What Justice Requires: Equal Protection Clause Issues with the Massachusetts Supreme Judicial Court's 33E Powers.

• Author: Prober, Clare M.

"Upon deeper inspection, the gender line ... is revealed as a manifestation of traditional attitudes about the expected behavior of males and females, part of the myriad signals and messages that daily underscore the notion of men as society's active members, women as men's quiescent companions." (1)

1. INTRODUCTION

   A central tenet of the United States Constitution is equal protection under the law for every American citizen. (2) The Supreme Court safeguards this right by mandating that differential treatment and classifications of quasi-suspect groups based on gender be subjected to intermediate judicial scrutiny. (3) In Massachusetts, however, gender-based classifications must satisfy strict scrutiny standards to be constitutional under state law. (4)

   The Supreme Court has invalidated several laws seemingly benefiting women disproportionally to men. (5) The Court's justification has been that the laws violated the Equal Protection Clause of the Fourteenth Amendment. (6) In fact, many of such laws that appear to accord women a liberty at men's expense, are actually driven by discriminatory stereotypes against women. (7)

   The Massachusetts Supreme Judicial Court (SJC) has extraordinary powers, including the power to reduce verdicts under chapter 28, section 33E of the Massachusetts General Laws (33E). (8) Pursuant to its 33E powers, the SJC has broad discretion in deciding when to reduce verdicts. (9) The SJC's ability to reduce verdicts any time it determines that justice requires a reduction opens the door for implicit biases to sneak their way into the court's deliberation process and impacts decisions in ways that ultimately violate defendants' Equal Protection rights. (10) Notably, in cases involving child victims, there is a pattern of inconsistent judgments regarding verdict reduction for defendants belonging to different genders. (11) Specifically, the SJC upheld a verdict reduction for a female defendant charged with shaking a baby too hard, yet reversed a verdict reduction for a male defendant whose case had very similar facts. (12) Additionally, the SJC chose to reduce a verdict for a male defendant who beat a child to death, yet refused to reduce a verdict for a female defendant whose actions bore many similarities. (13) In other child-victim cases, the court refused to use its 33E power to reduce verdicts. (14)

   This Note begins with an overview of the Fourteenth Amendment's Equal Protection Clause, and the Supreme Court's treatment of Equal Protection cases involving gender-based discrimination. (15) Next, this Note explores the history of the SJC's extraordinary 33E powers, specifically focusing on its use of verdict reductions with child victims. (16) This Note then argues that the SJC's broad authority to reduce verdicts "when justice requires" has led to potentially discriminatory treatment of defendants charged with killing children depending on gendered circumstances. (17) Accordingly, this Note advocates for several legislative restrictions on the SJC's 33E powers to limit the potential for implicit biases to affect the justices' decisions. (18)

2. HISTORY

   1. Fourteenth Amendment Equal Protection Rights

      1. Federal Fourteenth Amendment Protection for Gender-Based Classifications

         Three years after the Civil War ended, Congress ratified the Fourteenth Amendment. (19) The Amendment's purpose is to protect citizens' Due Process and Equal Protection Clause rights from infringement by the states. (20) The Supreme Court assesses alleged Equal Protection Clause violations differently depending on several key factors. (21) In order to trigger an equal protection analysis, there must be some government action. (22) Additionally, the government action must single out a group of people and that group must be considered a "suspect class." (23)

         Assuming there is a classification, the Court must then decide which level of scrutiny to apply to the government action. (24) The Court's analysis--and likely its decision--will be driven by which level of scrutiny it applies to the challenged action. (25) The Court applies either the strict scrutiny, intermediate scrutiny, or rational basis test, depending on a variety of factors. (26)

         Assuming the Court in question has jurisdiction to hear the case and the case is justiciable, a plaintiff hoping to bring a successful Equal Protection Clause suit must satisfy several requirements. (27) A plaintiff alleging an Equal Protection Clause violation must prove the action in question is government action. (28) If the plaintiff can show government action is at issue, the court can subsequently decide the case on its merits. (29) Then, the plaintiff must prove that the government action creates either an explicit classification; or if the government action is neutral on its face, has both discriminatory intent and purpose. (30) Once the Court determines an express or implied government classification has been created, the court will determine which level of scrutiny to apply to the classification. (31)

         Generally, the Supreme Court will apply strict scrutiny in three instances. (32) The Court will apply the highest level of scrutiny if the government classification is based on a suspect class such as race, national origin, or religion. (33) Additionally, the Court will apply strict scrutiny if the classification infringes on a fundamental right. (34) Finally, the Court may apply strict scrutiny when the classification is "somewhat suspect and the interest is somewhat fundamental." (35) If the Court applies strict scrutiny, the burden of proof shifts from the plaintiff to the government to prove that the classification "furthers a compelling government interest" and that the government used the least restrictive means to achieve that interest. (36)

         For government classifications based on gender, the Court applies intermediate scrutiny. (37) If the Court determines intermediate scrutiny is applicable, the burden of proof shifts to the government to prove that the classification in question is substantially related to an important government purpose. (38) The Court assesses government action that does not create a classification based on a suspect class, and that does not infringe on a fundamental right using the rational basis test, which is highly deferential to the government. (39) Under rational basis, the burden of proof rests on the plaintiff, and the government action is presumed constitutional unless it is irrational, arbitrary, or capricious. (40)

         Before the Supreme Court's establishment of intermediate scrutiny in 1976, the Court analyzed gender-based classifications under the rational basis test. (41) Even while the Court purportedly applied the rational basis test, decisions eventually began incorporating language resembling intermediate scrutiny analysis. (42) Finally, in 1976, the Court established intermediate scrutiny in Craig v. Boren. (43)

         The Supreme Court applies the intermediate scrutiny test when it is determining the constitutionality of gender-based classifications. (44) Interestingly, many of the gender-based classification cases decided by the Court involve laws affording women more freedoms than men. (45) While cases involving male defendants appear to afford women a benefit--such as the ability to buy alcohol at a younger age, certain tax exemptions, or other financial benefits--the supposed advantages stem from underlying sexism towards women. (46)

      2. Massachusetts Fourteenth Amendment Protection for Gender-Based Classifications

         In Massachusetts, unlike under federal law, gender-based classifications and race-based classifications are evaluated under the same level of scrutiny. (47) Under Massachusetts law, gender-based classifications are evaluated under a strict scrutiny standard rather than an intermediate scrutiny standard. (48) This means that to survive a constitutional attack, a gender-based classification must be supported by a compelling interest and the classification must be "limited as narrowly as possible consistent with its proper purpose." (49) This standard imposes a higher burden of proof on the party seeking to uphold the gender-based classifications because rather than serving an important purpose, the classification must serve a compelling interest, and rather than being substantially related to that interest, the classification must be as "narrowly tailored as possible." (50)

   2. Implicit Bias and Its Effects on Judicial Outcomes

      In her amicus brief on behalf of Craig, in Craig v. Boren, then-ACLU attorney Ruth Bader Ginsburg argued that the difference in Oklahoma's drinking age statute was the byproduct of unfavorable societal views of women as passive members of society. (51) At its core, Ginsburg's argument rested on the psychological and sociological concept underlying implicit bias theory, which first rose to prominence nineteen years after her amicus brief. (52) The theory behind implicit bias is that human beings innately have subconscious beliefs and associations; those beliefs and associations are reinforced throughout our lives and affect our perception and treatment of certain groups of people. (53) Implicit biases toward women often include beliefs regarding women's passivity, lack of agency, and fragility. (54) Furthermore, subconscious beliefs regarding female passivity and delicateness often result in paternalistic treatment of women as requiring assistance and protection. (55)

      Because human beings all possess implicit biases, the judiciary is not impervious to their effects, which influence judicial processes at every stage of development. (56) Gendered implicit biases impact courts' treatment of female defendants and subconsciously guide trial outcomes by influencing judges' deliberation when faced with female defendants. (57) The notion that women are passive and delicate results in female defendants receiving more lenient treatment from the criminal justice system as a whole. (58)

      Female defendants...