Death Penalty the Supreme Court

Death Penalty

The Supreme Court Got it Wrong: U.S. v. Bass

In United States v. Bass, 2001 FED App. 0340P (6th Cir.), the 6th Circuit Court of Appeals was called upon to determine whether the United States District Court for the Eastern District of Michigan had correctly dismissed the United States' death penalty notice after the United States failed to comply with defendant Bass' discovery request in his capital murder trial. The subject of Bass' discovery request was the use of race in the decision to seek the death penalty, including the decision of whether to charge a defendant on a federal or state level. Bass sought policies or manuals related to the decision of whether to charge a defendant on a federal level, a list of all death-eligible defendants since 1995, the disposition of each case, and any official Department of Justice policies to guard against the influence of race in death penalty protocol. The United States failed to comply with defendant's discovery request and the District Court dismissed the death penalty notice. The United States appealed that decision, and the 6th Circuit affirmed the District Court's discovery order, but remanded the case to give the United States an opportunity to comply with the discovery order, and submit the requested materials for an in camera review. The United States filed a petition for a writ of certiorari, which the Supreme Court granted. The Supreme Court reversed the 6th Circuit's decision and determined that the United States did not have to comply with the District Court's discovery order. The Supreme Court based its reasoning on the decision in United States v. Armstrong, where they held that a defendant seeking to establish a selective prosecution claim must show evidence of discriminatory intent and discriminatory effect. (United States v. Armstrong, 517 U.S. 456, 465 (1996)). Because defendant could not offer evidence that similarly situated individuals of a different race had not been exposed to the death penalty, the Court determined that defendant was not entitled to discovery. By making that decision, the Court was turning a blind eye to the rampant racial discrimination in the modern administration of the death penalty, and perpetuating one of the last remaining legal vestiges of slavery and racial discrimination.

First, one must critically review Armstrong, since the reasoning in that case sets up an impossible burden for the average defendant, because only the government can be aware of all similarly situated defendants, since the public only has access to those facts that the government chooses to release about a crime. Therefore, if defendants were death-eligible, but charged with lesser offenses, the fact of their death-eligibility may not be a matter of public record. In Armstrong, the Court tried to suggest that, "the similarly situated requirement does not make a selective-prosecution claim impossible to prove," because of a 20-year-old discrimination suit where an appellant had been able to successfully challenge a discriminatory ordinance. (United States v. Armstrong, 517 U.S. 456, 465 (1996). However, comparing the two cases was a stretch. In Yick Wo, the appellant was seeking to invalidate an ordinance regarding publicly-operated businesses, which meant that a member of the public could investigate and provide evidence of such discrimination. (Yick Wo v. Hopkins, 118 U.S. 356 (1886)). To use that case to bolster a decision denying a defendant access to the discovery necessary to prove racial discrimination is a gross misrepresentation of that decision's basic holding, which was that even facially race-neutral laws could violate the Equal Protection clause of the Fourteenth Amendment if applied in a prejudicial manner.

Second, one must look at the specific decisions prior to Armstrong, such as Batson v. Kentucky, 476 U.S. 79 (1986), where the Court investigated alleged discrimination in jury venire selection. Although that case involved jury selection, the Court established a standard for alleging racial discrimination in prosecution. The Court held that the defendant has to show that he is a member of a cognizable racial group, that the prosecutor has acted in a manner having a discriminatory effect, and that the procedure in place allows those who choose to discriminate the leeway to do so. Once a defendant has established a prima facie showing of discrimination, the State then has the burden of proving race-neutrality. (Batson v. Kentucky, 476 U.S. 79, 96-98 (1986)). The clear reasoning of the Batson decision would suggest that since Bass could show that he is an African-American, that African-Americans are disproportionately subject to the death penalty, and that the decision whether to charge a defendant with the death penalty is left to the discretion of the prosecutor, that he has established a prima facie case of discrimination, which should actually shift the burden to the state to prove race-neutrality, and not simply to comply with a discovery request to provide further investigation into the issue.

Finally, one need look outside of the criminal law to look at how access to appropriate figures can demonstrate that facially race-neutral laws can have an incredibly discriminatory impact. In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court overruled the decision in Plessy v. Ferguson, 163 U.S. 537 (1896), which had determined that separate but equal facilities were not racially discriminatory. The Court overturned that decision based on overwhelming evidence that separate educational facilities were inherently unequal because, even if the facilities were equal, that separation had a negative effect on those children. They made this finding based on psychological evidence presented by the plaintiffs, which was certainly not as broad in scope or as detailed as the evidence that Bass could provide that blacks in America are disproportionately subjected to the death penalty at all stages of the charging process. The plaintiffs in Brown could not demonstrate actual lasting harm to the plaintiffs in question, but could only show a general harm. Moreover, the plaintiffs in Brown had access to psychological information about African-American children which criminal defendants are simply unable to duplicate given governmental barriers to actual discovery.