One man’s regret is another man’s disparity

Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.

Justice Powell, writing for the majority in McCleskey v. Kemp.

["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.

Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.

The death penalty is but one type of sentence that is subject to this disparate effect. There is a strong argument to be made that all sentencings are inherently biased and that the data exists – if only one would look for it – that blacks and minorities are routinely sentenced more harshly than their white counterparts. Even controlling for variables like criminal history (which presents an interesting chicken-and-egg argument), there is ample anecdotal evidence to suggest that minorities are indeed treated more harshly than whites.

Yet, there is McCleskey. It is not the effect, but the purpose, we are told. So our conscience must be clear.

And so today, in a non-death penalty case, former Connecticut Supreme Court Justice David Borden, writing for an unanimous appellate court in Abdullah v. Commissioner, holds out his handcuffed hands and cites to McCleskey as often as is conscionable:

The short answer to this argument [that the Court should recognize McCleskey as an outlier and decline to apply it] is that such a course of judicial conduct, namely, to decline to follow United States Supreme Court precedent with regard  to an issue of federal law, is simply beyond our authority. State v. Marquez, 291 Conn. 122, 125 n.4, 967 A.2d 56, cert. denied, U.S. , 130 S. Ct. 237,  175 L. Ed. 2d 163 (2009).

But we must remember that there are always two Constitutions at play in criminal justice: the Federal and the State. Abdullah, for some reason, makes a complete muck out the State constitutional argument, failing to even raise it in his opening brief. Justice Borden, ever the brilliant jurist, seems somewhat disappointed with his inability to even attempt a bite at the apple:

The petitioner’s principal brief is bereft of what could, under even a very broad interpretation of Geisler, be considered such an analysis. As we have  indicated, the portion of the petitioner’s principal brief on which he relies consists, instead, of law review articles criticizing McCleskey, a discussion of stare  decisis and an argument that McCleskey undermines faith in our judicial system. This lack of a Geisler analysis is particularly significant because this is  precisely the type of case in which a thorough Geisler analysis in the petitioner’s principal brief, to which the respondent could respond in his brief, would  have been useful in order for this court to make a thoughtful and principled decision on a significant claim under the state constitution.

Maybe he’ll still get his chance with the death penalty racial disparity litigation that’s ongoing. State v. Geisler is a Connecticut Supreme Court case which lays out the rubric under which state constitutional claims are to be analyzed. Geisler, in the context of this post, also provides the perfect segue for a greater problem with cases like McCleskey and the 5-4 vote of most controversial decisions today. The majority opinion in Geisler was penned by Justice Berdon (not to be confused with Justice Borden), who is this blog’s favorite jurist ever in the history of the world.

And the problem is this: Justice Powell’s belated change of mind has left in place a terrible decision that continues, to this day, to block any and all attempts at legitimately explaining the injustices inflicted by the death penalty in its application. That the death penalty even exists in its current form in the United States can be traced back to one man. That the application of our laws and the erosion of our fundamental rights and protections and liberties are the product of the particular whims and fancies of one (or nine) individual is pretty potent food for thought.

In times such as these, I turn once again to Justice Berdon:

[T]he transformation of the thinking of these [three] justices demonstrates the great difficulty that jurists of even the United States Supreme Court can experience in evaluating the constitutionality of the death penalty.

Because the law evolves continuously as a result of changes in the personnel of the court or as a result of justices who revise their positions,…the imposition of the death penalty has no place in a civilized democratic society.