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
While the Thirteenth Amendment ended slavery, any student of
American history can attest to the fact that African-Americans toiled under the vestiges of
slavery for years after they attained freedom. In fact,
violence towards blacks in the Jim Crow South may have been more deadly than prior to emancipation, because whites no longer had a vested monetary interest in the
health and
welfare of blacks. The imposition of the death penalty on blacks as a method of control has its vestiges in slavery and has a long post-slavery history of being used as a tool of continued racial oppression. That does not mean that the death penalty is inherently wrong or that every death-penalty request is racially motivated. However, it is troubling that the
government is unwilling to comply with basic discovery requests that should prove that it is not applying the death penalty in a racially discriminatory manner. That reluctance, coupled with the evidence that African-Americans are almost twice as likely to be subjected to the death penalty as white defendants, makes it clear that the defendant's suspicion that he is the victim of racial discrimination is well-founded, and suggests that he should be entitled to discovery to substantiate his
claims.
Works Cited
Batson v. Kentucky, 476 U.S. 79 (1986).
Brown v. Board of Education, 347 U.S. 483 (1954).
Plessy v. Ferguson, 163 U.S. 537 (1896).
United States v. Bass, 2001 FED App. 0340P…
