502
Stevens, J., dissenting
in McCleskey v. Kemp, 481 U. S. 279 (1987), there is strong empirical evidence that an adequate narrowing of the class of death-eligible offenders would eradicate any significant risk of bias in the imposition of the death penalty.3
Third, the Court has condemned the use of aggravating factors so vague that they actually enhance the risk that unguided discretion will control the sentencing determination. See, e. g., Maynard v. Cartwright, 486 U. S. 356 (1988) (invalidating "especially heinous, atrocious, or cruel" aggravating circumstance); Godfrey v. Georgia, 446 U. S. 420 (1980) (invalidating "outrageously or wantonly vile, horrible or inhuman" aggravating circumstance). An aggravating factor that invites a judgment as to whether a murder committed by a member of another race is especially "heinous" or "inhuman" may increase, rather than decrease, the chance of arbitrary decisionmaking, by creating room for the influence of personal prejudices. In my view, it is just such aggravating factors, which fail to cabin sentencer discretion
most all defendants convicted of forcible rape, armed robbery, and kidnaping were eligible for the death penalty. See Walton v. Arizona, 497 U. S. 639, 715 (1990) (Stevens, J., dissenting).
3 "The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder 'for whites only') and no death penalty at all, the choice mandated by the Constitution would be plain. But the Court's fear is unfounded. One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated. As Justice Brennan has demonstrated in his dissenting opinion, such a restructuring of the sentencing scheme is surely not too high a price to pay." McCleskey v. Kemp, 481 U. S. 279, 367 (1987) (Stevens, J., dissenting) (internal citation omitted).
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