Wednesday, November 23, 2016
What causes black infants to die at two to three times the rate of white infants and what can be done to address those causes? For decades, every state and the federal government have sought to answer these questions. But does the Constitution permit them to? Does increasingly “colorblind” equal protection doctrine prohibit government from addressing the root causes of racial disparities in health and other contexts, such as education, employment and criminal justice?
In 2000, I argued that state action intended to benefit racial minorities arguably constitutes “suspect” racial discrimination subject to strict scrutiny even when implemented through race-neutral means. This article follows the logic of colorblindness further. It asks whether a state’s investigation into the causes of a racial disparity makes any subsequent state action that uses the information gained by the investigation racially discriminatory, even if the later state action, at the time it is selected, is motivated only by race-neutral purposes and employs race-neutral means. Is state action intended to benefit people regardless of race subject to strict scrutiny whenever the state action is traceable to a prior investigation of a racial disparity? This article will first set forth why the answer to this question may well be yes, with devastating consequences for addressing racial inequality through law. Secondly, the article develops a distinction between the discriminatory and investigative uses of race that could justify, under current doctrine, state action motivated by a concern over racial disparities without being subject to strict scrutiny.
Tuesday, November 22, 2016
In his dissent in McCleskey v. Kemp, Justice William Brennan turned a famous phrase that has long resonated with criminal justice reformers. In upholding Georgia’s capital sentencing system, the majority expressed concern about Eighth Amendment claims based on statistics revealing racial disparities in the application of the death penalty, fearing that such claims “would open the door to widespread challenges to all aspects of criminal sentencing.” Justice Brennan lamented that “on its face, such a statement seems to suggest a fear of too much justice.”
Disconcertingly, almost everyone seriously involved in debates over the modern administration of death penalty seemingly has a fear of too much capital justice. This essay seeks to explain this practical reality of modern death penalty advocacy in order to spotlight the problems it necessarily creates for any sustained efforts to improve the modern death penalty. By unpacking the fear of too much capital justice among capital punishment’s active supporters and ardent opponents, this essay seeks first to expose an enduring disconnect between lay interest and insider advocacy concerning death penalty reform, and second to explain my pessimistic concern that even moderate and modest efforts to improve the modern administration of capital punishment may, more often than not, constitute something of a fool’s errand.
After discussing these dynamics surrounding modern capital punishment advocacy and reform, this essay closes by admitting uncertainty concerning what enduring lessons should be drawn from my observations for the future of the death penalty in the United States. It may be tempting to conclude simply that it would be far wiser for existing death penalty jurisdictions to try to end, rather than just mend, their modern capital punishment systems. But in an effort to provide a silver lining to what may otherwise seem like a dark story, this essay concludes by noting some unique potential benefits for American criminal justice systems when capital jurisdictions try (and fail) to achieve “too much justice” in their death penalty systems.