dissenting.
Of those persons from Hall County serving life sentences pursuant to OCGA § 16-13-30 (d), which mandates a life sentence for the second conviction for sale of or possession with intent to distribute certain narcotics, one hundred percent are African-American, although African-Americans comprise only approximately ten percent of Hall County’s population. In our state prison system, African-Americans represent 98.4% of the 375 persons serving life sentences for violating OCGA § 16-13-30 (d). These statistics were part of the finding of the trial court in this case. In the face of such numbing and paralyzing statistics, the majority says there is no need for inquiry. It is with this determination that I take issue and from which I respectfully dissent.
Appellant makes two claims with regard to OCGA § 16-13-30 (d): (1) The statute is unconstitutional on its face and (2) the statute is unconstitutional as applied. As to the claim that OCGA § 16-13-30 (d) violates the Fifth, Sixth and Eighth Amendments of the United States Constitution, I agree with the majority opinion that it does not. But as to the claim that OCGA § 16-13-30 (d), as applied, violates the Fourteenth Amendment of the United States Constitution and Art. I, Sec. I, Par. II of the Georgia Constitution, I agree with appellant that it does.
1. I do not write on a clean slate on the issue of whether a violation of the Fourteenth Amendment to the United States Constitution has occurred. A long line of cases has dealt with this very issue. My analysis begins with Strauder v. West Virginia, 100 U. S. 303 (25 LE 664) (1880), where the U. S. Supreme Court struck down a state statute under which only white men were qualified for jury duty. In the dissent in Swain v. Alabama, 380 U. S. 202, 230 (85 SC 824, 13 LE2d 759) (1965), Justice Goldberg quoted from Strauder:
It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and . . . deny to persons of those classes the full enjoyment of that protection which others enjoy.
*365In that dissent, Justice Goldberg sought to apply the principles of equal protection stated in Strauder in a manner which foreshadowed the later developments in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).
To assert a successful Equal Protection claim, there has always been a requirement at the federal level that purposeful or intentional discrimination be shown. Whitus v. Georgia, 385 U. S. 545 (87 SC 643, 17 LE2d 599) (1967). Faced in Swain v. Alabama, supra, with a claim of denial of Equal Protection in the use of peremptory challenges, the United States Supreme Court recognized the horrors of discrimination, but nevertheless imposed a heavy burden on those who would claim discrimination, requiring that they “show the prosecutor’s systematic use of peremptory challenges against Negroes over a period of time” (id. at 227) in order to prevail on an Equal Protection claim.
This almost impossible burden of proof imposed by Swain frustrated those who sought to claim a Fourteenth Amendment violation in the area of peremptory challenges. Hence, the court revisited the issue some 21 years later in Batson v. Kentucky, supra. The weighty burden of Swain was rejected as being inconsistent with Equal Protection standards developed subsequently. In its place, the Supreme Court installed a system that shifted the burden to the prosecutor to give race-neutral reasons for the peremptory challenges once the defendant established facts supporting an inference that the prosecutor’s use of peremptory challenges was racially motivated. Relying in part on language in Swain and on housing and employment discrimination cases,4 the court in Batson stated that an inference of discriminatory intent could be drawn from certain conduct or statistical data. Beyond its effect on peremptory challenges, the importance of Batson was that it significantly reduced the burden on one claiming discrimination, recognizing that under certain circumstances, the crucial information about an allegedly discriminatory decision could only come from the one who made the decision.
This is the course of reasoning we need to follow in analyzing the issue in this case rather than the more restrictive course taken in McCleskey v. Kemp, 481 U. S. 279 (107 SC 1756, 95 LE2d 262) (1987), and applied by the majority. As appellant cogently argued, McCleskey dealt with the death penalty procedure, with its many variables, including extremely broad discretion placed in the jury, whereas the *366legislation involved in this case deals with what purports to be a straightforward sentencing process: if the conviction fits within the statute, a life sentence is mandatory. But it is in the application of the sentencing scheme that discretion comes into play and, with it, the specter of invidious discrimination. 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 SE2d 481) (1992); OCGA § 17-10-2. That district attorneys employ very broad discretion to decide in which cases the State will choose to apply OCGA § 16-13-30 (d) is demonstrated beyond question by the data from the study conducted for the Supreme Court Commission on Racial and Ethnic Bias in the Courts: of the 1,184 cases identified as showing eligibility for a life sentence, it was only imposed in less than 15 percent of the cases, which is to say that it was not imposed in more than 85 percent of the cases.
I am not unmindful or unappreciative of the vital and taxing role district attorneys are called upon to undertake in the ongoing battle against the blight of illicit drug trafficking. Throughout this state, they shoulder an enormous burden of responsibility for advancing the fight against drugs, and to do so successfully, they must be invested with considerable discretion in making decisions about ongoing prosecutions. However, it is the very breadth of that discretion, concentrated in a single decision-maker, which makes it necessary that the one exercising the discretion be the one, when confronted with facts supporting an inference of discriminatory application, to bear the burden of establishing that the discretion was exercised without racial influence. This case is more like Batson than McCleskey because all the discretion in the sentencing scheme involved in this case resides in the district attorney, to the exclusion of the trial court, whereas in death penalty cases such as McCleskey, the spread of discretion among the prosecutor, the trial court, and the jurors introduces variables which call for more rigorous statistical analysis. In addition, the complexity of the death penalty procedure, with its many safeguards and the recurring necessity of specific findings at every stage from the grand jury to the sentencing jury, differentiates it from the relative simplicity of the sentencing scheme applicable to this case. The expressed concern of the State and of the majority that the procedure I propose in this case is applicable to death penalty cases is wholly unfounded. The only similarity between this case and McCleskey is that they both involve sentencing. It is the very different processes by which the sentences are determined which distinguish these very different cases. My analysis and the remedy proposed herein apply only to OCGA § 16-13-30 (d).
The sentencing scheme involved in this case is not so complicated *367as that involved in death penalty cases. The prosecutor alone exercises discretion with regard to the sentence. If the district attorney chooses to give notice that a prior conviction will be used in aggravation of sentencing, a conviction can have only one outcome, based on discretion that is beyond review. It was just such an insulation from review which prompted the Batson court to reject the “crippling burden of proof . . . [that rendered] prosecutor’s peremptory challenges . . . largely immune from constitutional scrutiny.”
Appellant also notes correctly that the U. S. Supreme Court recognized in McCleskey itself that statistical proof which presents a “ ‘stark’ pattern” may be accepted as the sole proof of discriminatory intent. 481 U. S. at 293. In distinguishing McCleskey from such a case, the Supreme Court mentioned in fn. 12 cases in which “a statistical pattern of discriminatory impact demonstrated a constitutional violation.” Id., fn. 12. One was Gomillion v. Lightfoot, 364 U. S. 339 (81 SC 125, 5 LE2d 110) (1960), where a city’s boundaries were altered so as to exclude 395 of 400 black voters without excluding a single white voter, and the other was Yick Wo v. Hopkins, 118 U. S. 356 (6 SC 1064, 30 LE 220) (1886), in which an ordinance requiring permits for the operation of laundries was applied so as to exclude all of the over 200 Chinese applicants and only one white applicant. The statistics in those cases presented a “ ‘stark’ pattern” (McCleskey, supra at 481 U. S. 293), but no more stark than the pattern presented in this case. In the present case, based on evidence from law enforcement officers who testified as to arrest rates and other relevant statistics,5 the trial court found that 100 percent of the people from that county who were serving life sentences pursuant to OCGA § 16-13-30 (d) were African-Americans and that statewide, 98.4 percent of all the persons serving life sentences pursuant to OCGA § 16-13-30 (d) were African-Americans.6 From a study commissioned by the Supreme Court Commission on Racial and Ethnic Bias in the Court System, conducted by the Chief of Research of the Georgia Department of Corrections, and certified to this court by the trial court as a supplemental record, it appears that of 167 white prisoners identified as be*368ing eligible for a life sentence pursuant to OCGA § 16-13-30 (d) by virtue of a second conviction for a drug sales offense,7 only one received that sentence. By contrast, of a total of 1,017 African-American prisoners identified as being eligible under the same criteria, 202 received a life sentence. Expressed as percentages, those findings indicate that an African-American convicted of two or more drug sales offenses is 2,761 percent more likely to receive a life sentence than a white person convicted of two or more drug sales offenses.8 The majority finds the statistical evidence presented by appellant to be insufficient and goes on to express some doubt that statistical evidence alone can ever be sufficient to prove an allegation of discriminatory intent. In Hall v. State, 262 Ga. 596 (422 SE2d 533) (1992), and in Hailey v. State, 263 Ga. 210 (429 SE2d 917) (1993), I concurred in decisions rejecting claims of racially discriminatory application of the statutes involved here, pointing out in each concurrence that
while there is some evidence to support appellant’s allegation of selective prosecution, that evidence is insufficient under both the intentional discrimination standard adopted by this court in State v. Causey, 246 Ga. 735 (2) (273 SE2d 6) (1980), and the disparate treatment standard utilized in State v. Russell, 477 NW2d 886 (Minn. 1991).
Hailey, supra at 214. Now, faced with the majority’s insistence that even the stark pattern demonstrated in this case will not meet those standards, I believe it is necessary that we adopt a procedure which will make it possible to address the issue openly and honestly in the trial courts.
The majority’s reliance on McCleskey without recognizing the differences between the contexts of that case and this one causes this court to fall short of its responsibility to further the development of the law. This case offers us an opportunity to contribute in a positive way to the advancement of federal constitutional law. This could be a watershed case, and this court should seize this opportunity to establish a procedure similar to that outlined in Batson to make it possible for a defendant effectively to challenge the use of life sentences in a *369racially discriminatory fashion.
In seeking to show discriminatory application of this sentencing scheme, the burden should remain on the defendant alleging discrimination to prove the existence of purposeful discrimination. See Batson, supra at 93. However, as the U. S. Supreme Court went on to say in Batson at 93-94,
In deciding if the defendant has carried his burden of persuasion, a court must undertake “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” [Cit.] Circumstantial evidence of invidious intent may include proof of disproportionate impact. [Cit.] ... [A] defendant . . . may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Cit.] Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion [in the present case, exclusivity]. [Cit.] The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. [Cits.] Rather, the State must demonstrate that “permissible racially neutral selection criteria and procedures have produced the monochromatic result.” [Cits.]
The Supreme Court continued in Batson by providing an explanation of what a defendant must show to establish a prima facie case. That explanation is eminently adaptable to the procedure I propose we adopt in this case:
The defendant initially must show that he is a member of a racial group capable of being singled out for differential treatment. [Cit.] In combination with that evidence, a defendant may then make a prima facie case by proving that in the particular jurisdiction [the sentencing provision has been used exclusively or in a manner disproportionate to population percentages against the defendant’s group]. Proof of [exclusive or disproportionate use] raises an inference of purposeful discrimination because the “result bespeaks discrimination.” [Cit.]
Batson, supra at 94. The proof appellant offered in this case clearly shows a “ ‘stark’ pattern,” an application of the statute which “bespeaks discrimination.” That being so, I would hold that he was entitled by the Fourteenth Amendment to the U. S. Constitution to have the prosecution make race-neutral explanation for its application of *370the aggravated sentencing procedure.
2. Even if I were not convinced that the Fourteenth Amendment to the U. S. Constitution requires the establishment of the procedure I propose herein, I would propose it as an appropriate procedure to safeguard the citizens of this state against deprivation of the right to equal protection of the law as it is guaranteed in the Georgia Constitution.9
In Grissom v. Gleason, 262 Ga. 374 (2) (418 SE2d 27) (1992), we noted that while the equal protection clause of the Georgia Constitution has been treated as being coextensive with the equal protection clause of the U. S. Constitution, “this court may interpret the equal protection clause in the Georgia Constitution to offer greater rights than the federal equal protection clause as interpreted by the United States Supreme Court.”10 Id. fn. 1. We need not always follow the federal courts. In some instances we must lead the way as state courts did in Wheeler, supra, and in Soares, supra. In my dissent in Livingston v. State, 264 Ga. 402 (444 SE2d 748) (1994), I said that our constitution is not without protection for our citizens:
In deciding under our constitution whether all . . . should stand equal before the law, we must draw from the wellspring of Georgia history, keeping in mind that Georgia is one of the thirteen original colonies which, unlike the subsequently-formed states which drew strength from the central government, furnished strength to the central government from our storehouse of rights. But in doing so, we did not leave our state constitutional cupboard completely bare and entirely bereft of protection for our own citizens.
Id. at 415. In keeping with that position, I assert here that this is the time for this Court to draw from our historical strength and our determination that the citizens of this state be treated fairly before the law, and declare that Georgia’s constitutional guarantee of equal protection requires that OCGA § 16-13-30 (d) be applied evenly, in a race-neutral fashion. Although I would draw entirely from our own constitution the authority to put protective measures in place, I pro*371pose, as I did when considering this case from a federal constitutional standpoint, that we look to the procedures the U. S. Supreme Court established in Batson, supra.
I would hold, therefore, as a matter purely of state constitutional law, that equal protection of the law in the context of OCGA § 16-13-30 (d) requires that the prosecution be required, when a defendant has made a prima facie showing sufficient to raise an inference of unequal application of the statute, to “demonstrate that ‘permissible racially neutral selection criteria and procedures have produced the monochromatic result.’ [Cit.]” Batson, supra at 94. And I would hold further that the showing made by appellant in the present case was sufficient to shift the burden to the State.
3. Because appellant has made a sufficient showing of discriminatory application of OCGA § 16-13-30 (d) that the State should be required to give race-neutral reasons for the “monochromatic” application of that statute in Hall County, this court should vacate the life sentences and remand this case to the trial court for a hearing. At such a hearing, should the trial court find that the prosecution could not provide race-neutral reasons for the “monochromatic result” of the application of OCGA § 16-13-30 (d) in Hall County, sentencing for the offenses involved would still be permissible, but not with the aggravation of punishment authorized by OCGA § 16-13-30 (d). On the other hand, should the trial court find that the State has provided appropriate race-neutral reasons, the life sentences would be reimposed, whereupon appellant would be entitled to a new appeal.
Just as the prosecution was reined in by Batson, it must also be reined in here and called upon to give an account of itself. The statistics offered in this case show an enormous potential for injustice, and those statistics are just like the tip of an iceberg, with the bulk lying below the surface, yet to be realized. And unless we reveal or expose this massive obstacle that lies in the shipping lanes of justice, it will, just like an iceberg, tear a gaping hole in the ship of state, just as a gaping hole was ripped in the Titanic. Unless we detect it and steer clear of it, it will rip a hole in the legal bulwark of the ship of state and cause great calamity and destruction. We can ill afford to fail to keep a proper lookout or to fall asleep at the wheel when such a patent disaster awaits us: as with peremptory strikes, where it took 21 years from the detection of the iceberg of injustice in Swain v. Alabama to the beginning of its destruction in Batson, many injustices will be done and the integrity of the legal process will be scuttled.
Because I am convinced that appellant has made a sufficient showing of discriminatory application of OCGA § 16-13-30 (d) that the State should be required to give race-neutral reasons for the “monochromatic” application of that statute in Hall County, I respectfully dissent from the majority’s rejection of appellant’s claim.
*372Decided March 30, 1995 Reconsideration denied April 21, 1995. Summer & Summer, Daniel A. Summer, Thomas J. Killeen, for appellant. Lydia J. Sartain, District Attorney, Thomas A. Gump, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paula K. Smith, Assistant Attorney General, for appellee. John R. Martin, amicus curiae.I am authorized to state that Justice Sears joins in this dissent.
E.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (97 SC 555, 50 LE2d 450) (1977); Washington v. Davis, 426 U. S. 229 (96 SC 2040, 48 LE2d 597) (1976). The federal courts also had prompting in such state court decisions as People v. Wheeler, 22 Cal.3d 258 (148 Cal. Rptr. 890, 583 P2d 748) (1978); and Commonwealth v. Soares, 377 Mass. 461 (387 NE2d 499), cert. denied, 444 U. S. 881 (100 SC 170, 62 LE2d 110) (1979).
Agent David Mcllwraith testified that 50 percent of the drug investigations involved black males. Investigator Shelly Manny testified that of the sixty drug investigations she conducted in Hall County, only nine involved blacks and that only fifty percent of her undercover buys involved black males. Another narcotics investigator testified that since 1989, he had made over 300 cocaine distribution cases in Hall County and only 60 percent involved black males.
“One hundred percent (100%) of the people serving life sentences in the state prison system under OCGA § 16-13-30 (d) from Hall County are African-Americans, although the African-American population in Hall County is approximately 10%. At this time 369 of 375 persons serving life sentences in Georgia under OCGA § 16-13-30 (d) are African-Americans, although African-Americans comprise only 37% (sic 27%) of the total state population.” R. 122-123.
The study did not include those convicted of possession with intent to distribute, although that offense also triggers the provisions of OCGA § 16-13-30 (d), because the database maintained by the Department of Corrections does not distinguish between simple possession, which does not trigger a mandatory life sentence, and possession with intent to distribute.
This percentage is derived from a calculation explained in testimony by the author of the study and using figures developed in the study showing a 0.6 percent likelihood of life sentence for a white defendant eligible for sentencing under the statute, and a 16.57 percent likelihood for an eligible African-American defendant.
Article I, Section I, Paragraph II of the 1983 Georgia Constitution provides as follows: “Protection to person and property is the paramount duty of government and shall be impartial and complete. No person shall be denied the equal protection of the laws.”
See, e.g., State v. Miller, 260 Ga. 669, 671 (398 SE2d 547) (1990) (finding 1983 Georgia Constitution provides broader protection than the First Amendment); Green v. State, 260 Ga. 625, 627 (398 SE2d 360) (1990) (finding State Constitution grants a broader right against self-incrimination than the U. S. Constitution); Fleming v. Zant, 259 Ga. 687, 690 (386 SE2d 339) (1989) (holding state constitutional guarantee against cruel and unusual punishment is more extensive than federal constitutional standard).