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."

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.

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

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:

(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

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.

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 receive 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.

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.

The Supreme Court realized 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."

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.

-- 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.

• You may be able to show that WHR's argument is wrong, but you can't show it wrong the way you're trying here.

• Which means also that you are quite wrong about McCleskey. It is an important case, but not important to the extent or for the reasons you think. The Court believes the case to be about the juries, not the prosecutor, as Justice Powell's opinion shows. They believe that because McCleskey's lawyers litigated it that way. To have turned attention from the jury to the prosecutors would have been wise, but you can't reverse on any ground, as you can when you affirm, so any attempt to make your argument will have trouble (I know, having tried --- McCleskey was decided my Term, and I worked on the case; that there is no dissent by TM should tell you something you haven't picked up yet.)

• If you could get heard on the argument you want to make, and could overcome Washington v. Davis, which I think might be easier than you suppose McCleskey doesn't open the vast can of worms your last passages suggest. The Fulton County DA testified in the McCleskey habeas proceeding that he'd never in sixteen years at the head of the office discussed with any assistant whether to seek the death penalty in any given case, and that he was not aware of any formal office policies on the subject. Under standard differential effects doctrine, McCleskey's showing of unregulated discretion plus differential outcomes plus a history of past discriminatory behavior is a prima facie case, sufficient to shift the burden to the State. That shift, to the State to prove that its system of administration is non-discriminatory, would have been the great payoff of winning McCleskey the right way.

• But your last line is not, I think, an excusable exaggeration of the situation with respect to what killed McCleskey. McCleskey killed a police officer by firing on him from hiding as he entered the furniture store McCleskey and three other men were in the process of robbing, having subdued the staff and the customers. Killers of policemen in Fulton County, Georgia, like many other places in the United States, are likely to be sentenced to death by a jury regardless of the race of the policeman, or--for that matter--whether they have a prior felony conviction. There were other legal arguments to be raised in McCleskey's own case--some of which the Supreme Court refused to hear in 1991--but so far as the grounds offered here were concerned, McCleskey died from the facts of the murder he committed, and not as a victim of any form of discrimination.

• You should have spelled McCleskey correctly.