Blacker Than Death Row: How Current Equal Protection Analysis Fails Minorities Facing Capital Punishment

AuthorRay Sebastian Pantle
PositionJ.D., Capital University Law School, 2007
Pages811-844

Page 811

Introduction

[I]t has been scarcely a generation since this Court's first decision striking down racial segregation . . . . [W]e cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. . . . [F]or we remain imprisoned by the past as long as we deny its influence in the present.1

Justice Brennan wrote these words in his dissent in McCleskey v. Kemp, where the Supreme Court required the defendant, who had been sentenced to death and who claimed to be a victim of discrimination, to prove that purposeful racial animus motivated a state actor in his particular case.2 While there is evidence that overt and unconscious racism permeate American society, an unavailability of tangible evidence of such in particular capital cases makes it almost impossible for one to meet this standard in proving the existence of overt racism. The framers of the Fourteenth Amendment to the Constitution specifically included the Equal Protection Clause to deal with racial discrimination in our criminal justice system.3 Yet, the Supreme Court has failed to interpret the Equal Protection Clause in a way that will ameliorate racial discrimination in capital sentencing. Instead, courts have repeatedly upheld the constitutionality of sending a disproportionate number of minorities to their deaths.

Our legal system should not tolerate this horrible consequence of the current interpretation of the Equal Protection Clause. Judges across the country must rekindle the dying flames that once burned behind FourteenthPage 812 Amendment jurisprudence by holding that a strong statistical study alone can be used to prove purposeful discrimination in capital sentencing. Although allowing statistics alone to support an equal protection claim in capital cases will often result in an injunction preventing execution, this remains the only reasonable solution to the problem of racial disparity in capital sentencing, especially when there is an alternative of imprisonment for life without the possibility of parole.

Part I of this Comment discusses the background of the Equal Protection Clause of the Fourteenth Amendment. First, it briefly explores the history of the Amendment and its attempt to deal with post-Civil War racism in the South. A more detailed exploration of the Court's application of this Amendment in specific cases follows, illustrating the development of the purposeful discrimination requirement. Part I then focuses on capital punishment. It discusses the various studies that have concluded that the death penalty is disproportionately applied to blacks, specifically focusing on black defendants convicted of killing white victims. Finally, it focuses on numerous cases in which individuals have unsuccessfully challenged such racial disparity on equal protection grounds.

Part II explores three different problems with the Court's current interpretation of the Equal Protection Clause. First, because racial animosity exists in all actors and in all stages of the criminal justice system, a defendant cannot readily attribute purposeful discrimination to a particular point in time or to a specific state actor. Second, even if one does discover evidence of purposeful discrimination, a defendant often lacks the assistance of a competent attorney to raise an equal protection claim. Finally, an interpretation that requires purposeful discrimination fails to account for the unconscious racism that predominates our society.

Part III explores why judges hearing an equal protection claim should allow a capital defendant to use statistics alone to prove purposeful discrimination. This would not run contrary to stare decisis, because the Supreme Court has already recognized numerous instances in which statistics alone can support an equal protection claim. Moreover, although this relaxed evidentiary showing on the defendant's part may lead to an injunction precluding use of the death penalty, the alternative sentence- life without the possibility of parole-stands as an equally viable option that will create no extra burden on society.

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I Background of the Equal Protection Clause
A The Creation of the Current Equal Protection Test

Historical documents illustrate the existence of a direct link between the Fourteenth Amendment and racial disparities in our country's penal system. Those who ratified the Fourteenth Amendment specifically wished to overrule the laws passed after the Civil War, known as the Black Codes, which legislators implemented to maintain white supremacy.4Many of these codes mandated more severe treatment for black defendants charged with a crime.5 Through the Equal Protection Clause, our nation "constitutionalize[d]" the Civil Rights Act of 1866, by guaranteeing that "'inhabitants of every race and color . . . shall be subject to like punishment, pains and penalties, and no other.'"6

Although multiple sources confirm that the purpose behind the Fourteenth Amendment was to eradicate racial disparity in sentencing,7constitutional researchers have been unable to locate statements that would help to decipher how the originalists intended to apply the Equal Protection Clause.8 Because of this, the Supreme Court uses few texts, beyond the Amendment itself, when interpreting whether an equal protection violation has occurred.9

In some cases, lawmakers blatantly write racial discrimination on the face of a law; courts quickly conclude that such laws offend the Constitution. For instance, a hypothetical law that requires AfricanPage 814 Americans to wait until age eighteen to apply for a driver's license, but permits Caucasians to apply at age sixteen, would clearly be struck down as a violation of the Equal Protection Clause.10

In other cases, a law appears to be facially neutral, but it disparately impacts racial minorities. The Supreme Court first addressed this issue in Washington v. Davis,11 where two African Americans sued the Commissioner of the District of Columbia, the Chief of the District's Metropolitan Police Department, and the Commissioners of the United States Civil Service Commission,12 alleging that the police department's practices discriminated against blacks in violation of the Due Process Clause of the Fifth Amendment.13 The department's hiring policy required that all candidates for a position take a written examination, known as "Test 21,"14 which examined verbal ability, vocabulary, reading, and comprehension.15 Statistics revealed that blacks failed this test at a rate roughly four times that of whites.16

Justice White, writing the Opinion of the Court, declared:

[A] law, neutral on its face and serving ends otherwise within the power of government to pursue, is [not] invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact . . . is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.17

According to the Court, a plaintiff challenging a law as a violation of equal protection must demonstrate that lawmakers acted with a discriminatory purpose.18

The Supreme Court reaffirmed the requirement of purposeful discrimination a year later in Village of Arlington Heights v. Metropolitan Page 815 Housing Development Corp.19 In that case, a predominately white, upper-middle class Chicago suburb refused to allow rezoning of a fifteen-acre parcel from single-family to multiple-family units for lower-income tenants.20 The plaintiff, Metropolitan Housing Development Corporation, claimed the denial was racially motivated and challenged it on equal protection grounds.21 Again, the Court announced, "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause."22 The Court found that the plaintiff failed to carry its burden of proving such motivation.23

B The Equal Protection Test Applied to Capital Cases
1. Race-Based Statistics on Capital Sentences

For approximately twenty-eight hundred people locked in state and federal prisons, life is unlike that in any other institution. . . . These are America's death row residents: men and women who walk the razor's edge between half-life and certain death.

You will find a blacker world on death row than anywhere else.24

Historically, this "blacker world on death row"25 existed in the United States because those who utilized the death penalty were "openly and unashamedly" biased against racial minorities.26 Before the Civil War, explicit racism played a normative part of the capital statutes in many states.27 For instance, Georgia punished a black man convicted of raping a white woman with death, but a white man who committed a similar crime was punished with two to twenty years of imprisonment.28

Although the Fourteenth Amendment overturned all criminal statutes that were facially discriminatory, disparate treatment of African AmericansPage 816 in the application of the death penalty continued.29 Between 1908 and 1972 in Virginia, although almost half of the men...

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