Argued October 15, 1986.Decided April 22, 1987.

Rehearing Denied June 8, 1987.

BARNES, J. delivered the opinion of the Court. Powell, J. joined in all but Part II. Rehnquist J. filed a dissenting opinion, in which O’Connor, Scalia, and White joined.

Defendant McCleskey filed a writ of habeas corpus in the Northern District of Georgia challenging a 1979 murder conviction and death sentence imposed in Fulton County, Georgia. The petition, which the District Court and the Eleventh Circuit Court of Appeals denied, questions whether statistical evidence from research studies that strongly suggest racial considerations factor into capital sentencing jury deliberations, provides a basis to determine the petitioner’s sentence was unconstitutional under the Eighth Amendment or Fourteenth Amendment. We now reverse those decisions based on empirical data strongly corroborating a significant risk exists that McCleskey’s sentence involved unconstitutional race discrimination in violation of both the Eighth Amendment and the Fourteenth Amendment.

Chapter 5 highlights the emergence of a distinctly praetorian governmentality in the next cycle of military rule in the 1980s. Having displaced an elected government, the military regime of General Zia ul Haq (1977–88) set about the task of refining the blueprint for military rule. What was distinctive, however, about this form of praetorian governmentality as compared to the earlier period of military rule was the hegemonic ideation of political legitimacy predicated on religion. The military regime visibly embarked on the agenda of 'Islamising' the constitution and the laws. New Shariat courts were given unprecedented powers of judicial review of legislation for conformity with Islamic law at the same time that the fundamental rights provisions of the Constitution remained under suspension, and the superior courts’ Writ jurisdiction was incapacitated. Nonetheless, Islamisation also enabled the superior courts to re-orient their public law jurisprudence and to bolster their legitimacy. Pakistan’s appellate courts learnt to capitalise on this new rhetoric and restructured a more assertive form of judicial review grounded in the normative bedrock of Islamic legality.