Two Justices Clash Over Race and Death Penalty

John Paul Stevens
John Paul Stevens (Melina Mara/twp - Twp)
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By Jerry Markon
Washington Post Staff Writer
Tuesday, October 21, 2008

The sensitive issue of race and the death penalty triggered an unusual public debate yesterday between two Supreme Court justices.

In respectful but pointed language, Justices John Paul Stevens and Clarence Thomas clashed over whether race could have influenced the imposition of the death sentence for Artemus Rick Walker, a black Georgia man convicted of killing a white bank vice president. The court rejects hundreds of cases each year, mostly without comment, and yesterday it declined to hear Walker's appeal.

Stevens did not dissent from that decision. But he issued an eight-page statement saying he found the case "troubling" because it "involves a black defendant and a white victim." Stevens criticized the Georgia Supreme Court, saying it carried out "an utterly perfunctory review" to ensure that racial disparities were not a factor in Walker's sentence.

"The Georgia Supreme Court . . . must take seriously its obligation to safeguard against the imposition of death sentences that are arbitrary or infected by impermissible considerations such as race," wrote Stevens, a leader of the court's liberal wing who said this year that he thinks that capital punishment is unconstitutional.

Thomas, a conservative and the only African American justice, defended Georgia's handling of the case and disputed Stevens's contention that the state's courts were required to review similar cases to guard against racial and other disparities.

"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," Thomas wrote in a seven-page statement concurring with the rejection of the case. His first sentence said Walker had "brutally murdered" the banker, Lynwood Ray Gresham.

Gresham was stabbed 12 times in his yard in 1999 after Walker lured him outside, court records show. Walker then tried to get inside the house, but Gresham's wife called police. Walker's execution date has not been set, and his attorneys said he has several more rounds of appeals.

Death penalty experts said the dispute reflects the increasing division in the court over capital punishment. The justices this year upheld lethal injection, a method of execution used by nearly all states, but they have clashed over decisions rejecting the death penalty for child rapists and juveniles.

"You have one justice saying Georgia has done everything fine and another saying they have been very derelict in their duties. These are not just shades of difference," said Richard Dieter, executive director of the Death Penalty Information Center. He said the justices might be preparing to review whether the death penalty is being applied in a discriminatory way, an issue the court has not taken up for two decades.

A variety of studies have concluded that criminals are more likely to be sentenced to death if they kill white people than if they kill someone from another race.

In his statement yesterday, Stevens said Walker's failure to raise in state courts constitutional claims of arbitrariness and discrimination in his sentence "provides a legitimate basis" for the court's rejection of his appeal. The justice emphasized that the denial sets no precedent.

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