by: Christina Robinson
This blog post attempts to shed light on a fatal inconsistency in criminal law. Under the Fourteenth Amendment’s Equal Protection Clause, Americans have the right to be free from purposeful discrimination based on race. Yet it is easier for defendants to succeed in making an Equal Protection claim in the context of jury selection than when defendants challenge the system that leads to their death. Is it possible that where the stakes are highest our criminal justice system is the most broken?
In Furman v. Georgia (1972) the Supreme Court held that the death penalty, as then administered, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The Court’s major concern with the death penalty at the time was its discriminatory imposition. However, the death penalty was reinstated only four years later in Gregg v. Georgia (1976), with the Supreme Court’s promise that strict sentencing guidelines would eliminate any unfairness in its administration.
Only a few years later, in October 1978, a black man named Warren McCleskey was convicted of murdering a white police officer and sentenced to death. On appeal, McCleskey brought an Equal Protection challenge against Georgia’s capital punishment statute, arguing Georgia’s administration of capital punishment was racially biased. The Supreme Court rejected his claim for failure to show purposeful discrimination and imposed an impossible burden of proof for any defendant to succeed in bringing an Equal Protection challenge in a death penalty context: A defendant must show direct evidence of purposeful discrimination by the prosecutor or the jury. Out of options, McCleskey was put to death by electrocution in September 1991.
Over forty years after the Supreme Court “declared that the death penalty must be imposed fairly . . . or not at all[,]” capital punishment in the United States is anything but fair. Racial disparity in executions suggest that fact-finders fall back on conscious or unconscious bias about who is a sympathetic victim or criminal during sentencing. For example, in ninety-six percent of the states where the death penalty has been reviewed, there was a sentencing pattern of either race-of-victim or race-of-defendant discrimination or both. African Americans get the death penalty at a thirty-eight percent higher rate than any other ethnic group. Despite the overwhelming evidence of racial bias, after McCleskey the courts have effectively been closed off to challenge the discriminatory imposition of the death penalty.
A similar evidentiary problem arose in the context of Equal Protection challenges in jury selection. In Swain v. Alabama (1965), the Supreme Court condemned the exclusion of racial groups from jury service when it held that a defendant could bring an Equal Protection challenge based on the prosecution’s improper use of peremptory challenges. However, a defendant attempting to make an Equal Protection challenge under Swain was stifled by a similar “crippling” burden of proof–in order to be successful a defendant had to show that the prosecutor removed jurors based on race “in case after case.” The Court resolved this evidentiary problem by fashioning a new standard of proof for defendants seeking to bring an Equal Protection challenge in Batson v. Kentucky (1986). In Batson, the Court intentionally made Equal Protection challenges based on racial discrimination in jury selection more feasible by lowering the evidentiary burden on defendants. Specifically, a defendant could either show purposeful discrimination by meeting the already-existing Swain standard or alternatively use a new process for determining purposeful discrimination in the current case.
Careful analysis of these two streams of case law shows that the burden of proving purposeful discrimination is much higher when defendants challenge the fairness of the system that put them to death than when they challenge the selection of their jury. Given this glaring inconsistency in our criminal justice system, the Supreme Court should re-evaluate the standard it set for bringing an Equal Protection claim in McCleskey, lowering the evidentiary burden for a defendant to succeed from one that is crippling to one that is feasible.
 Furman v. Georgia, 408 U.S. 238, 305 (1972).
 See generally Id.
 Gregg v. Georgia, 428 U.S. 153, 169 (1976).
 McCleskey v. Kemp, 481 U.S. 279, 284–85 (1987).
 David C. Baldus et. al., Race and Proportionality Since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance, 39 Colum. Hum. Rts. L. Rev. 143 (2007).
 Id.; Warren McCleskey Is Dead, New York Times (last visited Nov. 25, 2016), available at http://www.nytimes.com/1991/09/29/opinion/warren-mccleskey-is-dead.html
 Callins v. Collins, 510 U.S. 1141, 1144 (1994) (Blackmun, J., dissenting).
 Arbitrariness – Evidence of Arbitrariness, Death Penalty Information Center (last visited Nov. 25, 2016), available at http://www.deathpenaltyinfo.org/arbitrariness#Evidence.
 David Baldus, et al., In The Post-Furman Era: An Empirical And Legal Overview, With Recent Findings From Philadelphia, 83 Cornell L. Rev. 1638 (1998).
 Arbitrariness, supra note 8.
 David C. Baldus et. al., supra note 5.
 Swain v. Alabama, 380 U.S. 202, 233 (1965) overruled by Batson v. Kentucky, 476 U.S. 79 (1986).
 Batson v. Kentucky, 476 U.S. 79, 126 (1986).
 Id. at 1720.
 Id. at 1721.
 Id. at 1723-24.