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Photos of execution were recently reprinted in the St. Petersburg Times 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 exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is “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 percent of white-victim crimes and 14 percent of blackvictim crimes, a difference of 139 percent in the rate of imposition of the death penalty. In other words, just under 59 percent almost six in ten 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 sixpercentage point difference in the rate at which capital punishment is imposed. Since death is imposed in eleven percent of all white-victim cases, the rate in comparably aggravated black-victim cases is five percent. The rate of capital sentencing in a white-victim case is thus 120 percent greater than the rate in a black-victim case. Put another way, over half 55 percent -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 eleven times greater than the rate for blackvictim cases. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than seven times the rate of whites who kill blacks. In addition, prosecutors seek the death penalty for 70 percent of black defendants with white victims, but for only 15 percent of black defendants with black victims, and only 19 percent of white defendants with black victims. Since our decision upholding the Georgia capitalsentencing 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 percent of Georgia homicides involved black defendants and white victims, while 60.7 percent involved black victims. 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 “The 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, “It 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, 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. 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, indicate 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. 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 two nor more than 20 years. The rape of THE TEXAS OBSERVER 11