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

THOMAS, J., concurring 

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 

JUSTICE THOMAS, concurring in the denial of the petition of certiorari. 

Petitioner brutally murdered Lynwood Ray Gresham, 

and was sentenced to death for his crime. JUSTICE 

STEVENS objects to the proportionality review undertaken

by the Georgia Supreme Court on direct review of petitioner’s capital sentence. The Georgia Supreme Court,

however, afforded petitioner’s sentence precisely the same

proportionality review endorsed by this Court in 

McCleskey v. Kemp, 481 U. S. 279 (1987); Pulley v. Harris, 

465 U. S. 37 (1984); Zant v. Stephens, 462 U. S. 862 

(1983); and Gregg v. Georgia, 428 U. S. 153 (1976), and 

described in Pulley as a “safeguard against arbitrary or 

capricious sentencing” additional to that which is constitutionally required, Pulley, supra, at 45. Because the Georgia Supreme Court made no error in applying its statutorily required proportionality review in this case, I concur 

in the denial of certiorari. 

In May 1999, petitioner recruited Gary Lee Griffin to

help him “rob and kill a rich white man” and “take the 

money, take the jewels.” Pet. for Cert. 5 (internal quotation marks omitted); 282 Ga. 774, 774–775, 653 S. E. 2d 

439, 443, (2007). Petitioner and Griffin packed two bicycles in a borrowed car, dressed in black, and took a knife 

and stun gun to Gresham’s house. Petitioner lured 

Gresham outside, Pet. for Cert. 5, stabbed him 12 times in 

the chest and back, and dragged him to the side of the 

house to die, 282 Ga., at 775, 653 S. E. 2d, at 443. Griffin 

found Gresham’s wallet and house keys and gave the keys 
2 WALKER v. GEORGIA 

THOMAS, J., concurring 

to petitioner, who said he had “‘one more to kill.’” Ibid. 

However, because Mrs. Gresham and her daughter had

been inside their house and had locked the door with chain 

and foot locks, petitioner did not succeed. The two men 

then fled the scene on their bicycles. Both were arrested 

within hours; petitioner was found with Gresham’s blood 

on his clothes and Gresham’s keys in his pocket. The 

knife used in the attack and a pistol were discovered 

nearby. Ibid. 

Petitioner was charged with malice murder, felony 

murder, armed robbery, aggravated assault, attempted

burglary, and possession of a firearm by a convicted felon. 

Id., at 774, n. 1, 653 S. E. 2d, at 442, n. 1. A jury found 

him guilty on all charges and recommended the death 

penalty. Ibid. In particular, the jury unanimously found 

five aggravating factors: that the murder was committed

while petitioner was engaged in an armed robbery; that 

the murder was committed for the purpose of receiving 

money or a thing of monetary value; that the murder

involved torture; that the murder involved aggravated

battery; and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. Id., at 781, 653 S. E. 2d, at 447. The trial 

court agreed with the jury’s recommendation and imposed

a sentence of death for the malice-murder conviction. The 

court also imposed a life sentence for armed robbery and 

consecutive sentences of 20, 10, and 5 years for the remaining convictions. Id., at 774, n. 1, 653 S. E. 2d, at 442, 

n. 1. 

On direct appeal, the Georgia Supreme Court reviewed

each statutory aggravating circumstance supporting the 

death sentence, see Ga. Code Ann. §17–10–35(c)(2) (2008),

and struck two of them—murder involving torture and 

murder involving aggravated battery—because they varied from the applicable statutory language, 282 Ga., at

781, 653 S. E. 2d, at 447; Ga. Code Ann. §17–10–30(b)(7). 
Cite as: 555 U. S. ____ (2008) 3 

THOMAS, J., concurring 

With three valid statutory aggravating factors remaining 

and the full weight of the evidence supporting petitioner’s 

conviction, the Georgia Supreme Court found that petitioner was eligible for the death sentence under state law. 

The Georgia Supreme Court then reviewed petitioner’s

death sentence to determine whether it was “excessive or 

disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant.” Ga. Code

Ann. §17–10–35(c)(3). The court first determined that the 

life sentence imposed on Griffin for the same murder did 

not render petitioner’s death sentence disproportionate. 

Petitioner was more culpable for the murder, and Griffin 

was ineligible for the death penalty because he was adjudged mentally retarded. Id., at 782, 653 S. E. 2d, 447. 

The Georgia Supreme Court then examined 21 cases in 

which a defendant received the death penalty for a “deliberate plan to kill and killing for the purpose of receiving 

something of monetary value.” Ibid., 653 S. E. 2d, 448. 

After reviewing these cases, the court concluded that

petitioner’s death sentence was proportional to other 

death sentences imposed in Georgia and affirmed. Ibid. 

There is nothing constitutionally defective about the 

Georgia Supreme Court’s determination. Proportionality

review is not constitutionally required in any form. Georgia simply has elected, as a matter of state law, to provide 

an additional protection for capital defendants. Pulley, 

465 U. S., at 45. In Pulley, the Court considered the history of Georgia’s capital sentencing scheme and dismissed 

JUSTICE STEVENS’ assertion that the constitutionality of 

Georgia’s scheme had rested on its willingness to conduct 

proportionality review. Id., at 44–46, 50; id., at 58–59 

(STEVENS, J., concurring in part and concurring in judgment). The Court explained that, although it may have 

emphasized the role of proportionality review as “an additional safeguard against arbitrarily imposed death sentences” in Gregg, supra, and Zant, supra, it had never held 
4 WALKER v. GEORGIA 

THOMAS, J., concurring 

that “without comparative proportionality review the

[Georgia] statute would be unconstitutional.” Pulley, 

supra, at 50. JUSTICE STEVENS acknowledged in his Pulley concurrence that his interpretation of Gregg and Zant 

differed from the Court’s. 465 U. S., at 54. He continues 

to adhere to his distinctive interpretation of Gregg and 

Zant today, ante, at 2–3, 6, and questions whether the 

Georgia scheme as currently administered provides the 

additional review that he believes is constitutionally 

required. But, under this Court’s precedents, Georgia is

not required to provide any proportionality review at all. 

Having elected to provide the additional protection of 

proportionality review, there can be no question that the

way in which the Georgia Supreme Court administered

that review in this case raised no constitutional issue. 

The State’s proportionality review was lauded in Gregg as 

a protective measure that would ensure that “[i]f a time 

comes when juries generally do not impose the death

sentence in a certain kind of murder case, . . . no defendant convicted under such circumstances will suffer a 

sentence of death” because there will be no comparable 

cases to support a finding of proportionality. 428 U. S., at 

206 (joint opinion of Stewart, Powell, and STEVENS, JJ.).

Then, in McCleskey, 481 U. S., at 306, this Court upheld 

the proportionality review conducted by the Georgia Supreme Court and recognized that the Georgia court’s

conclusion was supported by “an appendix containing

citations to 13 cases involving generally similar murders.’’1 

—————— 

1 JUSTICE STEVENS accuses the Georgia Supreme Court in this case of

engaging in “utterly perfunctory review” because it included “a string

citation of 21 cases in which the jury imposed a death sentence” and

“ma[de] no reference to the facts of those cases or to the aggravating 

circumstances found by the jury.” Ante, at 4. The accusation is entirely 

without foundation. The proportionality review upheld by this Court in 

McCleskey also contained a string citation of cases that failed to include 

the detailed discussion of each case’s specific facts that JUSTICE 
Cite as: 555 U. S. ____ (2008) 5 

THOMAS, J., concurring 

In McCleskey, as here, the trial court followed the jury’s

recommendation and imposed a death sentence for a black

defendant who murdered a white victim during an armed 

robbery. Id., at 283–285; 282 Ga., at 774, 653 S. E. 2d at 

442. 

JUSTICE STEVENS nevertheless asserts that there is a 

“special risk of arbitrariness in cases that involve black 

defendants and white victims,” ante, at 3, and that the 

Georgia Supreme Court should have “looked outside the 

universe of cases in which the jury imposed a death sentence,” ante, at 4–5. But he once again fails to acknowledge that the Court considered and rejected similar arguments in McCleskey, see 481 U. S., at 306–319. The 

McCleskey Court considered whether a study based on

Georgia’s application of the death penalty in the 1970’s

showed a “major systemic defec[t]” in sentencing that

correlates with race. Id., at 313 (internal quotation marks 

omitted). And although that study found that the death 

penalty was imposed more often when a black defendant 

murdered a white victim than when a white defendant 

murdered a black victim, id., at 286, the Court concluded 

that the study “[a]t most . . . indicate[d] a discrepancy that

appears to correlate with race,” id., at 312. According to

the Court, “[a]pparent discrepancies are an inevitable part 

of our criminal justice system,” ibid., and there are other 

aspects of Georgia’s discretionary scheme that could explain the apparent discrepancy, id., at 311–313. The 

study did not “demonstrate a constitutionally significant

risk of racial bias affecting the Georgia capital sentencing

process.” Id., at 313. 

—————— 

STEVENS suggests is somehow required by the Constitution. See 

McCleskey v. State, 245 Ga. 108, 116–117, 263 S. E. 2d 146, 152 (1980). 

The only difference between the string citation here and the string 

citation approved by this Court in McCleskey is that the citation here 

reflects an examination of at least 50% more cases. 
6 WALKER v. GEORGIA 

THOMAS, J., concurring

 The McCleskey Court also considered the universe of 

cases included in the Georgia Supreme Court’s proportionality analysis and held that “absent a showing that the

Georgia capital punishment system operates in an arbitrary and capricious manner, [a defendant] cannot prove a

constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the 

death penalty.” Id., at 306–307 (emphasis in original).

The Court in Gregg also considered the issue and held that 

Georgia’s scheme would not be ineffective even if, in practice, the Georgia Supreme Court did not consider “nonappealed capital convictions where a life sentence is imposed 

and cases involving homicides where a capital conviction

is not obtained.” 428 U. S., at 204, n. 56 (joint opinion of

Stewart, Powell, and STEVENS, JJ.).2 As a result, to the 

extent that JUSTICE STEVENS suggests that the Court’s 

—————— 

2 In Gregg, 428 U. S., at 204, n. 56, the Court noted that the Georgia 

Supreme Court “has the authority to consider such cases” involving

“nonappealed capital convictions where a life sentence is imposed and

cases involving homicides where a capital conviction is not obtained”

and that it “does consider appealed murder cases where a life sentence

has been imposed.” Petitioner contends, and JUSTICE STEVENS accepts,

that the Georgia Supreme Court no longer considers murder cases 

where a life sentence has been imposed based on a law review note that 

studied the proportionality review conducted in 55 capital cases reviewed by the Georgia Supreme Court between 1994 and 2004. Ante, at 

7; Pet. for Cert. 23 (citing Note, Reviewing the Georgia Supreme 

Court’s Efforts at Proportionality Review, 39 Ga. L. Rev. 631 (2005)).

But petitioner and JUSTICE STEVENS do not point to any statement from

the Georgia Supreme Court that such cases are no longer considered 

and there is no reason to believe that the court has changed its practice

simply because its decisions do not explicitly cite to cases involving life 

sentences. See Pulley v. Harris, 465 U. S., 37, 48, n. 8 (1984) (“[T]he 

fact that . . . [a] court was not explicit about comparative review does

not mean none was undertaken”). Moreover, in this case, the Georgia

Supreme Court considered a life sentence in its proportionality review 

as it explicitly evaluated whether the sentence given Griffin for the 

same murder made petitioner’s death sentence disproportionate. 
Cite as: 555 U. S. ____ (2008) 7 

THOMAS, J., concurring 

precedent requires consideration of cases where the death 

penalty was not imposed, he is simply wrong. 

JUSTICE STEVENS’ disagreement with this Court’s death

penalty precedents formed the basis for his dissent from 

the Court’s decision in McCleskey and his concurrence in 

Pulley, and he stands by those decisions in his statement 

today. But McCleskey, Pulley, Zant, and Gregg remain the 

law. Because the Georgia Supreme Court applied them 

faithfully and without any error, I concur in the denial of 

certiorari.