white Atlanta policeman during a robbery in 1978.

McCleskey’s appeal to Forrester was based on a study by University of Iowa law professor David C. Baldus, who testified that the death penalty was four times as likely to be imposed in cases where the victim was white than in cases where the victim was black, and if both the defendant and the victim are black, the odds of receiving the death penalty are even higher.

The appeals court said the research would not ″support a decision that the Georgia law was being unconstitutionally applied.″

The court noted that social science is an inexact science, and when it is used as evidence in the courts it must be corroborated by other evidence.

There was no proof that the state, ″through its prosecutors, jurors and judges, has implicitly attached the aggravating label to race″ in cases in which the death penalty was imposed, the court held.

″Proof of a disparate impact (of the death penalty on one race) alone is insufficient to invalidate a capital sentencing system, unless that disparate impact is so great that it compels a conclusion that the system is unprincipled, irrational, arbitrary and capricious,″ it said.

Judge Frank M. Johnson Jr. also dissented, saying McCleskey ″has presented convincing evidence to substantiate his claim that Georgia has administered its death penalty in a way that discriminates on the basis of race.″

The Baldus study, he said, ″demonstrates that in Georgia a person who kills a white victim has a higher risk of receiving the death penalty than a person who kills a black victim. Race alone can explain part of this higher risk.″

Judge Thomas A. Clark also dissented, saying the Baldus study showed ″in the operation of this system the life of a white is dearer, the life of a black cheaper.″

Baldus’ study examined 1,066 murder cases in Georgia between March 28, 1973, and Dec. 31, 1978, checking about 250 variables, including race, as factors in whether the death penalty was imposed.

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