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< | Transcendental Nonsense, Legal Stories, and The Equal Protection Clause | >
> | A Burden on Defendants: Racial Discrimination and Equal Protection in Criminal Cases | | | | |
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In 1866, the United States added the Fourteenth Amendment to the Constitution, guaranteeing each citizen “equal protection of the laws.” Exactly one hundred years later the Court addressed how to understand the clause in changing times. Harper v. Virginia State Board of Elections, 383 U.S. 663 said: | >
> | In 1866, the United States added the Fourteenth Amendment to the Constitution, guaranteeing each citizen “equal protection of the laws.” Exactly one hundred years later the Court addressed how to understand the clause in changing times. Harper v. Virginia State Board of Elections, 383 U.S. 663 said: | | | "In determining what lines are unconstitutionally discriminatory, we have never been confined to historical notions of equality. Notions of what constitutes equal treatment for the purposes of the Equal Protection Clause do change." | |
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> | Loving v. Virginia, 388 U.S. 1, was more specific when the Court said, “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination.” (Emphasis added). But how do courts recognize “invidious racial discrimination?” The Supreme Court itself is not quite sure and continues to apply different standards for finding discrimination in civil and criminal cases. | | | | |
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In Washington v. Davis, 426 U.S. 229, the Court said, “a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” A significant disproportionate impact across races, without clear discriminatory purpose, does not violate the Constitution’s promise of equal protection. This analysis relies heavily on a subjective (and unknown) mental state of the lawmaker and ignores the subtlety with which discrimination occurs. The Court relies on this standard so as not to address difficult and challenging questions of the true purpose of parties. This, the Court believes, prevents them from making the kind of judgment calls that should be | | | | |
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< | Loving v. Virginia, 388 U.S. 1, was more specific when the Court said, “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination.” (Emphasis added). But how will courts recognize “invidious racial discrimination?” And how should they attempt to eliminate it? Unfortunately, courts have avoided substantive answers to those questions. Instead, they use what Felix Cohen termed “transcendental nonsense,” avoiding difficult questions of equality and race while telling a mythical story about our society.
The hollowness of judicial reasoning on questions of equal protection is most clear in the requirement to show “purposeful intent,” and the wide acceptance of most “race-neutral” statutes. In Washington v. Davis, 426 U.S. 229, the Court said, “a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.” A significant disproportionate impact across races, without clear discriminatory purpose, does not violate the Constitution’s promise of equal protection. This analysis relies heavily on a subjective (and unknown) mental state of the lawmaker and ignores the subtlety with which discrimination occurs. Consider the perspective of Holmes, who wrote “If you want to know the law and nothing else, you must look at it as a bad man.” The United States Supreme Court tells “the bad man” in the legislature that if he wishes to discriminate, he is only required to be unclear about his intentions. | >
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< | Such absurdity only touches the surface of transcendental nonsense concerning equal protection. In his essay, “Transcendental Nonsense and the Functional Approach,” Felix Cohen criticized the abstract terms courts used to eschew difficult questions in favor of circular reasoning. He said: | >
> | This precedent was, however, later adjusted to account for the reality of racial discrimination. In Castaneda v. Partida, 430 U.S.482, the court recognized the general principle of Washington, but they also recognized another case, Arlington Heights v. Metro Housing Dev. Corp, 429 U.S. 252, which said, “[s]ometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face." Castaneda took this concept even further and outlined what constituted a “clear pattern” in spite of racially neutral laws. A prima facie case for an equal protection clause violation exists when: | | | | |
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< | “In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.”
Examining questions of equal protection, we ask first, “what violates the Equal Protection Clause?” The Supreme Court answers by saying “any law or policy with purposeful discrimination.” Because purposeful discrimination involves an internal mental state, however, we must ask a second question. “How can we identify a discriminating purpose?” There is no answer based in any empirical or ethical analysis, no actual standard to measure against, which means that a court decides whatever it wants.
The troubling results of this method are on display in McCleskey v. Kemp, 481 U.S. 279. McCleskey, a black defendant sentenced to death, provided the Supreme Court with a study which revealed that prosecutors sought (and were granted) the death penalty more often in cases with black defendants, particularly when the victim was white.
- No, that's not correct. David Baldus' study showed NO significant dependence on the defendant's race in the sentencing outcomes. Of the two, only the race of the victim turned out to have some significance in the regressions; it was approximately as strongly correlated with a jury death sentence as the presence of a previous felony conviction.
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> | (1) There is a “recognizable, distinct class”
(2) A disparate outcome must be shown over an extended period of time
(3) A procedure that is either not racially neutral OR susceptible to abuse | | | | |
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> | Once a prima facie is established, the burden of proof is on the state to show that any disparate effects t were caused by something other than “invidious discrimination.” But Castaneda laid out guidelines for situations arising “in the context of grand jury selection.” In criminal defense situations, the court seems to simply follow Washington v. Davis. | | | | |
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The troubling results of this standard are on display in McCleskey v. Kemp, 481 U.S. 279. McCleskey, a black defendant sentenced to death, provided the Supreme Court with a study. The study revealed that the race of a murder victim was a significant factor in how often prosecutors sought (and the jury granted) the death penalty. Killing a white person increased the chances that the defendant would received the death penalty. This factor was about as significant as a previous felony conviction of the defendant. Then, the County DA testified that in sixteen years he'd never discussed with any assistant whether to seek the death penalty in a case, and that he was not aware of any official policy. But the Court found no equal protection violation. The disparate effects, even coupled with the unbridled discretion that the prosecution admitted to, did not prove “that either the state or the prosecutor acted with discriminatory intent.” The court uses the Washington v. Davis standard and finds no explicit discriminatory purpose. | | | | |
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< | The Court found that such trends did not prove a violation of the Equal Protection Clause. McCleskey could not prove “that either the state or the prosecutor acted with discriminatory intent.” The study controlled for over 230 non-racial variables, but that was not enough to convince the Court. The problem for McCleskey was that “discriminatory intent” is defined in neither ethical nor empirical terms. No amount of empirical evidence could have helped. | >
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But isn’t the Castaneda standard more appropriate? It is used in civil discrimination cases, and the Court applied it in the context of grand jury selection. The Court seems to believe that, by enacting Title VII of the Civil Rights Act, Congress exercised their power under section 5 of the Fourteenth Amendment and have thus made the necessary legislative decision in civil cases. In short, they believe that finding discrimination in situations like Castaneda are acceptable only because the legislature has explicitly declared it so. But under their authority to hear habeas petitions, Courts have a responsibility to uphold state court decisions only if they (1) are consistent with and reasonably apply the law and (2) reasonably determined the facts. To allow discrimination in criminal cases so long as there is no explicit and clear purpose seems to be both (1) inconsistent with legal definitions of discrimination and (2) an unreasonable way to determine the facts of the case. Furthermore, it creates a criminal law system that is not only susceptible to racial discrimination, but filled with it. | | | | |
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< | The reason the courts act this way, however, is not necessarily based in their own racial biases. Rather, it is judicial cowardice, a way to avoid the reality and difficult questions that our society and legal systems should be addressing. The courts alone cannot give racial minorities equal protection in this country. Psychological studies reveal racial biases in people who were not even aware of their own prejudice (See: Project Implicit). Can the courts outlaw unknown prejudice? Black, Hispanic and Native American children live in poverty at nearly three times the rate of white children (Poverty Rates). Can the courts redistribute wealth? Should they? Public schools get significant funding from local property taxes (See page 2), increasing the likelihood that children in poverty-stricken areas receive substandard education. Are the courts willing to tackle these kinds of problems? It is not only clear and purposeful discriminatory acts that deny racial minorities equal protection. It is the very structure of our society that denies them fair economic opportunities and the ingrained biases of others that continue invidious discrimination, with or without intent. | >
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The Supreme Court realized this in McCleskey, but it quickly backpedaled away. It said: | | | | |
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< | The Supreme Court almost realizes this in McCleskey, but it quickly backpedaled away. It said: | >
> | "McCleskey’s claim, taken to its logical conclusion, throws into serious question the
principles that underlie our entire criminal justice system… If we accepted McCleskey’s
claim that racial bias has impermissibly tainted the capital sentencing decision, we could
soon be faced with similar claims as to other types of penalty." | | | | |
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< | “!McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system… If we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.” | >
> | The Justices are not oblivious to reality. Perhaps it’s not that they are too skeptical to believe McCleskey, but that they are too frightened to. To believe him is to recognize that we fall far short of our constitutional promises, and fixing the problem will require a significant change. To believe him is to admit that racial discrimination is prevalent in the criminal justice system. A different decision in McCleskey would have required prosecutors to provide more proof than a “don’t ask don’t tell” policy when outcomes in their district can be significantly explained by looking at someone’s race. It is possible that McCleskey got a fair chance at justice, but it might have been nice if the Supreme Court demanded some proof of that. | | | | |
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< | The Justices are not oblivious to reality. Perhaps it’s not that they are too skeptical to believe McCleskey, but that they are too frightened to. To believe him is to recognize that we fall far short of our constitutional promises, and fixing the problem will require a complete restructuring of how we think about and carry out “justice.” It is easier not to address the question of equality, whether it’s possible, realistic, or even (at some levels) desirable. It is easier to tell a story that discrimination isn’t pervasive, that this is the land of opportunity, that we live in harmony and that everyone gets a fair chance. We tell a story where the law protects everyone equally. It might not be a true story, but it makes people feel good. Well, except people like McCleskey. It kills people like him. | | | | |
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< | -- ChristopherBuerger - 04 Apr 2008 | >
> | -- ChristopherBuerger - 20 May 2008 | | |
- This is a valuable and interesting essay, with some analytical problems. William Hubbs Rehnquist may not have shared our views of the world, Chris, but he was not stupid. Were he around he would say that you can't simultaneously criticize Washington v. Davis and advance the primary rationale for its existence. If you don't limit the equal protection clause of the fourteenth amendment to intentional discrimination taken under the color of state action, he would say, you are obviously going to have to make legislative judgments of precisely the kind you point to. Section 5 of the Amendment plainly empowers and expects that the legislature will do so, and where it has, as in Title VII of the Civil Rights Act of 1964, a standard of liability based on a showing of differential effects is possible and constitutional. We've known that since the first Griggs Power decision in 1971, before Rehnquist was even on the Court. So all your argument tends to show is that the courts and the legislature are properly engaged as they should be under the amendment.
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