Death Penalty Discrimination – Part 3 Procedural Due Process

This is the third part of a series of blog posts discussing how courts handle claims of discrimination in death penalty proceedings.  This post will look at it from a procedural due process point of view.

As noted in Part 1 of this series of blog posts, I discussed how there are two different systems for adjudicating discrimination.  The question raised in a procedural due process analysis: is the existence of two different systems of adjudicating claims of discrimination fundamentally fair?

This analysis may seem to be similar to the equal protection analysis and in many ways there is overlap.  Equal protection analysis seems to be more concerned about the end result.  Whereas, procedural due process is more concerned about the steps that are taken, the process, rather than the end product.

The rules are meant to facilitate fairness and impartiality.  Procedural due process is a right guaranteed in the Fourteenth Amendment of the Constitution that when Constitution that when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard.In other words, procedural due process can be summed up as “our fundamental guarantee of fairness.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 589 (1972) (Marshall, J., dissenting).  Since the process for determining claims of discrimination different from the death penalty proceedings to every other type of proceedings then there may be a procedural due process violation.

In the death penalty context, there is only one step and it uses a higher threshold to prove the discrimination.  With life on the line (it is a death penalty proceeding) it does not make sense for the standard to be more rigorous.  The reason why there is a heightened burden in the criminal system than in the civil system is because society collectively believes it is “far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring). For the judicial system to isolate only discrimination in death penalty proceedings goes against our fundamental societal beliefs.  Especially, when the punishment is irrevocable, it is of the utmost importance for the procedure to be fair.

Procedural due process is not invoked upon every procedural issue.  “Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).   When a claim of discrimination is made in the judicial system, it not only implicates the defendant, but the community at large. Batson v. Kentucky, 476 U.S. 79, 87 (1986) (stating “[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community”).

The goal of procedural due process is to protect the wrongful deprivation of interests through fair procedures.  In discrimination claim in the death penalty process, procedural due process is meant to ensure that life and liberty of defendants is protected via a fair proceeding.

Part 1 – Different Systems for Discrimination

Part 2 – Equal Protection

To download and read my entire paper visit:


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