The
Fight For Life

A bulletin from the Capital Division of the Tennessee District Public Defenders Conference				    	                      Issue11
1503 Parkway Towers, Nashville, Tennessee 37243									            615-532-3390

IS LIFE AS IMPORTANT AS A VOTE?
  McCLESKEY V. KEMP AND BUSH V. GORE

Introduction

	“It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die...[yet] the reverberations of injustice are not so easily confined.”  McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 1794 (1987), Brennan, J., dissenting.  Today the reverberations of racial injustice in our death schemes echo throughout the country, from Terre Haute to every death row in every killing state.  Of the 25 men on death row prosecuted by the U.S. government, only 4 (16%) are white.1  The U.S. population is 82% white according the Census bureau estimate for 2000.2  State death rows are 46% white.  Approximately 82% of the killings which resulted in a death sentence in state cases involved white victims, although nationally 50% of murder victims are white.3  Of the people executed since 1976, 36% have been black and 55% white.4  Of those executed for interracial murder, 11 were white defendants who killed black victims and 161 were black defendants who killed white victims.  Id.  
	State and federal5 governments have rejected any responsibility for and every remedy against the blatant, pervasive racial discrimination embedded in legislated death, whether in the form of abolition, moratoria, or racial justice legislation.6  In McCleskey v. Kemp, supra, the Supreme Court refused to act upon evidence of systemic racism, asserting that “disparities in sentencing are an inevitable part of our criminal justice system” and noting the “benefits that discretion provides to criminal defendants.”  Id. at 1778.  Since 1987 when McCleskey was decided by a 5-4 vote, minority accused have been reaping these “benefits” in numbers highly disproportionate to non-minority murder defendants, as evidenced by the numbers above.  If the Court in 1987 operated from an underlying assumption that as our society progressed away from a racist history our ability to mete out death fairly would improve, the data demonstrate this fallacy.
	Allowing systemic racism to persist does damage to our country, as well as to the individual men and women condemned to die.  Racial bias in the imposition of death erodes the public’s confidence in the criminal justice system.  As Justice O’Connor recently stated, “concrete action must be taken” to eradicate racial bias.7  The Court’s adoption of a new equal protection analysis in Bush v. Gore, 531 U.S. ____, 121 S.Ct. 525 (2000), provides the opportunity to revisit McCleskey in light of mounting statistical evidence of racial bias and the newly propounded equal protection standard.  Since racism in the imposition of the death penalty implicates fundamental constitutional rights, the Court can be expected to apply the same standard used in Bush because the non-constitutional right to vote for President should receive equal or lesser protection than the right not to be killed due to skin color.     

The Equal Protection Clause            

	Section 1 of the Fourteenth Amendment to the U.S. Constitution, proposed in 1866 and ratified in 1868, precludes the states from depriving people of “life, liberty, or property without due process of law” and from denying “the equal protection of the laws.”  The Fourteenth Amendment was part of a trilogy of constitutional amendments designed to protect the rights of recently freed black slaves but has since been extended to a variety of groups and interests.  Rights in civil and criminal law are protected.  Equal protection from -- and equal enforcement of -- criminal laws was a significant concern behind the Fourteenth Amendment because blacks were victimized repeatedly by the criminal justice system.  See McCleskey at 1795, Blackmun, J., dissenting.  Not only did blacks bear the brunt of enforcement of slave code-inspired laws, when victimized they could not rely upon the justice system to punish the offenders.  In the century and a half that have passed since enactment, the courts have made sluggish progress toward the goal of ensuring true equal protection of the laws. 
	In the Civil Rights Cases, 109 U.S. 3 (1883), the Supreme Court invalidated sections of the federal Civil Rights Act of 1876 as unauthorized by the Fourteenth Amendment, thus denying the federal government the ability to prosecute those who denied blacks hotel rooms, access to theaters, and other public accommodations.  Although the Court found an equal protection violation inYick Wo v. Hopkins, 118 U.S. 356 (1886) (authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings), the case did not involve discrimination against blacks.  The case is critical to the history of the Equal Protection Clause since Yick Wo established the principle that the Clause protects the public not only from legislation which is discriminatory on its face but also from laws that discriminate in practice.  Id. at 373-4 (“Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.”).
	In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court denied an Equal Protection Clause challenge to a Louisiana statute which provided for “separate but equal” facilities on trains for whites and “coloreds.”  In doing so, the Court stated: “We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”  “Separate but equal” remained the law of civil rights until Brown v. Board of Education, 347 U.S. 483 (1954).  The rapid legal progress under the Warren Court through the 1960's and 1970's has given way to the backlash of the Rehnquist Court who perceive discrimination only when whites fall victim to “reverse discrimination.”   

	In the criminal justice system, where racial discrimination can be a matter of life or death, the evolvement of equal protection law has taken a similar course.  The Court in Strauder v. West Virginia, 100 U.S. 303 (1879), reversed Strauder’s murder conviction because the jury was selected in accordance with a statute barring blacks from jury service.  Williams v. Mississippi, 170 U.S. 213 (1898), rejected an equal protection challenge arising from Mississippi legislation which provided for  selection of jurors from voter rolls which were in turn selected through a process which permitted commissioners to use literacy tests and other obstructions to suffrage.  In Norris v. Alabama, 294 U.S. 587 (1935), one of the two Supreme Court decisions arising from the infamous Scottsboro Boys case,8 the Court found that, where the defendant is black, systematic and arbitrary exclusion of all blacks from a grand jury or petit jury because of race is a denial of equal protection.  The evidence of discrimination included population totals by race and testimony that no black had been called for jury service within the memory of numerous witnesses, although qualified blacks were present in the county and had been called for federal jury duty.  A jury commissioner testified that no one was automatically or systematically excluded because of race.  The Supreme Court did not credit this testimony. 
	In Swain v. Alabama, 380 U.S. 202 (1965), the Court recognized that systematic use of peremptory challenges against black venire persons could constitute an equal protection violation, although the Court declined to grant relief.  Portions of Swain were overruled by Batson v. Kentucky, 476 U.S. 79 (1986), wherein the Court held the Equal Protection Clause forbids a prosecutor from utilizing peremptory challenges solely on the basis of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.  The Court established a procedure whereby a prima facie case can be raised by the use of a peremptory challenge and rebutted by a prosecutor’s race-neutral explanation.9 
	Apart from Batson, which has failed to prevent discrimination in jury selection10, the trend in recent criminal cases has been to erect, rather than remove, barriers to equal protection.  See McCleskey, supra; United States v. Armstrong, 517 U.S. 456 (1996) (for a criminal defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races).  Justice Rehnquist wrote in Armstrong: “In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present ‘clear evidence to the contrary.’" (citation omitted).  Further, Rehnquist noted that the standard was not so high as to forever preclude relief since the claimants in Yick Wo, supra, had been successful.11     
 
The “Purposeful Discrimination” Requirement   
 
	One of the largest barriers to successfully litigating an equal protection claim is the requirement of proving “purposeful discrimination.”  Justice Powell12 stated in McCleskey:  “Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving ‘the existence of purposeful discrimination.’” McCleskey v. Kemp, supra, 481 U.S. 192.  He cited Whitus v. Georgia, 385 U.S. 545, 550 (1967) and two later cases13 in support of this proposition.  Whitus involved a claim that Georgia’s system of jury selection resulted in the systematic exclusion of blacks from grand and petit juries.  Jury commissioners in Georgia selected names of prospective jurors from the racially segregated books of the county tax receiver.  Proof in the case showed that 27.1% of taxpayers in the county in question were black; that 42.6% of the citizens were black males; that 33 prospective jurors were drawn for grand jury service during the term in which petitioners were indicted, three of whom were black; that only one black sat on the grand jury of 19 persons; that a venire of 90 people was selected of which at least seven were black; and that no black person sat on the jury.  The Court found that “this proof constituted a prima facie case of purposeful discrimination” which was not overcome by the testimony of commissioners that no one was included or rejected on the jury list because of race or color.  In reaching this conclusion and granting relief to Whitus the Court noted the statistical disparities between black taxpayers (27.1%), the grand jury venire (9.1%), and the petit jury venire (7.8%).  These statistical disparities were held sufficient to establish a prima facie case and to overcome the testimony denying any purposeful discrimination.
	Whitus sets out the “purposeful discrimination“ requirement thus: “The burden is, of course, on the petitioners to prove the existence of purposeful discrimination, Tarrance v. Florida, 188 U.S. 519 (1903).  However, once a prima facie case is made out the burden shifts to the prosecution.”  Since Tarrance is the only authority cited for the requirement, it is important to note that the Court in Tarrance never uses the phrase “purposeful discrimination.”
	Tarrance involved an allegation that the plaintiffs were denied equal protection by reason of “actual discrimination against their race.”  The plaintiffs did not claim that the law violated equal protection on its face, but rather “that when a negro is tried for a criminal offense, he is entitled to a jury selected without any discrimination against his race on account of race, color, or previous condition of servitude; and when this is not the case, he is denied the equal protection of the laws as guaranteed by the 14th Amendment to the Constitution of the United States.”  Id. at 520.  The plaintiffs in Tarrance filed an allegation of discrimination in a motion to quash the venire but set out no specific facts or evidence in support thereof, so the state’s motion to strike the filing as “impertinent” was granted.  Id. at 521.  A motion to quash the indictment on the same grounds was also overruled.  The Florida courts ruled that the motion to quash was procedurally improper and that a plea in abatement was the appropriate method of raising the issue.  The Supreme Court deferred to the state’s ruling on procedural grounds and denied relief.  Id. at 522-525.  Before reaching this conclusion, the Court agreed that discrimination by state actors in enforcing a facially neutral law could constitute an equal protection violation: “[such] an actual discrimination is as potential in creating a denial of equality of rights as a discrimination made by law.  But such an actual discrimination is not presumed.  It must be proved or admitted.”  Id. at 520.  Tarrance thus broke no new ground but merely reaffirmed the principles announced in Yick Wo in the context of jury discrimination and stated the obvious need to offer evidence to support an allegation. 
	The “purposeful discrimination” requirement appears then to be neither deeply rooted in nor inescapably intertwined with an Equal Protection analysis.  Moreover, the history of the requirement demonstrates that “purposeful discrimination” can be proven by statistical analysis even when state officials deny any discriminatory purpose.  The McCleskey approach of ignoring actual discrimination unless an evil intent can be shown,14 is not suited to the realities of our modern courtrooms or modern society where most people recognize that there are consequences for speaking certain beliefs.15  Further, the McCleskey narrow view of “purposeful discrimination,” unlike earlier cases such as Whitus, fails to recognize that the Equal Protection Clause was intended to protect against evil results not evil intent.16  The law cannot make someone a non-racist but it can protect victims of a system which is infected with racism.  As Prof. Jeffrey S. Brand writes:

An analysis of the Court's flawed methodology and naive assumptions about race explains the continuing chasm between the rhetoric of inclusion and the reality of exclusion. In fact, since Batson, the Court has created a self-contained system for proving discriminatory purpose that insulates rather than exposes racist attitudes.... racist attitudes persist because the courtroom is not a vacuum where the "scales of justice are evenly held" or where racism, conscious or unconscious, is the aberration rather than the rule. Rather, the judicial process contains the same racist influences as any institution in American society and is replete with procedural hurdles which prevent the process from determining whether such influences exist.17  Brand, The Supreme Court, Equal Protection, and Jury Selection: Denying That Race Still Matters, 1994 Wisc. L. Rev. 511, 527 (1994). 

The Supreme Court in McCleskey adopted the ultimate form of insulation of racial prejudice by recognizing the pervasiveness of racism in the criminal justice system, including death sentencing,18 but refusing to construct a remedy.

Discriminatory Purpose Gives Way to Discriminatory Impact 
in Bush v. Gore 

	In Bush v. Gore, 531 U.S. ___ (2000), the Supreme Court, seeking a more realistic approach,  promulgated a new equal protection standard completely devoid of a “purposeful discrimination” requirement.  The new analysis simply inquires as to whether a state’s action is “consistent with its obligation to avoid arbitrary and disparate treatment of [affected persons].”  Id., slip opinion at 6.  The Court found that “the recount mechanisms implemented in response to the decision of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitary treatment of voters necessary to secure the fundamental right.”  Id. at 7.  The “fundamental right” at issue was the right to vote for President of the United States, a right which the Court recognized is not a federal constitutional right.  Id. at 5.  The Court, however, found that history has “favored” the voter in that all the states have extended to their citizens the right to vote for electors which choose the President.  Id. at 5-6.  Since the right to vote was extended by legislatures, the Court determined that the right is “fundamental” now and that equal weight and dignity are owed to each voter.  Id. at 6.  Thus “[e]qual protection applies as well to the manner of its exercise.”  Id.  The Court did not require that Bush prove, or even allege, evil intent or discriminatory purpose in the actions of the Florida Supreme Court and other state actors.   

Assigning the Risk of Error

	This unexpected departure from previous equal protection analysis bodes well for future equal protection claims based upon racial discrimination, particularly in death penalty cases.19  It is reasonable to expect the Court to apply the same level of protection to the constitutionally-mandated Fourteenth Amendment right barring discrimination based on race20 that it has extended to the non-Constitutional right to vote.  Such a result should not only be compelled by stare decisis but also by principles governing the assignment of risk of error.  Where, as in McCleskey, an equal protection claim also involves Eighth Amendment and heightened Due Process protections,21 the risk of error is so great that the burden on a claimant must be equal to or less than the burden on a person asserting a claim to equal protection in Presidential voting.  As Chief Justice Rehnquist has stated:      
[N]ot only does the standard of proof reflect the importance of a particular adjudication, it also serves as "a societal judgment about how the risk of error should be distributed between the litigants." Santosky, supra, 455 U.S. at 755; Addington, supra, at 423. The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision. We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual's life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated.”  Cruzan v. Director, DMH 497 U.S. 261 (1990).  

	An erroneous decision that a death-sentenced inmate’s trial and sentencing were infected by racial discrimination results in “maintenance of the status quo” -- the inmate continues to live until natural death.  An erroneous decision that the process was not infected results in an execution, a killing that cannot be taken back.  The risk of error in criminal cases, as opposed to civil litigation, was described by the Court in Santosky v. Kramer, 455 U.S. 745, 755 (1982) as follows:

Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a "fair preponderance of the evidence" standard indicates both society's "minimal concern with the outcome," and a conclusion that the litigants should "share the risk of error in roughly equal fashion." 441 U.S. at 423. When the State brings a criminal action to deny a defendant liberty or life, however, the interests of the defendant are of such magnitude that historically, and without any explicit constitutional requirement, they have been protected by standards of proof designed to exclude, as nearly as possible, the likelihood of an erroneous judgment.  Ibid. The stringency of the "beyond a reasonable doubt" standard bespeaks the "weight and gravity" of the private interest affected, id. at 427, society's interest in avoiding erroneous convictions, and a judgment that those interests together require that "society impos[e] almost the entire risk of error upon itself." Id. at 424. See also In re Winship, 397 U.S. at 372 (Harlan, J., concurring).

See also Cooper v. Oklahoma, 517 U.S. 348, 369 (1996):

More importantly, our decision today is in complete accord with the basis for our ruling in Addington. Both cases concern the proper protection of fundamental rights in circumstances in which the State proposes to take drastic action against an individual. The requirement that the grounds for civil commitment be shown by clear and convincing evidence protects the individual's fundamental interest in liberty. The prohibition against requiring the criminal defendant to demonstrate incompetence by clear and convincing evidence safeguards the fundamental right not to stand trial while incompetent. Because Oklahoma's procedural rule allows the State to put to trial a defendant who is more likely than not incompetent, the rule is incompatible with the dictates of due process.

	Given the risks in balance -- the life of a person who may have been sentenced to death due to racial bias versus society’s need to kill that person22 -- the burden of proving racial discrimination in an equal protection challenge should be guided by Bush v. Gore or by a less stringent standard.  

Conclusion  
	
	The evidence is in.  Study after study, including the Baldus study at issue in McCleskey, a subsequent study by the Government Accounting Office (GAO),23 and the Justice Department’s review of federal death sentencing, demonstrates serious racial disparities in death sentencing.  Although some may argue that racism in capital punishment is a problem better suited to legislative remedies than judicial, the Supreme Court cannot ignore equal protection violations when they are raised.  “When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.” Bush v. Gore, supra, at 13.  Nor can the Court rationally deny death-sentenced inmates the same protections assigned to Florida voters unless the answer to the question “is life as important as a vote?” is no. 

ENDNOTES