Photo by nodeathpenalty.org
The foundation of the Equal Justice Society is based on the premise that racial justice cannot be achieved when the law fails to reflect actual experience. Under existing equal protection law, the constricted “Intent Doctrine” (as established in the 1976 United States Supreme Court decision Washington v. Davis) ignores much of what we know about the dynamics of modern day discrimination and therefore deprives underrepresented groups access to our courts and redress for discrimination.
By requiring plaintiffs to prove a decision-maker’s conscious intent to discriminate, they are faced with an almost impossible burden.
Our focus on the Intent Doctrine intersected with the efforts of journalist Claire Cooper, formerly of the Sacramento Bee, to draw attention to the structural causes of the vast over-representation by Blacks on death row to a degree virtually unmatched in the nation.
We share Claire’s thoughts below:
In late 2008, I was asked to participate in a panel discussion on race and the California death penalty. What I learned in preparing for my remarks surprised me, though I had covered the state’s death penalty for almost 30 years as a newspaper reporter. Because this information has not been part of our death penalty debate, it may surprise you, too.
I learned, in sum, that blacks in this progressive state are over-represented on death row to a degree virtually unmatched in the nation. Death sentence rates for black defendants here (but not Latinos) far exceed black population rates and even black homicide arrest rates. I also learned that neither race-of-victim information nor any other available data seem sufficient to explain the wide disparities.
Please take a few minutes to read my Sacramento Bee commentary, “Scales of justice may weigh heavily against blacks.” Share with us your reactions and suggestions here. If you are in California, please consider how we might bring the issues to the attention of the state’s policy-makers. If you are outside California, please consider whether hidden racial issues are affecting the death penalty in your state.
My own view is that California should be collecting data on the way discretion is exercised in charging, prosecuting and defending homicide cases, as well as data on the racial composition of death penalty juries. But please share your understanding of the situation. Tell us how we can raise awareness of it and begin to fix it.
– Claire Cooper
EJS has examined the intersection of the doctrine and the death penalty before.
In August 2004, more than 60 people from the Bay Area legal and social science communities gathered for an EJS brown bag to discuss how we can use social science research to advocate for social justice and challenge existing legal frameworks
At the gathering, we discussed how the death penalty — in this case, at the federal level — and race is a good example of an arena with a high potential for frame-breaking.
There have been many cases where the Supreme Court ruled that racial disparities in the way the death penalty is administered are not that important even though in the last 30 years data show that there is a much greater likelihood that Black Americans will be sentenced to death in homicide cases (if and when the victim is white).
The U.S. Supreme Court has chosen to ignore data showing racial patterns, and has instead insisted on an individual case-by-case assessment of fairness.
In the fall of 2005, following the Katrina disaster, EJS began working with a coalition of more than 140 U.S. social justice groups in an effort to focus international attention on human rights violations in the United States. EJS focused on race discrimination and the impact of the intent doctrine on civil rights litigation, and other groups dealt with issues ranging from voting rights to environmental racism and the death penalty.