Death Penalty Discrimination – Part 2 Equal Protection

This is the second part of a discussion of discrimination in death penalty proceedings and will focus on how the different systems is a violation of the Equal Protection Clause.

The practice of equal protection in the constitutional sense is not as absolute as it is sometimes thought in our everyday lives.  “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.”  Baxstrom v. Herold, 383 U.S. 107, 111 (1966).  Traditionally claims of discrimination are made about race or gender.  To make an exception of equal protection when a claim of racial discrimination is made it must be proved the government has a compelling interest, but the action it takes is also narrowly tailored to meet its goal.  To make an exception of equal protection when a claim of gender discrimination is made, the government must have an important interest, and the policy must somehow further that interest. In other words, it would have to be shown how the different systems of adjudicating discrimination serves either a compelling or an important government interest.  The McCleskey court made a distinction between discrimination in the death penalty and discrimination in all other contexts. McCleskey v. Kemp, 481 U.S. 279, 294 (1987).  The Court argued that death penalty proceedings are more complex and fundamentally different than other types of discrimination cases.  Id.

My assertion is that even though there may be a fundamental difference between situations, the act of discrimination stays the same regardless of the surrounding circumstances.

The government can have two different systems for adjudicating discrimination and not violate the Equal Protection Clause; however, the government must show that it either has a important or compelling interest at stake to justify the difference in procedure.  The government has an interest in justice.  This can be a double-edged sword, especially in death penalty proceedings when the defendant may not be innocent.  The government has an interest in punishing the guilty.  Although even if the defendant is guilty, the government has an interest in pursuing justice in a fair and impartial manner. The public will lose faith in the judicial system if it does not act in a fair and impartial manner.  The two competing interest makes the government’s interest a balancing act.

Is that enough to meet the important or compelling threshold?  Probably not.  Since the government’s interests are divided between prosecuting crimes and ensuring procedural fairness.

Added to the weighing of interests is that both systems are not equal. The burden-shifting standard was created by a unanimous Supreme Court in the case McDonnell-Douglas Corp. v. Green 411 U.S. 792 (1973), which dealt with the order and allocation of proof in employment discrimination.  The analysis of the McDonnell Douglas burden-shifting framework works in three parts: 1. The plaintiff must establish a prima facie case of discrimination; 2. The employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and 3. In order to prevail, the plaintiff must prove that the employer’s stated reason is a pretext to hide discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).  Created as an option procedurally by the Court to be used if the case lacks direct evidence of discrimination.  Many times there is not hard evidence of discrimination, especially as our society becomes more aware of what discrimination is, thus forcing a claim of discrimination to be pieced together from multiple items or sources.

Indirect or circumstantial evidence is extremely useful in vague or unclear issues, for instance when an issue turns on an “actor’s motive or intent.” Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991) (stating “circumstantial evidence alone can support a finding of political discrimination”). “A discrimination suit (unlike, for instance, an action for negligence or breach of contract) puts the plaintiff in the difficult position of having to prove the state of mind of the person making the [sentencing] decision.”  Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999).  To prove the motive or intent, circumstantial evidence can be linked together as the basis of an argument. Piecing an argument together through circumstantial evidence can be daunting and confusing task both for the parties and for the judge.

That is why it is counter-intuitive to use a system that does not help with the order and allocation of evidence for significantly more complex fact patterns, like death penalty proceedings.  When it is also considered that the government has an interest in procedural fairness, then it becomes very difficult to show how a difficult more rigid procedure for adjudicating claims of discrimination in death penalty proceedings is not a violation of the Equal Protection Clause.

Part 1 – Different Systems

Part 3 – Procedural Due Process

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.

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