Disparate impact on death row: M.L.B. and the indigent's right to counsel at capital state postconviction proceedings.

• Author: Snyder, Brad
• Position: M.L.B. v. S.L.J.

Over the past forty years, the Supreme Court has struggled to find the proper level of access to the justice system for the poor. The United States's commitment to a market economy inevitably results in wealth disparities that prevent the poor from receiving the same level of access to counsel as the rich. In trying to resolve the resulting tension between capitalism and equal justice, the Court has rejected most attempts to remedy the effects of the law on disadvantaged groups.

As an alternative, the Court has recognized a limited number of fundamental constitutional rights under the Fourteenth Amendment's Equal Protection Clause. In some cases, the fundamental rights strand of equal protection has secured equal access to the justice system for the poor by waiving filing and transcript fees and by providing counsel. A recent parental termination case involving a transcript fee waiver was a rare instance in which the Court explicitly sought to remove poverty as a barrier to justice.

In December 1996, the Court held that Melissa Lumpkin Brooks, an indigent Mississippi woman, was entitled to a free transcript in order to appeal the state's decision to take away her two children. The 6-3 decision in M.L.B. v. S.L.J.(1) was based on the fundamental right of access to the criminal process initially recognized in the 1956 case of Griffin v. Illinois.(2) Griffin, relying on the Equal Protection and Due Process Clauses, held that an indigent criminal defendant had the right to a free transcript in order to pursue a direct appeal.(3) In providing Brooks with a free transcript, the M.L.B. Court found that parental termination cases, although technically civil, are "`quasi criminal in nature'"(4) and therefore fall under Griffin's right of access to the criminal process. Thus, M.L.B. can be construed as expanding the fundamental right of access to the criminal process on behalf of the poor.

The M.L.B. Court's apparent enlargement of a fundamental constitutional right provoked a vigorous dissent from the Court's more conservative Justices.(5) Justice Thomas, whose dissent was so strident that Chief Justice Rehnquist refused to join part of it,(6) called for the overruling of the Griffin line of cases.(7) Furthermore, Justice Thomas decried the extension of Griffin's right of access from criminal to quasi-criminal cases: "Griffin did not merely invent the free transcript right for criminal appellants; it was also the launching pad for the discovery of a host of other rights. I fear that the growth of Griffin in the criminal area may be mirrored in the civil area."(8)

Although Justice Thomas's "fear" about purely civil cases is important, a more pressing concern may be the extension of M.L.B. to the state postconviction appeals of indigent death row inmates such as Georgia's Exzavious Lee Gibson. In September 1996, Gibson represented himself involuntarily before a Butts County judge. Gibson, who is borderline mentally retarded, was too poor to afford an attorney, and Georgia had refused to appoint him counsel for his state postconviction hearing.(9) Gibson's case, which a law firm subsequently took pro bono, is being appealed.(10)

In recent years, the Court has been reluctant to invoke the fundamental rights strand of equal protection law to prevent the states from discriminating against the poor.(11) This Note, however, argues that the Court should use M.L.B., the fundamental right of access to the criminal process, and wealth-based disparate impact theory to shift the current state of equal protection law so as to provide counsel at state postconviction review for indigent death row inmates such as Gibson.

Part I argues that by relying on Griffin's fundamental right of access to the criminal process, M.L.B. could revive wealth-based disparate impact theory. It contends that M.L.B. limited the discriminatory purpose or intent requirement of Washington v. Davis,(12) an equal protection case that has impeded disparate impact challenges. Based on M.L.B., this part argues that the Court should recognize a fundamental rights exception to Davis's discriminatory purpose requirement. It asserts that Griffin's fundamental right of access to the criminal process, contrary to Justice Thomas's dissent, is still good law and was not implicitly overruled by Davis.

Part II uses M.L.B.'s emphasis on equal protection to argue that indigent death row inmates such as Gibson should receive appointed counsel at state postconviction review. If the Court is going to forbid death row prisoners from filing successive federal habeas petitions, the part argues, the inmates should have counsel their first time through the capital appellate process. Thus, Murray v. Giarratano,(13) which held that neither the Fourteenth Amendment's Due Process Clause nor the Eighth Amendment requires the states to provide death row inmates with counsel at postconviction proceedings, should be overruled.(14) Part II also demonstrates that state postconviction review of death penalty cases triggers Griffin's fundamental right of access to the criminal process under the Equal Protection Clause. The Court, therefore, should recognize and apply a fundamental rights exception in the cases of indigent death row inmates who are in need of counsel at state postconviction proceedings.

1. M.L.B.: THE REVIVAL OF WEALTH-BASED DISPARATE IMPACT THEORY?

   Disparate impact,(15) often referred to as "de facto discrimination,"(16) is an equal protection theory concerned with discriminatory effects or results. Unlike disparate treatment, or de jure discrimination, which is concerned with corrupted policies and processes imbued with discriminatory purpose or intent, disparate impact analysis focuses on facially neutral laws and practices that affect some protected groups more than other groups. For example, a facially neutral standardized test that produces a higher rate of failure among women than among men has a disparate impact on women.(17) Historically, disparate impact cases have focused on racial and ethnic groups. In the 1960s and 1970s, for example, desegregation litigation targeted laws with racially discriminatory effects.(18) Today, disparate impact challenges are commonly seen in Title VII employment discrimination cases.(19) Recent disparate impact challenges under equal protection law, however, have failed because Davis's discriminatory purpose requirement limits the Court's level of scrutiny.

   Any equal protection challenge to a state law hinges largely on the Court's level of scrutiny. Strict scrutiny, which has been described as "strict" in theory but "fatal" in fact,(20) requires that a law be narrowly tailored to fulfill a compelling state interest. To receive strict scrutiny under equal protection, a law must either involve a suspect classification or impinge on a fundamental right.(21) Wealth is not a suspect classification.(22) Economic inequality has been redressed by the Court only where it affects rights "explicitly or implicitly guaranteed by the Constitution."(23) The two most frequently recognized fundamental equal protection rights are the right to vote and participate in elections(24) and the right of access to the criminal process.(25)

   If an equal protection case does not involve suspect classes or fundamental rights, the law in question will be reviewed under a rational basis test. Laws subject to rationality review require only legitimate state interests and usually are entitled to a "`strong presumption of validity."(26) In general, unintended wealth-based effects will be ignored; the best chance such effects have of being redressed is if fundamental rights, like the right to vote or the right of access to the criminal process, are at stake.

   1. Griffin v. Illinois: The Rise of Wealth-Based Disparate Impact Theory

      Beginning in the mid-1950s, the Warren Court began proscribing discrimination based on wealth by announcing fundamental equal protection rights. In Griffin v. Illinois,(27) an Illinois law requiring transcripts prevented two convicted armed robbers from appealing their cases to the state supreme court. A plurality of the Griffin Court, citing the Equal Protection and Due Process Clauses, held that an indigent criminal defendant's direct appeal cannot be denied because of an inability to afford a transcript.(28) The Court said that although states are not required to provide appellate review, they cannot "discriminate[] against some convicted defendants on account of their poverty."(29) Justice Black, writing on behalf of four members of the Court, declared, "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."(30)

      By justifying his opinion under both the Equal Protection and Due Process Clauses, Justice Black ignited a forty-year controversy over the source of the right of access to the criminal process. Justice Harlan, dissenting in Griffin, preferred to rely on the Due Process Clause.(31) Footnote eleven of Justice Black's plurality opinion answered Justice Harlan's dissent by explicitly discussing the disparate impact theory of equal protection: "Dissenting opinions here argue that the Illinois law should be upheld since by its terms it applies to rich and poor alike. But a law nondiscriminatory on its face may be grossly discriminatory in its operation."(32) Griffin was the first instance in which the Court redressed the effects of economic inequality through the Equal Protection Clause. "In criminal trials," Justice Black wrote, "a State can no more discriminate on account of poverty than on account of religion, race, or color."(33)

      Justice Frankfurter provided the fifth vote in Griffin. A firm believer in the principles of judicial restraint and federalism,(34) Justice Frankfurter wrote that "a State need not equalize economic conditions."(35) He recognized, however, that the Court must strike a balance: "[T]he State will neither bolt the door to equal justice nor support a...