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238

DOUGLAS, J., concurring

"Seventy-five of the 460 cases involved codefendants, who, under Texas law, were given separate trials. In several instances where a white and a Negro were co-defendants, the white was sentenced to life imprisonment or a term of years, and the Negro was given the death penalty.

“Another ethnic disparity is found in the type of sentence imposed for rape. The Negro convicted of rape is far more likely to get the death penalty than a term sentence, whereas whites and Latins are far more likely to get a term sentence than

the death penalty.” Warden Lewis E. Lawes of Sing Sing said: 16

"Not only does capital punishment fail in its justification, but no punishment could be invented with so many inherent defects. It is an unequal punishment in the way it is applied to the rich and to the poor. The defendant of wealth and position never goes to the electric chair or to the gallows. Juries do not intentionally favour the rich, the law is theoretically impartial, but the defendant with ample means is able to have his case presented with every favourable aspect, while the poor defendant often has a lawyer assigned by the court. Sometimes such assignment is considered part of political patronage; usually the lawyer assigned has had no experience whatever in a capital

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case.”

Former Attorney General Ramsey Clark has said, “It is the poor, the sick, the ignorant, the powerless and the hated who are executed.” 17 One searches our chronDOUGLAS, J., concurring

in 53 J. Crim. L. C. & P. S. 301 (1962). And see Hartung, Trends in the Use of Capital Punishment, 284 Annals 8, 14-17 (1952).

16 Life and Death in Sing Sing 155–160 (1928). 17 Crime in America 335 (1970).

408 U.S.

poor, the Negro, and the members of unpopular groups.”

A study of capital cases in Texas from 1924 to 1968 reached the following conclusions: 15

“Application of the death penalty is unequal: most of those executed were poor, young, and ignorant.

15 Koeninger, Capital Punishment in Texas, 1924–1968, 15 Crime & Delin. 132, 141 (1969).

In H. Bedau, The Death Penalty in America 474 (1967 rev. ed.), it is stated:

RACE OF THE OFFENDER BY FINAL DISPOSITION
Final

Negro
White

Total Disposition

N %
N %

N % Executed

130 88.4 210 79.8 340 82.9 Commuted

17 11.6
53 20.2

70 17.1 Total

147 100.0 263 100.0 410 100.0 X2=4.33; P less than .05. (For discussion of statistical symbols, see Bedau, supra, at 469.)

“Although there may be a host of factors other than race involved in this frequency distribution, something more than chance has operated over the years to produce this racial difference. On the basis of this study it is not possible to indict the judicial and other public processes prior to the death row as responsible for the association between Negroes and higher frequency of executions; nor is it entirely correct to assume that from the time of their appearance on death row Negroes are discriminated against by the Pardon Board. Too many unknown or presently immeasurable factors prevent our making definitive statements about the relationship. Nevertheless, because the Negro/high-execution association is statistically present, some suspicion of racial discrimination can hardly be avoided. If such a relationship had not appeared, this kind of suspicion could have been allayed; the existence of the relationship, although not proving' differential bias by the Pardon Boards over the years since 1914, strongly suggests that such bias has existed.”

The latter was a study in Pennsylvania of people on death row between 1914 and 1958, made by Wolfgang, Kelly, & Nolde and printed constructed to allow the maximum possible variation from one case to the next, and [that] provide no mechanism to prevent that consciously maximized variation from reflecting merely random or arbitrary choice.” McGautha v. California, 402 U. S. 183, 248 (BRENNAN, J., dissenting).

238

DOUGLAS, J., concurring

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Mr. Justice Field, dissenting in O'Neil v. Vermont, 144 U. S. 323, 340, said, “The State may, indeed, make the drinking of one drop of liquor an offence to be punished by imprisonment, but it would be an unheard-of cruelty if it should count the drops in a single glass and make thereby a thousand offences, and thus extend the punishment for drinking the single glass of liquor to an imprisonment of almost indefinite duration.” What the legislature may not do for all classes uniformly and systematically, a judge or jury may not do for a class that prejudice sets apart from the community.

There is increasing recognition of the fact that the basic theme of equal protection is implicit in "cruel and unusual” punishments. “A penalty . . . should be considered ‘unusually imposed if it is administered arbitrarily or discriminatorily." The same authors add that "[t]he extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness.” 13 The President's Commission on Law Enforcement and Administration of Justice recently concluded:

"Finally there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and carried out on the

12 Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1790.

13 Id., at 1792.
14 The Challenge of Crime in a Free Society 143 (1967).

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