Stephens v. State

• Decision Date: 30 March 1995
• Docket Number: No. S94A1854,S94A1854
• Citation: 265 Ga. 356,456 S.E.2d 560
• Parties: STEPHENS v. The STATE.
• Court: Georgia Supreme Court

Page 560

456 S.E.2d 560

265 Ga. 356

STEPHENS v. The STATE.

No. S94A1854.

Supreme Court of Georgia.

March 30, 1995.

Concurring Opinion of Justice Carley April 21, 1995.

Reconsideration Denied April 21, 1995.

Daniel A. Summer, Summer & Summer, Gainesville, Thomas J. Killeen, University of Georgia School of Law, Prisoner Legal Counsel Project, Athens, for Stephens.

Lydia J. Sartain, Dist. Atty., Gainesville, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

Paula K. Smith, Asst. Atty. Gen., Dept. of Law, Atlanta, Thomas A. Gump, Asst. Dist. Atty., Gainesville, for State.

Joseph L. Chambers, Sr., Pros. Attys. Council, Glen Hollingshed, Smyrna, for other interested parties.

John R. Martin, Martin Brothers, P.C., Atlanta, for amicus appellant.

Walt M. Britt, Chandler & Britt, Buford, Nicholas A. Lotito, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta.

FLETCHER, Justice.

Freddie Stephens challenges the constitutionality of OCGA § 16-13-30(d), which provides for life imprisonment on the second conviction of the sale or possession with intent to distribute a controlled substance. He contends that the provision as applied is irrational and racially discriminatory in violation of the United States and Georgia Constitutions. The trial court denied his constitutional challenge and sentenced Stephens to two life sentences based on his conviction on two counts of violating the Georgia Controlled Substances Act by selling cocaine. We hold that OCGA § 16-13-30(d) does not violate the due process or equal protection clauses of the Federal or State Constitutions based on the statistical evidence that Stephens presents and affirm.

1. The challenged statute states:

(d) Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to a controlled substance in Schedule I or a narcotic drug in Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he shall be imprisoned for life.

OCGA § 16-13-30. Subsection (b) makes it unlawful to "manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance." For a defendant to receive a life sentence for a second conviction, the state must notify the defendant prior to trial that it intends to seek the enhanced punishment based on past convictions. See Mays v. State, 262 Ga. 90, 91-92, 414 S.E.2d 481 (1992); OCGA § 17-10-2.

Stephens contends that the statute as applied discriminates on the basis of race. He argues that this court should infer discriminatory intent from statewide and county-wide statistical data on sentences for drug offenders. In Hall County, where Stephens was convicted, the trial court found that one hundred percent (14 of 14) of the persons serving a life sentence under OCGA § 16-13-30(d) are African-American, although African-Americans make up less than ten percent of the county population and approximately fifty to sixty percent of the persons arrested in drug investigations. Relying on evidence provided by the State Board of Pardons and Paroles, the trial court also found that 98.4 percent (369 of 375) of the persons serving life sentences for drug offenses as of May 1, 1994 were African-American, although African-Americans comprise only 27 percent of the state's population. Finally, a 1994 Georgia Department of Corrections study on the persons eligible for a life sentence under subsection (d) shows that less than one percent (1 of 168) of the whites sentenced for two or more convictions for drug sales are serving a life sentence, compared to 16.6 percent (202 of 1219) of the blacks.

In an earlier challenge to death penalty sentencing in Georgia based on statistics showing that persons who murder whites are more likely to be sentenced to death than persons who murder blacks, the United States Supreme Court held that the defendant had the burden of proving the existence of purposeful discrimination and its discriminatory effect on him. McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); see State v. Agan, 259 Ga. 541, 548, 384 S.E.2d 863 (1989), cert. denied, 494 U.S. 1057, 110 S.Ct. 1526, 108 L.Ed.2d 765 (1990); State v. Causey, 246 Ga. 735, 737, 273 S.E.2d 6 (1980). "Thus, to prevail under the Equal Protection Clause, [the defendant] must prove that the decision-makers in his case acted with discriminatory purpose." McCleskey, 481 U.S. at 292, 107 S.Ct. at 1767.

Relying on McCleskey, this court has held that the mandatory life sentence of OCGA § 16-13-30(d) is constitutional as applied. See Cain v. State, 262 Ga. 598, 422 S.E.2d 535 (1992). In Cain, we rejected statistics, articles, and charts showing blacks are more likely to be imprisoned for drug offenses than are whites because the statistical evidence failed to prove an essential element to a selective prosecution case--"that the prosecution engaged in a deliberative selective process of enforcement based on race." Id. at 599, 422 S.E.2d 535. Similarly, we held in two other cases that there was insufficient evidence of selective enforcement against blacks to meet the standard of intentional discrimination. See Hall v. State, 262 Ga. 596, 597, 422 S.E.2d 533 (1992) (relying on standard announced in Causey), cert. denied, 507 U.S. 1055, 113 S.Ct. 1956, 123 L.Ed.2d 660 (1993); Hailey v. State, 263 Ga. 210, 429 S.E.2d 917 (1993) (same standard applied to case from Hall County), cert. denied, 510 U.S. 1048, 114 S.Ct. 700, 126 L.Ed.2d 667 (1994).

Stephens concedes that he cannot prove any discriminatory intent by the Georgia General Assembly in enacting the law or by the Hall County district attorney in choosing to seek life imprisonment in this case. His attorney stated at the sentencing hearing: "I cannot prove and I do not feel there is any evidence to show that the district attorney's office is exercising their prosecutorial discretion in a discriminatory manner ... [and] I don't think I can demonstrate the legislature acted with discriminatory intent in enacting this code section." ¹ These concessions preclude this court from finding an equal protection violation under the United States Constitution. See McCleskey, 481 U.S. at 292, 107 S.Ct. at 1767; Cain, 262 Ga. at 599, 422 S.E.2d 535.

2. We also conclude that the statistical evidence Stephens presents is insufficient evidence to support his claim of an equal protection violation under the Georgia Constitution. Stephens fails to present the critical evidence by race concerning the number of persons eligible for life sentences under OCGA § 16-13-30(d) in Hall County, but against whom the district attorney has failed to seek the aggravated sentence. Because the district attorney in each judicial circuit exercises discretion in determining when to seek a sentence of life imprisonment, a defendant must present some evidence addressing whether the prosecutor handling a particular case engaged in selective prosecution to prove a state equal protection violation. As the trial court found, Stephens failed to present any evidence of selective prosecution in pursuing an enhanced sentence.

Stephens' argument about inferring intent from the statistical evidence also ignores that other factors besides race may explain the sentencing disparity. Absent from the statistical analysis is a consideration of relevant factors such as the charges brought, concurrent offenses, prior offenses and sentences, representation by retained or appointed counsel, existence of a guilty plea, circuit where convicted, and the defendant's legal status on probation, in prison, or on parole. Without more adequate information about what is happening both statewide and in Hall County, we defer deciding whether statistical evidence alone can ever be sufficient to prove an allegation of discriminatory intent in sentencing under the Georgia Constitution. ²

3. The dissent argues that McCleskey v. Kemp is not the controlling precedent, instead relying on the United States Supreme Court decision on peremptory challenges in jury selections in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We must look to McCleskey for a proper analysis of the substantive issue before us, rather than Batson, because McCleskey dealt with the use of statistical evidence to challenge racial disparity in sentencing, as does this case.

The Supreme Court in McCleskey pointed out several problems in requiring a prosecutor to explain the reasons for the statistical disparity in capital sentencing decisions. Many of these same problems exist in requiring district attorneys to justify their decisions in seeking a life sentence for drug offenses based on statewide, and even county-wide, statistics of persons serving life sentences in state prisons for drug offenses.

First, "[r]equiring a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors is quite different from requiring a prosecutor to rebut a contemporaneous challenge to his own acts. See Batson v. Kentucky, 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69, supra] (1986)." McCleskey, 481 U.S. at 296 n. 17, 107 S.Ct. at 1769 n. 17. Second, statewide statistics are not reliable in determining the policy of a particular district attorney.

It is also questionable whether any consistent policy can be derived from studying the decisions of prosecutors. The District Attorney is elected by the voters in a particular county. See Ga. Const., Art. 6, *563s 8, Par. 1. Since decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations, coordination among district attorney offices across a State would be relatively meaningless. Thus, any inference from statewide statistics to a prosecutorial "policy" is of doubtful relevance.

Id....