Stephens v. StateStephens v. State
- Reporters:
- ,
- Before:
- Fletcher
Lead Opinion
Freddie Stephens challenges the constitutionality of
1. The challenged statute states:
(d) Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to a controlled substance in Schedule I or a narcotic drug in Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he shall be imprisoned for life.
Stephens contends that the statute as applied discriminates on the basis of race. He argues that this court should infer discriminatory intent from statewide and countywide statistical data on sentences for drug offenders. In Hall County, where Stephens was convicted, the trial court found that 100 percent (14 of 14) of the persons serving a life sentence under
In an earlier challenge to death penalty sentencing in Georgia based on statistics showing that persons who murder whites are more likely to be sentenced to death than persons who murder blacks, the United States Supreme Court held that the defendant had the burden of proving the existence of purposeful discrimination and its discriminatory effect on him. McCleskey v. Kemp, 481 U. S. 279, 292 (107 SC 1756, 95 LE2d 262) (1987); see State v. Agan, 259 Ga. 541, 548 (384 SE2d 863) (1989), cert. denied, 494 U. S. 1057 (110 SC 1526, 108 LE2d 765) (1990); State v. Causey, 246 Ga. 735, 737 (273 SE2d 6) (1980). “Thus, to prevail under the Equal Protection Clause, [the defendant] must prove that the decision-makers in his case acted with discriminatory purpose.” McCleskey, 481 U. S. at 292.
Relying on McCleskey, this court has held that the mandatory life sentence of
Stephens concedes that he cannot prove any discriminatory intent by the Georgia General Assembly in enacting the law or by the Hall County district attorney in choosing
2. We also conclude that the statistical evidence Stephens presents is insufficient evidence to support his claim of an equal protection violation under the Georgia Constitution. Stephens fails to present the critical evidence by race concerning the number of persons eligible for life sentences under
Stephens’ argument about inferring intent from the statistical evidence also ignores that other factors besides race may explain the sentencing disparity. Absent from the statistical analysis is a consideration of relevant factors such as the charges brought, concurrent offenses, prior offenses and sentences, representation by retained or appointed counsel, existence of a guilty plea, circuit where convicted, and the defendant’s legal status on probation, in prison, or on parole. Without more adequate information about what is happening both statewide and in Hall County, we defer deciding whether statistical evidence alone can ever be sufficient to prove an allegation of discriminatory intent in sentencing under the Georgia Constitution.2
3. The dissent argues that McCleskey v. Kemp is not the controlling precedent, instead relying on the United States Supreme Court decision on peremptory challenges in jury selections in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). We must look to McCleskey for a proper analysis of the substantive issue before us, rather than Batson, because McCleskey dealt with the use of statistical evidence to challenge racial disparity in sentencing, as does this case.
The Supreme Court in McCleskey pointed out several problems in requiring a prosecutor to explain the reasons for the statistical disparity in capital sentencing decisions. Many of these same problems exist in requiring district attorneys to justify their decisions in seeking a life sentence for drug offenses based on statewide, and even countywide, statistics of persons serving life sentences in state prisons for drug offenses.
First, “[requiring a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors is quite different from requiring a prosecutor to rebut a contemporaneous challenge to his own acts. See Batson v. Kentucky, 476 U. S.[, supra]” McCleskey, 481 U. S. at 296, n. 17. Second, statewide statistics are not reliable in determining the policy of a particular district attorney.
It is also questionable whether any consistent policy can be derived from studying the decisions of prosecutors. The District Attorney is elected by the voters in a particular county. SeeGa. Const., Art. 6, § 8 , Par. 1. Since decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations, coordination among district attorney offices across a State would be relatively meaningless. Thus, any inference from statewide statistics to a prosecutorial “policy” is of doubtful relevance.
Id. at 295-296, n. 15.3 Finally, the Court stated that the policy considerations behind a prosecutor’s discretion argue against requiring district attorneys to defend their decisions to seek the death penalty. Id. at 296; see also Mobley v. State, 265 Ga. 292 (455 SE2d 61) (1995) (noting problems related to prosecutors’ testifying regarding their reasons for rejecting defendants’ offers to plead guilty in a death penalty case). Since district attorneys are elected to represent the state in all criminal cases, it is important that they be able to exercise their discretion in determining who to prosecute, what charges to bring, which sentence to seek, and when to appeal without having to account for each decision in every case.
4. Stephens also argues that the statute violates due process and equal protection by creating an irrational sentencing scheme. Seeking to deter repeated drug sales by the same person is not irrational. Therefore, we adhere to our previous decision that there is a rational basis for the sentencing scheme in
Judgment affirmed.
All the Justices concur, except Thompson, J., who concurs specially and Benham, P. J., Sears and Hunstein, JJ., who dissent.Notes
At a subsequent hearing, Stephens again admitted that he could not prove that the district attorney’s office is enforcing the statute in a discriminatory fashion. I know the Courts have no discretion so the Courts certainly aren’t applying the statute in a discriminatory fashion and I do not believe I can demonstrate that the legislature in enacting the statute enacted it with discriminatory intent.
See Grissom v. Gleason, 262 Ga. 374, 376, n. 1 (418 SE2d 27) (1992); see also State v. Russell, 477 NW2d 886 (Minn. 1991) (relying on state constitution to invalidate criminal statute that imposed a disproportionate burden on black persons).
Even the statistics from Hall County do not accurately reflect the record of the district attorney in this case since she did not assume offlce until 1993.
Concurrence Opinion
concurring.
I concur fully in the majority’s affirmance of appellant’s life sentence. However, I write separately so as to explicate why, in my opinion, the Georgia Constitution provides this court with no independent authority to order a remand for a hearing wherein the prosecutor must defend the decision to seek the imposition of that sentence against appellant.
It is appellant’s contention that
The defendant in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) made a prima facie showing that racial discrimination may have been a factor in the jury selection in his case and, under those
to require that the prosecutor provide an explanation for his decisions in [McCleskey] is completely consistent with [that] Court’s longstanding precedents that hold that a prosecutor need not explain his decisions unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect to his case. See, e.g., Batson v. Kentucky, supra
(Emphasis supplied.) McCleskey v. Kemp, supra at 296, fn. 18.
Accordingly, while appellant has an unchallenged right to be sentenced for his crime without regard to his race, the holding in Gris-som compels us to apply the analysis of McCleskey in determining the viability of his claim that the sentence imposed upon him pursuant to
Concurrence Opinion
concurring specially.
1. On previous occasions this Court rejected claims that
Statistical information can inform, not explain. It can tell what has happened, not why. However, only a true cynic can look at these statistics and not be impressed that something is amiss. That something lies in the fact that
McCleskey v. Kemp, 481 U. S. 279 (107 SC 1756, 95 LE2d 262) (1987) provides a workable test for determining whether the death penalty statute is being applied discriminatorily. McCleskey should continue to be applied in death penalty cases where there is a system of checks and balances to ensure that death sentences are not sought and imposed autocratically. Likewise McCleskey should be applied in other cases where the courts have discretion to determine the length of time to be served. However, McCleskey probably should not be applied where a district attorney has the power to decide whether a defendant is sentenced to life, or a term of years. That is the case here: Once a defendant is informed that the State is seeking a life sentence under
I am persuaded that Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), could be used to supply a general framework in analyzing cases of this kind. This, however, will need more careful study. Nevertheless, it is my considered view that the judgment in this case must be affirmed because the defendant has failed to meet his burden even under a Batson-type analysis.
In order to establish a prima facie case under Batson, a defendant must prove systematic discrimination in his particular jurisdiction. Batson, supra at 94. Although the statistics presented by defendant are indicative of a statewide pattern of discrimination in the use of
2. The legislature enacted
The statistical evidence presented in this case serves as notice to the General Assembly of Georgia that the mandatory life sentence provision of
(1) The General Assembly could choose to leave the mandatory life sentence on the books realizing that it is being used in a small percentage of the eligible cases. Militating against this course of action is the fact that all laws passed by the legislature should be followed. Contempt for and failure to follow any law breeds contempt for and failure to follow other laws.
(2) The General Assembly could reaffirm its commitment to a mandatory life sentence by requiring district attorneys to inform all defendants of prior convictions and thus enforce
(3) The General Assembly could choose to change the mandatory life sentence penalty to one of several sentencing options which the court could impose. For example, the penalty for a second or subsequent sale could be imprisonment for not less than five nor more than thirty years, or life. See, e.g.,
Of course, the General Assembly could find other ways to address the problems posed by
Dissenting Opinion
dissenting.
Of those persons from Hall County serving life sentences pursuant to
Appellant makes two claims with regard to
1. I do not write on a clean slate on the issue of whether a violation of the Fourteenth Amendment to the United States Constitution has occurred. A long line of cases has dealt with this very issue. My analysis begins with Strauder v. West Virginia, 100 U. S. 303 (25 LE 664) (1880), where the U. S. Supreme Court struck down a state statute under which only white men were qualified for jury duty. In the dissent in Swain v. Alabama, 380 U. S. 202, 230 (85 SC 824, 13 LE2d 759) (1965), Justice Goldberg quoted from Strauder:
It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and . . . deny to persons of those classes the full enjoyment of that protection which others enjoy.
In that dissent, Justice Goldberg sought to apply the principles of equal protection stated in Strauder in a manner which foreshadowed the later developments in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).
To assert a successful Equal Protection claim, there has always been a requirement at the federal level that purposeful or intentional discrimination be shown. Whitus v. Georgia, 385 U. S. 545 (87 SC 643, 17 LE2d 599) (1967). Faced in Swain v. Alabama, supra, with a claim of denial of Equal Protection in the use of peremptory challenges, the United States Supreme Court recognized the horrors of discrimination, but nevertheless imposed a heavy burden on those who would claim discrimination, requiring that they “show the prosecutor’s systematic use of peremptory challenges against Negroes over a period of time” (id. at 227) in order to prevail on an Equal Protection claim.
This almost impossible burden of proof imposed by Swain frustrated those who sought to claim a Fourteenth Amendment violation in the area of peremptory challenges. Hence, the court revisited the issue some 21 years later in Batson v. Kentucky, supra. The weighty burden of Swain was rejected as being inconsistent with Equal Protection standards developed subsequently. In its place, the Supreme Court installed a system that shifted the burden to the prosecutor to give race-neutral reasons for the peremptory challenges once the defendant established facts supporting an inference that the prosecutor’s use of peremptory challenges was racially motivated. Relying in part on language in Swain and on housing
This is the course of reasoning we need to follow in analyzing the issue in this case rather than the more restrictive course taken in McCleskey v. Kemp, 481 U. S. 279 (107 SC 1756, 95 LE2d 262) (1987), and applied by the majority. As appellant cogently argued, McCleskey dealt with the death penalty procedure, with its many variables, including extremely broad discretion placed in the jury, whereas the legislation involved in this case deals with what purports to be a straightforward sentencing process: if the conviction fits within the statute, a life sentence is mandatory. But it is in the application of the sentencing scheme that discretion comes into play and, with it, the specter of invidious discrimination. For a defendant to receive a life sentence for a second conviction, the State must notify the defendant prior to trial that it intends to seek the enhanced punishment based on past convictions. See Mays v. State, 262 Ga. 90, 91-92 (414 SE2d 481) (1992);
I am not unmindful or unappreciative of the vital and taxing role district attorneys are called upon to undertake in the ongoing battle against the blight of illicit drug trafficking. Throughout this state, they shoulder an enormous burden of responsibility for advancing the fight against drugs, and to do so successfully, they must be invested with considerable discretion in making decisions about ongoing prosecutions. However, it is the very breadth of that discretion, concentrated in a single decision-maker, which makes it necessary that the one exercising the discretion be the one, when confronted with facts supporting an inference of discriminatory application, to bear the burden of establishing that the discretion was exercised without racial influence. This case is more like Batson than McCleskey because all the discretion in the sentencing scheme involved in this case resides in the district attorney, to the exclusion of the trial court, whereas in death penalty cases such as McCleskey, the spread of discretion among the prosecutor, the trial court, and the jurors introduces variables which call for more rigorous statistical analysis. In addition, the complexity of the death penalty procedure, with its many safeguards and the recurring necessity of specific findings at every stage from the grand jury to the sentencing jury, differentiates it from the relative simplicity of the sentencing scheme applicable to this case. The expressed concern of the State and of the majority that the procedure I propose in this case is applicable to death penalty cases is wholly unfounded. The only similarity between this case and McCleskey is that they both involve sentencing. It is the very different processes by which the sentences are determined which distinguish these very different cases. My analysis and the remedy proposed herein apply only to
The sentencing scheme involved in this case is not so complicated as that involved in death penalty cases. The prosecutor alone exercises discretion with regard to the sentence. If the district attorney chooses to give notice that a prior conviction will be used in aggravation of sentencing, a conviction
Appellant also notes correctly that the U. S. Supreme Court recognized in McCleskey itself that statistical proof which presents a “ ‘stark’ pattern” may be accepted as the sole proof of discriminatory intent. 481 U. S. at 293. In distinguishing McCleskey from such a case, the Supreme Court mentioned in fn. 12 cases in which “a statistical pattern of discriminatory impact demonstrated a constitutional violation.” Id., fn. 12. One was Gomillion v. Lightfoot, 364 U. S. 339 (81 SC 125, 5 LE2d 110) (1960), where a city’s boundaries were altered so as to exclude 395 of 400 black voters without excluding a single white voter, and the other was Yick Wo v. Hopkins, 118 U. S. 356 (6 SC 1064, 30 LE 220) (1886), in which an ordinance requiring permits for the operation of laundries was applied so as to exclude all of the over 200 Chinese applicants and only one white applicant. The statistics in those cases presented a “ ‘stark’ pattern” (McCleskey, supra at 481 U. S. 293), but no more stark than the pattern presented in this case. In the present case, based on evidence from law enforcement officers who testified as to arrest rates and other relevant statistics,5 the trial court found that 100 percent of the people from that county who were serving life sentences pursuant to
while there is some evidence to support appellant’s allegation of selective prosecution, that evidence is insufficient under both the intentional discrimination standard adopted by this court in State v. Causey, 246 Ga. 735 (2) (273 SE2d 6) (1980), and the disparate treatment standard utilized in State v. Russell, 477 NW2d 886 (Minn. 1991).
Hailey, supra at 214. Now, faced with the majority’s insistence that even the stark pattern demonstrated in this case will not meet those standards, I believe it is necessary that we adopt a procedure which will make it possible to address the issue openly and honestly in the trial courts.
The majority’s reliance on McCleskey without recognizing the differences between the contexts of that case and this one causes this court to fall short of its responsibility to further the development of the law. This case offers us an opportunity to contribute in a positive way to the advancement of federal constitutional law. This could be a watershed case, and this court should seize this opportunity to establish a procedure similar to that outlined in Batson to make it possible for a defendant effectively to challenge the use of life sentences in a racially discriminatory fashion.
In seeking to show discriminatory application of this sentencing scheme, the burden should remain on the defendant alleging discrimination to prove the existence of purposeful discrimination. See Batson, supra at 93. However, as the U. S. Supreme Court went on to say in Batson at 93-94,
In deciding if the defendant has carried his burden of persuasion, a court must undertake “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” [Cit.] Circumstantial evidence of invidious intent may include proof of disproportionate impact. [Cit.] ... [A] defendant . . . may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Cit.] Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion [in the present case, exclusivity]. [Cit.] The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. [Cits.] Rather, the State must demonstrate that “permissible racially neutral selection criteria and procedures have produced the monochromatic result.” [Cits.]
The Supreme Court continued in Batson by providing an explanation of what a defendant must show to establish a prima facie case. That explanation is eminently adaptable to the procedure I propose we adopt in this case:
The defendant initially must show that he is a member of a racial group capable of being singled out for differential treatment. [Cit.] In combination with that evidence, a defendant may then make a prima facie case by proving that in the particular jurisdiction [the sentencing provision has been used exclusively or in a manner disproportionate to population percentages against the defendant’s group]. Proof of [exclusive or disproportionate use] raises an inference of purposeful discrimination because the “result bespeaks discrimination.” [Cit.]
Batson, supra at 94. The proof appellant offered in this case clearly shows a “ ‘stark’ pattern,” an application of the statute which “bespeaks discrimination.” That being so, I would hold that he was entitled by the Fourteenth Amendment to the U. S. Constitution to have the prosecution make race-neutral explanation for its application of the aggravated sentencing procedure.
2. Even if I were not convinced that the Fourteenth Amendment to the U. S. Constitution requires the establishment of the procedure I propose herein, I would propose it as an appropriate procedure to safeguard the citizens of this state against deprivation of the right to equal protection of the law as it is guaranteed in the Georgia Constitution.9
In deciding under our constitution whether all . . . should stand equal before the law, we must draw from the wellspring of Georgia history, keeping in mind that Georgia is one of the thirteen original colonies which, unlike the subsequently-formed states which drew strength from the central government, furnished strength to the central government from our storehouse of rights. But in doing so, we did not leave our state constitutional cupboard completely bare and entirely bereft of protection for our own citizens.
Id. at 415. In keeping with that position, I assert here that this is the time for this Court to draw from our historical strength and our determination that the citizens of this state be treated fairly before the law, and declare that Georgia’s constitutional guarantee of equal protection requires that
I would hold, therefore, as a matter purely of state constitutional law, that equal protection of the law in the context of
3. Because appellant has made a sufficient showing of discriminatory application of
Just as the prosecution was reined in by Batson, it must also be reined in here and called upon to give an account of itself. The statistics offered in this case show an enormous potential for injustice, and those statistics are just like the tip of an iceberg, with the bulk lying below the surface, yet to be
Because I am convinced that appellant has made a sufficient showing of discriminatory application of
I am authorized to state that Justice Sears joins in this dissent.
E.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (97 SC 555, 50 LE2d 450) (1977); Washington v. Davis, 426 U. S. 229 (96 SC 2040, 48 LE2d 597) (1976). The federal courts also had prompting in such state court decisions as People v. Wheeler, 22 Cal.3d 258 (148 Cal. Rptr. 890, 583 P2d 748) (1978); and Commonwealth v. Soares, 377 Mass. 461 (387 NE2d 499), cert. denied, 444 U. S. 881 (100 SC 170, 62 LE2d 110) (1979).
Agent David Mcllwraith testified that 50 percent of the drug investigations involved black males. Investigator Shelly Manny testified that of the sixty drug investigations she conducted in Hall County, only nine involved blacks and that only fifty percent of her undercover buys involved black males. Another narcotics investigator testified that since 1989, he had made over 300 cocaine distribution cases in Hall County and only 60 percent involved black males.
“One hundred percent (100%) of the people serving life sentences in the state prison system under
The study did not include those convicted of possession with intent to distribute, although that offense also triggers the provisions of
This percentage is derived from a calculation explained in testimony by the author of the study and using figures developed in the study showing a 0.6 percent likelihood of life sentence for a white defendant eligible for sentencing under the statute, and a 16.57 percent likelihood for an eligible African-American defendant.
Article I, Section I, Paragraph II of the 1983 Georgia Constitution provides as follows: “Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.”
See, e.g., State v. Miller, 260 Ga. 669, 671 (398 SE2d 547) (1990) (finding 1983 Georgia Constitution provides broader protection than the First Amendment); Green v. State, 260 Ga. 625, 627 (398 SE2d 360) (1990) (finding State Constitution grants a broader right against self-incrimination than the U. S. Constitution); Fleming v. Zant, 259 Ga. 687, 690 (386 SE2d 339) (1989) (holding state constitutional guarantee against cruel and unusual punishment is more extensive than federal constitutional standard).