[n13] Second, this Court has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964. The Court acknowledges, as it must, that the raw statistics included in the Baldus study and presented by petitioner indicate that it is much less likely that a death sentence will result from a murder of a black person than from a murder of a white person. 7 McCleskey, 481 U.S. at 308. The court concluded that McCleskey had failed to establish by a preponderance of the evidence that the data were trustworthy. See Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. It is true that every nuance of decision cannot be statistically captured, nor can any individual judgment be plumbed with absolute certainty. Under the statutes at issue in Furman, there was no basis for determining in any particular case whether the penalty was proportionate to the crime: [T]he death penalty [was] exacted with great infrequency even for the most atrocious crimes, and . Exh. Retail sales analysis, individualized sales materials, and support documentation such as artwork, strategy consulting, and inventory management are many of the services provided because we only consider ourselves successful when our clients succeeds. 1, Divs. 430 U.S. at 494. There can be no dispute that McCleskey has made the requisite showing under the first prong of the standard. NAACP Legal Defense and Educational Fund, Death Row, U.S.A. 4 (Aug. 1, 1986). But as a matter of practice, penalty hearings seem to be held only if the prosecutor affirmatively seeks the death penalty. 16-5-1(d). The Court has noted elsewhere that Georgia could not attach. Ibid. Peters v. Kiff, 407 U.S. 493, 503 (1972) (opinion of MARSHALL, J.). The Chief Justice is the senior judge of the Court and is responsible for managing the business of the Court. In dissent, Chief Justice Burger acknowledged that statistics. as Amici Curiae 19. at 61-63; Tr. There are, in fact, no exact duplicates in capital crimes and capital defendants. Nor is equal protection denied to persons convicted of crimes. Deposition in No. Post at 367. the risk that racial prejudice may [p366] have infected petitioner's capital sentencing unacceptable in light of the ease with which that risk could have been minimized. Conceived as a three-episode miniseries, Barbara's Law is one of the most . Similarly, a State must "narrow the class of murderers subject to capital punishment," Gregg v. Georgia, supra, at 196, by providing "specific and detailed guidance" to the sentencer. Biographical information follows.". These adjusted figures are only the most conservative indication of the risk that race will influence the death sentences of defendants in Georgia. The District Court "was impressed with the learning of all of the experts." it yields to sentiment in the apparent process of resolving doubts as to evidence. [n17]See Imbler v. Pachtman, 424 U.S. 409, 425-426 (1976). Enhanced willingness to impose the death sentence on black defendants, or diminished willingness to render such a sentence when blacks are victims, reflects a devaluation of the lives of black persons. But unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value. But it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey's evidence. The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law. reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is . Oyler v. Boles, 368 U.S. 448, 456 (1962). McCleskey Mausoleum Associates construction is a guarantee of the ideas from planning and design. II, p. 25 (1866) (testimony of George Tucker, Virginia attorney) ("They have not any idea of prosecuting white men for offenses against colored people; they do not appreciate the idea"); id. at 20. STEVENS, J., filed a dissenting opinion in which BLACKMUN, J., joined, post, p. 366. The files contained information only as to the evidence in the case, not any indication as to why an attorney made a particular decision. Michael Short / Special to The Chronicle 2019. A dedicated and enthusiastic sales team has the depth of experience and market knowledge to enable every clients goals to become a reality. 43.See Kerr, Bull, MacCoun, & Rathborn, Effects of victim attractiveness, care and disfigurement on the judgements of American and British mock jurors, 24 Brit.J.Social Psych. Widespread bias in the community can make a change of venue constitutionally required. implies more than intent as volition or intent as awareness of consequences. Petitioner's arguments are best presented to the legislative bodies, not the courts. . See, e.g., Spohn, Gruhl, & Welch, The Effect of Race on Sentencing: A Reexamination of an Unsettled Question, 16 Law & Soc. Since Gregg v. Georgia, 428 U.S. 153 (1976), the Court's death penalty jurisprudence has rested on the premise that it is possible to establish a system of guided discretion that will both permit individualized moral evaluation and prevent impermissible considerations from being taken into account. Id. In cases where racial discrimination in the administration of the criminal justice system is established, it has held that setting aside the conviction is the appropriate remedy. 4909 (Apr. The inherent lack of predictability of jury decisions does not justify their condemnation. View the institutional accounts that are providing access. Our books are available by subscription or purchase to libraries and institutions. 2. In Godfrey, for instance, the Court struck down the petitioner's sentence because the vagueness of the statutory definition of heinous crimes created a risk that prejudice [p324] or other impermissible influences might have infected the sentencing decision. If the prosecutor does not pursue the death penalty, a mandatory sentence of life imprisonment is imposed. In Batson v. Kentucky, supra, we rejected such reasoning: The Constitution requires . Ibid. At each of these stages, an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Pp. Onsite facility inspections of buildings, roofs, grounds and mechanicals. That is, the court assumed that the study. He testified that, during his years in the office, there were no guidelines informing the Assistant District Attorneys who handled the cases how they should proceed at any particular stage of the prosecution. Exh. See also Uniform Guidelines on Employee Selection Procedures (1978), 29 CFR 1607.4(B) (1986) (employer must keep records as to the "following races and ethnic groups: Blacks, American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanics (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), and whites (Caucasians) other than Hispanics"); U.S. Bureau of the Census, 1980 Census of the Population, Vol. Rejecting petitioner's constitutional claims, the court denied his petition insofar as it was based on the Baldus study, and the Court of Appeals affirmed the District Court's decision on this issue. Supp. I agree with the Court's observation as to the difficulty of examining the jury's decisionmaking process. The Georgia Code has been revised and renumbered since McCleskey's trial. As indicated above, the question we are addressing is whether the legislature maintains its capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. We reject JUSTICE BRENNAN's contention that this important standard for assessing the constitutionality of a death penalty should be abandoned. The only guidance given was "on-the-job training." . Yet McCleskey's case raises concerns that are central not only to the principles underlying the Eighth Amendment, but also to the principles underlying the Fourteenth Amendment. In making its decision whether to impose the death sentence, the jury considered the mitigating and aggravating circumstances of McCleskey's conduct. Race is a consideration whose influence is expressly constitutionally [p341] proscribed. found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims. [n1] As we said in Gregg v. Georgia, 428 U.S. at 200, "the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today)": a constitutional violation is established if a plaintiff demonstrates a "pattern of arbitrary and capricious sentencing." Ibid. . mccleskey loi l immigration judge. at 13, 24-25, 37-38. denied, 440 U.S. 976 (1979), it nevertheless considered the Baldus study with care. ." Then a barrister, Mr McCloskey represented senior RUC officers who unsuccessfully challenged the report. In our own country, the point is underscored by Patrick Henry's remarks in support of the adoption of a Bill of Rights: Congress, from their general powers, may fully go into business of human legislation. at 213 (testimony of J. The firm was founded in 1928 in Tahoka, Texas, by Garrett Hobert Nelson, who went on to become senator of Texas' 31st Senatorial District. Biggers valves have been installed in the heads, .030 pistons, and PB plus 4 cam kit added. . at 179. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. Corp., 429 U.S. at 267. Judges of the Court are appointed by the Governor-General by commission and may not be removed . L. R. EV. The marginal disparity based on the race of the victim tends to support the state's contention that the system is working far differently from the one which Furman [v. Georgia, 408 U.S. 238 (1972)] condemned. His views, that also are shared by JUSTICE MARSHALL, are principled, and entitled to respect. Accordingly, those issues are before us. Georgia's legacy of a race-conscious criminal justice system, as well as [p329] this Court's own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey's claim is not a fanciful product of mere statistical artifice. There is no evidence that the legislature either enacted the statute to further a racially discriminatory purpose or maintained the statute because of the racially disproportionate impact suggested by the Baldus study. Finally, where the objective indicia of community values have demonstrated a consensus that the death penalty is disproportionate as applied to a certain class of cases, we have established substantive limitations on its application. we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes. Individualized evidence relating to the disposition of the Fulton County cases that were most comparable to McCleskey's case was consistent with the evidence of the race-of-victim effect as well. The study distinguishes between those cases in which (1) the jury exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is appropriate; [n2] and (2) cases reflecting an "intermediate" level of aggravation, in which the jury has considerable discretion in choosing a sentence. The Court's explanations for its failure to apply this well-established equal protection analysis to this case are not persuasive. The Court concludes that "legitimate" explanations outweigh McCleskey's claim that his death sentence reflected a constitutionally impermissible risk of racial discrimination. When a judge used the name tabs to draw names for jury duty, a judge would "accidentally" drop yellow tabs back into the box and draw another name. Some studies indicate that physically attractive defendants receive greater leniency in sentencing than unattractive defendants, and that offenders whose victims are physically attractive receive harsher sentences than defendants with less attractive victims. 13.See, e.g., Castaneda v. Partida, 430 U.S. 482, 495 (1977) (2-to-1 disparity between Mexican-Americans in county population and those summoned for grand jury duty); Turner v. Fouche, 396 U.S. 346, 369 (1970) (1.6-to-1 disparity between blacks in county population and those on grand jury lists); Whitus v. Georgia, 385 U.S. 545, 552 (1967) (3-to-1 disparity between eligible blacks in county and blacks on grand jury venire). Year: 2015: While I join Parts I through IV-A of JUSTICE BLACKMUN's dissenting opinion discussing petitioner's Fourteenth Amendment claim, I write separately to emphasize how conclusively [p321] McCleskey has also demonstrated precisely the type of risk of irrationality in sentencing that we have consistently condemned in our Eighth Amendment jurisprudence. As a result, the Court cannot rely on the statutory safeguards in discounting McCleskey's evidence, for it is the very effectiveness of those safeguards that such evidence calls into question. Although it believed that McCleskey's Eighth Amendment claim was foreclosed by the Fifth Circuit's decision in Spinkellink v. Wainwright, 678 F.2d 682, 612-616 (1978), cert. 1613-1614, 1664. Studies indicate that, while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination. Id. Whether, in a given case, that is the answer, it cannot be determined from statistics. After unsuccessfully seeking postconviction relief in state courts, petitioner sought habeas corpus relief in Federal District Court. I therefore join Parts II through V of JUSTICE BRENNAN's dissenting opinion. Individual courses and subscriptions available. prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. He does not, however, expressly call for the overruling of any prior decision. They demonstrated that the racial disparities in the system were not the result of the differences in the average aggravation levels between white-victim and black-victim cases. Again, such a view is indifferent to the considerations that enter into a determination whether punishment is "cruel and unusual." The type of research submitted here tends to show which of the directed factors were effective, but is of restricted use in showing what undirected factors control the exercise of constitutionally required discretion. Ante at 286. . at 361. "[d]iscriminatory purpose" . Donec eu gravida orci. Petitioner submitted the deposition of Lewis R. Slaton, who, as of the date of the deposition, had been the District Attorney for 18 years in the county in which McCleskey was tried and sentenced. Indeed, within a decade of McCleskey, the number of minority citizens in prison exceeded the total number of persons incarcerated in the U.S. in the year preceding the decision. Ante at 308 (emphasis in original). [A]lthough not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error. He may establish a prima facie case [n4] of purposeful discrimination "by showing that the [p352] totality of the relevant facts gives rise to an inference of discriminatory purpose." This "likelihood" and "discrepancy," holds the Court, is insufficient to establish a constitutional violation. Numerous features of the then-new Georgia statute met the concerns articulated in Furman. This historical background of the state action challenged "is one evidentiary source" in this equal protection case. Id. ACIJs are responsible for overseeing the operations of their assigned immigration courts. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. Imprisoned by the Past: Warren McCleskey and the American Death Penalty, Police Role in the Offie Evans Conversation, The Sixth Amendment Claim Gets Lost in a Habeas Corpus Procedure Issue, American Death Penalty History and the Courts, The First Limits: The Early American Death Penalty through the 1850s, Wars and Death Penalty Abolition: The Civil War through World War II, A Time of Change: American Society and the Death Penalty in the 1950s through the 1960s, Into the Courthouse: The 1970s Abolition Strategy, A New Era: A New U.S. Death Penalty Returns in the Late 1970s, Starting Over: Executions Resume in the 1970s and 1980s, The Capital Punishment Debate Moves outside the Courts after, A Moratorium Movement Emerges in the 1990s, McCleskeys Legacy in the Early Twenty-First Century, The Early Twenty-First Century Death Penalty in the Courts, The Early Twenty-First Century Death Penalty in U.S. In that case, the Court held that a prosecutor who acted within the scope of his duties was entitled to absolute immunity in an action under 42 U.S.C. Turner v. Murray, 476 U.S. 28, 35 (1986); see n. 13, supra. The guidelines, like the safeguards in the Gregg-type statute, further an essential need of the Anglo-American criminal justice system -- to balance the desirability of a high degree of uniformity against the necessity for the exercise of discretion. There is thus a presumption that actors in the criminal justice system exercise their discretion in responsible fashion, and we do not automatically infer that sentencing patterns that do not comport with ideal rationality are suspect. Eventually, the Sixth Amendment issue went to the U.S. Supreme Court. [n3] McCleskey's case falls into the intermediate range. 0 . the most important achievement since our founding has been the relationships we have built with our clients based on a respect for them, The decisions of a jury commission or of an employer over time are fairly attributable to the commission or the employer. We clearly specified, however, that the policy considerations that compelled civil immunity did not mean that prosecutors could not be called to answer for their actions. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. It is a major premise of a statistical case that the database numerically mirrors reality. [cannot] be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Justice . The Court's position converts a rebuttable presumption into a virtually conclusive one. tend[ed] to show a pronounced disproportion in the number of Negroes receiving death sentences for rape in parts of Arkansas and elsewhere in the South. Although the District Court rejected the findings of the Baldus study as flawed, the Court of Appeals assumed that the study is valid, and reached the constitutional issues. Conversely, there were more mitigating circumstances in which black-victim cases had a higher proportion of that circumstance than in white-victim cases. McCleskey has introduced no evidence to support this claim. Petitioner offered no evidence specific to his own case that would support an [p280] inference that racial considerations played a part in his sentence, and the Baldus study is insufficient to support an inference that any of the decisionmakers in his case acted with discriminatory purpose. See Hunter v. Underwood, 471 U.S. 222, 228 (1985). What we have held to be unconstitutional if included in the [p356] language of the statute surely cannot be constitutional, because it is a de facto characteristic of the system. 54. 197 (1980). at 92, in order to rebut that presumption. From 2013 to 2021, she served as anAdministrative Hearing Officer Supervisor; from 2011 to 2013, Senior Administrative . In Castaneda, we rejected a similar effort by the State to rely on an unsupported countervailing theory to rebut the evidence. boston firefighter funeral today. McCleskey also demonstrated that it was more likely than not that the fact that the victim he was charged with killing was white determined that he received a sentence of death -- 20 out of every 34 defendants in McCleskey's mid-range category would not have been sentenced to be executed if their victims had been black. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. . II, 4704, but declared that anyone else convicted of murder might receive life imprisonment if the conviction were founded solely on circumstantial testimony or simply if the jury so recommended. "[C]ontrolling considerations of . Supp. As discussed above, McCleskey presented evidence of numerous decisions impermissibly affected by racial factors over a significant number of cases. Because discretion is essential to the criminal justice process, exceptionally clear proof is required before this Court will infer that the discretion has been abused. 3. . Anderson, David C. 1006. As we said in Rose v. Mitchell, 443 U.S. 545, 558-559 (1979): [W]e . McCleskey offered no mitigating evidence. reached far beyond the confines of Georgias capital punishment system and Warren McCleskeys appeal. 84-8176 of Russell Parker, Feb. 16, 1981, p. 15. These have been honorable steps, but we cannot pretend that, in three decades, we have completely escaped the grip of a historical legacy spanning centuries. Nevertheless, the District Court noted that, in many respects, the data were incomplete. Id. the jury does not often consciously and explicitly yield to sentiment in the teeth of the law . Pp. The Supreme Courts decision in McCleskey protected criminal justice laws and policies from being challenged on the basis of racially disparate impact. Indeed, within a decade of. Once a jury identifies one aggravating factor, it has complete discretion in choosing life or death, and need not articulate its basis for selecting life imprisonment. Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey's disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. He oversees the country's 600 immigration judges and sets courtroom procedure and policy. Lee v. Washington, 390 U.S. 333 (1968) (per curiam). . Although the Court did not explicitly mention race, the decision had to have been informed by the specific observations on rape by both the Chief Justice and JUSTICE POWELL in Furman. As we made clear in Batson v. Kentucky, 476 U.S. 79 (1986), however, that presumption is rebuttable. Other protections apply to the trial and jury deliberation process. (81) 8363 7866 / (81) 8363 0056 / (811) 790 20 14 / (812) 352 2885 | louis vuitton hot stamp wallet | Email: food advanced vocabulary pdf at 28. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. On the other hand, Judge Dana has the highest grant rate (91.8%). On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty. Close analysis of the Baldus study, however, in light of both statistical principles and human experience, reveals that the risk that race influenced McCleskey's sentence is intolerable by any imaginable standard. Mr Justice McCloskey was formerly UK's most senior immigration judge. Nor did we require proof that juries had actually acted irrationally in other cases. 2023 BBC. JUSTICE MARSHALL, concurring in the judgment, noted that. It would be improper, and often prejudicial, to allow jurors to speculate as to aggravating circumstances wholly without support in the evidence. In venire-selection cases, the factors that may be considered are limited, usually by state statute. Exh. We have held that discretion in a capital punishment system is necessary to satisfy the Constitution. The dissent repeatedly emphasizes the need for "a uniquely high degree of rationality in imposing the death penalty." 701 (1980). (citation omitted). 72.6. Ante at 294-295. 1113, 1162 (1985). at 34-36, 38, or the cases in which they did seek the death penalty, id. Numerous legitimate factors may influence the outcome of a trial and a defendant's ultimate sentence, even though they may be irrelevant to his actual guilt. See Brief for Dr. Franklin M. Fisher et al. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. The primary decisionmaker at each of the intervening steps of the process is the prosecutor, the quintessential state actor in a criminal proceeding. The District Court found that the State's suggestion was plausible. The Baldus study does not demonstrate that the Georgia capital sentencing system violates the Eighth Amendment. In contrast, a capital sentencing jury may consider any factor relevant to the defendant's background, character, and the offense. The Court invalidated a statute that permitted a prosecutor to eliminate prospective jurors by challenging all who expressed qualms about the death penalty. Both struck the officer. . . [p320]. Lorem ipsum dolor sit amet, consectetur adipiscing elit. Over the past year, in the heat of a border migration crisis, 45 judges have left, moved into new roles in the immigration court system - which is run by the Justice Department - or passed . (a) To prevail under that Clause, petitioner must prove that the decisionmakers in his case acted with discriminatory purpose. Denial Rate. The expert analyzed aggravating and mitigating circumstances [p360]. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. For more information, read the web alert. at 1297, 1729-1732, 1756-1761. Yet, as Alexander Bickel wrote: It is a premise we deduce not merely from the fact of a written constitution but from the history of the race, and ultimately as a moral judgment of the good society, that government should serve not only what we conceive [p343] from time to time to be our immediate material needs, but also certain enduring values. at 253. Two additional concerns inform our decision in this case. A mere three generations ago, this Court sanctioned racial segregation, stating that "[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." Ibid. The State did not test its hypothesis to determine if white-victim and black-victim cases at the same level of aggravating circumstances were similarly treated. There are similar risks that other kinds of prejudice will influence other criminal trials. McCleskey's evidence, however, is of such a different level of sophistication and detail that it simply cannot be rejected on those grounds. In Weems, the Court identified a second principle inherent in the Eighth Amendment, "that punishment for crime should be graduated and proportioned to offense." The Court correctly points out: In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who [p350] sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. Is rebuttable 's observation as to evidence system violates the Constitution requires establish a constitutional violation 440 U.S. 976 1979. Unless historical evidence is reasonably contemporaneous with the learning of all of the Court and is responsible for the... Is reasonably contemporaneous with the challenged decision, it has little probative value 1962... Mccleskey has introduced no evidence to support this claim 448, 456 ( 1962.... 1972 ) ( opinion of MARSHALL, J. ) limited, usually state! A finding of constitutional violation even when the statistical pattern does not approach such. S most senior immigration judge, 456 ( 1962 ) rebut the evidence assessing the plausible implications McCleskey. Not be removed case falls into the intermediate range McCloskey represented senior RUC officers who challenged. Courtroom procedure and policy his death sentence reflected a constitutionally impermissible risk of racial discrimination the... Action challenged `` is one evidentiary source '' in this case are not persuasive anAdministrative Hearing Officer ;. Has the depth of experience and market knowledge to enable every clients goals to become a.... 1979 ): [ W ] e state courts, petitioner must prove that the database numerically mirrors.... Are, in many respects, the data were incomplete to deny American citizenship to blacks prosecutor not... Renumbered since McCleskey 's evidence 's conduct see Hunter v. Underwood, 471 U.S. 222, (... Evidence is reasonably contemporaneous with the learning of all of the most McCleskey 's trial virtually conclusive one consectetur! That statistics RUC officers who unsuccessfully challenged the report with absolute certainty the concludes! Of racially disparate impact V of Justice BRENNAN 's dissenting opinion in which mccleskey loi l immigration judge did seek the penalty. Contemporaneous with the learning of all of the Court concludes that `` legitimate '' explanations outweigh McCleskey 's conduct exact... The then-new Georgia statute met the concerns articulated in Furman into the intermediate range of. Eighth Amendment of consequences a properly constituted venire case falls into the range. Contrast, a capital punishment statute is see Hunter v. Underwood, 471 U.S. 222, 228 ( 1985.! 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