Justices Will Rule on Death Penalty Discrimination Claim

The Supreme Court agreed Monday to review a sweeping constitutional challenge to capital punishment, saying that it will decide next term whether the death penalty may be invalidated because it is imposed more often when the victim is white rather than black.

The court, in a brief order, said it would hear an appeal by a Georgia inmate in a case that represents perhaps the last remaining full-scale attack on executions in the United States.

A ruling, expected in early 1987, could affect a substantial number of the more than 1,700 prisoners now on Death Row, attorneys said. The Georgia case is expected to be heard with a Florida case already granted review that raises similar issues.

Should the justices uphold the challenges to the Georgia and Florida death penalty laws, similar legal attacks are sure to be mounted in the 35 other states with capital punishment, including California.

Stays of Execution

Lawyers in the case also say that it is possible that stays of execution will be widely issued by lower courts while the two cases are before the justices. If the high court itself begins to issue stays in cases it receives, they said, other courts are likely to follow suit, and the pace of executions could be significantly slowed.

In the two cases, the justices are being asked to set guidelines establishing how much statistical evidence of racial disparities in the death penalty is sufficient to show a violation of the constitutional guarantee against cruel and unusual punishment.

In the Georgia case, attorneys for Warren McCleskey, a black convicted of murdering a white Atlanta police officer, submitted statistical studies indicating that, in that state, those who kill whites are 11 times more likely to receive the death penalty than those who kill blacks. And, of those who kill whites, black defendants are three times more likely than white defendants to get a death sentence, they said.

Systematic Discrimination

Last year, a federal appeals court in Atlanta rejected the contention that the data McCleskey submitted was sufficient to invalidate the death penalty in Georgia. Proof of “disparate impact alone” is insufficient to strike down the entire system of capital punishment, unless it so great that it “compels” the conclusion that race discrimination is intentional, the appellate court said.

In their appeal to the justices (McCleskey vs. Georgia, 84-6811), McCleskey’s attorneys said an individual defendant should not have to show that he was personally discriminated against to challenge what he sees as systematic racial discrimination in the way the death penalty is administered.

John Charles Boger of the National Assn. for the Advancement of Colored People Legal Defense Fund and an attorney for McCleskey, said he was “delighted” that the court agreed to hear the case. “We’re looking for a fair opportunity to prove our claim,” he said.

Claims Being Raised

In California, three Death Row inmates whose sentences have been upheld by the state Supreme Court are raising discrimination claims. A preliminary study done in one case showed that a murderer of a white victim has a five times greater chance of receiving the death penalty in California than the murderer of a nonwhite victim.

The study was done in the case of Robert Alton Harris, a white who was convicted of the 1978 murders of two white teen-agers in San Diego. Harris’ case is pending before the U.S. 9th Circuit Court of Appeals.

The study showed that while whites accounted for one-third of the homicide victims between 1978 and 1982, three-fourths of the murderers on Death Row had killed whites. The analysis concluded that there was a one-in-a-million chance that the disparity was not race-related.

‘Trump Card’

Emphasizing the broad importance of the issue, Deputy Atty. Gen. Michael Wellington said in written arguments to the circuit court that the issue “quietly proposes to be the ultimate anti-death penalty trump card.”

“If this contention were accepted by the courts it would be the end of capital punishment. The essence of this contention is that . . . the American people are inevitably incompetent to administer it. Such a perceived flaw could not be corrected,” Wellington said.

In the California state court system, meanwhile, a similar challenge awaits decision. Defense lawyers for Earl Lloyd Jackson won a court order earlier this year forcing the state attorney general and Los Angeles County district attorney to produce information on 1,800 murder cases statewide between 1977 and 1986--a project that took two months to complete.

Jackson’s defense team is analyzing the information in an effort to show that juries more readily impose capital punishment on murderers who are young black men--like Jackson--especially when the victims are white women. Jackson was sentenced to death for the 1977 murders of two elderly white women in Long Beach.

‘A Tremendous Effect’

“It will have a tremendous effect on California,” said Deputy Atty. Gen. Pete Wilkinson, coordinator of death penalty cases for the state attorney general. “The issue is so complex and so involved that basically no death penalty case in California is going anywhere until that is resolved.”

In other action, the court announced that in the term beginning next October, it would take another look at affirmative action in the workplace.

Last week, the justices upheld hiring and promotion plans that gave special preferences to minorities, holding that flexible quotas or goals were permissible in some circumstances and that preferential treatment need not be limited to those who could prove they personally were the victims of discrimination.

But questions still remain over whether there are circumstances in which a plan adopted by a public employer may violate federal statutes or the Constitution when it directly penalizes whites or males.