Disparity challenge to death penalty survives motion to dismiss (updated)
Update: Here‘s a copy
CT death row inmates’ racial and geographical disparity challenge to the death penalty survived a motion to dismiss. The challenge was made under provisions of both the Connecticut and Federal Constitutions. That might be what saved it (among other things).
In his decision, Judge Stanley T. Fuger Jr. said Connecticut’s constitution affords defendants greater legal rights than the U.S. Constitution, so, therefore, they have the right to present the kind of systemwide bias evidence that the 1987 ruling barred.
“Connecticut is not closing its eyes to this claim as most state courts have done,” said David Baldus, a professor at the University of Iowa College of Law who has studied bias in the death penalty in four states and in the city of Philadelphia. “So that’s why this is an unusual case. Unusual and important.”
This is a serious issue and perhaps it wouldn’t have been the wisest thing to dismiss the claims, as Judge Fuger recognizes:
“In the instant case, the petitioners allege that they are to be deprived of their lives in a proceeding that has been tainted by the imposition of improper racial determinations,” Fuger wrote in his decision. “The stakes are, therefore, extraordinarily high for these petitioners and merit the closest of scrutiny before throwing the complaint out of court without any opportunity to provide the validity of the claims.”
Previous coverage here, here, here and here.
| Print article | This entry was posted by Gideon on February 28, 2008 at 7:30 am, and is filed under ct legal news, ct state law, death penalty, habeas, racial disparity, sentencing. Follow any responses to this post through RSS 2.0. You can leave a response or trackback from your own site. |
about 3 years ago
What claptrap. The imperial judiciary lives.
about 3 years ago
Yeah. That’s what the imperial judiciary does when it’s not electing our leaders: it refuses to dismiss claims that may fail anyway.
about 3 years ago
First of all, the idea of a geographical challenge is, on its face, absurd. So the fact that the judge didn’t toss it out shows that the judge is a complete bonehead. Let’s look at California. In San Francisco, the DA has taken the position that she will never seek death. Thus, if you swallow the geographic fairness argument, no other murderer in California should get the death penalty. That simply cannot be right.
The race argument is pretty specious too. (And you have to love the overblown language only a judge infatuated with his own words could produce). If racial bias has nothing to do with the defendants’ cases, then how is systemic bias relevant? Moreoever, let’s assume that there is racial bias in the death penalty–does racial bias on the part of some prosecutors mean that death cannot be sought against anyone in the state.
Like it or not, the people of Connecticut, through their elected representatives have provided for a death penalty. It is not for self-important twits like this idiot judge to impose extralegal barriers to its enforcement.
about 3 years ago
All this without even reading the decision. You’re so smart.
about 3 years ago
You don’t have to open an egg to know it’s rotten.
To allow allegations of system-wide racial disparity to void a death penalty prosecution is abject silliness. The defendants are entitled to not have race infect their trial, not lever some biased study to thwart the prosecutor’s discretion to seek death. You don’t have to read the opinion to know this.
And as I said earlier, the geographic disparity argument is just bullshit.
about 3 years ago
SPO said:
Like it or not, the people of Connecticut, through their elected representatives have provided for a death penalty. It is not for self-important twits like this idiot judge to impose extralegal barriers to its enforcement.
An judge reviewing the constitutionality of a law is now an ‘idiot’ who ‘impose[s] extralegal barriers’?
If the people of Connecticut decided to pass a law giving the police the right to search suspects of color at a greater proportion since they are responsible for a greater proportion of crime, statistically, you think such a law would be constitutional?
Face it, the legislature can pass any law it wants… doesn’t mean it’s not up to review.
about 3 years ago
Mark, are you really that silly? A facially neutral law authorizing capital punishment is a far cry from your hypo.
The point is that any capital punishment case has the input of many many people. If allegations of racism, “proven” by dubious statistics can nuke the death penalty in Connecticut, basically you are undermining the people’s right to govern themselves. I know that’s what you want (a win’s a win), but some of us take the view that when the courts encroach, it makes us all less free and less responsible for our government. It’s a lot easier to convince some grandstanding judge (look at this turkey’s overwrought prose) than it is to convince your fellow citizens.
Let’s say they prove that in every other DP case, there is racism–does that mean that the bad acts of other prosecutors ties the hands of the prosecutors in this case? Of course, it shouldn’t–because the will of the people should not be thwarted by the actions of a select few. Who gave them that veto power? But that’s the rationale behind this argument.
This is nonsense. And it is further proof of the arrogance, vanity and stupidity of many of those who wear robes.
about 3 years ago
SPO: You supposedly work in civil law, right? What’s the standard for granting a Motion to Dismiss?
Also, let’s tone down the characterization of the judge.
about 3 years ago
Why would we tone down the characterization of the judge?
I assume that the Ct. standard is like 12(b)(6) in fed court. Under no set of facts could the guy be entitled to relief. Here, I don’t see how the proof that independent actors have bias (remember, each prosecutor is independent of each other) or have different views on when to seek death (i.e., accounting for the “geographic” bias) amounts to anything but a “so what”. Prosecutor X is prosecuting someone for a murder that meets the standard for death in Ct. What difference do the decisions and the motivations of Prosecutors W, Y and Z make to the case Prosecutor X is making. It’s like someone trying to prove employment discrimination by arguing what other employers are doing.
And the geographic bias issue, for the reasons I stated above, is complete nonsense. The learned judge doesn’t seem to have thought through how creating a right to “fairness” across intrastate boundaries would be unworkable.
about 3 years ago
A trial judge in Connecticut has allowed a claim of the type rejected by the Supreme Court in McCleskey v. Kemp, 481 U.S. 279 (1987) to go forward. This is the perennial claim that statistics show a racial or geographic “bias” in the administration of the death penalty. A long forgotten, but important, fact in the McCleskey case is that the federal district judge, after a full hearing with experts on both sides, found that the study did not prove what its authors claimed it proved. See McCleskey v. Zant, 580 F. Supp. 338 (ND Ga. 1984).
In Connecticut, the first study by the Public Defender came up with the “wrong” answer, so they suppressed it. As noted here, the claim that the study had to be suppressed because the results were not statistically significant does not pass the straight-face test. So now they have a new study that gets the “right” answer, and they can go forward. Katie Melone has this story in the Hartford Courant.
The above from: http://www.crimeandconsequences.com/2008/02/the_mccleskey_claim_again_1.html
about 3 years ago
SPO: Did you even read the opinion or is this more nonsense posturing from you?
Why should you tone down the characterization? Because I’m telling you to.
about 3 years ago
I don’t have to read the opinion. All I need to know is the geographic disparity issue is nonsense–i mean really, just because one county has a tougher prosecutor than another county (and that’s not even considering how things change over time), we’re going to give rights to people prosecuted in the tougher counties–and what about different emphases, one county may think that some kinds of death-eligible murders are worse than others–it just gets silly–that the judge does not toss this nonsense out means that reading the opinion is a waste of time. As for racial disparity, one must keep in mind the independence of the actors. What does proving (and I’m using the term loosely here) racial bias of independent prosecutors, juries, judges prove about the specific prosecutor et al. of the case at issue?
This is why I don’t need to read the opinion.
I know it’s hard to take your blinders off, but really, unless we’re going say that (a) you cannot have local variations in prosecutorial discretion on when death is sought and (b) any racial bias demonstrated by dubious reports anywhere in a state renders all death prosecutions in a state racially biased, then the defendants’ position has ZERO merit. If that’s how you think, fine, say so. If that’s how the judge thinks, then he should be forthright about it.
I see we don’t like judges being called names. We wouldn’t want to hurt their feelings, now would we?
about 3 years ago
Hah! You haven’t even read the opinion? Man, your credibility is now slipping into negative territory.
It’s not about hurting their feelings. It’s about being civil. Them’s the rules here. Don’t like it, don’t post.
about 3 years ago
Like I said, you don’t have to crack open an egg to know it’s rotten.
about 3 years ago
Funny how my credibility is negative, but no one can seem to rebut my points . . . .
about 3 years ago
Dear Lord, why???
about 3 years ago
Because I’m not going to waste my time arguing with you when you’re pulling stuff out of thin air and don’t even have the good sense to read the decision before engaging in a vilification of that decision. It’s a waste of everyone’s time and is particularly pointless. Sorry, SPO, I’m not going to take you seriously anymore.
about 3 years ago
SV, certainly you don’t have to rebut my points . . . . but I find it interesting that people will throw out nonsense like “geographic disparity” as if there’s some right to fairness as between counties within a state, and no one can seem to defend it. There simply cannot be such a right, why—because the system is set up so that each local prosecutor makes the decision on whether to seek death. And it is simply impossible to believe that the Connecticut Constitution, sotto voce, imposed a requirement that local prosecutors somehow coordinate how and when they seek death, and this is to say nothing about dealing with how things change over time with respect to when death is sought.
As for racial discrimination–I know it sounds nice to bleat on about how “race should never have anything to do with a death sentence” and how “we should do everything to ensure that it does not”. But the reality is that we have prosecutors, judges and juries making decisions in each death case–how are those decisions applicable to another death case, with different prosecutors, judges and jurors? Now maybe if there’s a smoking gun, as in the Miller-el case or maybe you can prove a single prosecutor has prosecuted in a racially biased manner (and that’s not, by the way, showing one Batson violation), then maybe he doesn’t get to be a prosecutor anymore or maybe the office is DQ’d. But we don’t use that to undermine all death prosecutions in the state.
And why would we stop here? If you have a harsh prosecutor who has a draconian “plead to the lead” policy, isn’t there “unfairness” because other criminals are getting better deals in other jurisdictions? What if one county does more to load up charges than others? Why is the death penalty so different?
Same goes for race. Let’s bring in race in every single trial. Why is death different? It certainly isn’t with respect to Equal Protection.
The claims of the defendants are bogus, and shame on the trial judge for not recognizing it.
about 3 years ago
Why is death different? Because the Supreme Court says so. No need to get into a discussion about why or if it should be; death is different. (I am too lazy to list the scores of opinions citing this principle, but I’m sure you’ve seen them, which makes your comment all the more curious).
This is not a slippery slope. This claim specifically applies to the sentence of death.
about 3 years ago
Miranda, death is different–that’s an 8th Amendment concept, not an Equal Protection Clause issue. Thus, if you can use the proffered evidence to toss the death penalty because of racial bias, then theoretically, you should be able to do so for every criminal prosecution, which is obviously an absurd proposition. Which, of course, undermines the argument for being able to do it in death cases. Just because “death is different” doesn’t mean it gets to be a slogan, and that statement doesn’t mean that you can impose two tiers of scrutiny with respect to the Equal Protection Clause. If statewide data is kosher for evaluating the fairness of seeking the DP, then its kosher for evaluating plea deals and charging decisions.
I am a lot smarter than you guys give me credit for.
about 3 years ago
Although I have not read any other pleading in this case other than Judge Fuger’s decision denying the Motion to Dismiss (so I don’t know how the claim was pleaded exactly), your equal protection hangup is narrow-sighted. As Judge Fuger noted in his opinion, the Eighth Amendment (or Connecticut’s version of it) is absolutely implicated:
First, Judge Fuger quotes from Furman v. Georgia: “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
Then, Judge Fuger explains:
“That is the gravamen of the complaint. The petition is not a global challenge to the death penalty, instead, the petition alleges that there is an impermissible racial disparity and other impermissible factors that creep into the decisions to charge, to prosecute, to impose and to inflict this most ultimate of penalties. The petition clearly asserts that this is a violation of the Constitution of the State of Connecticut.”
In my view, SPO, there are many different constitutional provisions that may prohibit the implementation of the death penalty under circumstances alleged by the petitioners here. The “cruel and unusual” – and yes, “death is different” – analysis seems squarely at play here.
I went back and re-read your posts, but I’m not sure I understand your criticism of Judge Fuger’s decision, especially if your position is that the Motion to Dismiss should have been granted because the petitioners failed to state a legally cognizable equal protection claim. That wasn’t addressed (or seemingly raised by the Respondent) at all in the decision.
about 3 years ago
When we’re talking about racial discrination, it certainly is possible to argue that the Eighth Amendment is violated whenever racial discrimination enters into the punishment. My point is, of course, why only death? It cannot be that the Eighth Amendment/equal protection prohibition on racial discrimination on punishment only engages at death, or more to the point, means that the type of evidence which is admissible to show racial discrimination in death would somehow not be admissible in prosecutions for other crimes.
The upshot of my point is that there is no logical way to distinguish between the ability to use this “evidence” in death cases but not all cases. “Death is different” doesn’t get it done because it’s no more acceptable to have racial discrimination in rape cases and if you allow such “evidence” in death cases, but not rape cases, the defendants in rape cases would be justified in saying “what about me?” You cannot use the Eighth Amendment for the same reason.
We all know that there can be no generalized inquiry into plea bargains and charging decisions–for enormously practical reasons. Allowing them for death cases is incongruous, and the incongruity is not overcome by the reflexive incantation of “death is different”.
The problem, of course, with this “evidence” is that it doesn’t even pass the logical relevance test. How are independent decisions by prosecutors X, Y and Z relevant to a case prosecuted by prosecutor W.
about 3 years ago
SPO said:
It’s like someone trying to prove employment discrimination by arguing what other employers are doing.
and
Funny how my credibility is negative, but no one can seem to rebut my points . . . .
Ok. Well, there’s an area of employment discrimination law — it’s called Title VII — where courts have held that even where an employer is not motivated by a discriminatory intent, it may not use a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.
See, ie., Griggs v. Duke Power Co., 401 U.S. 424 (1971).
about 3 years ago
Uhm, I mean — it’s actually NOT like arguing that something is unfair, based on what other employers are doing. The present challenge to CT’s death penalty is similar to the disparate impact employment discrimination law: the death penalty statute, while facially neutral, is in practice having a disparate impact on minorities. The argument, as I understand it, is not: Prosecutor A always seeks the death penalty, so Prosecutor B shouldn’t be able to seek it.
about 3 years ago
Jan, the problem with your citation to Duke Power is that the company can be looked at as a unit–how is that possible with elected officials beholden to local electorates? If you still argue that disparate impact is important, then what you are arguing is that, sotto voce, the Ct. Constitution requires some kind of equalization with respect to when death is sought. That cannot be right.
If you want to make that argument, fine, just be up front about it. I will note that it exalts the supposed rights of killers over the right of local elected officials to make non-racially biased decisions about the people to seek death against.