Defunding death.

• Author: Mello, Michael
• Position: Challenging racial bias in the application of the death penalty

1. INTRODUCTION: THE LURE OF FEDERAL FUNDS TO FIGHT

   CRIME 933 II. WHERE WE ARE NOW: THE BALDUS STUDY, MCCLESKEY V.

   KEMP, AND DISCRIMINATION--DISCRIMINATORY INTENT AND

   DISCRIMINATORY EFFECTS 939

   A. The Baldus Study 939

   B. McCleskey and the Court's Determination that the Baldus

   Study was Insufficient to Demonstrate Constitutional

   Discriminatory Intent 944

   C. The Baldus Study: Sufficient (At the Very Least) to

   Demonstrate Discriminatory Impact Under Title VII 953

   1. The Evidentiary Model 953

   2. Application of the Model to the McCleskey Context 954 III. THE EFFECTS OF DISCRIMINATION AND TITLE VI OF THE

      1964 CIVIL RIGHTS ACT 955

      A. Title VI and the Intent/Impact Debate: The Importance of

      Implementing Regulations 959

   1. Lau V. Nichols 961

   2. Regents of the University of California v. Bakke 962

   3. Guardians Association v. Civil Service Commission 965

   4. Alexander v. Choate 969

   5. Conclusion 970

      B. Title VI and the Death Penalty: Justice Department

      Regulations Prohibiting Discriminatory Impact 971 IV. ODDS AND ENDS: SOME ISSUES PRESENTED BY A LAWSUIT

      TO DEFUND DEATH 975

      A. The Structure of Proof in a Cause of Action Under Title VI:

      The Title VII Analogy 975

   1. Plaintiff's Prima Facie Case 977

   2. Defendant's Rebuttal 980

   3. Plaintiff's Surrebuttal 982

      B. The Meaning of "Program" 983

      C. Private Rights of Action Under Title VI 987

      D. The Remedy: Capital Sentencing and Title VI Relief from

      Discrimination 992

      E. Standing 995

   1. Citizens 997

   2. Taxpayers 999

   3. Victims 1003

   4. Capital Defendants 1007 V. CONCLUSION 1012

1. INTRODUCTION: THE LURE OF FEDERAL FUNDS TO FIGHT CRIME

   No treatment of capital punishment ought to disregard the American dilemma of race.(1) Numerous statistical studies of the administration of the death penalty in Florida,(2) and in other states,(3) have found that the death penalty is rarely imposed when the victim's race is black, regardless of the race of the defendant. These patterns have been documented by David Baldus, Michael Radelet, Glenn Pierce, Samuel Gross, Margaret Vandiver, and other scholars. However, the most comprehensive study ever conducted of capital sentencing patterns was done by Baldus and his colleagues and examined the state of Georgia. This study became the basis of the now definitive Supreme Court decision addressing the constitutional consequences of racial disparities in capital sentencing. For this reason, I will focus on Georgia.

   The legal conversation about racism in the capital punishment system has occurred principally in constitutional terms. The Supreme Court ended this conversation at the federal constitutional level in 1987 when, in McCleskey v. Kemp,(4) the Court held that a constitutional challenge to such racism must show intentional discrimination without the benefit of presumptions of the type that are used in other areas of discrimination law, such as employment or jury selection. The Court also held the statistical study at issue in that case--the Baldus study of Georgia's capital punishment system, a state-of-the-art study costing $500,000 and rightly called "the cadillac of race studies"--insufficient to require a finding of discriminatory intent under the Eighth and Fourteenth Amendments.

   The Baldus study may not demonstrate intentional discrimination, which is the present federal constitutional standard, but the study does demonstrate a pattern of racial discrimination, specifically, one of discriminatory impact. How might the study be used in future challenges to capital punishment? This article explores whether the statistical showing that failed in McCleskey might prevail if brought under Title VI of the 1964 Civil Rights Act, a little-used piece of anti-discrimination legislation that celebrated its thirtieth anniversary in 1994.(5)

   The stakes are consequential and could become astronomical. In 1992 alone, the state of Georgia's criminal justice system received approximately $16,273,000 in federal funds.(6) Given the Baldus study's showing of stark discriminatory impact in the eventual administration of the death penalty in this state, Georgia stands to lose substantial funding if challenged under Title Vl. Yet, even this figure pales when compared to the money at stake under the 1994 crime bill passed by Congress. According to an estimate prepared by the Senate Judiciary Committee, Georgia could receive $3,633,900,000,000 during the years 1995 to 2000. The Judiciary Committee broke out the amounts as follows:

   CRIME BILL--DOLLARS FOR GEORGIA, 1995 TO 2000

   Law Enforcement

   100,000 Police--Guaranteed minimum of $44 million--more than 500

   police officers, approximately $75,000 per officer

   Given Georgia's share of the population and the additional $6.5

   billion in discretionary dollars, Georgia should expect a total of

   about $225 million over the next 6 years.

   Of the total, up to 85% can be used to hire about 2,500 police

   officers. At least 15%--$34 million--can be used to help pay the

   training, overtime and administrative costs of implementing community

   policing.

   Prisons and Boot Camps--$77 million for prison grants, including military-style

   boot camp prisons. An additional estimated $50 million is possible if

   Georgia meets the "Truth in Sentencing" target of second-time violent

   offenders serving 85% of their sentences.

   Byrne Enforcement Grants--$1 billion in the Trust Fund will help continue

   full funding for these grants, including Georgia's $10 million annual

   share.

   Rural Law Enforcement Grants--$2.9 million for drug and crime enforcement

   in Georgia's rural areas.

   Discretionary Grants--Georgia's law enforcement agencies and courts

   may apply for:

   $1,300,000,000--Drug Court programs (treatment backed up by

   drug testing and certain punishment for non-violent offenders currently

   on probation.) Estimated $34 million for Georgia--enough

   for about 17,400 offenders over six years.

   $320,000,000--Criminal record systems (Brady Law), communications

   equipment, and DNA testing; and

   $200,000,000--Judges, prosecutors and public defenders (estimated

   $5 million for Georgia).

   Prevention Programs

   Local Partnership Act--$40 million in direct grants to cities and towns in

   Georgia. Wide discretion permits local governments to use the dollars for

   education, drug treatment, and jobs programs.

   Violence Against Women Act--$27 million in grants for police, prosecutors,

   and victims services; $8 million in grants for shelters for battered

   women and their children; and Georgia can apply for a share of $500

   million in several discretionary programs.

   After-School and In-School "Safe Havens" for At-Risk Children--$27 million

   for non-profit, community-based organizations in Georgia.

   Drug Treatment in Prisons--$6 million to treat up to an estimated 5,400

   drug-addicted prisoners in Georgia prisons over the next 6 years.

   Discretionary Grants--Georgia agencies and non-profits may apply for:

   Yes--$650 million for the President's Youth Employment and Skills

   crime prevention program, which provides jobs to young adults in

   high crime areas. Program involvement is conditioned on continued

   responsible behavior.

   Community Economic Partnership--$300 million for lines of credit

   to community development corporations to stimulate business and

   employment opportunities for low-income, unemployed and underemployed

   individuals.

   Anti-Gang Grants--$125 million for programs to give young people

   positive alternatives to gangs, such as academic, athletic, and artistic

   after-school activities, mentoring programs, scout troops, and

   sports leagues.

   Sports Leagues--$40 million for midnight sports leagues to give

   at-risk youth nightly alternatives to the streets, and $50 million for

   the U.S. Olympic Committee to develop supervised sports and

   recreation programs in high-crime areas.

   Boys and Girls Clubs--$30 million to establish clubs in low-income

   housing communities, and $10 million to encourage police officers

   to live in those communities.

   Triad--$6 million for partnerships between senior citizens groups,

   police chiefs, and sheriffs to combat crimes against elderly Americans.

   Police Partnerships for Children--$20 million for partnerships between

   law enforcement and social service agencies to fight crimes

   against children and to create youth councils to combat crime.

   Visitation Centers--$30 million for supervised centers for divorced

   or separated parents to visit their children in "safe havens" when

   there is a history of risk of physical or sexual abuse.(7)

   The overarching goal of this article, and of Title VI itself, is to encourage states to address the racial discrimination that pervades their systems of capital punishment. By increasing the real financial costs of discrimination, use of statutory anti-discrimination tools in this context may act as Congress intended when it enacted Title VI three decades ago--to encourage, or to coerce, racial fairness.

   Part II of this article discusses the McCleskey decision and the Baldus study. Part III examines Title VI of the 1964 Civil Rights Act and explores whether Title VI mandates defunding of programs that have a discriminatory impact, at least where implementing regulations prohibit impact discrimination. By contrast, causes of action based on the Eighth and Fourteenth Amendments to the federal Constitution require a showing of discriminatory intent. Part IV addresses several collateral but practically crucial issues surrounding the use of Title VI in the capital punishment context: (1) the structure of proof; (2) the meaning of a "program" under Title VI; (3) the possible presence of a private right of action under Title VI; (4) the scope of the remedy; and (5) the problem of who possesses "standing" to initiate legal action aimed at defunding death.

   Title VI works. Gerald Rosenberg documented that:

   When the federal government [through Title VI] made money available to

   local school districts that desegregated, it loosed a powerful and attractive

   force on segregated schools. This was particularly true in the South

   because that region spent less on schools, as...