Tag Archives: Fourteenth Amendment

Theories of Discrimination in the Law

The theories of discrimination are important because they allow courts to evaluate discrimination in a legal context.  To be able to measure the existence and extent of discrimination it is necessary to have a theory (concept, or model) of how such discrimination might occur and what its effects might be.  In a legal sense, discrimination can be broken down into either disparate treatment or disparate impact.[1] Looking through legal treatises and the Internet it is difficult to find good working definitions of the theories of discrimination. No matter if the context is employment, racial profiling, or in death penalty proceedings these theories can be applied and help to understand how a claim of discrimination can be made.

i. Disparate Treatment

Disparate treatment is intentional treatment[2] that occurs when an unlawful action is the motivating factor.[3]  The Supreme Court has “consistently used conventional disparate treatment theory, in which proof of intent to discriminate is required, to review. . . decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria.”[4] A simplified way to describe disparate treatment is to equate it with intentional treatment. There is a little more to it, but hopefully it will be flushed out.

First, intentional discrimination needs to be defined.[5]  Intentional discrimination is one of two elements needed to prove disparate impact.[6]  The definition of intent is pivotal.  However, proving intent “is a sensitive inquiry,” especially when direct evidence of discrimination is not available.[7]  A determination of whether there is a disproportionate impact[8] of the treatment can be a good starting point in the analysis.[9] However, Court has not established a fixed procedure for analyzing or proving intent.[10]

To prove disparate treatment three types of evidence can be used: comparative, statistical, and direct evidence of motive.[11]

Comparative evidence examines similarly situated individuals of different race, sex, or national origin accorded differences in treatment in the death penalty context.[12] “Similarly situated [individuals] must be directly comparable to the plaintiff in all material respects, but they need not be identical in every conceivable way.”[13]  Ultimately, it is the fact finder who determines if the comparators are sufficiently similarly situated.[14]

When using comparative evidence in a disparate treatment context, using the correct comparators are essential in establishing that individuals or class members are similarly situated.  Almost by definition, one sub-set of discrimination is: the practice of unfairly treating a person or group differently.[15]  The problem courts deal with is how close a match does a comparator have to be.

There is some leeway when selecting comparators.  It does not have to be an exact match, but “[c]omparators need only be similar enough to enable a meaningful comparison.”[16]  No two situations are exactly the same, and only in theory will a comparator have an exact match.  “Demanding nearly identical comparators can transform this evidentiary ‘boost’ into an insurmountable hurdle.” [17]

However, if comparators are not close enough for a meaningful comparison then they are not useful as an evidentiary tool.  “[T]he comparators must be similar enough that differences in their treatment cannot be explained by other variables, such as distinctions in their roles or performance histories.”[18]

Statistical evidence can be relevant in proving an individual case of disparate treatment because it is evidence of the presence of a discriminatory motive, but does not prove causation.[19]  While statistical data can evidence a discriminatory motive, [20] statistics alone are insufficient to prove disparate treatment.[21]

Either direct or indirect evidence can be used to help establish intent.[22]

Direct evidence of motive is any statement by an official that indicates a bias against members of a particular group.[23] “Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact [in issue] without inference or presumption . . . . [O]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race]. . . constitute direct evidence of discrimination.”[24]

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.”[25] “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.”[26]  To prove the motive or intent, circumstantial evidence can be linked together as the basis of an argument.[27]

If circumstantial evidence is properly assembled it can be even more persuasive than direct evidence.[28] Some courts do not even draw a distinction between the “probative value” of direct and circumstantial evidence.[29]  “‘The reason for treating circumstantial and direct evidence alike,’ the Supreme Court has explained, ‘is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’”[30]

Circumstantial evidence is accepted in both the criminal and civil contexts. The Supreme Court has “never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required.”[31]

ii. Disparate Impact

The disparate impact theory of analyzing discrimination was a construct advocated by the EEOC first in 1966, without judicial or legislative backing.[32]  The agency believed that discrimination was not only intentional acts of overt discrimination against individuals, but it also included facially neutral polices that have an adverse impact. The theory gained traction and later was accepted judicially as a permissible way to analyze discrimination, five years later in Griggs v. Duke Power, Co.[33]

Disparate impact focuses on the effect of an action or policy.  The party claiming a disparate impact needs to establish that a facially neutral act or policy has an adverse effect in significant numbers. [34]  In the death penalty context a disparate impact analysis would work by removing barriers in the death penalty that are not necessarily intended or designed to discriminate – “practices that are fair in form, but [arbitrary] in operation.”[35] Unlike disparate treatment, proof of discriminatory motive is not necessary in a disparate impact analysis; the outcome is the crux of the argument.[36]

In a disparate treatment analysis the policy law or statute is facially neutral.  There is no intent to evaluate.  Thus, disparate impact analyzes the probability of a particular outcome, and cannot prove causation because there is not enough information.[37]  Adverse impact can be determined by comparing the percentage of similarly situated applicants who were selected with the percentage of applicants selected from the group with a different selection rate.[38] In a sequence of events, statistics only look at one particular point in time, and are not reflective of the entire sequence.[39] Statistics can only take into account that variable exist and cannot eliminate the possibility that variables outside of the statistical study may have caused the disparity.[40]

The premise of the disparate impact analysis is some “practices, adopted without a deliberately discriminatory motive, and may in operation be functionally equivalent to intentional discrimination.”[41]

a. Washington v. Davis

Disparate impact is not available in every situation as a method to determine discrimination.  In this case Washington v. Davis[42] precludes disparate impact as the sole reason for a claim of discrimination under the Equal Protection Clause.[43]  In the civil context, Congress has provided statutory protections allowing disparate impact analysis in certain situations when an equal protection claim is made.[44]

Two black police officers brought suit against the Commissioner for the District of Columbia, among others, because the promotion policies were racially discriminatory towards blacks.[45] Part of the promotion policy included a facially neutral written test, which excluded a disproportionately high level of black applicants.[46] Plaintiffs claimed that the discriminatory effect of the test violated the Due Process Clause of the Fifth Amendment and also the Equal Protection Clause of the Fourteenth Amendment.[47]  The test, designed by the Civil Service Commission, was used throughout the federal service to test whether applicants could read and write at a high school level.[48]

Even though the Equal Protection Clause prohibits discrimination based on race, there are limitations on how discrimination can be analyzed. “[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional Solely because it has a racially disproportionate impact.”[49]  Thus, in the death penalty context when asserting a claim under the Equal Protection Clause, more than just disparate impact needs to be asserted. “Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.”[50]  The Equal Protection Clause is supplemented by the language of Title VII of the 1964 Civil Rights Act expressly permitting the use of disparate impact claims in employment discrimination contexts.[51] There is no statutory equivalent of Title VII for claims of equal protection in death penalty proceedings allowing for a pure claim of disparate impact.

A facially neutral policy can be applied so as to “invidiously discriminate,” against a race or a class of people, would trigger the Equal Protections Clause.[52] However, it appears that when a facially neutral policy is applied to invidiously discriminate, there is an intent to discriminate which would not make it a pure claim of disparate impact then, but also that of disparate treatment.  Disparate treatment is a claim that can be asserted under the Due Process and Equal Protection Clauses.

Thus, Washington v. Davis precludes a mere showing of disparate impact when a claim of due process or equal protection is made.  Since claims of discrimination typically involve the Due Process Clause or Equal Protection Clause, then more than just disparate impact must be proved.


[1] 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[2] To describe ‘intentional discrimination’ several synonyms are used by the United States Supreme Court: invidious discrimination, discriminatory intent, and discriminatory purpose.  All of these terms used by the Supreme Court of the United States all refer to the state of mind of the actor.  Even though all of these terms will surface throughout this paper, they will reference to the intent.

[3] 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[4] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 988 (1988).

[5] Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 288 (1997).

[6] Disparate treatment is intentional treatment that occurs when an unlawful action is the motivating factor. 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[7] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[8] Disproportionate impact is not enough to prove a claim of discrimination by itself.  See Disparate Treatment discussion infra.

[9] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[10] Id. at 265-68.

[11] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *1-8 (BNA).

[12] Id. at 1.

[13] Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (internal quotation marks omitted).

[14] Id. at 846.

[15] Suzanne B. Goldberg, Discrimination by Comparison, 120 Yale L.J. 728, 749 (2011).

[16] Coleman v. Donahue, 667 F.3d 835, 848 (7th Cir. 2012).

[17] Id. at 852 (quoting Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008).

[18] Senske v. Sybase, 588 F.3d 501, 510 (7th Cir. 2009); see Morgan v. Selig, 447 F.3d 748, 755 (9th Cir. 2006).

[19] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *5 (BNA); see Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977) (stating “[s]tatistical analyses have served and will continue to serve an important role in cases in which the existence of discrimination is a disputed issue.”) (internal quotation marks omitted).

[20] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *5 (BNA).

[21] Id.

[22] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[23] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *6 (BNA).

[24] Bass v. Bd. of Cnty. Comm’rs, Orange Cnty., Fla., 256 F.3d 1095, 1105 (11th Cir. 2001) (internal quotation marks omitted); see Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *6 (BNA).

[25] Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991) (stating “circumstantial evidence alone can support a finding of political discrimination”).

[26] Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999).

[27] Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 668 (1989) (stating “a plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence”).

[28] “Perhaps on average circumstantial evidence requires a longer chain of inferences, but if each link is solid, the evidence may be compelling-may be more compelling than eyewitness testimony, which depends for its accuracy on the accuracy of the eyewitness’s recollection as well as on his honesty.”  Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir. 2006).

[29] Doe v. United Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003).

[30] Doe v. United Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003) (quoting Desert Palace Inc. v. Costa, 539 U.S. 90, 100 (2003)).

[31] Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (citing Holland v. United States, 348 U.S. 121, 140 (1954)).

[32] Shaping Employment Discrimination LawThe Disparate Impact Theory of Discrimination, Equal Employment Opportunity Commission, http://www.eeoc.gov/eeoc/history/35th/1965-71/shaping.html (last visited Sept. 13, 2013); Griggs v. Duke Power Co., 401 U.S. 424, 433 n.9 (1971) (stating “EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: The Commission accordingly interprets ‘professionally developed ability test’ to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant’s ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII.’”).

[33] Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971).

[34] Section 604 Theories of Discrimination, 604.7 Adverse Impact, EEOC Compl. Man., at *1 (BNA).

[35] Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

[36] Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).

[37] The Statistics of Discrimination Using Statistical Evidence in Discrimination Cases, Part 1. Introduction to Statistics and Discrimination, Chapter 2. Statistics: An Introduction, § 2:5. The problem of causation, at 1 (West 2012).

[38] Section 604 Theories of Discrimination, 604.7 Adverse Impact, EEOC Compl. Man., at *1 (BNA).

[39] See Washington v. Davis, 426 U.S. 229 (1976).

[40] The Statistics of Discrimination Using Statistical Evidence in Discrimination Cases, Part 1. Introduction to Statistics and Discrimination, Chapter 2. Statistics: An Introduction, § 2:5. The problem of causation, at 1 (West 2012).

[41] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988).

[42] Washington v. Davis, 426 U.S. 229 (1976).

[43] Dorsey v. United States, 132 S. Ct. 2321, 2344, (2012) (Scalia, J., dissenting) (stating “only intentional discrimination may violate the equal protection component of the Fifth Amendment’s Due Process Clause”).

[44] E.g. 42 U.S.C. § 2000e-2(k) (employment discrimination).

[45] Washington v. Davis, 426 U.S. 229, 232 (1976).

[46] Id.at 233.

[47] Id.

[48] Id. at 234-35.

[49] Id. at 239 (original emphasis included).

[50] Id. at 242.

[51] 42 U.S.C. §2000e-2(k).

[52] Washington v. Davis, 426 U.S. 229, 241 (1976).

Police Have Affirmative Duty to Accommodate Disabilities

The police are subject to Title II of the Americans with Disabilities Act.

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

— 42 U.S.C. § 12132.

Before the analysis goes too far, it is important to note not all disabilities are covered by the Americans with Disabilities Act.  Not just anyone with a disability is covered — it must be a “qualified individual.”  An individual with a disability is: a person with a physical or mental impairment that substantially limits a “major life activity.”  Direction for which disabilities substantially limit major life activities is defined in the statute: 42 U.S.C. § 12131(b) and 42 U.S.C. § 12102.

The language of the legislation says that a qualified individual cannot be denied the benefits of a public service or program.  Courts have interpreted this to mean that there is an affirmative duty, or a legal obligation to serve the disabled in a reasonable manner.[1] The United States Supreme Court said to prevent unconstitutional behavior, it must be prophylactic.  In other words, there must be something in place ahead of time to reasonably anticipate the needs of those with known disabilities.

Planning ahead of time in how to accommodate the disabled is a challenging proposition because each investigation is different. Investigations into domestic abuse provide a different set of challenges than road side traffic stop.  Crafting universal policies to deal with the various disabilities is difficult enough, but to apply those policies to the multitude of investigation types can be daunting.

Allowing uniformly-applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate that ADA requirement.

— Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007).

On the other hand, allowing the police to treat everyone the same during an investigation would directly contradict the intentions of the Americans with Disabilities Act.

The accommodation must be reasonable and not create an undue burden for the police (since we are specifically talking about police investigations).

What is reasonable is usually judged on a reasonable person standard.  To use the standard the judge or a jury is asked to put themselves in the place of an imaginary person who is completely objective and of reasonable intelligence.[2] To judge if the accommodations are reasonable, a reasonable person would look to see if the accommodations “take steps to ensure that disabled persons have equal access to the goods and services such places offer.”[3] There may be the possibility that there may be more than one reasonable accommodation.  If there is, in fact, more than one reasonable accommodation then the police have a choice on which accommodation to choose.  The Americans with Disabilities Act says only a reasonable accommodation must be provided, not the best accommodation.[4]

Thus, there is a balancing act that courts undertake, especially in police investigations to apply the affirmative duty unless it imposes an “undue burden.”[5] Undue burden is intentionally left undefined, because multiple factors are involved to determine what unduly burdens a public program or service.  Using the example of police investigations, situations that create an undue burden on the Payson Police Department are probably most likely different than the Phoenix Police Department. Notwithstanding, the size and resources of each police department, courts also look to see what resources may be ascertained on short notice. Payson is a fairly isolated town in the middle of the Tonto National Forest that lacks resources from neighboring towns or cities.  If a problem arises that the city of Phoenix cannot handle on its own, it can ask for the support from any city in Maricopa County.

As each case is different in nature, the court will undertake the determination of what is a reasonable accommodation and what is an undue burden.  The court will look at all of the facts in a particular case and weigh the totality of the circumstances in making a determination.

In conclusion, the Americans with Disabilities Act creates an affirmative duty for the police to take some measures to accommodate the disabled ahead of time.  However, what that duty is remains unclear because of the fluid nature of police investigations.  In future posts in this series examining the police’s duty to accommodate, it will be analyzed in depth what circumstances require accommodations by the different circuits.

Part 1: The Police’s Duty to Accommodate Under the Americans with Disabilities Act

[1] Tennessee v. Lane, 541 U.S. 509, 533 (2004) (holding “Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be ‘so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.’”).

[2] Donahoo v. Master Data Ctr., 282 F. Supp. 2d 540, 557 (E.D. Mich. 2003). (“In this case, none of Defendant’s conduct was so extreme that a reasonable person would exclaim “Outrageous!” upon reviewing the facts described above”).

[3]Hahn ex rel. Barta v. Linn Cnty., 130 F. Supp. 2d 1036, 1057 (N.D. Iowa 2001) (stating “the ADA places an affirmative duty on owners and operators of places of public accommodation to make reasonable accommodations and to take steps to ensure that disabled persons have equal access to the goods and services such places offer”).

[4] “The agency was not required to provide [the Plaintiff] with the exact accommodations that [the Plaintiff] requested or the best accommodations, as long as what they provided was reasonable.” Ransome v. Barnhart, CCB-03-2532, 2005 WL 1075370 (D. Md. May 5, 2005).

[5] Toledo v. Sanchez, 454 F.3d 24, 32 (1st Cir. 2006) (stating “Title II imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burden.”)

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: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.

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.