Justices’ Use of Statistics Baffles Experts

The Supreme Court’s two most important rulings this year have turned on statistics, but with opposite results, leaving many legal observers expressing confusion Thursday about the seeming disparity.

In its most powerful endorsement of affirmative action, the high court concluded last month that statistics alone can justify promoting a woman over a better qualified man, despite federal laws prohibiting discrimination against “any individual” based on sex.

In a case involving the promotion of a woman employed in Santa Clara County, the court found that the fact that no women held any of 238 “skilled craft jobs” in a county department demonstrated a “manifest imbalance” that justified favoritism, even if no sex discrimination was proved.

Seeks Harder ‘Proof’

But this week, the high court concluded that statistics suggesting that race is a factor in who gets the death penalty are “clearly insufficient” to cast doubt on Georgia’s system of capital punishment. Rather, courts must look at each individual case to find “proof” of “purposeful discrimination,” said Justice Lewis F. Powell Jr.

Both liberal and conservative attorneys described the court’s approach as “confusing” and “illogical.”

“It makes no sense at all,” said William Robinson, executive director of the Lawyers Committee for Civil Rights Under the Law, who filed briefs in both cases. “The Baldus study (on racial bias in death sentences) was the most compelling and comprehensive analysis you could imagine, but they decided to ignore it. They didn’t want to look at the system as a whole.”

Baldus, a University of Iowa professor, presented the court with computer analyses of more than 2,000 murder cases in Georgia. The analyses showed that the murderers were 11 times more likely to get a death sentence if the victim was white rather than black.

No Evidence, State Argues

The state did not dispute the statistics, but argued there was no evidence of discrimination.

By contrast, in the affirmative action case, in which the court placed great weight on the job statistics cited, the losing attorney complained that the numbers did not accurately represent the employment situation in the county transportation department. He charged that the high court ignored evidence that the job in question was clerical, not a “skilled craft” job akin to operating heavy equipment.

“We presented evidence that this was a misclassification in the job category, because after all, women had eight of 10 of the clerical jobs,” said James Dawson, a lawyer in San Jose.

“In the death penalty case, the court seemed to say these are good figures, but so what?” Dawson said. “In our case, they knew they were not good figures, but so what?”

Experts Stress Uniqueness

Other legal experts stressed that judges by nature want their decision to be based on facts in the individual case before them, not on general evidence outside the realm of the particular case. As several legal commentators stressed, the Georgia death penalty case involved a policeman’s killer whose guilt was unchallenged.

“They are very squeamish about using this kind of (statistical) evidence,” said University of Michigan law professor Yale Kamesar. “There are studies showing all kinds of things, and they don’t want to be accused of relying on some professor,” he said.

University of Chicago law professor Hans Zeisel, a pioneer in the use of statistical data in court cases, said Wednesday’s high court ruling “shows the majority of them like the death penalty. That’s the true and honest answer.”

Wary of Public Opinion?

Many studies have indicated that race is a profound factor in who gets a death sentence, but the court does not want to tamper with the popular belief that murderers should be executed, Zeisel said.

Powell said as much in his court opinion. Legislatures, not courts, “must determine the appropriate punishment for particular crimes.” So too must legislatures “evaluate the results of statistical studies” that call into question the fairness of the system, he said.

Moreover, if the high court used such studies to throw out the death penalty, “there is no logical reason,” Powell said, for not doing the same in other areas if studies find that “irrelevant factors” such as race, sex or even the “physical attractiveness” of the defendant have an effect on the harshness of his punishment.

The court’s liberal dissenters derided this as a “disturbing” conclusion. “Taken on its face, such a statement seems to suggest a fear of too much justice,” Justice William J. Brennan Jr. complained.