Cite as: 555 U. S. ____ (2008) 1 

Statement of STEVENS, J. 

SUPREME COURT OF THE UNITED STATES 

ARTEMUS RICK WALKER v. GEORGIA 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 

COURT OF GEORGIA

No. 08–5385. Decided October 20, 2008 

The petition for a writ of certiorari is denied. 

 Statement of JUSTICE STEVENS respecting the denial of 

the petition for writ of certiorari. 

The question presented by the petition for certiorari is

whether Georgia’s current administration of its death

penalty violates the Eighth Amendment’s guarantee 

against arbitrariness and discrimination in capital sentencing. Specifically, petitioner charges that the Georgia 

Supreme Court has “fail[ed] to: (1) conduct meaningful 

proportionality review, and (2) enforce reporting requirements under Georgia’s capital sentencing scheme,” as is 

required to ensure that only the most culpable offenders

are put to death. Pet. for Cert. i. In its response to the

petition, the State persuasively argues that petitioner did 

not raise and litigate these claims in state court. That 

argument provides a legitimate basis for this Court’s

decision to deny review. I write separately to emphasize 

that the Court’s denial has no precedential effect, see 

Teague v. Lane, 489 U. S. 288, 296 (1989), and to note that 

petitioner’s submission is supported by our prior opinions 

evaluating the constitutionality of the Georgia statute.

Justice Stewart was the principal architect of our death

penalty jurisprudence during his tenure on the Court. In 

his separate opinion in Furman v. Georgia, 408 U. S. 238 

(1972) (per curiam), he observed that death sentences

imposed pursuant to Georgia’s capital sentencing scheme 

were “cruel and unusual in the same way that being 

struck by lightning is cruel and unusual.” Id., at 309 
2 WALKER v. GEORGIA 

Statement of STEVENS, J. 

(concurring opinion). The Georgia statute in effect at that 

time placed unfettered discretion in the hands of juries, 

resulting in the arbitrary, and often discriminatory, issuance of capital sentences. Justice Stewart concluded that 

the Eighth Amendment cannot tolerate the infliction of a 

death sentence under a legal system that permits this

unique penalty to be wantonly and freakishly imposed. 

Id., at 310. 

The Georgia Legislature amended its capital sentencing

scheme after Furman, and a challenge to the new scheme

reached this Court in Gregg v. Georgia, 428 U. S. 153 

(1976). Our decision in that case to uphold the later enacted statute was founded on an understanding that the

new procedures the statute prescribed would protect 

against the imposition of death sentences influenced by 

impermissible factors such as race. Among the new procedures was a requirement that the Georgia Supreme Court 

“compar[e] each death sentence with the sentences imposed on similarly situated defendants to ensure that the 

sentence of death in a particular case is not disproportionate.” Id., at 198 (joint opinion of Stewart, Powell, and 

STEVENS, JJ.). We assumed that the court would consider 

whether there were “similarly situated defendants” who 

had not been put to death because that inquiry is an essential part of any meaningful proportionality review.

That assumption was confirmed a few years later in 

Zant v. Stephens, 462 U. S. 862 (1983). The question in

that case was whether a death sentence was valid notwithstanding the jury’s reliance on an invalid aggravating 

circumstance. As in Gregg, our decision to uphold the 

sentence “depend[ed] in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme 

Court to avoid arbitrariness and to assure proportionality.” 462 U. S., at 890. In response to our certified question regarding the operation of the State’s capital sentenc-
Cite as: 555 U. S. ____ (2008) 3 

Statement of STEVENS, J. 

ing scheme, the Georgia Supreme Court expressly stated 

that its proportionality review “‘uses for comparison purposes not only similar cases in which death was imposed,

but similar cases in which death was not imposed.’” Id., 

at 880, n. 19.1 That approach seemed judicious because, 

quite obviously, a significant number of similar cases in

which death was not imposed might well provide the most

relevant evidence of arbitrariness in the sentence before 

the court. 

The opinions in another Georgia case, McCleskey v. 

Kemp, 481 U. S. 279 (1987), make it abundantly clear that

there is a special risk of arbitrariness in cases that involve 

black defendants and white victims. See also Turner v. 

Murray, 476 U. S. 28, 33–37 (1986) (plurality and majority 

opinions) (discussing the heightened risks of prejudice

that inhere in the prosecution of interracial capital offenses). Although there is some indication that those risks

have diminished over time, at least the race-of-victim 

effect persists. See Baldus & Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul

L. Rev. 1411, 1424–1426 (2004). 

It is against that backdrop that I find this case, which

involves a black defendant and a white victim, particularly 

—————— 

1The salient aspects of Georgia’s capital sentencing scheme have

changed little since we evaluated them in Gregg and Zant. By statute,

the State must prove at least one of an enumerated list of aggravating 

circumstances for an offense to be death eligible. Ga. Code Ann. §17– 

10–30(b) (2008). The jury then has complete discretion to weigh all 

aggravating and mitigating factors in determining the sentence.

Georgia law requires the State Supreme Court to review each death 

sentence to determine whether it “was imposed under the influence of

passion, prejudice, or any other arbitrary factor” and whether it “is

excessive or disproportionate to the penalty imposed in similar cases.”

§17–10–35(c). The trial court must in each case transmit the entire 

record and transcript, along with a special report prepared by the trial 

judge, to facilitate appellate review. §17–10–35(a). 
4 WALKER v. GEORGIA 

Statement of STEVENS, J. 

troubling. The State’s evidence showed that, on the night 

of the murder, petitioner and an accomplice drove to the

victim’s home. After petitioner drew the victim outside, 

the two engaged in a struggle and petitioner stabbed the 

victim 12 times. While his accomplice collected the victim’s wallet, petitioner used the victim’s keys to try to gain

access to his house, stating that he “had ‘one more to kill.’” 

When a woman inside the house yelled that she had a gun,

petitioner and his accomplice fled. 282 Ga. 774, 775, 653 

S. E. 2d 439, 443 (2007). The jury found petitioner guilty

of murder, felony murder, armed robbery, aggravated

assault, attempted burglary, and possession of a firearm

during the commission of a crime. After the penalty phase 

proceeding, the jury concluded that the State had proved 

five statutory aggravating factors (two of which the Georgia Supreme Court later found invalid, id., at 781, 653 

S. E. 2d, at 447), and it sentenced petitioner to death. 

Rather than perform a thorough proportionality review

to mitigate the heightened risks of arbitrariness and 

discrimination in this case, the Georgia Supreme Court

carried out an utterly perfunctory review. Its undertaking

consisted of a single paragraph, only the final sentence of 

which considered whether imposition of the death penalty 

in this case was proportionate as compared to the sentences imposed for similar offenses. And even then the 

court stated its review in the most conclusory terms: “The

cases cited in the Appendix support our conclusion that

[petitioner’s] punishment is not disproportionate in that

each involved a deliberate plan to kill and killing for the 

purpose of receiving something of monetary value.” Id., at 

782, 653 S. E. 2d, at 447–448. The appendix consists of a

string citation of 21 cases in which the jury imposed a 

death sentence; it makes no reference to the facts of those 

cases or to the aggravating circumstances found by the 

jury.

Had the Georgia Supreme Court looked outside the 
Cite as: 555 U. S. ____ (2008) 5 

Statement of STEVENS, J. 

universe of cases in which the jury imposed a death sentence, it would have found numerous cases involving 

offenses very similar to petitioner’s in which the jury 

imposed a sentence of life imprisonment. See, e.g., Jones 

v. State, 279 Ga. 854, 622 S. E. 2d 1 (2005); Spickler v. 

State, 276 Ga. 164, 575 S. E. 2d 482 (2003); Cross v. State, 

271 Ga. 427, 520 S. E. 2d 457 (1999); Jenkins v. State, 268 

Ga. 468, 491 S. E. 2d 54 (1997); LeMay v. State, 265 Ga. 

73, 453 S. E. 2d 737 (1995) (the circumstances of the offense are described in LeMay v. State, 264 Ga. 263, 443 

S. E. 2d 274 (1994)); Cobb v. State, 250 Ga. 1, 295 S. E. 2d 

319 (1982). If the Georgia Supreme Court had expanded

its inquiry still further, it would have discovered many 

similar cases in which the State did not even seek death. 

See, e.g., Davis v. State, 281 Ga. 871, 644 S. E. 2d 113 

(2007); Wiggins v. State, 280 Ga. 627, 632 S. E. 2d 80 

(2006); Escobar v. State, 279 Ga. 727, 620 S. E. 2d 812 

(2005); Stanley v. State, 261 Ga. 412, 405 S. E. 2d 493 

(1991). Cases in both of these categories are eminently 

relevant to the question whether a death sentence in a

given case is proportionate to the offense.2 The Georgia

Supreme Court’s failure to acknowledge these or any other 

cases outside the limited universe of cases in which the 

defendant was sentenced to death creates an unacceptable 

risk that it will overlook a sentence infected by impermissible considerations.3 

—————— 

2 JUSTICE THOMAS states that the Georgia Supreme Court in fact “considered a life sentence in its proportionality review” by examining the

sentence of petitioner’s accomplice. Post, at 6, n. 2. As the concurring

opinion elsewhere notes, however, the accomplice “was ineligible for the 

death penalty because he was adjudged mentally retarded.” Post, at 3. 

Because petitioner’s accomplice is not a “similarly situated defendant,”

his life sentence does not provide a meaningful point of comparison. 3Moreover, even the conclusory review that the Georgia Supreme

Court actually undertook was erroneous because it failed to use reasonable comparators. Had the court attended to the facts of the cases 

cited in the appendix, it would have noted that in almost 30 percent of 
6 WALKER v. GEORGIA 

Statement of STEVENS, J. 

Particularly troubling is that the shortcomings of the

Georgia Supreme Court’s review are not unique to this 

case. In the years immediately following Gregg, it was 

that court’s regular practice to include in its review cases 

that did not result in a death sentence. That practice

began to change around the time this Court decided Pulley 

v. Harris, 465 U. S. 37 (1984). We stated in that case that 

the Eighth Amendment does not require comparative 

proportionality review of every capital sentence. Id., at 

44–46; see also McCleskey, 481 U. S., at 306 (“[W]here the

statutory procedures adequately channel the sentencer’s 

discretion, such proportionality review is not constitutionally required”). But that assertion was intended to convey

our recognition of differences among the States’ capital 

schemes and the fact that we consider statutes as we find 

them, id., at 45; it was not meant to undermine our conclusion in Gregg and Zant that such review is an important component of the Georgia scheme.4 

—————— 

them the defendant was convicted of two homicides, in contrast to the 

single homicide for which petitioner was convicted. See Franks v. 

State, 278 Ga. 246, 599 S. E. 2d 134 (2004); Sealey v. State, 277 Ga. 617, 

593 S. E. 2d 335 (2004); Arevalo v. State, 275 Ga. 392, 567 S. E. 2d 303 

(2002); Raheem v. State, 275 Ga. 87, 560 S. E. 2d 680 (2002); DeYoung 

v. State, 268 Ga. 780, 493 S. E. 2d 157 (1997); Ferrell v. State, 261 Ga. 

115, 401 S. E. 2d 741 (1991). The court’s reliance on such dissimilar 

comparators further undermines the risk-reducing function served by

its review. 

4 JUSTICE THOMAS suggests that the Court in McCleskey “endorsed” 

precisely the same proportionality review undertaken by the Georgia 

Supreme Court in this case. Post, at 1. Notably, McCleskey did not

challenge the scope of the state court’s proportionality review. See 

Brief for Respondent in McCleskey v. Kemp, O. T. 1986, No. 84–6811, 

p. 29. It is thus unsurprising that this Court’s brief discussion of the 

state court’s review did not recognize or revisit our observation in Zant 

v. Stephens, 462 U. S. 862 (1983), regarding the usual content of that 

review; indeed, that portion of the Court’s discussion does not acknowledge Zant at all. See 481 U. S., at 306. I hesitate to read into 

McCleskey this Court’s endorsement of the Georgia Supreme Court’s 

abridged proportionality review when that issue was neither briefed by 
Cite as: 555 U. S. ____ (2008) 7 

Statement of STEVENS, J. 

Since Pulley, the Georgia Supreme Court has significantly narrowed the universe of cases from which it culls 

comparators. It now appears to be the court’s practice 

never to consider cases in which the jury sentenced the

defendant to life imprisonment. See Note, 39 Ga. L. Rev. 

631, 657 (2005) (determining that in each of 55 capital

cases reviewed by the Georgia Supreme Court between 

1994 and 2004, the court exclusively considered other 

cases resulting in a death sentence). This is not the review that the Georgia Supreme Court represented to us in 

Zant. And the likely result of such a truncated review—

particularly in conjunction with the remainder of the 

Georgia scheme, which does not cabin the jury’s discretion 

in weighing aggravating and mitigating factors—is the 

arbitrary or discriminatory imposition of death sentences 

in contravention of the Eighth Amendment. 

Petitioner also notes a second failure of the Georgia 

Supreme Court’s review in this case. In all capital cases,

Georgia law requires the trial court to transmit, along 

with the entire record and transcript, a detailed report

prepared by the trial judge describing the defendant’s

history and the circumstances of the case. Ga. Code Ann. 

§17–10–35(a). Although it has previously admonished

trial courts of the necessity of complying with this rule, 

see McDaniel v. State, 271 Ga. 552, 553, 522 S. E. 2d 648, 

650 (1999), the Georgia Supreme Court in this case neglected to enforce it. This breakdown in the statutory 

process is especially troubling when viewed in light of the

other shortcomings of that court’s review. “When a defendant’s life is at stake, th[is] Court has been particularly

sensitive to insure that every safeguard is observed.” 

Gregg, 428 U. S., at 187 (joint opinion of Stewart, Powell,

and STEVENS, JJ.). The Georgia Supreme Court owes its 

capital litigants the same duty of care and must take 

—————— 

the parties nor thoroughly considered by the Court. 
8 WALKER v. GEORGIA 

Statement of STEVENS, J. 

seriously its obligation to safeguard against the imposition 

of death sentences that are arbitrary or infected by impermissible considerations such as race.