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November 17, 2013

"Correcting a Fatal Lottery: a Proposal to Apply the Civil Discrimination Standards to the Death Penalty"

The title of this post is the title of this notable student note by Joseph Thomas now available for download via SSRN.  Here is the abstract:

Claims of discrimination in death penalty proceeding receive disparate treatment compared to virtually every other type of discrimination: employment, housing, jury venire, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws.  They each use the same process when there is no direct evidence of discrimination -- a burden shifting framework to help present the evidence in an organized manner with a standard of the preponderance of the evidence that must be demonstrated to prove discrimination took place.  Dissimilarly, death penalty proceedings are the exception to the rule -- all of the evidence is presented in one stage, without any organization, and the heightened standard of exceptionally clear proof must be demonstrated to prove discrimination took place.

With the use of disparate standards to adjudicate the exact same thing -- claims of discrimination without direct evidence -- makes the process used in the death penalty unconstitutional because with life and liberty at stake, defendants in the death penalty should be afforded more protections, not less.  Alternatively, I propose my own standard for handling discrimination cases in the death penalty, based off of the civil standards.

November 17, 2013 at 11:35 AM | Permalink

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Comments

Ah, another death penalty opponent whining about the supposed racism of the death penalty when 57% of those executed since 1976 are non-Hispanic whites. Non-Hispanic whites don't commit 57% of the murders in this country.

The problem with "disparate impact" theory--apart from the obvious issue that the use of the theory to assign liability forces outright discrimination to get numbers right (e.g., race-norming of public school discipline--something which Eric Holder believes in) is that no one can actually settle on when it should be used and when it should not. The use of credit scores in credit decisions clearly has a disparate impact--but the powers that be think that's an ok disparate impact.

I recall an earlier thread about "too much process." Didn't we run through these issues in that one?

Posted by: federalist | Nov 17, 2013 2:11:53 PM

Here is the thread: http://sentencing.typepad.com/sentencing_law_and_policy/2012/12/latest-osjcl-issue-with-mcclesky-at-25-symposium-now-available-on-line.html

Posted by: federalist | Nov 17, 2013 2:43:12 PM

I have a modest proposal: If you want to prove that you were discriminated against, prove that YOU were discriminated against.

Posted by: Bill Otis | Nov 17, 2013 11:16:58 PM

Fed: Ah, another death penalty opponent whining about the supposed racism of the death penalty when 57% of those executed since 1976 are non-Hispanic whites. Non-Hispanic whites don't commit 57% of the murders in this country.

Not every murder is a crime for which the death sentence is a possible punishment.

Posted by: C | Nov 18, 2013 9:17:30 AM

One of the problems with most of the claims for disparate impact analysis on capital punishment is that they engage in state-level impact when the decision on whether to make the death penalty is made by autonomous local actors.

It is one thing to use disparate impact analyisis within the same company or agency when (theoretically) all of acts are subject to review by top management who could take steps to eliminate the cause of the impact.

To use disparate impact when you actually have separate agencies would be a dramatic change. It would be like using the combined statistics at all oil companies to make a prima facie case that Texaco is discriminating.

When I worked in a rural county, we had maybe one or two homicide charges filed a year (mostly white defendants on white victims) and might decide that one or two cases a decade had sufficient aggravating facts to ethically support the filing of aggravating circumstances. To group our one case a decade in with the cases from an urban county that may have filed aggravated circumstances two or three times a year to see if the practices of that county caused a disparate impact on defendants in my county seems to stretch logic beyond the breaking point.

Posted by: tmm | Nov 18, 2013 12:44:18 PM

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