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Choosing Those Who Will Die: The Effect of Race, Gender, and Law in Prosecutorial Decision to Seek the Death Penalty in Durham County, North Carolina
District prosecutors in the United States exercise virtually unfettered power and discretion to decide which murder cases to prosecute for capital punishment. According to neoclassical theory of formal legal rationality, the process for determining criminal punishment should be based upon legal rules established and sanctioned by the state to communicate the priorities of the political community. The theory therefore argues in favor of a determinate mode of decision-making that diminishes the importance of extrinsic elements such as race and gender in the application of law. In the empirical research herein reported, I test this theory using death eligible cases in Durham County, North Carolina from 2003 to 2007. The analysis indicates that although law has an important effect in determining criminal punishment, extrinsic elements such as race and gender overwhelm the law in influencing prosecutorial decisions to go for death. Durham county prosecutors are 43% more likely to seek the death penalty when a Black defendant kills a White victim compared to a situation where a Black defendant kills a Black victim. The analysis also demonstrates the existence of a gender gap in prosecutorial decision-making. Female murder victims are significantly more likely to precipitate a capital prosecution compared to male victims. These results have important policy implications. Despite publicized attempts by the Supreme Court to eradicate the twin evils of arbitrariness and discrimination from our system of capital punishment, these problems persist. Therefore, it is important for policy makers to devise explicit mechanisms to channel the discretionary judgments of local prosecutors toward greater reliance upon legal precepts rather than extra-legal considerations such as race and sex. As Justice William Brennan warned in his dissent in McKleskey v. Kemp, "The way in which we choose those who will die reveals the depth of moral commitment among the living."Determining the (In)Determinable: Race in Brazil and the United States
In recent years, the Brazilian states of Rio de Janeiro, So Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is "Black'' has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are descendants of Africans in light of the pervasive miscegenation that occurred during and after the Portuguese and Brazilian enslavement of Africans. As a result, Brazilians ubiquitously profess their African ancestry. Yet, a highly stratified racial classification system exists in Brazil whereby the guiding principle for determining race is one's physical appearance—hair texture, skin color, nose size, eye shape, for example. However, it is commonly assumed that the rule of hypodescent-the presence of one African ancestor defines an individual as Black-determines an individual's "Blackness" in the United States. Accordingly, ancestry allegedly determines Blackness in the United States dissimilarly to Brazil, where one's physical appearance is determinative. Contrary to the proposition that race, and specifically Blackness, is fundamentally different in Brazil and the United States, Professor Greene contends that one's physical appearance is the primary determinant of Blackness in both American nations. Indeed, one's ancestry is necessarily implicated in determining race based on “physical appearance," as this method of classifying race is grounded in socially mediated presumptions concerning how an individual's physical appearance denotes his or her genetic makeup. Thus, in this Article, Professor Greene mitigates the void in Brazil/U.S. comparative scholarship discussing race-conscious affirmative action by delineating the universality of race, racial hierarchy, and racial ideology in Brazil and the United States.Do Not (Re)Enter: The Rise of Criminal Background Tenant Screening as a Violation of the Fair Housing Act
Increased landlord discrimination against housing applicants with criminal histories has made locating housing in the private market more challenging than ever for individuals with criminal records. Specifically, the increased use of widely available background information in the application process by private housing providers and high error rates in criminal record databases pose particularly difficult obstacles to securing housing. Furthermore, criminal record screening policies disproportionately affect people of color due to high incarceration rates and housing discrimination. This Note examines whether the policies and practices of private housing providers that reject applicants because of their prior criminal records have an unlawful, disparate impact on racial minorities by denying such individuals the benefits of housing in violation of the federal Fair Housing Act, 42 U.S.C. § 3600, et. seq. The author compares existing enforcement guidance under Title VII employment discrimination law and suggests solutions for balancing the concerns of private housing providers and strong policy reasons behind increasing access to private housing for individuals with criminal records.Is a Burrito a Sandwich? Exploring Race, Class, and Culture in Contracts
A superior court in Worcester, Massachusetts, recently determined that a burrito is not a sandwich. Surprisingly, the decision sparked a firestorm of media attention. Worcester, Massachusetts, is hardly the pinnacle of the culinary arts-so why all the interest in the musings of one lone judge on the nature of burritos and sandwiches? Closer inspection revealed the allure of this otherwise peculiar case: Potentially thousands of dollars turned on the interpretation of a single word in a single clause of a commercial contract. Judge Locke based his decision on "common sense" and a single definition of sandwich-"two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them." The only barrier to the burrito's entry into the sacred realm of sandwiches is an additional piece of bread? What about the one-slice, open-face sandwich? Or the club sandwich, typically served as a double-decker with three pieces of bread? What about wraps? The court's definition lacked subtlety, complexity or nuance; it was rigid, not allowing for the possibility of change and evolution. It was a decision couched in the "primitive formalism" Judge Cardozo derided nearly ninety years ago when he said "[t]he law has outgrown its primitive stage of formalism when the precise word was a sovereign talisman, and every slip was fatal. It takes a broader view to-day." Does it? Despite the title of this piece, the goal is not to determine with any legal, scientific or culinary specificity whether a burrito is a sandwich. Rather, the author explores what lies beneath the "primitive formalism" or somewhat smug determination of the court that common sense answers the question for us. This Article suggests Judge Locke's gut-level understanding that burritos are not sandwiches actually masks an unconscious bias. The author explores this bias by examining the determination of this case and the impact of race, class and culture on contract principles.From Pedagogical Sociology to Constitutional Adjudication: The Meaning of Desegregation in Social Science Research and Law
In the United States following the case of Brown v. Board of Education (1954) federal judges with responsibility for public school desegregation but no expertise in education or schools management appointed experts from the social sciences to act as court advisors. In Boston, MA, educational sociologists helped Judge W. Arthur Garrity design a plan with educational enhancement at its heart, but the educational outcomes were marginalized by a desegregation jurisprudence conceptualized in terms of race rather than education. This Article explores the frustration of outcomes in Boston by reference to the differing conceptualizations of desegregation in law and social science. It argues that whereas social scientists see desegregation in terms of social change requiring integration, for lawyers desegregation is a remedy the content of which is shaped by the nature of the litigation. The imperatives of law and social science have in the past coincided in a jurisprudence of affirmative action but the recent school assignment cases demonstrate the extent to which they have now diverged. This divergence underlies the indeterminacy of the desegregation mandate and provides an analytical framework for a theory of the role of the court expert in schools desegregation.Let’s Not Jump to Conclusions: Approaching Felon Disenfranchisement Challenges Under the Voting Rights Act
Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the disagreeing courts. The crux of this Article is that both sides of the debate have erred. Both sides wrongly assume that the consequences of accepting these vote denial challenges are predictable. However, because a standard approach to vote denial challenges under Section 2 does not currently exist, no court can foresee the results of allowing such challenges to felon disenfranchisement laws. Therefore, predicting the constitutional implications of accepting these challenges without first identifying an appropriate analysis is impossible. This Article concludes by proposing an analysis for consideration. The proposed approach is a tailored version of sliding scale scrutiny--an analysis that the United States Supreme Court following Burdick v. Takushi, now applies to constitutional voting rights claims. Using this adapted approach, the Supreme Court can resolve the current split in authority and find that Section 2 is a viable vehicle for challenging racially-discriminatory felon disenfranchisement laws.In Defense of the Indian Child Welfare Act In Aggravated Circumstances
The Indian Child Welfare Act (ICWA) affords various protections to Indian families throughout child welfare proceedings. Among them is the duty imposed upon the state to provide rehabilitative services to families prior to the outplacement of an Indian child, or termination of parental rights. An analogous provision for non-Indians in the Adoption and Safe Families Act (ASFA) excuses rehabilitative services in "aggravated circumstances" of child abuse. The ICWA contains no such exception, and that absence has been controversial. In 2002, the Alaska Supreme Court applied ASFA's aggravated circumstances exception to the ICWA, thereby excusing services when a father severely abused his three Native children. In 2005, the South Dakota Supreme Court addressed the same issue, but expressly refused to engraft such an exception into the ICWA. This Note defends South Dakota's position on policy grounds. It chiefly argues that an aggravated circumstances exception would do violence to the ICWA and its family preservation goals, and further that such an exception is unnecessary to protect Native children from dangerous parents.Affirmative Action & Negative Action: How Jian Li’s Case Can Benefit Asian Americans
In October 2006, Asian American student Jian D filed a civil rights complaint against Princeton University claiming that Princeton's affirmative action policies were discriminatory. Li argues that affirmative action gives preferences to non-Asian minorities at the expense of Asian students. Li's case aligns the interests of Asian Americans with Whites who challenge affirmative action and suggests that such policies are inherently discriminatory because they exclude students based on race and sacrifice merit. This Article argues that Li's exclusion is not due to affirmative action but is likely due to "negative action," the unfavorable treatment of Asian Americans relative to Whites. Affirmative action is not discriminatory because it considers a multitude of factors, including race, to achieve a diverse student population. Nor does affirmative action sacrifice merit; rather, it redefines merit in a way that can benefit students of all racial groups. On the other hand, negative action is discriminatory and prevalent. Whether it takes the form of legacies, admission limits or racial group comparisons, negative action discriminates against Asian Americans based on their race and contributes to existing inequalities in admissions. Framing Li's case as a claim against negative action instead of affirmative action is a more accurate analysis that attacks ongoing discrimination in admissions, but preserves affirmative action's benefit for all racial groups.From Proposition 209 to Proposal 2: Examining the Effects of Anti-Affirmative Action Voter Initiatives
Transcript of the symposium held at the University of Michigan Law School on Saturday, February 9, 2008 in Hutchins Hall Room 100
