The recent death of Justice William J. Brennan inspired effusive praise for his liberal jurisprudence. Brennan, one of the longest serving members of the Supreme Court, was the prime mover in what has come to be known as the Warren Court revolution. It was during the Warren Court era, more than any other time in American history, that the Supreme Court viewed itself as a "continuing Constitutional Convention," adapting and reinterpreting the Constitution to reflect what Brennan called "the evolving demands of human dignity." It was these progressively evolving demands, not the text of the Constitution or the intentions of its framers, that provided the touchstone of Brennan’s jurisprudence.

A common theme of the eulogies to Justice Brennan was the celebration of his efforts to extend the realm of individual rights. Some of this praise is justly deserved. But Brennan’s efforts were selective; he went to great lengths to expound the rights of criminal defendants, but was far less enthusiastic about the individual right to property. In the area of equal protection of the laws, Brennan believed that rights belonged to groups rather than to individuals. Racial class rights and remedies were central to his Fourteenth Amendment jurisprudence no less than in the area of voting rights. Indeed, Brennan vigorously argued that the Constitution was not a color-blind document nor should it ever become one. A color-blind Constitution would indeed mean that rights belong to individuals, but this would preclude such "race-conscious" measures as affirmative action and racial gerrymandering, both of which Brennan defended with almost unbridled enthusiasm. Yet it can hardly be argued that Brennan’s view that rights are determined by race and race-consciousness was in any way legitimately connected to the protection of individual rights and liberties.

Perhaps his most infamous opinion was in the Weber case (1979) where, against the explicit language of the Civil Rights Act of 1964, Brennan ruled that race-based affirmative action programs were valid because the act stated that nothing can be construed to "require" an employer to hire on the basis of race, but failed to say that nothing "permitted" an employer to do so. A provision of the Civil Rights Act that was intended to prohibit race-based hiring and firing was thus converted into one that "permitted" that very thing. This legal legerdemain was not atypical of Brennan’s jurisprudence, a jurisprudence that was always calculated to reach predetermined results, even if it meant ignoring the law and the Constitution or adding new provisions to the Constitution or law by construction and interpretation.

This latter point was exemplified in one of Brennan’s opinions that utterly confounded the Constitution with constitutional law. The role of the Court, of course, is to expound the Constitution and apply it to particular cases; it is simply a misuse of judicial power to substitute constitutional law—the Court’s interpretation of the Constitution—for the Constitution itself. Yet Brennan was so bold as to remark, only two years after his appointment to the Supreme Court, that the Court’s interpretation of the Fourteenth Amendment was "the supreme law of the land."

Sharp-eyed observers knew, however, that the Constitution gave that rank, not to the Supreme Court’s interpretations, but to the Constitution itself. Once Brennan was able to convince the ideological liberals on the Court—and their supporters among the law school professoriat—that the Court’s interpretations of the Constitution could substitute for the Constitution, judicial activism came into a life of its own, no longer impeded by the text or principles of the Constitution.

Brennan’s judicial activism was nowhere more evident than in his long-standing opposition to the death penalty. The Eighth Amendment contains a prohibition against the infliction of "cruel and unusual punishments." The Fifth Amendment (framed and passed at the same time as the Eighth) refers to "capital or otherwise infamous" crimes and prohibits the deprivation of "life, liberty, or property, without due process of law." Capital crimes are crimes that forfeit life; and the clear implication of the Fifth Amendment is that with due process an individual can be deprived of life. The unmistakable conclusion is that the framers of the Eighth Amendment did not regard capital punishment as "cruel and unusual punishment."

Brennan, however, maintained that the death penalty, while it may be authorized by a literal reading of the Constitution, nevertheless falls "short of the constitutional vision of human dignity." And it is this "constitutional vision," not the Constitution itself, that was the driving force of Brennan’s jurisprudence. It was the progressively evolving demands of human dignity that were the province of the Supreme Court, and, for Brennan, those demands had superseded the Constitution. Once the Supreme Court was no longer bound to the Constitution, those "demands" would know no limits; virtually any "liberty" or "interest" could be justified in the name of "human dignity."

This was Justice Brennan’s vision; it is still the vision of the Supreme Court. Brennan’s opinions about affirmative action and racial gerrymandering have been temporarily reversed by a narrow (and badly fractured) majority of the current Supreme Court. But Brennan and his followers believe that progress and history—if not the Constitution—are on their side.

http://www.claremont.org/amer_const/william.cfm

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. 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." 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. Nothing could convey more powerfully the intractable reality of the death penalty: "that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether." (Godfrey v. Georgia, 446 U.S. 420, 442 (1980) (MARSHALL, J., concurring in judgment).

Even if I did not hold this position, however, I would reverse the Court of Appeals, for petitioner McCleskey has clearly demonstrated that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments. While I join Parts I through IV-A of JUSTICE BLACKMUN'S dissenting opinion discussing petitioner's Fourteenth Amendment claim, I write separately to emphasize how conclusively [481 U.S. 279, 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. . . . . 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. 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. . . 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. . . . 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. 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 [481 U.S. 279, 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." . . . Since, according to Professor Baldus, we cannot say "to a moral certainty" that race influenced a decision, . . . we can identify only "a likelihood that a particular factor entered into some decisions," . . . and "a discrepancy that appears to correlate with race.". . .

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.

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 . . . 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. . . . 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. Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern. . . 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; and (2) cases reflecting an "intermediate" level of aggravation, in which the jury has considerable discretion in choosing a sentence. 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. 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.

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.

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 the rate for Black-victim cases. 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. 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. 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. While the decision-making 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 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, 35 (1986), and that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion," Gardner v. Florida, 430 U.S. 349, 358 (1977). In determining the guilt of a defendant, a State must prove its case beyond a reasonable doubt. That is, we refuse to convict if the chance of error is simply less likely than not. Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. In light of the gravity of the interest at stake, petitioner's statistics on their face are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned.

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 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).

By the time of the Civil War, a dual system of crime and punishment was well established in Georgia. . . .. The state criminal code contained separate sections for "Slaves and Free Persons of Color," and for all other persons. The code provided, for instance, for an automatic death sentence for murder committed by Blacks, 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. The code established that the rape of a free White female by a Black "shall be" punishable by death.

However, rape by anyone else of a free White female was punishable by 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." A Black convicted of assaulting a free White person with intent to murder could be put to death at the discretion of the court, 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." Assault with intent to murder by a White person was punishable by a prison term of from 2 to 10 years. 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."

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 551-553 (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. 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." 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." 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." 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." 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." 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, 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." 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.

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. . .

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 . . . ." 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."

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." . . . . As we said in Rose v. Mitchell, 443 U.S. 545, 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." . . . . 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 provides considerable opportunity for racial considerations, however subtle and unconscious, to influence charging and sentencing decisions.

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, and the Georgia system gives such attitudes considerable room to operate. The conclusions drawn from McCleskey's statistical evidence are therefore consistent with the lessons of social experience.

The 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. 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 system." 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."

Reliance on race in imposing capital punishment, however, is antithetical to the very rationale for granting sentencing discretion. Discretion is a means, not an end. It is bestowed in order to permit the sentencer to "trea[t] each defendant in a capital case with that degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U.S. 586, 605 (1978). The decision to impose the punishment of death must be based on a "particularized consideration of relevant aspects of the character and record of each convicted defendant." Woodson v. North Carolina, 428 U.S., at 303 . Failure to conduct such an individualized moral inquiry "treats all persons convicted of a designated offense not as unique individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death."

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.

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," 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. . . .

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." Gregg v. Georgia, 428 U.S., at 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. 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." 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). [481 U.S. 279, 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 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.

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 [481 U.S. 279, 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 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 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, 11 (1967) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). Furthermore, we have explicitly acknowledged the illegitimacy of race as a consideration in capital sentencing, Zant v. Stephens, 462 U.S. 862, 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, 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 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," 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 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 290 (BRENNAN, J., concurring) (quoting Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763 (1864)).

For these reasons, "[t]he methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." Coppedge v. United States, 369 U.S. 438, 449 (1962). Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of "sober second thought." Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 25 (1936).

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, [481 U.S. 279, 344]. 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, 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," (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 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.