What Constitutes Discrimination in the Courts? Proving Discriminatory Intent and Systematic Racism in the Death Penalty

Despite overwhelming evidence of systemic racial discrimination within the United States, it is almost impossible to prove its existence within the court. In the historic decision, McCleskey v. Kemp (1987) decision, the Supreme Court ruled that statistical evidence cannot be used to overturn a previous court decision; specifically, the court stated that statistical evidence proving the presence of racial discrimination is not sufficient to warrant re-evaluation under the Equal Protection Clause of the Fourteenth Amendment. [1] The Supreme Court cited the precedent set in Washington v. Davis (1976), which stated that the plaintiff must prove that the state intended to discriminate in order for the case to undergo review through the Equal Protection Clause. [2] Not only is this burden of proof difficult to achieve on its own, but the ruling in McClesky also makes it nearly impossible to meet by excluding statistical data as evidence of intent. Thus, the Supreme Court should reevaluate the standard set for proving discrimination in Washington, which would provide grounds to overturn McCleskeyunder the Equal Protection Clause. By accounting for the specific wording and historical context present in Washington, statistical evidence could qualify as sufficient evidence for discrimination—allowing for challenges regarding racial discrimination to be better accounted for in the courts.

In 1986, McCleskey, a Black man, was convicted of murdering a white police officer in Georgia and sentenced to death. [3] Upon receiving this verdict, McCleskey filed an appeal to the Federal District Court, arguing that the death penalty was enforced in a racially discriminatory manner and that it violated the Equal Protection Clause of the Fourteenth Amendment. [4] The case cited a study conducted in 1983 by David C. Baldus, a professor of law at the University of Iowa, which proved that Black defendants have the greatest likelihood of being sentenced to death when their murder victim was white. [5] McCleskey used the Baldus Study to prove that his death sentence was motivated by racial discrimination by citing the statistically significant correlation between a defendant's race and the likelihood of being sentenced to death. He argued that the presence of racial discrimination in his sentence constituted a violation of the Fourteenth Amendment. However, in a 5-4 decision, the Supreme Court rejected McCleskey's appeal, and set a strict standard for proving racial discrimination. [6] 

McCleskey cited the Fourteenth Amendment, which grants equal protection to all United States citizens. The first section of the Fourteenth Amendment––the Equal Protection Clause––states that the United States cannot "deny to any person within its jurisdiction the equal protection of the laws." [7] In 1868, the Fourteenth Amendment’s ratification overturned Dred Scott v. Sandford (1857), in which the Supreme Court ruled that African Americans were not American citizens and therefore could not claim rights afforded to citizens. [8] The Equal Protection Clause has also been cited to overturn important civil rights cases such as Plessy v. Ferguson (1896), where the court ruled that racial segregation was constitutional, and Brown v. Board of Education (1954), which upheld the constitutionality of segregated public schools. [9] 

The Supreme Court held that McCleskey’s sentence did not violate the Fourteenth Amendment because the plaintiff was unable to establish that the state had the intent to discriminate. [10] The decision stated that “to prevail under the [Equal Protection] Clause, the petitioner must prove that the decision-makers in his case acted with discriminatory purpose.” [11] The court’s decision cited precedent set in Washington v. Davis (1976) which requires petitioners to prove the existence of purposeful discrimination by the state before their case can undergo review through the Fourteenth Amendment. [12] In Washington v. Davis (1976), two Black citizens were rejected from becoming police officers because they failed a written test that assessed verbal skills. [13] The plaintiffs argued that the test was racially discriminatory and resulted in the exclusion of Black applicants; however, the court ruled that, because there was no proof that the test was created with the intent to discriminate, it could not be reviewed under the Fourteenth Amendment. [14] 

However, the language used in Washington is distinct from McCleskey. Due to the fact that the written test in the job application was administered uniformly to every applicant, the court characterized the test as “neutral on its face,” so there was no intentional discrimination. [15] Unlike a written test, which is administered uniformly to every participant, the discrepancy in the application of the death penalty is inflicted actively, through a decision making process that selects who will—and will not–receive it. The Baldus Study proves that racial bias actively influences whether or not an individual is sentenced to the death penalty based on race, meaning the court consciously made a decision to sentence McCleskey to death instead of giving him a lighter sentence.  

Furthermore, the decision failed to recognize the historical origins of the death penalty, which prove that it was intentionally designed to target Black people. During the 17th century, the death penalty was reserved for slaves and free Black people in the South; thus, capital punishment was created with the discriminatory intent to target Black people. [17] Enslaved Black people were sentenced to death for a wider variety of crimes, at a higher rate—especially for nonviolent crimes, and subjected to worse forms of execution than white people. [18] This trend has continued in modern times: in the 1960s and 70s, the death penalty was inflicted against Black Americans at a much higher rate than it was against white Americans. [19] Including a historical analysis of the death penalty demonstrates that, at its core, it is not a neutral form of punishment. Combined with the results of the Baldus Study, it is evident that the death penalty constitutes a “major systematic defect,” per the burden of proof of intentional discrimination set by Justice Powell [20]

If McCleskey overcomes the burden of proof cited in Washington, then the case would be subject to evaluation under the Equal Protection Clause. The Equal Protection Clause is subject to three standards of review within the courts: rational basis review, intermediate scrutiny, and strict scrutiny. McCleskey  would not be subject to the intermediate scrutiny test because the test is only utilized in cases regarding gender discrimination or the First Amendment. [21] Rational basis review is the least intensive form of review and requires that the challenge both has a legitimate purpose and promotes that purpose. [22] McCleskey’s case illustrates the discriminatory nature of the death penalty, and overturning his sentence would alleviate the impact. Therefore, his challenge satisfies rational basis review. 

Strict scrutiny examines whether or not a law furthers governmental interests. It is considered the most challenging test; for a law to be considered discriminatory, plaintiffs must prove it is tailored in a way that interferes with citizens’ rights. [23] In McCleskey, the court established that undoing discrimination constitutes a compelling government interest if the case specifies a form of race-conscious relief or if the plaintiff proves the presence of discrimination through a “strong basis in evidence.” [24] The Baldus Study proves that the death penalty is discriminatory in a statistically significant way, and therefore interferes with citizens' rights. Furthermore, because undoing discrimination constitutes a compelling governmental interest, McCleskey satisfies the strict scrutiny test.

The decision in McCleskey is uniquely significant, as other policies that perpetuate systemic racism in the criminal justice system hinge on it. One prominent example is the use of algorithmic risk assessments, which use formulas to predict the likelihood that a defendant will commit a crime in the future. Courts use risk assessment to set bail, determine sentence lengths, select probation conditions, and make decisions about parole. [25] However, the algorithms were created using police data from the last few decades. Due to the over-policing and criminalization of Black and Latinx populations in America, they are overrepresented in the dataset, meaning the algorithms reinforce racial inequalities when used. [26] Because McCleskey set a precedent preventing statistical evidence from being used to prove racial discrimination, plaintiffs cannot contest sentences based on racially-biased risk assessments. [27] Thus, structural inequalities are being reinforced by the criminal justice system through racially discriminatory data used to inform court decisions, further proving the importance of overturning McCleskey. 

Overturning McCleskey  would have significant impacts on both inmates facing execution and on challenges regarding racial discrimination in the criminal justice system. In Justice Powell’s original opinion, he identifies the significance of ruling in favor of McCleskey:  “[the] Petitioner’s claim, taken to its logical conclusion, throws into serious question the principles that underlie the entire criminal justice system.” [28] The death penalty both reflects and reinforces systemic violence in a racially discriminatory manner, making it clear that the “principles” that Justice Powell is referring to are founded upon racism and discrimination. Indeed, part of the Court’s justification for its ruling comes from a refusal to deal with discrimination in this country. Justice Brennan, who wrote the dissenting opinion, calls Powell’s quote “the most disturbing aspect of its opinion” because of its refusal to consider the pernicious nature of racially discriminatory policies [29] Overturning the decision could provide the grounding for serious racial justice reform, as it would enable more challenges to undergo review. 

By re-evaluating the language regarding proving racial intent set in Washington, and by including historical analysis of the origins of the death penalty, it is clear that the death penalty is employed with a discriminatory purpose. If the case meets the burden of proof set in Washington, then it would be subject to and pass evaluation under the Equal Protection Clause. Since its adoption, the Equal Protection Clause has played a central role in upholding civil rights legislation, specifically to combat institutional racial and gender discrimination. Overturning McCleskey is a necessary step to address the legacy of racial discrimination within the criminal justice system in this country. 

edited by Ilana Gut

Sources:

[1] McCleskey v. Kemp, 481 U.S. 279 (S.C. 1987) https://www.law.cornell.edu/supremecourt/text/481/279. 

[2] Id.

[3] Id.

[4] David C. Baldus, Charles Pulaski, George Woodworth. “Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,” 74 Crim. L. & Criminology 661, 661-753  (1983) https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6378&context=jclc. 

[5] Id.

[6] U.S. Constitution, amend. 14, sec. 1 https://www.law.cornell.edu/constitution/amendmentxiv.

[7] Id.

[8] Dred Scott v. Sandford, 60 U.S. 393 (S.C. 1856) https://www.law.cornell.edu/supremecourt/text/60/393.  

[9] 14th Amendment, History.com (2009), online at https://www.history.com/topics/black-history/fourteenth-amendment (visited May 8, 2022). 

[10] “Case: Landmark: McCleskey V. Kemp,” NAACP Legal Defense and Education Fund (n.d.), https://www.naacpldf.org/case-issue/landmark-mccleskey-v-kemp/. 

[11] Id.

[12] Washington v. Davis, 426 U.S. 229 (S.C. 1976) https://www.law.cornell.edu/supremecourt/text/426/229. 

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Carol S. Steiker, Jordan M. Steiker. “The American Death Penalty and the (In)Visibility of Race,” 82 The University of Chicago Law Review 243, 243-294 (2015), https://www.jstor.org/stable/pdf/43234696.pdf. 

[19] Id. 

[20] Id. 

[21] Id. 

[22] Jeffery A. Kruse. “Substantive Equal Protection Analysis Under State V. Russell, And the Potential Impact on The Criminal Justice System,” 50 Washington and Lee Law Review 1971, 1971-1831 (1993), https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1795&context=wlulr. 

[23] Evan Gerstmann and Christopher Shortell. “The Many faces of Strict Scrutiny: How the Supreme Court Changes the Rules in Race Cases,” 27 University of Pittsburgh Law Review 1, 1-52 (2010), http://lawreview.law.pitt.edu/ojs/lawreview/article/view/151/151. 

[24] Id.

[25] Benjamin Wiggins, “Crime” in Calculating Race: Racial Discrimination in Risk Assessment, 9, 9-32 (New York: Oxford University Press, 2020) . 

[26] Id. 

[27] “Beyond Intent: Establishing Discriminatory Purpose in Algorithmic Risk Assessment,” 134 Harvard Law Review 1760, 1760-1781 (2021), https://harvardlawreview.org/2021/03/beyond-intent-establishing-discriminatory-purpose-in-algorithmic-risk-assessment/. 

[28] Id. 

[29] Id.