ARTEMUS RICK WALKER v. GEORGIA (2008)

     The petition for a writ of certiorari is denied.

     Statement of Justice Stevens respecting the denial of the petition for writ of certiorari.

     The question presented by the petition for certiorari is whether Georgia's current administration of its death penalty violates the Eighth Amendment's guarantee against arbitrariness and discrimination in capital sentencing. Specifically, petitioner charges that the Georgia Supreme Court has "fail[ed] to: (1) conduct meaningful proportionality review, and (2) enforce reporting requirements under Georgia's capital sentencing scheme," as is required to ensure that only the most culpable offenders are put to death. Pet. for Cert. i. In its response to the petition, the State persuasively argues that petitioner did not raise and litigate these claims in state court. That argument provides a legitimate basis for this Court's decision to deny review. I write separately to emphasize that the Court's denial has no precedential effect, see Teague v. Lane, 489 U. S. 288, 296 (1989), and to note that petitioner's submission is supported by our prior opinions evaluating the constitutionality of the Georgia statute.

     Justice Stewart was the principal architect of our death penalty jurisprudence during his tenure on the Court. In his separate opinion in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), he observed that death sentences imposed pursuant to Georgia's capital sentencing scheme were "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Id., at 309 (concurring opinion). The Georgia statute in effect at that time placed unfettered discretion in the hands of juries, resulting in the arbitrary, and often discriminatory, issuance of capital sentences. Justice Stewart concluded that the Eighth Amendment cannot tolerate the infliction of a death sentence under a legal system that permits this unique penalty to be wantonly and freakishly imposed. Id., at 310.

     The Georgia Legislature amended its capital sentencing scheme after Furman, and a challenge to the new scheme reached this Court in Gregg v. Georgia, 428 U. S. 153 (1976). Our decision in that case to uphold the later enacted statute was founded on an understanding that the new procedures the statute prescribed would protect against the imposition of death sentences influenced by impermissible factors such as race. Among the new procedures was a requirement that the Georgia Supreme Court "compar[e] each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate." Id., at 198 (joint opinion of Stewart, Powell, and Stevens, JJ.). We assumed that the court would consider whether there were "similarly situated defendants" who had not been put to death because that inquiry is an essential part of any meaningful proportionality review.

     That assumption was confirmed a few years later in Zant v. Stephens, 462 U. S. 862 (1983). The question in that case was whether a death sentence was valid notwithstanding the jury's reliance on an invalid aggravating circumstance. As in Gregg, our decision to uphold the sentence "depend[ed] in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality." 462 U. S., at 890. In response to our certified question regarding the operation of the State's capital sentencing scheme, the Georgia Supreme Court expressly stated that its proportionality review " 'uses for comparison purposes not only similar cases in which death was imposed, but similar cases in which death was not imposed.' " Id., at 880, n. 19.¹ That approach seemed judicious because, quite obviously, a significant number of similar cases in which death was not imposed might well provide the most relevant evidence of arbitrariness in the sentence before the court.

     The opinions in another Georgia case, McCleskey v. Kemp, 481 U. S. 279 (1987), make it abundantly clear that there is a special risk of arbitrariness in cases that involve black defendants and white victims. See also Turner v. Murray, 476 U. S. 28, 33-37 (1986) (plurality and majority opinions) (discussing the heightened risks of prejudice that inhere in the prosecution of interracial capital offenses). Although there is some indication that those risks have diminished over time, at least the race-of-victim effect persists. See Baldus & Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul L. Rev. 1411, 1424-1426 (2004).

     It is against that backdrop that I find this case, which involves a black defendant and a white victim, particularly troubling. The State's evidence showed that, on the night of the murder, petitioner and an accomplice drove to the victim's home. After petitioner drew the victim outside, the two engaged in a struggle and petitioner stabbed the victim 12 times. While his accomplice collected the victim's wallet, petitioner used the victim's keys to try to gain access to his house, stating that he "had 'one more to kill.' " When a woman inside the house yelled that she had a gun, petitioner and his accomplice fled. 282 Ga. 774, 775, 653 S. E. 2d 439, 443 (2007). The jury found petitioner guilty of murder, felony murder, armed robbery, aggravated assault, attempted burglary, and possession of a firearm during the commission of a crime. After the penalty phase proceeding, the jury concluded that the State had proved five statutory aggravating factors (two of which the Georgia Supreme Court later found invalid, id., at 781, 653 S. E. 2d, at 447), and it sentenced petitioner to death.

     Rather than perform a thorough proportionality review to mitigate the heightened risks of arbitrariness and discrimination in this case, the Georgia Supreme Court carried out an utterly perfunctory review. Its undertaking consisted of a single paragraph, only the final sentence of which considered whether imposition of the death penalty in this case was proportionate as compared to the sentences imposed for similar offenses. And even then the court stated its review in the most conclusory terms: "The cases cited in the Appendix support our conclusion that [petitioner's] punishment is not disproportionate in that each involved a deliberate plan to kill and killing for the purpose of receiving something of monetary value." Id., at 782, 653 S. E. 2d, at 447-448. The appendix consists of a string citation of 21 cases in which the jury imposed a death sentence; it makes no reference to the facts of those cases or to the aggravating circumstances found by the jury.

     Had the Georgia Supreme Court looked outside the universe of cases in which the jury imposed a death sentence, it would have found numerous cases involving offenses very similar to petitioner's in which the jury imposed a sentence of life imprisonment. See, e.g., Jones v. State, 279 Ga. 854, 622 S. E. 2d 1 (2005); Spickler v. State, 276 Ga. 164, 575 S. E. 2d 482 (2003); Cross v. State, 271 Ga. 427, 520 S. E. 2d 457 (1999); Jenkins v. State, 268 Ga. 468, 491 S. E. 2d 54 (1997); LeMay v. State, 265 Ga. 73, 453 S. E. 2d 737 (1995) (the circumstances of the offense are described in LeMay v. State, 264 Ga. 263, 443 S. E. 2d 274 (1994)); Cobb v. State, 250 Ga. 1, 295 S. E. 2d 319 (1982). If the Georgia Supreme Court had expanded its inquiry still further, it would have discovered many similar cases in which the State did not even seek death. See, e.g., Davis v. State, 281 Ga. 871, 644 S. E. 2d 113 (2007); Wiggins v. State, 280 Ga. 627, 632 S. E. 2d 80 (2006); Escobar v. State, 279 Ga. 727, 620 S. E. 2d 812 (2005); Stanley v. State, 261 Ga. 412, 405 S. E. 2d 493 (1991). Cases in both of these categories are eminently relevant to the question whether a death sentence in a given case is proportionate to the offense.² The Georgia Supreme Court's failure to acknowledge these or any other cases outside the limited universe of cases in which the defendant was sentenced to death creates an unacceptable risk that it will overlook a sentence infected by impermissible considerations.³

     Particularly troubling is that the shortcomings of the Georgia Supreme Court's review are not unique to this case. In the years immediately following Gregg, it was that court's regular practice to include in its review cases that did not result in a death sentence. That practice began to change around the time this Court decided Pulley v. Harris, 465 U. S. 37 (1984). We stated in that case that the Eighth Amendment does not require comparative proportionality review of every capital sentence. Id., at 44-46; see also McCleskey, 481 U. S., at 306 ("[W]here the statutory procedures adequately channel the sentencer's discretion, such proportionality review is not constitutionally required"). But that assertion was intended to convey our recognition of differences among the States' capital schemes and the fact that we consider statutes as we find them, id., at 45; it was not meant to undermine our conclusion in Gregg and Zant that such review is an important component of the Georgia scheme.⁴

     Since Pulley, the Georgia Supreme Court has significantly narrowed the universe of cases from which it culls comparators. It now appears to be the court's practice never to consider cases in which the jury sentenced the defendant to life imprisonment. See Note, 39 Ga. L. Rev. 631, 657 (2005) (determining that in each of 55 capital cases reviewed by the Georgia Supreme Court between 1994 and 2004, the court exclusively considered other cases resulting in a death sentence). This is not the review that the Georgia Supreme Court represented to us in Zant. And the likely result of such a truncated review--particularly in conjunction with the remainder of the Georgia scheme, which does not cabin the jury's discretion in weighing aggravating and mitigating factors--is the arbitrary or discriminatory imposition of death sentences in contravention of the Eighth Amendment.

     Petitioner also notes a second failure of the Georgia Supreme Court's review in this case. In all capital cases, Georgia law requires the trial court to transmit, along with the entire record and transcript, a detailed report prepared by the trial judge describing the defendant's history and the circumstances of the case. Ga. Code Ann. §17-10-35(a). Although it has previously admonished trial courts of the necessity of complying with this rule, see McDaniel v. State, 271 Ga. 552, 553, 522 S. E. 2d 648, 650 (1999), the Georgia Supreme Court in this case neglected to enforce it. This breakdown in the statutory process is especially troubling when viewed in light of the other shortcomings of that court's review. "When a defendant's life is at stake, th[is] Court has been particularly sensitive to insure that every safeguard is observed." Gregg, 428 U. S., at 187 (joint opinion of Stewart, Powell, and Stevens, JJ.). The Georgia Supreme Court owes its capital litigants the same duty of care and must take seriously its obligation to safeguard against the imposition of death sentences that are arbitrary or infected by impermissible considerations such as race.

     Justice Thomas, concurring in the denial of the petition of certiorari.

     Petitioner brutally murdered Lynwood Ray Gresham, and was sentenced to death for his crime. Justice Stevens objects to the proportionality review undertaken by the Georgia Supreme Court on direct review of petitioner's capital sentence. The Georgia Supreme Court, however, afforded petitioner's sentence precisely the same proportionality review endorsed by this Court in McCleskey v. Kemp, 481 U. S. 279 (1987); Pulley v. Harris, 465 U. S. 37 (1984); Zant v. Stephens, 462 U. S. 862 (1983); and Gregg v. Georgia, 428 U. S. 153 (1976), and described in Pulley as a "safeguard against arbitrary or capricious sentencing" additional to that which is constitutionally required, Pulley, supra, at 45. Because the Georgia Supreme Court made no error in applying its statutorily required proportionality review in this case, I concur in the denial of certiorari.

     In May 1999, petitioner recruited Gary Lee Griffin to help him "rob and kill a rich white man" and "take the money, take the jewels." Pet. for Cert. 5 (internal quotation marks omitted); 282 Ga. 774, 774-775, 653 S. E. 2d 439, 443, (2007). Petitioner and Griffin packed two bicycles in a borrowed car, dressed in black, and took a knife and stun gun to Gresham's house. Petitioner lured Gresham outside, Pet. for Cert. 5, stabbed him 12 times in the chest and back, and dragged him to the side of the house to die, 282 Ga., at 775, 653 S. E. 2d, at 443. Griffin found Gresham's wallet and house keys and gave the keys to petitioner, who said he had " 'one more to kill.' " Ibid. However, because Mrs. Gresham and her daughter had been inside their house and had locked the door with chain and foot locks, petitioner did not succeed. The two men then fled the scene on their bicycles. Both were arrested within hours; petitioner was found with Gresham's blood on his clothes and Gresham's keys in his pocket. The knife used in the attack and a pistol were discovered nearby. Ibid.

     Petitioner was charged with malice murder, felony murder, armed robbery, aggravated assault, attempted burglary, and possession of a firearm by a convicted felon. Id., at 774, n. 1, 653 S. E. 2d, at 442, n. 1. A jury found him guilty on all charges and recommended the death penalty. Ibid. In particular, the jury unanimously found five aggravating factors: that the murder was committed while petitioner was engaged in an armed robbery; that the murder was committed for the purpose of receiving money or a thing of monetary value; that the murder involved torture; that the murder involved aggravated battery; and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. Id., at 781, 653 S. E. 2d, at 447. The trial court agreed with the jury's recommendation and imposed a sentence of death for the malice-murder conviction. The court also imposed a life sentence for armed robbery and consecutive sentences of 20, 10, and 5 years for the remaining convictions. Id., at 774, n. 1, 653 S. E. 2d, at 442, n. 1.

     On direct appeal, the Georgia Supreme Court reviewed each statutory aggravating circumstance supporting the death sentence, see Ga. Code Ann. §17-10-35(c)(2) (2008), and struck two of them--murder involving torture and murder involving aggravated battery--because they varied from the applicable statutory language, 282 Ga., at 781, 653 S. E. 2d, at 447; Ga. Code Ann. §17-10-30(b)(7). With three valid statutory aggravating factors remaining and the full weight of the evidence supporting petitioner's conviction, the Georgia Supreme Court found that petitioner was eligible for the death sentence under state law.

     The Georgia Supreme Court then reviewed petitioner's death sentence to determine whether it was "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Ga. Code Ann. §17-10-35(c)(3). The court first determined that the life sentence imposed on Griffin for the same murder did not render petitioner's death sentence disproportionate. Petitioner was more culpable for the murder, and Griffin was ineligible for the death penalty because he was adjudged mentally retarded. Id., at 782, 653 S. E. 2d, 447. The Georgia Supreme Court then examined 21 cases in which a defendant received the death penalty for a "deliberate plan to kill and killing for the purpose of receiving something of monetary value." Ibid., 653 S. E. 2d, 448. After reviewing these cases, the court concluded that petitioner's death sentence was proportional to other death sentences imposed in Georgia and affirmed. Ibid.

     There is nothing constitutionally defective about the Georgia Supreme Court's determination. Proportionality review is not constitutionally required in any form. Georgia simply has elected, as a matter of state law, to provide an additional protection for capital defendants. Pulley, 465 U. S., at 45. In Pulley, the Court considered the history of Georgia's capital sentencing scheme and dismissed Justice Stevens' assertion that the constitutionality of Georgia's scheme had rested on its willingness to conduct proportionality review. Id., at 44-46, 50; id., at 58-59 (Stevens, J., concurring in part and concurring in judgment). The Court explained that, although it may have emphasized the role of proportionality review as "an additional safeguard against arbitrarily imposed death sentences" in Gregg, supra, and Zant, supra, it had never held that "without comparative proportionality review the [Georgia] statute would be unconstitutional." Pulley, supra, at 50. Justice Stevens acknowledged in his Pulley concurrence that his interpretation of Gregg and Zant differed from the Court's. 465 U. S., at 54. He continues to adhere to his distinctive interpretation of Gregg and Zant today, ante, at 2-3, 6, and questions whether the Georgia scheme as currently administered provides the additional review that he believes is constitutionally required. But, under this Court's precedents, Georgia is not required to provide any proportionality review at all.

     Having elected to provide the additional protection of proportionality review, there can be no question that the way in which the Georgia Supreme Court administered that review in this case raised no constitutional issue. The State's proportionality review was lauded in Gregg as a protective measure that would ensure that "[i]f a time comes when juries generally do not impose the death sentence in a certain kind of murder case, ... no defendant convicted under such circumstances will suffer a sentence of death" because there will be no comparable cases to support a finding of proportionality. 428 U. S., at 206 (joint opinion of Stewart, Powell, and Stevens, JJ.). Then, in McCleskey, 481 U. S., at 306, this Court upheld the proportionality review conducted by the Georgia Supreme Court and recognized that the Georgia court's conclusion was supported by "an appendix containing citations to 13 cases involving generally similar murders.''¹ In McCleskey, as here, the trial court followed the jury's recommendation and imposed a death sentence for a black defendant who murdered a white victim during an armed robbery. Id., at 283-285; 282 Ga., at 774, 653 S. E. 2d at 442.

     Justice Stevens nevertheless asserts that there is a "special risk of arbitrariness in cases that involve black defendants and white victims," ante, at 3, and that the Georgia Supreme Court should have "looked outside the universe of cases in which the jury imposed a death sentence," ante, at 4-5. But he once again fails to acknowledge that the Court considered and rejected similar arguments in McCleskey, see 481 U. S., at 306-319. The McCleskey Court considered whether a study based on Georgia's application of the death penalty in the 1970's showed a "major systemic defec[t]" in sentencing that correlates with race. Id., at 313 (internal quotation marks omitted). And although that study found that the death penalty was imposed more often when a black defendant murdered a white victim than when a white defendant murdered a black victim, id., at 286, the Court concluded that the study "[a]t most ... indicate[d] a discrepancy that appears to correlate with race," id., at 312. According to the Court, "[a]pparent discrepancies are an inevitable part of our criminal justice system," ibid., and there are other aspects of Georgia's discretionary scheme that could explain the apparent discrepancy, id., at 311-313. The study did not "demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process." Id., at 313.

     The McCleskey Court also considered the universe of cases included in the Georgia Supreme Court's proportionality analysis and held that "absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, [a defendant] cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty." Id., at 306-307 (emphasis in original). The Court in Gregg also considered the issue and held that Georgia's scheme would not be ineffective even if, in practice, the Georgia Supreme Court did not consider "nonappealed capital convictions where a life sentence is imposed and cases involving homicides where a capital conviction is not obtained." 428 U. S., at 204, n. 56 (joint opinion of Stewart, Powell, and Stevens, JJ.).² As a result, to the extent that Justice Stevens suggests that the Court's precedent requires consideration of cases where the death penalty was not imposed, he is simply wrong.

     Justice Stevens' disagreement with this Court's death penalty precedents formed the basis for his dissent from the Court's decision in McCleskey and his concurrence in Pulley, and he stands by those decisions in his statement today. But McCleskey, Pulley, Zant, and Gregg remain the law. Because the Georgia Supreme Court applied them faithfully and without any error, I concur in the denial of certiorari.

FOOTNOTES

 The salient aspects of Georgia's capital sentencing scheme have changed little since we evaluated them in Gregg and Zant. By statute, the State must prove at least one of an enumerated list of aggravating circumstances for an offense to be death eligible. Ga. Code Ann. §17-10-30(b) (2008). The jury then has complete discretion to weigh all aggravating and mitigating factors in determining the sentence. Georgia law requires the State Supreme Court to review each death sentence to determine whether it "was imposed under the influence of passion, prejudice, or any other arbitrary factor" and whether it "is excessive or disproportionate to the penalty imposed in similar cases." §17-10-35(c). The trial court must in each case transmit the entire record and transcript, along with a special report prepared by the trial judge, to facilitate appellate review. §17-10-35(a).

 Justice Thomas states that the Georgia Supreme Court in fact "considered a life sentence in its proportionality review" by examining the sentence of petitioner's accomplice. Post, at 6, n. 2. As the concurring opinion elsewhere notes, however, the accomplice "was ineligible for the death penalty because he was adjudged mentally retarded." Post, at 3. Because petitioner's accomplice is not a "similarly situated defendant," his life sentence does not provide a meaningful point of comparison.

 Moreover, even the conclusory review that the Georgia Supreme Court actually undertook was erroneous because it failed to use reasonable comparators. Had the court attended to the facts of the cases cited in the appendix, it would have noted that in almost 30 percent of them the defendant was convicted of two homicides, in contrast to the single homicide for which petitioner was convicted. See Franks v. State, 278 Ga. 246, 599 S. E. 2d 134 (2004); Sealey v. State, 277 Ga. 617, 593 S. E. 2d 335 (2004); Arevalo v. State, 275 Ga. 392, 567 S. E. 2d 303 (2002); Raheem v. State, 275 Ga. 87, 560 S. E. 2d 680 (2002); DeYoung v. State, 268 Ga. 780, 493 S. E. 2d 157 (1997); Ferrell v. State, 261 Ga. 115, 401 S. E. 2d 741 (1991). The court's reliance on such dissimilar comparators further undermines the risk-reducing function served by its review.

 Justice Thomas suggests that the Court in McCleskey "endorsed" precisely the same proportionality review undertaken by the Georgia Supreme Court in this case. Post, at 1. Notably, McCleskey did not challenge the scope of the state court's proportionality review. See Brief for Respondent in McCleskey v. Kemp, O. T. 1986, No. 84-6811, p. 29. It is thus unsurprising that this Court's brief discussion of the state court's review did not recognize or revisit our observation in Zant v. Stephens, 462 U. S. 862 (1983), regarding the usual content of that review; indeed, that portion of the Court's discussion does not acknowledge Zant at all. See 481 U. S., at 306. I hesitate to read into McCleskey this Court's endorsement of the Georgia Supreme Court's abridged proportionality review when that issue was neither briefed by the parties nor thoroughly considered by the Court.

FOOTNOTES

 Justice Stevens accuses the Georgia Supreme Court in this case of engaging in "utterly perfunctory review" because it included "a string citation of 21 cases in which the jury imposed a death sentence" and "ma[de] no reference to the facts of those cases or to the aggravating circumstances found by the jury." Ante, at 4. The accusation is entirely without foundation. The proportionality review upheld by this Court in McCleskey also contained a string citation of cases that failed to include the detailed discussion of each case's specific facts that Justice Stevens suggests is somehow required by the Constitution. See McCleskey v. State, 245 Ga. 108, 116-117, 263 S. E. 2d 146, 152 (1980). The only difference between the string citation here and the string citation approved by this Court in McCleskey is that the citation here reflects an examination of at least 50% more cases.

 In Gregg, 428 U. S., at 204, n. 56, the Court noted that the Georgia Supreme Court "has the authority to consider such cases" involving "nonappealed capital convictions where a life sentence is imposed and cases involving homicides where a capital conviction is not obtained" and that it "does consider appealed murder cases where a life sentence has been imposed." Petitioner contends, and Justice Stevens accepts, that the Georgia Supreme Court no longer considers murder cases where a life sentence has been imposed based on a law review note that studied the proportionality review conducted in 55 capital cases reviewed by the Georgia Supreme Court between 1994 and 2004. Ante, at 7; Pet. for Cert. 23 (citing Note, Reviewing the Georgia Supreme Court's Efforts at Proportionality Review, 39 Ga. L. Rev. 631 (2005)). But petitioner and Justice Stevens do not point to any statement from the Georgia Supreme Court that such cases are no longer considered and there is no reason to believe that the court has changed its practice simply because its decisions do not explicitly cite to cases involving life sentences. See Pulley v. Harris, 465 U. S., 37, 48, n. 8 (1984) ("[T]he fact that . . . [a] court was not explicit about comparative review does not mean none was undertaken"). Moreover, in this case, the Georgia Supreme Court considered a life sentence in its proportionality review as it explicitly evaluated whether the sentence given Griffin for the same murder made petitioner's death sentence disproportionate.