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Volume 112 - Issue 6



Daniel B. Rodriguez | June 1, 2018

Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in McCleskey v. Kemp—And Some Pathways for Change

Reva B. Siegel | June 1, 2018

In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims. The lecture’s aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that seem responsive to conservative claims of the era about race, rights, and courts. Scrutinizing the Court’s reasons for restricting inferences from statistical evidence opens conversations about the principles on which McCleskey rests and the decision’s prospective reach. A close reading of the decision has led some courts to interpret McCleskey’s restrictions on statistical evidence as a response to particular concerns raised by the record in that case, opening the door to statistical evidence of bias in other equal protection challenges in criminal cases. At the same time, revisiting McCleskey and its progeny raises questions about the capacity of courts to redress bias in the criminal justice system. Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.

What Can Brown Do for You?: Addressing McCleskey v. Kemp as a Flawed Standard for Measuring the Constitutionally Significant Risk of Race Bias

Mario L. Barnes,Erwin Chemerinsky | June 1, 2018

This Essay asserts that in McCleskey v. Kemp, the Supreme Court created a problematic standard for the evidence of race bias necessary to uphold an equal protection claim under the Fourteenth Amendment of the U.S. Constitution. First, the Court’s opinion reinforced the cramped understanding that constitutional claims require evidence of not only disparate impact but also discriminatory purpose, producing significant negative consequences for the operation of the U.S. criminal justice system. Second, the Court rejected the Baldus study’s findings of statistically significant correlations between the races of the perpetrators and victims and the imposition of the death penalty within Georgia criminal courts as insufficient proof of discriminatory intent, overlooking unconscious and structural racism. Third, Justice Lewis Powell’s approach to causation in McCleskey would have rendered almost any social science study incapable of proving the existence of race bias to his satisfaction, creating an unduly high bar for proving intent. Furthermore, this Essay contrasts the Court’s use of the Baldus data in McCleskey with its use of social science data in other cases. For example, in oral arguments for a recent gerrymandering case, Gill v. Whitford, Chief Justice John Roberts summarily rejected the utility of applying empirical findings. In Brown v. Board of Education, by contrast, the Court positively endorsed studies on the harms of racial segregation that were less robust than the Baldus data. In response to uneven uses of empirical data in these cases, this Essay suggests approaches courts might develop to distinguish between stronger and weaker empirical evidence, including an update of how appellate courts review research introduced under the Daubert v. Merrell Dow Pharmaceuticals, Inc. standard. In the wake of decisions such as McCleskey, and the troubled history of considerations of race within social science research, this Essay also articulates the unique challenges that must be confronted when courts consider data on racial impact.

Equal Protection Under the Carceral State

Aya Gruber | June 1, 2018

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety exhibited by the McCleskey majority was a “leniency fear” of death penalty abolition. Opinion author Justice Lewis Powell made clear his view that execution was the appropriate punishment for McCleskey’s crime and expressed worry that McCleskey’s victory would open the door to challenges of criminal sentences more generally. Understanding that the Court’s primary political sensitivity was to state penal authority, not racial hierarchy, complicates the progressive sentiment that McCleskey’s call-to-action is securing equality of punishment. Derrick Bell’s “interest convergence” theory predicts that even conservatives with an aversion to robust equal protection law will accept racial-disparity evidence when in the service of crime-control values. Indeed, Justice Powell may have been more sanguine about McCleskey’s discrimination claim had mandatory capital punishment been an option. Accordingly, I caution that, outside of the death penalty context, courts and lawmakers can address perceived punishment disparities through “level-up” remedies, such as mandatory minimum sentences or abolishing diversion (which is said to favor white defendants). There are numerous examples of convergence between antidiscrimination and prosecutorial interests, including mandatory sentencing guidelines, aggressive domestic violence policing and prosecution, and the movement to abolish Stand-Your-Ground laws.

Combating Discrimination Against the Formerly Incarcerated in the Labor Market

Ifeoma Ajunwa,Angela Onwuachi-Willig | June 1, 2018

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements—which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to enacting such legislation—could help to reduce labor market discrimination against the formerly incarcerated. In so doing, this Part analyzes the influence of racial impact statements in the few states that have implemented them. Part II of this Essay examines the possibility of a contractual solution that could help to decrease discrimination against the formerly incarcerated in the private labor market, particularly by those employers who rely on the labor of imprisoned individuals. Specifically, this Part uses the fact that many private corporations rely on and profit from low-wage prison labor to argue that the state penal institutions that lease prisoners to such corporations should push for contractual agreements that stipulate that corporations relying on prison labor must revoke policies that bar employing the formerly incarcerated upon their release. In addition, this Part explicates how contractual stipulations may also provide for affirmative hiring policies for the formerly incarcerated. Finally, this Essay concludes by highlighting how failure to address continued labor market discrimination against the formerly incarcerated could render the formerly incarcerated a permanent economic underclass, thereby undermining notions of fairness and equality.

Challenging the Rhetorical Gag and TRAP: Reproductive Capacities, Rights, and the Helms Amendment

Michele Goodwin | June 1, 2018

This Essay argues that the battle over women’s autonomy, especially their reproductive healthcare and decision-making, has always been about much more than simply women’s health and safety. Rather, upholding patriarchy and dominion over women’s reproduction historically served political purposes and entrenched social and cultural norms that framed women’s capacities almost exclusively as service to a husband, mothering, reproducing, and sexual chattel. In turn, such social norms—often enforced by statutes and legal opinions—took root in rhetoric rather than the realities of women’s humanity, experiences, capacities, autonomy, and lived lives. As such, law created legal fictions about women and their supposed lack of intellectual and social capacities. Law trapped women to the destinies courts and legislatures aspired for them and continues to do so. This Essay turns to the less engaged international sphere and the copious Congressional Record to unpack how the Helms Amendment and later, the Mexico City Policy (or Global Gag Rule), emerged from this type of lawmaking. This Essay shows how these harmful dictates on women’s lives and bodies in developing nations result in a deadly rise of illegal abortions, criminal punishments, stigmatization, and sadly, deaths.

Equal Protection and White Supremacy

Paul Butler | June 1, 2018

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the law.

The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham v. Connor

Osagie K. Obasogie,Zachary Newman | June 1, 2018

Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in the twenty-six years after) and coded for the types of claims brought by plaintiffs and recognized by federal courts. We find that prior to Graham, federal courts infrequently relied upon the Fourth Amendment in assessing police excessive force claims, a pattern that dramatically changed after the decision: only 28% of the pre-Graham cases include a discussion of the Fourth Amendment whereas 90.4% of the post-Graham cases do. These findings suggest that the Supreme Court in Graham made a particular doctrinal choice in analyzing constitutional questions regarding police violence under the Fourth Amendment (which has an individualizing effect) instead of the Fourteenth Amendment’s Equal Protection Clause and its potential to allow group-based and structural analysis—a move that did not reflect a preexisting trend or consensus in the federal courts. The Court’s doctrinal choice in Graham has contributed to the perpetuation of police excessive use of force in many communities of color.

“Our Taxes Are Too Damn High”: Institutional Racism, Property Tax Assessment, and the Fair Housing Act

Bernadette Atuahene | June 1, 2018

To prevent inflated property tax bills, the Michigan Constitution prohibits property tax assessments from exceeding 50% of a property’s market value. Between 2009 and 2015, the City of Detroit assessed 55%–85% of its residential properties in violation of the Michigan Constitution, and these unconstitutional assessments have had dire consequences. Between 2011 and 2015, one in four Detroit properties have been foreclosed upon for nonpayment of illegally inflated property taxes. In addition to Detroit, the other two cities in Michigan’s Wayne County where African-Americans comprise 70% or more of the population—Highland Park and Inkster—have similarly experienced systemic unconstitutional assessments and unprecedented property tax foreclosure rates. This Essay explores whether property tax administration policies in Wayne County disparately impact African-Americans in violation of the Fair Housing Act. I find that unconstitutional assessments and property tax foreclosures occur at a significantly higher rate in Wayne County’s predominately African-American cities than in its predominately white ones. More importantly, the county’s property tax equalization policy has failed to correct these disparities, leading to a violation of the Fair Housing Act. Unjust property tax administration was frequently used to dispossess African-Americans of their lands and other property during the Jim Crow era. Although the motives may be different, this deplorable form of institutional racism is resurgent in Michigan.

“Playing It Safe” with Empirical Evidence: Selective Use of Social Science in Supreme Court Cases About Racial Justice and Marriage Equality

Russell K. Robinson,David M. Frost | June 1, 2018

This Essay seeks to draw connections between race, sexual orientation, and social science in Supreme Court litigation. In some respects, advocates for racial minorities and sexual minorities face divergent trajectories. Among those asserting civil rights claims, LGBT rights claimants have been uniquely successful at the Court ever since Romer v. Evans in the mid-1990s. During this period, advocates for racial minorities have fought to preserve earlier victories in cases such as Regents of the University of California v. Bakke and have failed to overturn precedents that strictly limit equal protection possibilities, such as McCleskey v. Kemp. Nonetheless, we argue that the Court’s “fear of too much justice” links race and sexual orientation cases and helps to explain victories as well as losses. Even when advocates win in a case like Obergefell v. Hodges or Grutter v. Bollinger, the Court carefully cabins its opinion so as not to destabilize the social hierarchy. We illustrate this claim through a close examination of the use of social science in Obergefell. The Court disregarded evidence suggesting that same-sex couples and parents experience positive differences, as compared to heterosexuals, such as instilling greater respect for gender and sexual orientation equality in their children. The Court also asserted the innocence of opponents of same-sex marriage, ignoring evidence linking the denial of access to marriage to homophobia. In short, a movement to upend homophobic marriage laws was itself confined by homophobia, which influenced which arguments lawyers and Justices could articulate.

Diversity Entitlement: Does Diversity-Benefits Ideology Undermine Inclusion?

Kyneshawau Hurd,Victoria C. Plaut | June 1, 2018

Ideologies are most successful (or most dangerous) when they become common-sense—when they become widely accepted, taken-for-granted truths—because these truths subsequently provide implicit guidelines and expectations about what is moral, legitimate, and necessary in our society. In Regents of University of California v. Bakke, the Court, without a majority opinion, considered and dismissed all but one of several “common-sense” rationales for affirmative action in admissions. While eschewing rationales that focused on addressing discrimination and underrepresentation, the Court found that allowing all students to obtain the educational benefits that flow from diversity was a compelling rationale—essential, even, for a quality education. Although ostensibly pro-diversity, this rationale positioned diversity as conditional on the educational benefit to the student body as a whole, including white students. Armed with social science evidence, subsequent affirmative action jurisprudence in Grutter and Fisher reinforced this rationale. While these cases proved favorable to affirmative action, the reasoning surrounding the benefits of diversity may prove deleterious to inclusion efforts in the long run. In this Essay, we first review the intellectual history of “diversity-benefits” ideology in these key affirmative action cases, focusing on the recruitment of social science by litigants, amici, and the Court. We focus on how these legal actors have used social science to construct a view of diversity as a benefit to all, including dominant groups. In contrast, we note that the impact of discrimination and lack of diversity on historically marginalized groups has been largely, though not entirely, absent from this social science literature. We then examine the interracial contact framework that pervades the diversity-benefits literature, arguing that this approach is psychologically one-sided in that it focuses more on the benefits Whites receive from diversity than on how nondominant groups experience diversity. Moreover, because diversity-benefits ideology positions Whites as key beneficiaries, it could create a sense of entitlement to diversity. We explain that while it appeals to egalitarian sensibilities, it can simultaneously appeal to Whites’ psychological desires to maintain their position at the top of the social hierarchy. Finally, we discuss an experiment we conducted to examine how four rationales based on those in Bakke affect policy support. Preliminary results suggest that diversity-benefits language may lead Whites to support policies that center benefits to white students more than policies tailored for nondominant racial groups. Furthermore, the study provides initial support for the role that egalitarianism and preference for racial hierarchy together can play in cultivating a common-sense entitlement to diversity.

McCleskey v. Kemp: Field Notes from 1977-1991

John Charles Boger | June 1, 2018

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As that effort built, other deficiencies in state capital states became apparent, and LDF eventually asserted a broader constitutional critique of state capital structures and processes. By 1967, LDF and its allies had developed a nationwide “moratorium” campaign that challenged death sentencing statutes in virtually every state. Though the campaign appeared poised for partial success in 1969, changes in Court personnel and shifts in the nation’s mood dashed LDF’s initial hopes. Yet unexpectedly, in 1972, five Justices ruled in Furman v. Georgia that all death sentences and all capital statutes nationwide would fall under the Eighth Amendment’s prohibition against cruel and unusual punishments. Each of the nine Furman Justices wrote separately, without a single governing rationale beyond their expressed uneasiness that the death penalty was being imposed infrequently, capriciously, and in an arbitrary manner. Thirty-five states promptly enacted new and revised capital statutes. Four years later, a majority of the Court held that three of those new state statutes met Eighth and Fourteenth Amendment standards. The 1976 Court majority expressed confidence that the states’ newly revised procedures should work to curb the arbitrariness and capriciousness that had earlier troubled the Furman majority. The McCleskey case emerged from subsequent review of post-Furman sentencing patterns in the State of Georgia. A brilliant and exhaustive study by Professor David Baldus and his colleagues demonstrated that the Court’s assumptions in 1976 were wrong; strong racial disparities in capital sentencing continued to persist statewide in Georgia—especially in cases in which the victims of homicide were white. The Supreme Court eventually heard and decided this case, ruling five to four against Warren McCleskey’s claims in 1987. Justice Lewis Powell’s opinion purported to accept in theory, but appears grievously to have misunderstood or disregarded in fact, McCleskey’s powerful and unrebutted evidence of racial discrimination. Justice Powell’s decision likewise appears to have contorted the Court’s prior Eighth and Fourteenth Amendment jurisprudence, erecting all-but-insuperable future barriers against statistical proof of racial discrimination anywhere within the criminal justice system. This Symposium reflects on the handiwork of the Court in McCleskey and its subsequent impact. As one member of the legal team who brought the case, my contribution is to speculate on how and why the Court might have acquiesced in the face of such troubling patterns in capital sentencing, despite the Justices’ clear condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice. This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.

Online Essay

Eyes Wide Open: What Social Science Can Tell Us About the Supreme Court’s Use of Social Science

Jonathan P. Feingold,Evelyn R. Carter | June 1, 2018

The Northwestern University Law Review’s 2017 Symposium asked whether McCleskey v. Kemp closed the door on social science’s ability to meaningfully contribute to equal protection deliberations. This inquiry is understandable; McCleskey is widely understood to have rendered statistical racial disparities doctrinally irrelevant in the equal protection context. We suggest, however, that this account overstates McCleskey and its doctrinal impact. Roughly fifteen years after McCleskey, Chief Justice William Rehnquist—himself part of the McCleskey majority—invoked admissions data to support his conclusion that the University of Michigan Law School unconstitutionally discriminated against white applicants. Chief Justice Rehnquist’s disparate treatment of statistical evidence in McCleskey and Grutter v. Bollinger reveals the doctrine’s under-determinacy and invites a corresponding inquiry: why do Justices rely on social science in some cases, yet reject it in others? We propose that one answer lies at the intersections of Critical Race Theory (CRT) and empirical scholarship on motivated social cognition. This “eCRT” lens illuminates how ostensibly neutral biases and heuristics, when informed by socially salient racial stereotypes, will predictably and systematically lead judges to overvalue “evidence” that rationalizes existing racial disparities and, as a result, author legal opinions that re-instantiate and legitimize the status quo.