Inferring and Explaining

125 supporter of its constitutionality, fnally decided at the very end of his career that no amount of procedural tinkering could ever elevate capital sentences to the high standards imposed by the Eighth Amendment. It is virtually self evident to me now that no combi- nation of procedural rules or substantive regulations ever can save the death penalty from its inherent con- stitutional defciencies. Te basic question—does the system accurately and consistently determine which defendants “deserve” to die?—cannot be answered in the afrmative. His eloquent and impassioned dissent from the Court’s denial of certiorari is doomed to be just a footnote in the history of capital punishment. But he does state a succinct and clear expla- nation of the Constitution’s language and the Court’s precedent. t 0 . The death penalty must be imposed fairly and with reasonable consistency or not at all. I amclaiming that t 0 is the best explanation of the abstract intentions of the authors of the Bill of Rights, the authors of the FourteenthAmend- ment, and the emerging body of constitutional law developed over the past two hundred years. Tose of you who disagree with me—and I cer- tainly realize that many of you will—have an obligation to articulate an interpretive theory you believe better explains all this. It is a chal- lenge that I invite you to undertake. I remain hopeful once you have tried to fnd a better rival, the controversial nature of the constitutional text with which we have been dealing. Statistics and the Death Penalty I want now to continue with my case against the death penalty by arguing that both fairness and reasonable consistency are demonstrably absent. My argument to this efect will depend on the analysis of statistical evidence. I take it that legal historians would agree with me that capital punishment has, in the past, been applied in a manner that was clearly discriminatory. We would like to think, how- ever, that we have made some progress in the area of racial justice. Tat is why the following data are so disappointing. Professor Baldus examined more than 2,400 homicide cases in the state of Georgia during the period between 1974 and 1979. Te dates are sig- nifcant because the Georgiamurder stature had been rewritten afer Furman v. Georgia in order that death sentences not be administered in a “random and capricious manner.” Here’s a brief summary of what Professor Baldus discovered: CaPItal PunIshment and the ConstItutIon race Death Sentence percentage KIller/vIctIm Black/white 50 of 223 22% White/white 58 of 748 8% Black/black 18 of 1443 1% whIte/BlacK Total by victim 2 of 60 3% White 108 of 981 11% Black 20 of 1503 1% you will come to agree with me that t 0 is the most plausible. Unfortunately, we may end up Te original Baldus study controlled for more disagreeing but that is hardly surprising given than two hundred nonracial variables such as