In Florida under a post-Furman statute, prosecutors were found to "upgrade" and "downgrade" capital cases depending on the race of the offender and the victim.

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In the case of McCleskey v. Kemp (1987), it was found that in Georgia prosecutors were more likely to seek the death penalty if the defendant was black and the victim was white, and less likely if the defendant was white and the victim was black. However, similar evidence was presented in the case of Hitchcock v. Dugger (1987) in Florida, where prosecutors were found to "upgrade" and "downgrade" capital cases depending on the race of the offender and the victim. These practices were deemed unconstitutional.

In Florida Under a Post-Furman Statute, Prosecutors Were Found to "Upgrade