Articles
THE POTENTIAL FOR AN EQUAL PROTECTION
REVOLUTION
By Jeremy M. Miller1
2
Why can't we all just get along?
I. INTRODUCTION
Racial, gender, religious, ethnic, gender orientation intolerance, and
the like threaten not only the fabric-but the life-of the United States
and the entire world. The thesis of this paper is that the Fourteenth
Amendment Equal Protection Clause, malleable, but principled, offers a
legal angle that the United States Supreme Court can and should use in
rescuing our Republic. Due process analysis may have run its course,
but the mandate of equality has not. The often conflicting law will be
settled, and like an untended garden, the Equal Protection Clause is
fertile for expansion in the need for peace and equality.
The law will be set out, and suggestions will be made at the close of
the paper. Aside from a suggested expanded utilization of the Equal
Protection Clause, it will be suggested that the rational
basis/intermediate scrutiny/strict scrutiny approach be wholly
abandoned.3 By classifying some inequality problems one way, and
1. Jeremy M. Miller is Professor of Law at Chapman University School of Law,
Orange, California; and former Founding Dean (1994-1997); LL.M. University of
Pennsylvania; J.D. Tulane University; B.S. Meru (Switzerland); B.A. Yale University. He
gratefully acknowledges the support of the School of Law and the dedicated and quality
research assistance of Kara Germane, a Chapman law student, and his assistant Annalisa
Goode for her proofreading.
2. Rodney King.
3. See Suzanne B. Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481 (2004).
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[Vol. 25:287
others another way, the end result is predetermined and is as
intellectually dishonest as imaginable. Similarly situated people must be
treated in a similar manner, period. We have had one Civil War and it
appears that a lack of equal treatment can only cause more suffering, be
that personal, economic or global.
The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution promises that "No State shall ... deny to any
person within its jurisdiction the equal protection of the laws. 'A The
scope of the Fourteenth Amendment was discussed in the
Slaughterhouse Cases,just five years after its adoption in 1868. 5 There,
the Supreme Court displayed strong resistance to expanding upon the
legislative intent: "We doubt very much whether any action of a State
not directed by way of discrimination against the negroes as a class, or
on account of their race, will ever be held to come within the purview of
this provision."6 The Court felt that the Fourteenth Amendment was "so
clearly a provision for that race and that emergency,
' 7 that a strong case
would be necessary for its application to any other.
However, future Courts adhered to Justice Marshall's influential
words expressed in Marbury v. Madison: "It is emphatically the
province and duty of the judicial department to say what the law is.
Those who apply the rule to particular cases, must of necessity expound
As coincidence would have it, I discovered Professor Goldberg's piece, also arguing for
eliminating the tiered analysis. I can and do write fully honestly that we came upon the idea
independently, and that this piece, my piece, was completed prior to finding hers. However,
there is plenty of room for agreement, and I gladly acknowledge herein her prior "discovery,"
and salute her for that. The thrust of this paper is to indicate that equal protection analysis is
both important and is de facto a blank slate. In all honest humility, her piece does a more
thorough job regarding eradicating the tiers.
4. U.S. CONST. amend. XIV, § 1.
5. Slaughterhouse Cases, 83 U.S. 36, 72 (1873) ("We do not say that no one else but
the negro can share in this protection. Both the language and spirit of these articles are to have
their fair and just weight in any question of construction. Undoubtedly while negro slavery
alone was in the mind of the Congress which proposed the thirteenth article, it forbids any
other kind of slavery, now or hereafter ....
And so if other rights are assailed by the States
which properly and necessarily fall within the protection of these articles, that protection will
apply, though the party interested may not be of African descent. But what we do say, and
what we wish to be understood is, that in any fair and just construction of any section or
phrase of these amendments, it is necessary to look to the purpose which we have said was the
pervading spirit of them all, the evil which they were designed to remedy, and the process of
continued addition to the Constitution, until that purpose was supposed to be accomplished, as
far as constitutional law can accomplish it.").
6. Id. at81.
7. Id.
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AN EQUAL PROTECTION REVOLUTION
and interpret that rule."8 Fortunately, Justice Marshall's functionalist
view was widely applied in future cases, resulting in the Fourteenth
Amendment serving as one of the most effective means to enforcing
individual rights. 9
Recognizing equal protection as such an apt instrument, it is
unclear why this provision is not utilized more in a particular legal genre
that so often confronts the constitutionality of individual rights: criminal
procedure. Constitutional issues within the context of criminal procedure
are often viewed as due process concerns. In fact, during the 1960s, the
Warren Court incorporated, by way of the Fourteenth Amendment's Due
Process Clause, most of the procedural protections provided to criminal
defendants. 10 However, to compensate retroactively for the Warren
Court's arguably excessive contribution to criminal defendants' rights,
development of due process law has stalled.11 In light of this deficiency,
this paper suggests that the Equal Protection Clause can serve as an
adequate alternative to enforce constitutional rights of criminal
defendants, and will function as a model for doing so by first broadly
discussing equal protection law and then addressing its application to
several specific criminal procedure issues. To support this assertion,
attention will be given, almost exclusively, to federal case law.
In order to present this model, this paper will first discuss Supreme
Court opinions which unjustly denied equal protection. Next, Lawrence
v. Texas' 2 will be introduced to exemplify the strength of the Equal
Protection Clause along with a detailed discussion of the legal standards
for implementing equal protection and due process. Finally, criminal
procedure will be highlighted as an area of law that would benefit from
application of this constitutional provision. In sum, this discussion will
question the under-use of the Equal Protection Clause in the context of
8. Marbury v. Madison, 5 U.S. 137, 177 (1803).
9. See Brown v. Board of Education, 349 U.S. 294, 298 (1955) ("The opinions of that
date, declaring the fundamental principle that racial discrimination in public education is
unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local
law requiring or permitting such discrimination must yield to this principle."); See also
Frontiero v. Richardson, 411 U.S. 677, 690 (1973) (citing Reed v. Reed, 404 U.S. 71, 77, 76
(1971)) ("[A]ny statutory scheme which draws a sharp line between the sexes, solely for the
purpose of achieving administrative convenience, necessarily commands 'dissimilar treatment
for men and women who are ... similarly situated,' and therefore involves the 'very kind of
arbitrary legislative choice forbidden by the [United States Constitution] .... ').
10. Of the criminal procedure amendments, only arms, grand jury, bail, and excessive
fines have not been made state applicable by way of Fourteenth Amendment due process.
11. A clause of the Bill of Rights has not been selectively incorporated since the 1960s.
12. 539 U.S. 558 (2003).
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criminal procedure and advocate further implementation of this resource,
as well as offering a different style of analysis.
H.
DEFINING THE CONSTITUTIONAL CONCEPTS
The Fourteenth Amendment contains both the Due Process Clause
and the Equal Protection Clause which together promise to safeguard an
individual's fundamental rights from government intrusion 13 and equal
protection under the laws, 14 respectively. For purposes of this paper, the
area in which these constitutional provisions are relevant is criminal
procedure.
A. CriminalProcedure Defined
Criminal Procedure is a "framework of laws and rules that govern
the administration of justice, . . . beginning with the initial investigation
of the crime and concluding either with . . . [an acquittal] or [an]
imposition of a term of punishment pursuant to a conviction for the
crime.' '1 5 In general, "criminal procedures are safeguards against the
indiscriminant application of criminal laws and the wanton treatment of
suspected criminals."' 6
Multiple other constitutional provisions collectively define the
boundaries of criminal procedure. For example, the Supremacy Clause
identifies the United States Constitution as the "supreme law of the
land" by dictating that the states cannot take any action that imposes on
or interferes with its message. 17 This is a broad yet foreboding guideline
for state legislation, for any state law that does so infringe on a
constitutional provision should be struck down. The Incorporation
Doctrine also defines the boundaries of criminal procedure, for it
allowed the Warren Court's regulation of police practice by demanding a
greater degree of procedural regularity among the states. 8 This
13.
14.
U.S. CONST. amend. XIV, § 1.
Id.
15. WEST'S ENCYCLOPEDIA OF AMERICAN LAW. Answers.com,
http://www.answers.com/topic/criminal-procedure (last visited November 20, 2006).
16.
17.
Id.
U.S. CONST. art. VI.
18.
See Dr. Tom O'Connor & Mark Stevens, J.D., Online Lecture Notes for Criminal
Procedure, North Carolina Wesleyan College, available at
http://faculty.ncwc.edu/toconnor/325/3251ect02.htm (last visited October 18, 2006). (Wolf v.
Colorado, 338 U.S. 25 (1949) (incorporation of the right against unlawful search and seizure);
Gideon v. Wainwright, 372 U.S. 335 (1963) (the right to counsel is a fundamental right
AN EQUAL PROTECTION REVOLUTION
2006]
increased regulation was obtained in piecemeal fashion by incorporating
the Bill of Rights through the Fourteenth Amendment Due Process
Clause on a case-by-case basis.' 9 Similarly, the Equal Protection Clause,
discussed infra, helps establish the scope of criminal procedure by
treating those similarly situated alike. 20 However, as most are well
aware, this does not have the effect of making every citizen "equal" as
we commonly understand that word.2 1
B. Examination of the Due Process Clause
The Due Process Clause of the Fifth and Fourteenth Amendments
to the United States Constitution promises that "No person shall be...
deprived of life, liberty, or property, without due process of law ....
This constitutional guarantee is enforced against the states through the
Fourteenth Amendment. 23 However, "due process" is hard to define.
Justice Matthews explained this provision as "anything but procedures
of the past, which would only show the law its age, and render us
accountable to the laws of the Meades and Persians. 24 Instead,
Matthews contends that, "[Due process] was made for an undefined and
expanding future, for a people gathered ... from many nations and of
many tongues ... [and] we should expect new and various experiences
that our system will mold and shape into new forms [under due
process]. '' 25 More recently, "due process" was defined by Justice
Frankfurter as "a summarized constitutional guarantee of respect for
applicable to the states through the Due Process Clause of the Fourteenth Amendment);
Robinson v. California, 370 U.S. 660 (1962) (held that the right against cruel and unusual
punishment was a fundamental fight applicable to the states through the Due Process Clause
of the Fourteenth Amendment); Mapp v. Ohio, 367 U.S. 643 (1961) (held that all evidence
obtained by searches and seizures in violation of the Constitution is, by the Fourth
Amendment, inadmissible in a state court); Malloy v. Hogan, 378 U.S. 1 (1964) (held that the
Fifth Amendment's exception from compulsory self-incrimination is protected by the
Fourteenth Amendment against abridgement by a state)).
19. O'Connor & Stevens, supra note 18. The competing "total incorporation" and "nonincorporation" understandings of Fourteenth Amendment due process were ultimately
rejected.
20. U.S. CONST. amend. XIV, § 1; See Cleburne v. Cleburne Living Center, 473 U.S.
432, 439 (1985).
21. Lawrence v. Texas, 539 U.S. 558, 579-85 (2003) (O'Connor, J., concurring).
22. U.S. CONST. amend. V.
23. U.S. CONST. amend. XIV, § 1.
24. Hurtado v. California, 110 U.S. 516, 528-29 (1884); see O'Connor & Stevens,
supra note 18.
25.
Hurtado, 110U.S. at530-31.
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those personal immunities which ... are 'so rooted in the traditions and
conscience of our people as to be ranked as fundamental,' or are
'implicit in the concept of ordered liberty.' 26 Finally, dissenting in
Hurtado v. California, Justice Harlan defined "due process" as a
procedural right involving the substantive rights of life, liberty, and
property. 27 This description is the most representative of the general
perception of due process assumed today. It also reflects the United
States' root legal document, The Declaration of Independence (equality,
life and liberty).
Before Justices were attempting to define this constitutional term,
they were debating over its application to the states. Early on, the
Supreme Court decided the guarantees of the Bill of Rights were not
directly binding upon state governments. 2 8 This reading reflected a very
formalist view of constitutional interpretation: "[h]ad the framers of [the
Bill of Rights] amendments intended them to be limitations on the
powers of the state governments, they would have .. .expressed that
intention . . . in plain and intelligible language. 29 Although the
Fourteenth Amendment was enacted despite uncertainty and reluctance
from some, the Supreme Court at least implicitly rejected the notion that
this Amendment automatically made applicable to the states all the Bill
of Rights guarantees. 30 However, this was not a unanimous belief. The
26. Rochin v. California, 342 U.S. 165, 169 (1952) (citing Snyder v. Massachusetts, 291
U.S. 97, 105 (1934); Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
27. Hurtado, 110 U.S. at 539.
A State law which authorized the trial of a capital case before a single judge,
perhaps a justice of the peace, would-if a petit jury in a capital case be not
required by the fundamental principles of liberty and justice-meet all the
requirements of due process of law, as indicated in the opinion of the court; for
such a law would not prescribe a special rule for particular persons; it would be a
general law which heard before it condemned, which proceeded upon inquiry, and
under which judgment would be rendered only after trial; it would be embraced by
the rule laid down by the court when it declares that any legal proceeding enforced
by public authority, whether sanctioned by age and custom, or newly devised in the
discretion of the legislative power, in furtherance of the public good, which regards
and preserves those principles of liberty and justice, must be held to be due process
of law.
Id. at 549-50.
28. Barron v. Mayor of Baltimore, 32 U.S. 243, 250-51 (1833) ("The provision in the
Fifth Amendment to the Constitution, U.S. Const. amend. V, declaring that private property
shall not be taken for public use without just compensation, is intended solely as a limitation
on the exercise of power by the government of the United States, and is not applicable to the
legislation of the states.").
29. Id. at 250.
30. The incorporation theories will be discussed, infra.
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AN EQUAL PROTECTION REVOLUTION
controversy over this process erupted into the three competing views of
incorporation of the Bill of Rights: non-incorporation, supra, selective
incorporation 1 and total incorporation.32
1. Selective Incorporationv. Total Incorporation
Between the 1940s and 1950s, the incorporation controversy
peaked and two schools of thought emerged.33 The "total incorporation"
school of thought was championed by Justice Hugo Black, who
proposed a rather formalistic view: "the Fourteenth Amendment required
that the States respect all of the enumerated rights set forth in the first
eight amendments [via the Privileges and Immunities Clause], but did
not wish to see the doctrine expanded to include other, non-enumerated
'fundamental rights.' 34 Thus, he recommended a strict adherence to the
text of the Constitution. Justice Felix Frankfurter disagreed with Black,
contending in Rochin v. Californiathat the incorporation process should
be incremental, thus including only those sections of the Bill of Rights,
the exclusion of which would "shock the conscience" of the court.35
advocacy of "selective
Justice Cardozo joined Frankfurter's
discerning
which rights should
articulated
a
test
for
incorporation" and
be incorporated in Palko v. Connecticut: if the Bill of Rights guarantee
in question is of "the every essence of a scheme of ordered liberty," and
31. See Palko v. Connecticut, 302 U.S. 319 (1937).
32. See Adamson v. California, 332 U.S. 46 (1947).
33. Wikipedia, Incorporation of the Bill of Rights,
http://en.wikipedia.org/wiki/Incorporation-%28Bill-ofRights%29 (last visited October 18,
2006).
34. Id. See also Adamson, 332 U.S. at 89 ("In my judgment the people of no nation can
lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are
conscientiously interpreted, enforced and respected so as to afford continuous protection
against old, as well as new, devices and practices which might thwart those purposes. I fear to
see the consequences of the Court's practice of substituting its own concepts of decency and
fundamental justice for the language of the Bill of Rights as its point of departure in
interpreting and enforcing that Bill of Rights. If the choice must be between the selective
process of the Palko decision applying some of the Bill of Rights to the States, or the Twining
rule applying none of them, I would choose the Palko selective process. But rather than accept
either of these choices, I would follow what I believe was the original purpose of the
Fourteenth Amendment-to extend to all the people of the nation the complete protection of
the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of
Rights will be enforced, and if so to what degree, is to frustrate the great design of a written
Constitution.").
35.
Rochin v. California, 342 U.S. 165, 172 (1952). See also Wikipedia, Incorporation
of the Bill of Rights, http://en.wikipedia.org/wiki/Incorporation_%28Bill-ofRights%29 (last
visited October 19, 2006).
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is "one of those fundamental principles of liberty and justice which lie at
the base of all of our civil and political institutions" it should be made
applicable to the states.36
Frankfurter and Cardozo's discerning
approach carried the day. A Twenty-First Century reader might well
wonder how the High Court Justices could view any part of the Bill of
Rights as not fundamental. It was this initial misunderstanding that
caused the misapplication of Equal Protection, infra, i.e., the Justices
were free to shape via their own whim and caprice.
But most of the Bill of Rights slowly became applicable to the
states by means of the Fourteenth Amendment Due Process Clause,
beginning in 1897 with Chicago, B. & Q. R. Co. v. Chicago and
progressed at a steady pace. 37 There, the Court held that the "Fourteenth
Amendment precluded a state from taking private property for public use
without payment of just compensation, as provided in the Fifth
Amendment., 38 However, the first direct holding referencing the
incorporation of a Bill of Rights guarantee occurred in 1931 in
Stromberg v. California, which involved the right of free speech. 39 The
Stromberg holding was foreshadowed in 1925 by the Court's opinion in
Gitlow v. New York.4° The revolution occasioned by the Fourteenth
Amendment progressed as article after article of the Bill of Rights has
been incorporated and made applicable to the states. Those guarantees
of the Bill of Rights still not enforced against the states by the
Fourteenth Amendment are the Second Amendment right to bear arms,
the Fifth Amendment right to an indictment by a grand jury, the Eighth
Amendment excessive fines clause, the Eighth Amendment bail clause,
the Seventh Amendment right to a jury trial in civil lawsuits, the Sixth
Amendment's implicit command that a criminal jury can consist only of
twelve members and must reach a unanimous verdict, and the Third
Amendment right against quartering soldiers in private homes.4 '
36. Palko, 302 U.S. at 328, 325. ("The right to trial by jury and the immunity from
prosecution except as the result of an indictment may have value and importance. Even so,
they are not of the very essence of a scheme of ordered liberty. To abolish them is not to
violate a 'principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental."')(quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
37. Walz v. Tax Com. of New York, 397 U.S. 664, 701-02 (1970).
38. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 241 (1897).
39. Walz, 397 U.S. at 702.
40. Gitlow v. New York, 268 U.S. 652 (1925) (finding that the Fourteenth Amendment
Due Process Clause also incorporates the First Amendment).
41.
Jeremy M. Miller, CONSTITUTIONAL CRIMINAL PROCEDURE, chapter 2 (2001). In
passing, it can be noted that the state-applicable Fourteenth Amendment Privileges and
Immunities Clause would probably have been the most principled mode of making the all-
2006]
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2. Due Process Defined
Ultimately, there are two components to the Due Process Clause:
procedural and substantive. In general, procedural due process rules are
"meant to protect persons not from the deprivation, but from the
mistaken or unjustified deprivation of life, liberty, or property.' ,42
Procedural due process requires a balancing of the individual interest,
state interest, and probability that further procedural safeguards will
reduce any risk of error.43 More precisely, Mathews v. Eldridge
provides:
[IJ]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that will be
affected by the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and administrative
44
burdens that the additional or substitute procedural requirement would entail.
However, the Due Process Clause does more than guarantee fair
process. Through the substantive component, "this clause provides
heightened protection against government interference with certain
fundamental rights or liberty interests. 45 In fact, it has been held that
the "substantive component . . . forbids the government to infringe
certain 'fundamental' liberty interests at all, no matter what process is
provided, unless the infringement is narrowly tailored to serve a
compelling state interest. ' 4 6 A commonly used test for determining
whether an interest is fundamental is to inquire whether it is "deeply
rooted in this Nation's history and tradition . . . and implicit in the
concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed. 4 7 Such fundamental interests include the
important Bill of Rights state-applicable. That is the subject, however, of another paper.
42. Hamdi v. Rumsfeld, 542 U.S. 507, 530 (2004) (quoting Carey v. Piphus, 435 U.S.
247, 259 (1978)) (emphasis added); See also Board of Regents v. Roth, 408 U.S. 564, 590
(1972) ("We have often noted that procedural due process means many different things in the
numerous contexts in which it applies.").
43. Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (addressing the termination of
social security disability benefits).
44. Id.
45. Troxel v. Granville, 530 U.S. 57, 65 (2000) (quoting Washington v. Glucksberg,
521 U.S. 702, 720 (1997)).
46. Reno v. Flores, 507 U.S. 292, 301-02 (1993).
47. Washington, 521 U.S. at 720-21 (quoting Moore v. East Cleveland, 431 U.S. 494,
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right to marry, 48 a woman's right to terminate her pregnancy, 49 and the
right to vote, 5° to mention a few. Furthermore, substantive due process
also represents:
[T]he right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to the dictates of his own
conscience, and generally to enjoy those privileges long recognized
at common
51
law as essential to the orderly pursuit of happiness by free men.
Justice Scalia sums up the concept with the following description:
"the gist of the Due Process Clause, as understood at the founding and
since, was to force the Government to follow those common-law
procedures traditionally deemed necessary before depriving a person of
life, liberty, or property. ' 52
C. Equal Protection
The Equal Protection Clause of the 14th Amendment provides that,
"No State shall .
deny to any person within its jurisdiction the equal
protection of the laws.53 Sandra Day O'Connor explains the Equal
Protection Clause as a "direction that all persons similarly situated
should be treated alike., 54 Although this promise was made to eradicate
the widespread discrimination against former slaves after the Civil War,
it was wholly unrealized for almost a century.55 Attitudes similar to that
of Justice Oliver Wendell Holmes explain the delayed implementation
and the resistance to this Amendment: the
Fourteenth Amendment is
' 56
"the last resort of constitutional argument.
To determine whether state legislation violates the Equal Protection
Clause, a court will apply a level of scrutiny based upon a supposedly
appropriate classification: Rational basis review is the minimum level of
503 (1977); Palko v. Connecticut, 302 U.S. 319, 326 (1937)).
48. Loving v. Virginia, 388 US 1 (1967).
49. Roe v. Wade, 410 U.S. 113 (1973).
50. Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).
51. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
52. Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting).
53.
U.S. CONST. amend. XIV, § 1.
54. Lawrence v. Texas, 539 U.S. 558, 579 (2003) (O'Connor, J., concurring) (quoting
Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)).
55.
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 617 (2 ' ed. 2004).
56. Id. (quoting Buck v. Bell, 274 U.S. 200, 208 (1927)).
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AN EQUAL PROTECTION REVOLUTION
scrutiny which requires only that the law be rationally related to a
legitimate government purpose.57 An equal protection challenge to a law
receives this low level of review if it does not fall into one of the stricter
levels discussed infra; it is the level of scrutiny that "all laws challenged
under equal protection must meet., 58 Essentially, the only restriction
rational basis review imposes, is that a state may not place people in
"different classes on the
basis of criteria wholly unrelated to the
' 59
statute.
that
of
objective
At the opposite end of the spectrum lies strict scrutiny. This
analysis applies to laws that discriminate on the basis of race, national
origin, and generally discrimination against aliens.6 ° In order to
withstand strict scrutiny, the law must be proven "necessary to achieve a
compelling government purpose, '
61
and "[the government must show]
that it cannot
achieve its objective through any less discriminatory
' 62
alternative.
Between these extremes lies "intermediate" scrutiny.
This
generally applies to discriminatory classifications based on gender or
illegitimacy. 63 The Supreme Court in Mississippi Universityfor Women
v. Hogan, articulated the test of intermediate scrutiny for gender
classifications: "when there is a classification based on gender, the state
has a burden to show that the classification serves important
governmental objectives and that the discriminatory means employed are
' 64
substantially related to the achievement of those objectives.
However, a slightly stricter test for gender classification was articulated
in United States v. Virginia.6 5 There, the Court considered whether a
female applicant to the all-male renowned Virginia Military Institute
should be admitted: "a party seeking to uphold government action based
57.
CHEMERINSKY, supra note 55, at 619-20.
58. Id.
59. Eisenstadt v. Baird, 405 U.S. 438,447 (1972).
60. CHEMERINSKY, supra note 55, at 619.
61. Id.
62. Id.
63. Id.
64. 458 U.S. 718, 723-24 (1982) (quoting Wengler v. Druggists Mutual Ins. Co., 446
U.S. 142, 150 (1980)); See also, Craig v. Boren, 429 U.S. 190, 197 (1976) (quoting Reed v.
Reed, 404 U.S. 71, 75 (1971) (holding that "statutory classifications that distinguish between
males and females are 'subject to scrutiny under the Equal Protection Clause.' To withstand
constitutional challenge, previous cases establish that classifications by gender must serve
important governmental objectives and must be substantially related to achievement of those
objectives.")).
65. 518 U.S. 515 (1996).
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on sex must establish an 'exceedingly persuasive justification' for the
classification. 66
Interestingly, although Equal Protection Clause and Due Process
Clause analyses similarly seek to preserve the rights of individuals,
equal protection focuses on the characteristics of the group that is
discriminated against,67 while due process focuses on the characteristic
of the individual right that is allegedly individually infringed.6 8 These
provisions are consistent, however, in that both apply strict scrutiny to
violations of fundamental rights: "equal protection analysis requires
strict scrutiny of a legislative classification when the classification
operates to the peculiar disadvantage of a suspect class or impermissibly
interferes with the exercise of a fundamental right., 69 Likewise, the
substantive component of the Due Process Clause forbids government
infringement of certain 'fundamental rights" irrespective of the process
provided, unless the infringement is narrowly tailored to serve a
compelling state interest. 70 Therefore, because equal protection and due
process similarly function to vindicate violations of fundamental or
individual rights, equal protection analysis is an attractive alternative to
providing criminal defendants this much needed safeguard in light of the
stall in due process development. Additionally if the strained tiered
equal protection analysis is abandoned, the mounting need for equality
will have a principled and potent ally.
Since most laws withstand the so-called "rational basis" standard, it
is proposed that the three equal protection standards be combined. By
classifying a case such that the answer is predetermined is intellectually
dishonest. Quite simply, if similarly situated individuals are not treated
alike by the law, there should be an equal protection violation.
III. INEQUALITY ILLS
Before advocating increased application of equal protection in the
framework of criminal procedure, the following cases highlight the
severe injustice that occurs when equal protection is deserved but denied
66. Id. at 524 (quoting Mississippi Univ. for Women, 458 U.S. at 724) (emphasis
added).
67. See Brian Smith, Charles Demore v. Hyung Joon Kim: Another Step Away from
Full Due Process Protections,38 AKRON L. REv. 207, 234 (2005).
68. Id.
69. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976) (emphasis
added).
70. Reno v. Flores, 507 U.S. 292, 302 (1993).
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AN EQUAL PROTECTION REVOLUTION
by our judicial system. This deprivation is only amplified in the context
of criminal procedure, where denying the defendant a constitutional right
not only revokes that particular right, but revokes his or her liberty as
well.
Equal protection litigation has left behind a paper trail that is pitted
with decisions by our High Court reflecting anything but "equality under
the law" as the Fourteenth Amendment promises. 71 The most notorious
is likely Dred Scott v. Sandford where the Supreme Court determined
those individuals of African decent to be incapable of attaining United
States citizenship based alone on their race.72 Reference to African
Americans as "beings of an inferior order . . . altogether unfit to
associate with the white race, 73 epitomizes the need for a means of
enforcing civility, since the Thirteenth Amendment, ratified in 1865, was
displaced by the "black codes. 74
Although Dred Scott is unarguably one of the most, if not the most
unfortunate decision ever handed down by the Supreme Court, Plessy v.
Ferguson qualifies as a very close second.75 There, the Supreme Court
considered the purpose of the Fourteenth Amendment as a means 'of
76
enforcing "the absolute equality of the two races before the law. ,
Regrettably, the Court quantifies this constitutional objective by
imposing the following interpretation:
[I]n the nature of things [the Fourteenth Amendment] could not have been
intended to abolish distinctions based upon color, or to enforce social, as
distinguished from political equality, or a commingling of the two races upon
terms unsatisfactory to either. Laws permitting, and even requiring, their
separation in places where they are liable to be brought into contact do not
necessarily imply the inferiority of either race to the other, and have been
generally, if not universally, recognized as within the competency of the state
legislatures in the exercise of their police power.77
Through Plessy v. Ferguson, the "separate but equal" fiction was
born 78 and it took 58 years before it was laid to rest in Brown v. Board of
71.
U.S. CONST. amend. XIV, § 1.
72. Scott v. Sandford, 60 U.S. 393 (1857).
73. Id. at 407.
74. Wikipedia, Equal Protection Clause,
http://en.wikipedia.org/wiki/EqualProtectionClause (last visited October 19, 2006).
75. Plessy v. Ferguson, 163 U.S. 537 (1896).
76. Id. at 544.
77.
Id.
78.
Id. at 537.
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Education.7 9
Korematsu v. United States further exemplifies mutilation of the
Equal Protection Clause. 80 There, the Supreme Court held an order
excluding all American citizens of Japanese descent from certain
designated areas along the West Coast of the United States,
constitutional. 8 1 However, the Court did not complete the equal
protection analysis, but merely stated that "pressing public necessity
may sometimes justify the existence of legal restrictions that curtail the
civil rights of a single racial group even though such restrictions are
generally considered immediately suspect., 82 The Court seems to justify
the government's actions by emphasizing the existence of the
compelling
interest, which is only the first requirement of strict scrutiny
83
analysis:
Korematsu was not excluded from the Military Area because of hostility to
him or his race. He was excluded because [the United States is] at war with the
Japanese Empire, because the properly constituted military authorities feared
an invasion of our West Coast and felt constrained to take proper security
84
measures ....
However, the Court failed. to address the second requirement of
strict scrutiny which necessitates that the compelling interest be
advanced by the least restrictive means possible.85 Justice Murphy
acknowledged the majority's omission in his dissent: "No adequate
reason is given for the failure to treat these Japanese Americans on an
individual basis by holding investigations and hearings to separate the
loyal from the disloyal., 86 In a multi-ethnic, highly diverse country,
there can be peace only with a full expression of the mandate of equal
protection. Dissolution of society is the alternate.
Recently in Boy Scouts ofAmerica v. Dale,87 the Court held that the
Boy Scouts were allowed to revoke the adult membership granted to
Dale for the sole reason that he was homosexual and the Boy Scouts
79.
80.
347 U.S. 483, 495 (1954).
Korematsu v. United States, 323 U.S. 214 (1944).
81.
Id.
82.
83.
84.
85.
86.
87.
Id. at 216.
Bernal v. Fainter, 467 U.S. 216, 219 (1984).
Korematsu, 323 U.S. at 223.
Bernal, 467 U.S. at 219.
Korematsu, 323 U.S. at 241 (Murphy, J., dissenting).
530 U.S. 640 (2000).
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AN EQUAL PROTECTION REVOLUTION
"forbid membership to homosexuals." 88 The Court determined this case
presented a First Amendment issue, and that it was essential to resolve
whether a group is protected by the First Amendment's expressive
associational right, which requires the group to engage in "expressive
association., 89 The Court concluded that the Boy Scouts in fact engaged
in such an activity. 90 In preparation for their holding, the Court stated:
"it is not the role of the courts to reject a group's expressed values
because they disagree with those values or find them internally
inconsistent." 91
This decision essentially places a group's First
Amendment rights superior to an individual's Fourteenth Amendment
right to equal protection. For this author, that foreshadows dangerous
error.
Interestingly, in spite of the individual's First Amendment right, the
Supreme Court did not hesitate in upholding the constitutionality of a
statute that banned the burning of a cross by a Ku Klux Klan member
because doing so was prima facie evidence of intent to intimidate a
person.92 An "expressive association" that deems the phrase "morally
straight," which appears in the Boy Scout's creed, as equivalent to
"abstention from homosexual acts" is indistinguishable from an anti-gay
association. By analogy, how then are the Boy Scouts discernible from
the Ku Klux Klan, which professes as a central belief of their
organization an acute aversion to a specific minority group? The
Supreme Court would likely not tolerate an organization that refused to
accept an individual based alone on his or her African American heritage
even if this discrimination was an integral articulation of their
"expressive associational right." Rather, the Court would effortlessly
label the individual a member of a suspect class and apply strict scrutiny
under equal protection analysis.
These cases highlight some of the most infamous decisions failing
to carry out the purpose of the Equal Protection Clause of the Fourteenth
Amendment. Although these judgments posed harsh realities on the
fatal party in the cases discussed supra, equal protection issues and
judicial failure to confer equal protection is especially grave in the
context of criminal procedure where the consequence of such an error
may be irreparable.
88.
89.
Id. at 645.
Id. at 648.
90.
Id. at 650.
91.
92.
Boy Scouts ofAm., 530 U.S. at 651.
Virginia v. Black, 538 U.S. 343 (2003).
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IV. DUE PROCESS IS A TIRED MEANS OF ENFORCING CONSTITUTIONAL
RIGHTS
The Equal Protection Clause and the Due Process Clause have an
indistinguishable effect on the plaintiff in a suit alleging a violation of a
fundamental right. However, a critical legal benefit to using equal
protection, as opposed to due process, is predictability. For instance, if a
court decides a case on equal protection grounds, they are required to
first classify the distinction that appears either expressly in the language
of the law, or through the law's impact, 93 and then decide what level of
scrutiny is appropriate for that class. 94 Once the classification and the
analysis have been determined, a similarly situated group can better
predict the outcome of equal protection challenges in the future.
Alternatively, when a court decides a case on due process grounds, it
may serve as future precedent, but "fundamental fairness" is decided on
case-by-case assessment.9 5 Furthermore, the Due Process Clause
protects individuals only from state infringement of fundamental rights,
Ti functional
ucinldfcec deficiency
not infringement by private parties. 96 This
combined with the stall in legal development of due process, begs for an
alternative means to protecting individual rights, which again can be
accomplished through the Equal Protection Clause. The recent case of
Lawrence v. Texas and the line of cases that precede this decision,
illustrate how equal protection could benefit litigation addressing
constitutional rights in general by creating predictability.
In 2003, the Supreme Court in Lawrence v. Texas declared
unconstitutional the Texas state statute that criminalized persons of the
93. CHEMERINSKY, supra note 55, at 618-19.
94. Id. See also Equal Protection discussion supra.
95. Lassiter v. Dep't of Social Services, 452 U.S. 18, 24-25 (1981) ("For all its
consequence, 'due process' has never been, and perhaps can never be, precisely defined.
'Unlike some legal rules,' ... due process 'is not a technical conception with a fixed content
unrelated to time, place, and circumstances.' Rather, the phrase expresses the requirement of
'fundamentalfairness,' a requirement whose meaning can be as opaque as its importance is
lofty. Applying the Due Process Clause is therefore an uncertain enterprise, which must
discover what 'fundamental fairness' consists of in a particularsituationby first considering
any relevant precedents and then by assessing the several interests that are at stake." (quoting
Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)(emphasis added)).
96. Daniel G. Bird, Life on the Line: Pondering the Fate of Substantive Due Process
Challenge to the Death Penalty, 40 AM. CRIM. L. REV. 1329, 1386 n.65 (2003).
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AN EQUAL PROTECTION REVOLUTION
same sex to engage in intimate sexual conduct. 97 The Court determined
this statute was simply a means for the State to "control a personal
relationship that, whether or not entitled to formal recognition in the law,
is within the liberty of persons to choose without being punished as
criminals." 98 This determination "put attempts to define the boundaries
of a relationship beyond the power of any state." 99 The Lawrence Court
echoed Loving v. Virginia °° in finding that substantive due process did
protect the right to privacy as a fundamental right of all persons,
regardless of sexual preferences or marriage. 01 In so holding, Lawrence
v. Texas overruled Bowers v. Hardwick,10 2 which essentially determined
the right to privacy inapplicable to homosexual sodomy occurring
between two consensual adults in the confines of their home.l3
However, Justice O'Connor addressed in her dissent the unexplored
alternative ground for deciding this case: equal protection. This
constitutional provision would have proved as sufficient as substantive
due process, and would have provided the additional benefit of
determining the "classification" of homosexuals for equal protection
analysis. 1°4 O'Connor pointed out that the Texas statute "treats the same
conduct differently based solely on the participants."'' 5 (That is,
heterosexuals can engage in sodomy legally.) Therefore, "the Texas
statute makes homosexuals unequal in the eyes of the law by making
particular conduct-and only that conduct-subject to criminal
97.
Lawrence v. Texas, 539 U.S. 558 (2003).
98. Id. at 567.
99. Id. The Court further expressed that "adults may choose to enter upon this
relationship in the confines of their home and their own private lives and still retain their
dignity as free persons .
. .
. The liberty protected by the Constitution allows homosexual
persons the right to make this choice." Id.
100. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding that "marriage is one of the
'basic civil rights of man,' fundamental to our very existence and survival."). Id. (quoting
Skinner v. Oklahoma 316 U.S. 535, 541 (1942)).
101. Lawrence, 593 U.S. 558.
102. Id. at 578.
103. Bowers v. Hardwick, 478 U.S. 186, 191-92 (1986) ("[T]he rights qualifying for
heightened judicial protection ... include[] those fundamental liberties that are 'implicit in
the concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were
sacrificed.')(quoting Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937)). Id. at 192 (A
different description of fundamental liberties characterizes them as liberties that are 'deeply
rooted in this Nation's history and tradition' .... [N]either of these formulations would extend
a fundamental right to homosexuals to engage in acts of consensual sodomy.")(quoting Moore
v. East Cleveland, 431 U.S. 434, 503 (1977).
104. Lawrence, 539 U.S. at 579 (O'Connor, J., concurring).
105. Id. at581
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sanction."' 0 6 O'Connor found that "a law branding one class of persons
as criminal solely based on the State's moral disapproval of that class
and the conduct associated with that class runs contrary to the values of
the Constitution and the Equal Protection Clause, under any standard of
review."' 10 7 Justice O'Connor opened the door, as it were, to abandoning
the flawed tiered analysis.
Consistent with Justice O'Connor's point, it seems that instead of
determining whether or not homosexuals are a suspect class or the level
of review homosexuals would be provided in lawsuits litigated on equal
protection grounds, the Court altogether evaded the equal protection
issue. 0 8 In prophesying that the Texas statute would have been found
unconstitutional under any scrutiny if tried on an equal protection
argument, O'Connor suggested that homosexuals could be considered a
suspect class, receive strict scrutiny review, and likely succeed; 1°9
however, "by deciding Lawrence on substantive due process grounds
and finding sodomy laws unconstitutionally imposed upon sexual
110
privacy, the Court avoided determining the level of review."
Therefore, although Lawrence v. Texas initially seems to qualify as a
victory for homosexual rights, the decision makes no progress with
regard to substantiating homosexual equal protection of the laws. All
equal protection issues should essentially be strict scrutiny analyzed.
More simply put, the similarly situated must be treated similarly.
A similar outcome resulted in Romer v. Evans, where a Colorado
state constitutional amendment, adopted through state-wide referendum,
This amendment forbade recognition by any state
was at issue."'
authority of homosexual oppression, discrimination, or minority
status.1 2 In an attempt to apply the Equal Protection Clause, the
106.
Id.
107. Id. at 585 (emphasis added).
108. Kari Balog, Equal Protectionfor Homosexuals: Why the Immutability Argument is
Necessary and How it is Met, 53 CLEV. ST.L. REv. 545, 552 (2005/2006).
109. See Bernal v. Fainter, 467 U.S. 216, 220, n.6 (1984) (quoting Gunther, The Supreme
Court 1971 Term - Forward: In Search of Evolving Doctrine on a Changing Court: A Model
for Newer Equal Protection,86 Harv. L. Rev. 1, 8 (1972)): "Only rarely are statutes sustained
in the face of strict scrutiny. As one commentator observed, strict-scrutiny review is 'strict' in
theory but usually 'fatal' in fact." Any test that once a classification is made, no analysis is
needed is logically flawed, intellectually dishonest and misleading. The paper concludes with
a suggestion to abandon this chimera classification.
110. Balog, supra note 108.
111. Romer v. Evans, 517 U.S. 620, 623 (1996).
112. Id. at 624 ("No Protected Status Based on Homosexual, Lesbian or Bisexual
Orientation. Neither the State of Colorado, through any of its branches or departments, nor
any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt
2006]
AN EQUAL PROTECTION REVOLUTION
majority opinion cited to Justice Harlan's dissent in Plessy v. Ferguson:
"One century ago, the first Justice Harlan admonished this Court that the
13
Constitution 'neither knows nor tolerates classes among citizens."'"
The Court articulated that "those words now are understood to state a
commitment to the law's neutrality where the rights of persons are at
stake. The Equal Protection Clause enforces this principle and requires
the Supreme Court to hold invalid that provision of Colorado's
Constitution." '1 4 The Court stated that judicial impartiality to all who
seek the assistance of the law is a central principle both to the idea of the
rule of law and to the United States' Constitutional guarantee of equal
protection: "Equal protection of the laws is not achieved through
indiscriminate imposition of inequalities."' 1 5 The Romer Court further
attributed the rarity of laws that single out a certain class of citizens for
status or general hardships, to the Court's respect for
disfavored legal
116
this principle.
The Court in Romer ultimately concluded that "the state
amendment at issue was unconstitutional because a "state cannot so
deem a class of persons a stranger to its laws."'1 17 However, although the
Court did apply equal protection analysis, it was not applied adequately.
Rather, the Court applied rational basis review, and determined that a
law which discriminates against similarly situated citizens does not
effectuate the Equal Protection Clause.11 8 As was discussed supra,
rational basis review is the minimal level of review all laws must meet.
Its application in this case allowed the Court to bypass classifying
homosexuals.119
The general reluctance of the Court to properly apply the Equal
Protection Clause to cases turning on homosexual rights indicates its
powerful nature and effect. The Supreme Court does not want to take a
definite position, let alone a strong position, with respect to homosexual
or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or
bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the
basis of or entitle any person or class of persons to have or claim any minority status, quota
preferences, protected status or claim of discrimination. This Section of the Constitution shall
be in all respects self-executing.").
113. Id. at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J.,
dissenting)).
114. Romer, 517 U.S. at 623.
115. Id. at 633 (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)).
116. Id. at 634-35.
117. Id. at635.
118. See U.S. CONST. amend. 14, § 1.
119. See Balog, supra note 108, at 553.
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rights because of its extremely controversial and political nature.
Instead the Court applies the Due Process Clause or misapplies the
Equal Protection Clause, which allows the Court to evade taking a stand
entirely. This conduct reflects the tired impact the Due Process Clause
inflicts. Recognizing its frailty, the Due Process Clause is often an
undesirable means of protecting the constitutional rights of a criminal
defendant or suspect.
V. INCREASING EQUAL PROTECTION APPLICATION IN CRIMINAL
PROCEDURE
Thus far, this paper has established a foundational understanding of
equal protection law by defining the legal terms and tests addressed in
this discussion, by tracing its historical disgraces, and by exemplifying
the strength of its application through a comparison of it and due process
in Lawrence v. Texas and its lineage. It was stated supra that this paper
would serve as a guide to challenging constitutional violations of rights
belonging to defendants or suspects on equal protection grounds. The
following is a discussion of the specific rights which equal protection
has either proven to safeguard pursuant to a Supreme Court decision, or
has failed to protect. The overwhelming applicability of this clause to
the individual rights at issue support this paper's contention that upon
challenging an apparent constitutional right violation, the Equal
Protection Clause should be turned to more often.
A. Equal ProtectionProhibitsRace and Gender Based Peremptory
Challenges
Although not found expressly in the United States Constitution, the
Supreme Court has said that the peremptory challenge is "one of the
most important of the rights secured to the accused."'' 20 As citizens, we
are entitled to a fair trial, but such has not been the case on more than
one occasion. The peremptory challenge is a tool attorneys utilize in an
attempt to procure twelve individuals that might well effectuate this
expectation or hope. 12 In practice, use of a peremptory challenge is
motivated by evidence that persuades the attorney, "though insufficient
120. Anthony Page, Batson's Blind Spot: Unconscious Stereotyping and the Peremptory
Challenge, 85 B.U. L. REV. 155, 157 (2005) (quoting Pointer v. United States, 151 U.S. 396,
408 (1894)).
121.
Id.
AN EQUAL PROTECTION REVOLUTION
2006]
to persuade the judge that the potential juror tends to be more hostile to
the litigant's position than the likely replacement." 122 However, the
"hunch" encouraging a peremptory challenge is, "at best, an educated
guess"; 23 "at worst it is the secret expression of naked prejudice."' 124 In
order to prevent the latter, procedural safeguards have been imposed
pursuant to the Equal Protection Clause in order to protect against
elimination of a juror based alone on race or gender. 125
The Supreme Court specifically addressed the issue of race
motivated peremptory challenges in Strauder v. West Virginia.126 There,
the Supreme Court held that racial groups cannot be excluded from the
venire from which a jury is selected: "while every white man is entitled
to a trial by a jury selected from persons of his own race or color, or,
rather, selected without discrimination against his color, and a negro ' is
27
not, the latter is [not] equally protected by the law with the former."'
Emphasizing this constitutional injury, the Court questioned:
how [it can] be maintained that compelling a colored man to submit to a trial
for his life by a jury drawn from a panel from which the State has expressly
well qualified
excluded every man of his race, because of color alone, however
128
in other respects, is not a denial to him of equal protection?
In Strauder, the Supreme Court did not apply today's three-level
analysis.129 Rather, the Court appears to have relied on policy
considerations and a very logical interpretation of the Equal Protection
Clause: "The Fourteenth Amendment makes no attempt to enumerate the
rights [it] is designed to protect. It speaks in general terms, and those are
as comprehensive as possible. 13 ° In view of that, it seems that the
prosecutor's conduct in this case did not pass what has been referred to
as "the smell test."'' 3 Although the "smell test" is more or less the gut
feeling of the judge, which is of course supported by significant
122.
Id. at 158.
123.
Id.
124.
Page, supra note 120, at 158.
125.
(1994).
126.
127.
128.
129.
130.
131.
pass the
See Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama, 511 U.S. 127
Strauder v. West Virginia, 100 U.S. 303 (1880).
Id. at 309.
Id.
Scrutiny levels discussed supra.
Strauder, 100 U.S. at 310.
See Johnson v. Jones, 149 F.3d 494, 504 (6th Cir. 1998) ("This argument fails to
'smell test."').
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experience and intelligence, its subjectivity may not be any more
injurious than the current intricate tests which are often outcome
determinative. 132
In Taylor v. Louisiana,'33 the appellant challenged as a violation of
his Sixth Amendment right to "a fair trial by jury of a representative
segment of the community," the constitutionality of a Louisiana state
law that precluded women from jury service unless the woman had
provided written consent to be selected. 134 The Court recognized that
the selection of a petit jury from a representative cross section of the
community is an essential component of the Sixth Amendment right to a
jury trial. 135 In vindicating this entitlement, the Court expressly required
something more than rational basis: "The right to a proper jury cannot be
overcome on merely rational grounds. There must be weightier reasons
if a distinctive class representing 53% of the eligible jurors is for all
practical purposes to be excluded from jury service."'1 36 Here, the Court
seemingly applied strict scrutiny to decide this case, and determined that
a law that requires only men to serve as jurors denies a defendant his or
her Sixth Amendment right according to due process and equal
protection. 137 This is but one more example of befuddled use of the
Equal Protection Clause.
The Court did not stop there; rather, it took the opportunity to
address the other blatant equal protection violation in this case. Women
as a group were discriminated against by the law at issue, because they
had to request the opportunity to serve as a juror rather than naturally
possessing that right like men. The Court stated:
[I]t is no longer tenable to hold that women as a class may be excluded or
given automatic exemptions based solely on sex if the consequence is that
criminal jury venires are almost totally male ....If it was ever the case that
women were unqualified to sit on juries or were so situated that none of them
138
should be required to perform jury service, that time has long since passed.
Clearly the Equal Protection Clause affords women protection from
132. See Bernal v. Fainter, 467 U.S. 216, 220, n.6 (1984) (quoting Gunther, supra note
109) ("Only rarely are statutes sustained in the face of strict scrutiny. As one commentator
observed, strict-scrutiny review is 'strict' in theory but usually 'fatal' in fact.").
133. Taylor v. Louisiana, 419 U.S. 522 (1975).
134. Id. at 524.
135. Id. at 538.
136. Id. at 534.
137. Taylor, 419 U.S. at 535-36.
138. Id. at 537.
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AN EQUAL PROTECTION REVOLUTION
discriminatory legislation. However, the level of protection changed
immediately after Taylor.
Taylor was adjudicated two years after Frontiero v. Richardson,
which held, on Equal Protection grounds, gender-based classifications to
invoke strict scrutiny. 139 One year after Taylor, Craig v. Boren 140 was
adjudicated. There, the Supreme Court held that gender-based
classifications must serve important governmental objectives and must
be substantially related to achievement of those objectives. 141 The effect
of Craig was to reduce the level of scrutiny applied to gender
classifications from strict to intermediate. While it can be inferred from
Taylor that strict scrutiny was used, and even though analysis based on
gender classifications became more lenient the following year, the Equal
Protection Clause has clearly provided the necessary protection of such
rights. But the cases are confused and unprincipled, as should be obvious
by this point.
In Batson v. Kentucky, 142 the Court held the Equal Protection
Clause forbids a prosecutor to use peremptory challenges as a means of
effectively eliminating potential jurors from the venire on the basis of
that juror's race; specifically, the prosecutor was acting on the
unfounded assumption that black jurors as a group would be unable to
impartially consider the prosecution's case against a black defendant. 143
The Court established the requisites for challenging the basis for
peremptory challenges: the defendant "must show that he is a member of
a cognizable racial group . . . and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the
defendant's race."' 144 Ultimately, Batson established a three part test that
is still used today: First, the defendant must make a primafacie showing
145
that a peremptory challenge has been exercised on the basis of race.
Second, if that showing has been made, the prosecution must offer a
race-neutral basis for striking the juror in question. 146 Third, in light of
the party's submissions, the trial court must determine whether the
defendant has shown purposeful discrimination. 147 If so, then there has
139.
140.
141.
142.
143.
144.
145.
146.
147.
Frontiero v. Richardson, 411 U.S. 677 (1973).
429 U.S. 190 (1976).
Id. at 197.
Batson v. Kentucky, 476 U.S. 79 (1986).
Id. at 89.
Id. at 96.
Id. at 96-97.
Batson, 476 U.S. at 96-97.
Id. at 98.
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148
been a showing of an equal protection violation.
Although Batson is a unique equal protection decision, in that it
establishes a test specific to prosecutorial use of peremptory challenges
(its progeny has expanded it to all cases, infra), it further exemplifies the
strength of the Equal Protection Clause as a protective tool in criminal
procedure matters. Had this case been challenged on due process
grounds, the plaintiff would have needed to allege a violation of his
Sixth Amendment right to a jury comprised of a representative cross
section of the community, as in Taylor, and that such right was denied
by eliminating black jurors from the venire for no reason other than their
race. 149 However, the precise issue was not the adequate representation
of the community, as in Taylor,150 but the deliberate exclusion of black
jurors as a sole reflection of the prosecution's desire to eliminate those
belonging to the defendant's race. A due process challenge may have
produced the same result, but the precedent would have made no impact
on this variation of racial discrimination or racial profiling.
Accordingly, the Equal Protection Clause was the only means of
prohibiting such discriminatory conduct.
Holland v. Illinois15 1 unquestionably illustrates how the Equal
Protection Clause can offer the much needed protection due process is
sometimes unable to provide. Similar to Taylor, here, a white defendant
sought to challenge the exclusion of two African-American men from
the petit jury on the grounds that the Sixth Amendment entitles the
152
defendant to a jury of a representative cross section of the community.
The defendant pursued this challenge on due process grounds as opposed
to equal protection grounds. 153 In so doing, the defendant lost his
challenge: The court held that "a prosecutor's use of peremptory
challenges to eliminate a distinctive group in the community does not
deprive the defendant of a Sixth Amendment right to the 'fair
148.
Id.
149. Wikipedia, Sixth Amendment to the United States Constitution,
http://en.wikipedia.org/wiki/SixthAmendment-to-theUnitedStatesConstitution
(last visited October 20, 2006).
150. Taylor v. Louisiana, 419 U.S. 522 (1975).
151.
Holland v. Illinois, 493 U.S. 474 (1990).
152. Id. at 476.
153. Id. at 477-78 ("Petitioner asserts that the prosecutor intentionally used his
peremptory challenges to strike all black prospective jurors solely on the basis of their race,
thereby preventing a distinctive group in the community from being represented on his jury.
This, he contends, violated the Sixth Amendment by denying him a 'fair possibility of a petit
jury representing a cross section of the community."')
20061
AN EQUAL PROTECTION REVOLUTION
possibility' of a representative jury. 154 Rather, "fair possibility"
requires only the "inclusion of all cognizable groups in the venire, and
the use of a jury numbering at least six persons."' 155 Therefore, "a
prohibition upon the exclusion of cognizable groups through peremptory
challenges has no conceivable basis in the text of the Sixth
Amendment."' 156 The Court then distinguished Batson, in that the
general rule prohibiting the exclusion of racial groups from the venire
from which a jury is selected is a constitutional principle established
according to 57the Equal Protection Clause, not pursuant to the Sixth
Amendment.
Therefore, whether the defendant would have succeeded on equal
protection grounds was left undiscovered. Justice Marshall criticized the
majority for this failure.1 58 The only hint as to whether a white
defendant can assert a Batson claim is in the following language: "a
requirement of correlation between the group identification of the
defendant and the group identification of excluded
venire members [is
' 59
necessary] to raise the equal protection claim.'
This suggestion ignores that a venire from a representative cross
section of the community is not a constitutional privilege belonging only
to a minority race. The Sixth Amendment is made applicable to the
states through the Fourteenth Amendment, which begins, "All persons
born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and the State wherein they
reside. No State shall ... deny to any person within its jurisdiction the
equal protection of the law."'1 60
Therefore, the Holland Court's
suggestion that a white man, for example, could not raise an equal
protection claim if black jurors were struck from his venire because of
their race alone, is inapposite to the express language of the
constitutional amendment. In fact, the Supreme Court reconciled this
discrepancy in Powers v. Ohio, where it was held that "a criminal
defendant may object to race-based exclusions of jurors affected through
peremptory challenges whether or not the defendant and the excluded
154.
155.
Id. at 478.
Holland, 493 U.S. at 478.
156.
Id.
157. Id. ("I find it essential to make clear that if the claim here were based on the
Fourteenth Amendment Equal Protection Clause, it would have merit.") Id. at 488 (Kennedy,
J., concurring).
158.
Id. at 491 (Marshall, J., dissenting).
159.
Holland, 493 U.S. at 477.
U.S. CONST. amend. XIV, § 1 (emphasis added).
160.
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jurors share the same race."'
[Vol. 25:287
61
The Batson decision was discussed most recently in Johnson v.
California.162 There, the Supreme Court addressed "whether to establish
a prima facie case under [Batson], the objector must show that it is more
likely than not that the other party's peremptory challenges, if
unexplained, were based on impermissible group bias."' 163 A black male
was convicted of second-degree murder and assault on a white 19month-old child, resulting in death. 164 The prosecutor used three of his
twelve peremptory challenges to remove all prospective black jurors,
resulting in an all white jury. 165 The Court intensified the protection
offered by the Equal Protection Clause by requiring only that an
inference, a mere hint, that discrimination may 166
have occurred to
sufficiently establish a prima facie case under Batson.
The Batson test was also addressed in Miller-El v. Cockrell.167 At
issue there, was whether a state prisoner could appeal the denial or
dismissal of his petition for a writ of habeas corpus.' 68 The Fifth Circuit
noted that a certificate of appealability will issue "only if the applicant
169
has made a substantial showing of the denial of a constitutional right.,
The defendant based this constitutional challenge on the prosecution's
use of peremptory challenges to exclude ten of the eleven black men and
women eligible to serve on the jury.17 0 Although the Court affirmed the
challenge according to Batson,17 1 the Court first raised the following
question: what constitutes "purposeful discrimination" by the
prosecutor? Like Johnson, the Court indicates inferences from mere
observations of the attorney's conduct as the best evidence and sufficient
to satisfy the finding of "purposeful discrimination": 172 "evaluation of
the prosecutor's state of mind based on demeanor
and credibility lies
'peculiarly within a trial judge's province.' 173
161.
162.
163.
164.
Powers v. Ohio, 499 U.S. 400,402 (1991).
Johnson v. California, 545 U.S. 162 (2005).
Id. at 164.
Id.
165.
166.
Id.
Johnson, 545 U.S. at 173.
167.
168.
169.
170.
171.
172.
173.
537 U.S. 322 (2003).
Id. at 326.
Id. at 330 (citing Miller-El v. Johnson, 261 F.3d 445, 449 (2001)).
Id. at 326.
Miller-El,537 U.S. at 332.
Id. at 339 (citing Wainwright v. Witt, 469 U.S. 412, 428 (1985)).
Id.
2006]
AN EQUAL PROTECTION REVOLUTION
313
B. The Right to a GrandJury Enjoys Minimal Equal Protection
Safeguards
It is abundantly clear that apparent discriminatory use of
peremptory challenges based on race or gender will be deemed
unconstitutional upon satisfying the Batson test. This is a significant
finding alone, but also with respect to equal protection of the right to a
grand jury. First, the Fifth Amendment provides that "no person shall be
held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury."' 174 The purpose of the grand
jury is to determine "whether there is probable cause to believe that a
crime has been committed" and "to protect citizens against unfounded
criminal prosecutions.' 75 These functions are properly effectuated by
requiring that a "legally constituted and unbiased jury" makes this
determination.176 Thus, a Batson claim may be a viable way of
challenging a grand jury proceeding.
Generally, because of the required showing of prejudice to the
defendant, raising an equal protection challenge to some questionable
procedure or conduct occurring prior to indictment is a potential avenue.
For example, the Supreme Court in Rose v. Mitchell stressed that "racial
discrimination in selection of a grand jury strikes at fundamental values
of the judicial system and society by denying the defendant the right to
equal protection of laws.' 77 In this case, "respondents claim they were
the victims of racial discrimination, in violation of the Equal Protection
Clause, in the selection of the Tennessee grand jury that indicted them
for murders in the first degree."' 178 The Court articulated that generally,
"discrimination on the basis of race, odious in all aspects, is especially
pernicious in the administration of justice.',' 79 Accordingly, it was held
that where discrimination in violation of the Fourteenth Amendment is
proved, "[the] court will correct the wrong, will quash the indictment or
the panel[;] or, if not, the error will be corrected in a superior court, and
ultimately in [the Supreme Court] upon review," and all without regard
U.S. CONST. amend. V.
174.
175.
Keri L. Bowles, Thirty-FirstAnnual Review of CriminalProcedure:I1. Preliminary
Proceedings: Grand Jury, 90 GEO. L.J. 1305, 1305 (quoting Branzburg v. Hays, 408 U.S.
665, 686-87 (1972)).
176.
Id., See Costello v. U.S., 350 U.S. 359, 363 (1956).
177.
Rose v. Mitchell, 443 U.S. 545, 556 (1979).
178.
Id. at547.
179. Id. at 555.
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[Vol. 25:287
to prejudice.18° Discrimination on the basis of race is a suspect
classification which automatically invokes strict scrutiny. Therefore, the
Court held that proof of race discrimination violates equal protection and
inherently remains a valid ground for setting aside even an otherwise
proper criminal conviction. 181 Thus equal protection helps to guarantee
a proper grand jury proceeding.
C. Equal Protection Offers Little ProtectionRegarding Writs of Habeas
Corpus
The writ of habeas corpus orders "a prisoner [to] be brought to the
court so it can be determined whether or not the prisoner is being
imprisoned lawfully.' 82 The right to essentially have a review of the
legality of a conviction has been deemed "as the most efficient safeguard
of the liberty of the subject."' 183 Thus, denial of this right on an improper
basis could effectively deny the prisoner his or her liberty, and thus a
challenge would be available pursuant to the Due Process Clause.
However, if the denial of this right is possibly based on some level of
discrimination, the Equal Protection Clause could function as an
adequate tool to rectify this injustice.
The Supreme Court in Johnson v. Avery began its discussion of
what qualifies as an infringement or denial of a prisoner's right to habeas
corpus by first emphasizing the profound significance of this right: "This
Court has constantly emphasized the fundamental importance of the writ
of habeas corpus in our constitutional scheme, and the Congress has
demonstrated its solicitude for the vigor of the Great Writ. The Court has
steadfastly insisted that 'there is no higher duty than to maintain it
unimpaired.' ' 1 84 Here, the appellant, labeled a "jailhouse lawyer,"
challenged a prison regulation that prohibited one inmate from assisting
another in the preparation of writs.185 The Court agreed with appellant,
180. Id. at 556 (quoting Virginia v. Rives, 100 U.S. 313, 322 (1880)).
181. Rose, 443 U.S. at 559.
182. Wikipedia, Habeas corpus, http://en.wikipedia.org/wiki/HabeasCorpus (last visited
October 20, 2006).
183. Id.
184. Johnson v. Avery, 393 U.S. 483, 485 (1969) (quoting Bowen v. Johnston, 306 U.S.
19, 26 (1939)); See also Geraldine Szott Moohr, Murray v. Giarratano:A Remedy Reduced to
a MeaninglessRitual, 39 AM. U.L. REv. 765 (1990), as the research and analysis of the cases
in that article were instrumental to the discussion in this section. For a more in-depth and
detailed examination of the right to habeas corpus, please review this article.
185. Johnson, 393 U.S. at 484 ("No inmate will advise, assist or otherwise contract to aid
2006]
AN EQUAL PROTECTION REVOLUTION
finding that in effect, Tennessee adopted a rule that forbids illiterate or
poorly educated prisoners from filing habeas corpus petitions without
alternative sources of assistance. 186 Thus, the subject regulation was
deemed unconstitutional since the power of the state to control the
practice of law was being exercised87 in a way that had the effect of
abrogating federally protected rights.
However, the Court failed to uphold the Johnson principle in Ross
v. Moffitt. 88 There, the Court addressed the specific issue of whether
"[Douglas v. California], which requires appointment of counsel for
indigent state defendants on their first appeal as of right, should be
extended to require counsel for discretionary state appeals and for
applications for review ....,,189 The Court held that the State did not
have an obligation to provide counsel to indigent defendants for
discretionary appeals and thus no Equal Protection Clause violation
occurred because this constitutional provision does not require absolute
economic equality. 190 The Court distinguished this limit on a prisoner's
access to the courts from Douglas by emphasizing the difference
between legal representation on a prisoner's first appeal and one on a
discretionary appeal, that latter of which causes a less serious
"handicap." 19' Thus, the Court stratified the seriousness of the right of
another, either with or without a fee, to prepare Writs or other legal matters. It is not intended
that an innocent man be punished. When a man believes he is unlawfully held or illegally
convicted, he should prepare a brief or state his complaint in letter form and address it to his
lawyer or a judge. A formal Writ is not necessary to receive a hearing. False charges or untrue
complaints may be punished. Inmates are forbidden to set themselves up as practitioners for
the purpose of promoting a business of writing Writs.").
186. Id. at 487.
187. id. at 490.
188. 417 U.S. 600 (1974) (Appellant was convicted of forgery and uttering a forged
instrument).
189. Id. at 602.
190. Id. at 612 ("In this case we do not believe that the Equal Protection Clause, when
interpreted in the context of these cases, requires North Carolina to provide free counsel for
indigent defendants seeking to take discretionary appeals to the North Carolina Supreme
Court, or to file petitions for certiorari in this Court.").
191. Id. at 616. ("This is not to say, of course, that a skilled lawyer, particularly one
trained in the somewhat arcane art of preparing petitions for discretionary review, would not
prove helpful to any litigant able to employ him. An indigent defendant seeking review in the
Supreme Court of North Carolina is therefore somewhat handicapped in comparison with a
wealthy defendant who has counsel assisting him in every conceivable manner at every stage
in the proceeding. But both the opportunity to have counsel prepare an initial brief in the
Court of Appeals and the nature of discretionary review in the Supreme Court of North
Carolina make this relative handicap far less than the handicap borne by the indigent
defendant denied counsel on his initial appeal as of right in Douglas.")
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[Vol. 25:287
habeas corpus by the significance of the court proceeding which the
prisoner seeks.
The Supreme Court further applied the reasoning in Ross in
Pennsylvania v. Finley,' 92 where the respondent was convicted of
second-degree murder and sentenced to life imprisonment. 193 After her
appeal to the Supreme Court of Pennsylvania was unsuccessful and her
conviction affirmed, the state supreme court held that the respondent
was entitled under state law to appointed counsel in her post-conviction
proceedings.194 The petitioner challenged the withdrawal of her courtappointed counsel, who represented to the court that no "arguable basis
for relief existed. ' 195 However, the United States Supreme Court held
that the lower court improperly applied the constitutional right to
appointed counsel established in Douglas:196 "denial of counsel to
indigents on first appeal as of right amounted to unconstitutional
discrimination against the poor. 1 97 Ultimately, Finley indicated that the
Supreme Court has never held "prisoners [to] have a constitutional right
to counsel when mounting collateral attacks upon their convictions" and
that "the right to appointed counsel extends to the first appeal of right,
and no further." 198 Therefore, the right to counsel, according to Finley,
is not a fundamental right. Justifying this determination, the Court refers
to the Fourteenth Amendment and states the "equal protection guarantee
• . .does not require the appointment of an attorney for an indigent
appellant just because an affluent defendant may retain one.' 199 Rather,
"the duty of the state [is] only to assure the indigent defendant an
adequate opportunity to represent his claims fairly in the context of the
State's appellate process. 2 °°
D. Equal ProtectionMandates Some Rights to Indigents
Classification based on wealth alone has never been enough to
trigger strict scrutiny. 2° However, where state imposed fees have the
192.
481 U.S. 551 (1987).
193. Id. at 553.
194.
195.
Id.
Id.
196.
197.
198.
Douglas v. California, 372 U.S. 353 (1963).
Finley, 481 U.S. at 554.
Id. at 555.
199.
200.
201.
Id.at 556.
Id. (quoting Ross v. Moffitt, 417 U.S. 600, 616 (1974)).
James v. Valtierra, 402 U.S. 137, 141-42 (1971) ("Nonetheless, appellees contend
20061
AN EQUAL PROTECTION REVOLUTION
effect of preventing the poor from gaining access to a significant
constitutionally protected right, such as access to the courts, strict
scrutiny has been applied on occasion. °2 Equal protection analysis with
respect to constitutional issues addressing an indigent's access to the
courts is unique in that the Supreme Court has not labeled this "right" a
"fundamental right." Therefore, judicial access cases addressing a
challenge based on economic discrimination, receive strict scrutiny
generally where there was a combination of a "quasi-suspect" wealth
classification and an important interest. 0 3 Again, such issues illustrate
the protective safeguards the Equal Protection Clause impresses upon
the criminal process.
In Griffin v. Illinois,204 the Warren Court considered whether an
appellant is denied meaningful access to the courts when a state enforces
the practice of charging a fee for trial transcripts necessary for
preparation of an appeal. 0 5 In that case, the petitioners requested, postconviction, that a certified copy of the entire record be furnished to them
without cost because they were poor and did not have the means of
paying the necessary fees to acquire the information needed to prosecute
an appeal. 20 6 The petitioners alleged that the Court's refusal to afford
full appellate review solely because of poverty was a denial of due
process and equal protection.20 7 The Supreme Court agreed: "there can
be no equal justice where the kind of trial a man gets depends on the
amount of money he has. Destitute defendants must be afforded as
adequate appellate review as defendants who have money enough to buy
transcripts. 20 8 The Court's rationale included both equal protection and
due process considerations. 20 9 Focusing on the discrimination that
that Article XXXIV denies them equal protection because it demands a mandatory referendum
while many other referendums only take place upon citizen initiative. They suggest that the
mandatory nature of the Article XXXIV referendum constitutes unconstitutional
discrimination because it hampers persons desiring public housing from achieving their
objective when no such roadblock faces other groups seeking to influence other public
decisions to their advantage. But of course a lawmaking procedure that 'disadvantages' a
particular group does not always deny equal protection. Under any such holding, presumably
a State would not be able to require referendums on any subject unless referendums were
required on all, because they would always disadvantage some group.").
202. See Griffin v. Illinois, 351 U.S. 12 (1956); discussed infra.
203. Id.
204.
205.
206.
207.
208.
Id.
Id. at 13.
Griffin, 351 U.S. at 13.
Id. at 15.
Id. at 19.
209. Id. at 18-19.
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[Vol. 25:287
results from a law that requires payment for certain documents necessary
to an appeal, the Court analogized this effect to that of a rule which
would deny the poor the right to defend themselves in a trial court.21 °
Accordingly, the Court held that the Constitution's due process
requirements prohibited the fee because it bore no rational relationship
to the purpose of the trial. 21 1 The Court evaluated the challenge
separately with equal protection analysis which rested on a statistical
showing that appellate courts reversed a substantial number of
convictions: 212 "Thus to deny adequate review to the poor means that
many of them may lose their life, liberty or property because of unjust
convictions which appellate courts would set aside., 213 Although it is
true that a state is not required by the Federal Constitution to provide
appellate courts or a right to appellate review at all, this does not soften
the sting of the Equal Protection Clause when a state that does grant
appellate review does so in a way that discriminates against defendants
on account of their financial condition.2 14
In his dissent, Justice Harlan attempted to refute the majority's
equal protection finding and in so doing, helped clarify the Court's equal
protection analysis.215 First, he found no "invidious classification
between the 'rich' and the 'poor"' because no economic burden
attendant upon the exercise of a privilege bears equally upon
everyone. 22116 Therefore, such differentiation does occur and in other
circumstances it is not treated as an invidious classification by the state,
even though discrimination against "indigents" by name would be
unconstitutional.217 Harlan provided as an example that "the exclusion
of indigents from a free, state university would deny them equal
protection, but requiring them to pay tuition would not, despite the
resulting exclusion of those who could not pay the necessary fees. 21 8
Thus he questioned why the imposition of a fee in one case should be
considered a classification if it is not considered so in all cases. 219 He
210.
Griffin, 351 U.S. at 18.
211. Id. at 22 (Frankfurter, J., concurring).
212. Id. at 18-9 (noting that "[sItatistics show that a substantial proportion of criminal
convictions are reversed by state appellate courts").
213. Id. at 19.
214. Griffin, 351 U.S. at 19.
215. Id. at 35-36 (Harlan, J., dissenting).
216. Id. at 35.
217. Id.
218. Griffin, 351 U.S. at 35 (Harlan, J., dissenting).
219.
Id.
AN EQUAL PROTECTION REVOLUTION
20061
concluded by identifying the issue in Griffin, not as "the typical equal
protection question of the reasonableness of a 'classification' on the
basis of which the State has imposed legal disabilities," but rather "the
reasonableness of the State's failure to remove natural disabilities. 22 °
In Entsmingerv. Iowa,221 the Court addressed whether a petitioner's
Fourteenth Amendment rights were violated when the defendant's courtappointed counsel erred by not filing the transcript of the entire case,
which resulted in a judicial review based on the clerk's transcript
alone.222 Finding that this action denied the petitioner of any hope for an
accurate appeal, the Court stated:2 23 "the Fourteenth Amendment weighs
the interests of rich and poor criminals in equal scale, and its hand
extends as far to each., 224 It is well established that "an indigent
defendant is entitled to the appointment of counsel to assist him on his
first appeal, and appointed counsel must function in the active role of an
advocate. 225 The Court held that, due to the failure of the appointed
counsel, the indigent petitioner did not receive the benefit of his first
appeal and was entitled that right under the Fourteenth Amendment.226
Unless criminal proceedings retain certain procedural safeguards,
such as the necessary support for an appropriate defense, fundamental
rights of prisoners may be sacrificed to improper procedure. 227 In an
effort to preserve those safeguards, the Warren Court further developed
equal protection jurisprudence in Douglas v. California,228 where state
denial of appointed counsel was challenged at the appellate level. 229 The
Court employed equal protection analysis to require appointed counsel
on appeal:
There is lacking that equality demanded by the Fourteenth Amendment where
220. Id. at 36. Furthermore, Harlan notes such a classification would be:
invidious in all cases, and an invidious classification offends equal protection
regardless of the seriousness of the consequences. Hence it must be that the
differences are "reasonable" in other cases not because the "classification" is
reasonable but simply because it is not unreasonable in those cases for the State to
fail to relieve indigents of the economic burden.
221. Entsminger v. Iowa, 386 U.S. 748 (1967).
222. Id. at 752.
223. Id.
224. Id. (quoting Smith v. Bennet, 365 U.S. 708, 714 (1961)).
225. Entsminger,386 U.S. at 752.
226. Id. at751.
227. See Andres E. Montalvo, Reservations to the American Convention on Human
Rights: A New Approach,16 AM. U. INTL L. REv. 269, 301 (2001).
228.
229.
372 U.S. 353 (1963).
Id. at 354; See also Moohr, supra note 184, at 765.
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the rich man, who appeals as of right, enjoys the benefit of counsel's
examination into the record, research of the law, and marshalling of arguments
on his behalf, while the indigent, already burdened by a preliminary
determination that his case is without merit, is forced to shift for himself. The
indigent, where the record is unclear or the errors are hidden, has only the right
to a meaningless ritual, while the rich man has a meaningful appeal.
The Court further explained that a state does not violate the
Fourteenth Amendment by providing for differences, as long as the
result does not deny due process or create an invidious discrimination.231
The Court also found this state practice violated the Due Process Clause,
in that a court essentially ruled on a defendant's case without a hearing:
an unconstitutional line has been drawn between rich and poor when
"the merits of the one and only appeal an indigent has as of right are
decided without benefit of counsel. 23 2
Interestingly, the Supreme Court seems to have drawn some line
between the rights of an indigent defendant and the right of an indigent
death-row inmate.
In Murray v. Giarratano, the Supreme Court
addressed whether death row inmates who could not afford counsel to
pursue post conviction proceedings were denied constitutionally
protected rights.233 Consistent with Finley, the Court expressly stated
that legal representation for post conviction hearings should be
addressed no differently in capital or non-capital cases: "there [is] no
federal constitutional right to counsel for indigent prisoners seeking state
postconviction relief., 234 The Court reasoned that:
State collateral proceedings are not constitutionally required as an adjunct to
the state criminal proceedings .... The additional safeguards imposed by the
Eighth Amendment at the trial stage of a capital case are . . .sufficient to
assure the reliability of the process by which the death penalty is imposed. We
therefore decline to read either the Eighth Amendment or the Due Process
Clause to require yet another
•
.distinction
235 between the rights of capital case
defendants and those in noncapital cases.
Thus, "appointed counsel for indigent prisoners seeking postconviction relief is not mandated by either due process or equal
230.
Douglas,372 U.S. at 357-58.
231.
232.
233.
Id. at356-57.
Id; See also Moohr, supra note 184.
Murray v. Giarratano, 492 U.S. 1 (1989).
234.
235.
Id. at 7-8.
Id. at 10.
AN EQUAL PROTECTION REVOLUTION
20061
protection. 2 36 A plethora of distinctions are made to protect wrongful
execution, and this case serves as one more example of disheveled equal
protection analysis.237
Clearly, equal protection serves to ensure indigent defendants and
prisoners a right to transcripts in order to pursue a meaningful appeal,
the right to legal representation at trial and on appeal, but there is no
right to post-conviction proceedings as explained in Murray v.
Giarratano. Therefore, although the indigents are generally protected
by the Equal Protection Clause, there is a line that should not exist.
E. Equal ProtectionDoes Not Safeguard Any Right to Bail
The Eighth Amendment provides: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted. 238 Historically, bail has been denied based upon
the seriousness of the crime and likelihood of flight, and effectively
when bail is excessive. 2 39 However, that an individual is denied bail
does not raise a constitutional challenge as courts generally do not
interpret this amendment to create a "right" to freedom. 24° Thus, even
though equal protection serves as a defensive tool with respect to several
criminal procedure matters, the entitlement or refusal to bail is not
altered by this clause.
In Schilb v. Kuebel,24 1 after being charged with two traffic offenses,
the appellant, Schilb, obtained his liberty by depositing ten percent of
the fixed bail: seventy-five dollars.24 2 Schilb challenged the statutory
one percent mandated by the Illinois bail statutes, which was retained by
the court clerk, as a violation of the Equal Protection Clause.243
Specifically, he argued the one percent charge was imposed on only one
segment of the class gaining pretrial release, the poor but not the rich,
and furthermore, that its imposition on an accused found innocent
236.
237.
238.
Id. at 9; See also Moohr, supra note 184.
See, e.g. Gregg v. Georgia, 428 U.S. 153 (1976), and voluminous progeny.
U.S. CONST. amend. VIII.
239. See Findlaw.com,
http://caselaw.1p.findlaw.conldata/constitution/amendment8/01 .html#1.
240. See Georgetown Law Journal, 11. PreliminaryProceedings: Bail, 32 GEO. L.J. ANN.
REv. CRIM. PROC. 289 (2003).
241.
404U.S.357(1971).
242.
Id. at 358.
243.
Id. at 358-59.
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[Vol. 25:287
constituted a court cost against those deemed not-guilty. 2"4 Considering
the Joint Committee's and State Legislature's balancing of the burden to
the individual and the administrative costs of the state, the Court
disagreed: 245 "The .. .decision ...cannot be described as lacking in
rationality to the point where equal protection considerations require that
[it] be struck down. 246 In so holding, the Court stated as a principle that
"[t]he Equal Protection Clause requires more of a state law than
nondiscriminatory application within the class it establishes. It also
imposes a requirement of some rationality in the nature of the class
singled out. '247 Ultimately, the Court distinguished deposit situations
from recognizance, the latter requiring no charge from the accused: first,
"Illinois has never charged people out on recognizance," and second,
"with a recognizance, there is nothing the State holds for safekeeping,
with resulting responsibility and additional paperwork., 2 48 Clearly, a
rational basis exists for retaining a fee from a deposit and not
recognizance. 249
F. Equal ProtectionProhibitsSelective Prosecution
Classification based on race is, of course, the classic example of a
"suspect" classification. 5 0 Racial discrimination, the effect of such
classification, echoes this nation's shameful past, reminding our country
now that we are not free from this hate.2 51 In fact, although the Equal
Protection Clause was originally motivated by the discrimination to
African Americans, it was extended to serve, with strict scrutiny, any
racial group experiencing classification based alone on their national
origin.252 One form of such classification or discrimination is selective
prosecution. This is especially invidious because it does more than deny
a right or impose disparate application of the laws, it results in a criminal
244. Id. at 365-66 (Appellants' primary argument is threefold: "(1) that the 1% retention
charge under § 110-7 (f) is imposed on only one segment of the class gaining pretrial release;
(2) that it is imposed on the poor and nonaffluent and not on the rich and affluent; and (3) that
its imposition with respect to an accused found innocent amounts to a court cost assessed
against the not-guilty person.").
245. Schilb, 404 U.S. at 367-68.
246.
Id.
247.
248.
Id. at 368.
Id. at 367.
249.
250.
Schilb, 404 U.S. at 367.
Historically this is axiomatic.
251.
252.
Supra.
Infra.
AN EQUAL PROTECTION REVOLUTION
2006]
penalty that another man or woman, similarly situated, did not receive
because his or her skin color was not targeted, or did not carry the same
connotations as another. The Equal Protection Clause prohibits selective
prosecution.
For example, in Yick Wo v. Hopkins, 3 two natives of China were
imprisoned based on the violation of a particular ordinance requiring
consent of the board of supervisors to operate a laundry within San
Francisco, unless the building was made of brick or stone.254 It was
verified that "there were about 320 laundries in the city and county of
San Francisco, of which about 240 were owned and conducted by
subjects of China, and of the whole number, about 3 10 were constructed
of wood., 255 The defendants were denied consent to operate their
laundries even though they complied with every requirement necessary
to protect neighboring property from fire, and took precautions against
injury to public healthy.56 These men were fined for operating their
businesses without consent from the board, and imprisoned when they
defaulted on paying those fines. 7 The Court held that the ordinances
vesting the board of supervisors with power to withhold their assent to
the use of wooden buildings as laundries, violated equal protection of the
laws 258 : "[The ordinances] seem intended to confer, and actually do
confer, not a discretion to be exercised upon a consideration of the
circumstances of each case, but a naked and arbitrary power to give or
withhold consent, not only as to places, but as to persons., 259 The Court
reasoned the "Fourteenth Amendment to the Constitution is not confined
to the protection of citizens" but to any person within its jurisdiction.2 6 °
The ordinances at issue "divided the owners or occupiers into two
classes... by an arbitrary line, on one side of which are those.., from
26
whom that consent is withheld, at their mere will and pleasure." '
Ultimately, the Court determined that no reason for the ordinance
existed except hostility to the race and nationality to which the
petitioners belonged.26 2
253.
254.
255.
256.
257.
258.
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
Id.
Id.
Id.
YickWo, 118 U.S. 356.
Id. at 366.
259.
Id.
260.
261.
262.
Id. at 369.
YickWo, 118 U.S. at 368.
Id. at 374.
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Although equal protection offers shelter from some selective
prosecution, prosecution not based upon an unjustifiable standard such
as race, alienage, or other arbitrary classification has not received this
constitutional safeguard. The Supreme Court made this finding in Oyler
v. Boles. 263 In this case, the defendant challenged as an equal protection
violation the inconsistent implementation of the habitual criminal statute
which mandated prosecuting authorities to seek the more severe penalty
against those coming within the statutory standards. 264 The statute
specifically imposed as mandatory, a life sentence upon the third
265
conviction "of a crime punishable by confinement in a penitentiary.,
Holding this law did not violate the Fourteenth Amendment, the Court
reasoned:
[F]ailure to proceed against other offenders because of a lack of knowledge of
prior offenses or because of the exercise of reasonable selectivity in
enforcement does not deny equal protection to persons who are prosecuted,
and petitioners
266 did not allege that the failure to prosecute others was due to any
other reason.
Essentially, the Court suggested that petitioners should have
provided evidence, not of arbitrary application of the subject statute, but
of deliberate prosecution based on an unjustifiable standard, such as
race, religion, or other unconstitutional classifications. 267
Such a
challenge, the Court suggested, would have been deemed selective
prosecution and invoked the protection provided by the Fourteenth
Amendment. 268 "Arbitrary" prosecution does not fall within the
protective confines of the Fourteenth Amendment. Indeed!
In Wayte v. United States,269 the appellant challenged a 1980
Presidential Proclamation which "directed male citizens and certain male
residents born during 1960 to register with the Selective Service System
during" a particular week. 7 ° Instead, appellant wrote letters to various
263.
368 U.S. 448,456 (1962).
264.
265.
Id. at 455-56.
Id.
at 449.
266. Id. at 456.
267. Oyler, 368 U.S. at 456 ("[T]he conscious exercise of some selectivity in
enforcement is not in itself a federal constitutional violation. Even though the statistics in this
case might imply a policy of selective enforcement, it was not stated that the selection was
deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary
classification.")
268. Id.
269. 470 U.S. 598 (1985).
270. Id. at601.
AN EQUAL PROTECTION REVOLUTION
2006]
government officials stating that he had not registered and did not intend
to do so. 27 The Selective Service later adopted a policy of passive
enforcement, through which it would prosecute only men who had either
reported to the government that they were not registering or whom other
people had reported to the government for not registering.272 Wayte was
eventually indicted for violating the Military Selective Service Act.273
Wayte challenged the indictment on equal protection grounds,
contending that he and other indicted non-registrants were "vocal"
opponents of the registration program who had been impermissibly
targeted for prosecution for exercising their First Amendment rights.274
The Supreme Court referenced Oyler and Yick Wo upon indicating that
appellant's contention would "be judged according to ordinary equal
protection standards. 27 5 Similar to Oyler, the Supreme Court held that
the government's passive enforcement policy was constitutional. 6
They reasoned as follows:
It is appropriate to judge selective prosecution claims according to ordinary
equal protection standards. Under our prior cases, these standards require
petitioner to show both that the passive enforcement system had a
discriminatory effect and that it was motivated by a discriminatory purpose.
All petitioner has shown here is that those eventually prosecuted, along with
many not prosecuted, reported themselves as having violated the law. He has
not shown that the enforcement
policy selected nonregistrants for prosecution
277
on the basis of their speech.
In fact, the Government's prosecution of those non-registrants who
reported themselves or who were reported by others demonstrates that
the Government treated all reported non-registrants (all those similarly
situated) equally, and did not subject vocal non-registrants to any special
burden: "Indeed, those prosecuted in effect selected themselves for
prosecution by refusing to register after being reported and warned by
the Government., 278 But even if the passive policy had a discriminatory
effect, petitioner did not show that the Government intended such a
271.
272.
273.
274.
275.
Id.
Id. at 609-10.
Wayte, 470 U.S. at 603.
Id. at 604.
id. at 626.
276.
Id. at 610.
277.
278.
Wayte, 470 U.S. at 608-09.
Id. at 610.
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result. 279 Absent a showing that the Government prosecuted petitioner
because of his protest activities, no selective prosecution claim
existed.2 8 °
G. Equal ProtectionProhibitsDiscriminationBased Alone on
Competency of the Defendant
Equal protection provides much needed safeguards against state
laws that apply different criminal procedures to those considered
"incompetent to stand trial." Professional validation that a person has
some sort of mental deficiency does not mitigate the crime they
committed or alter the punishment they receive, unless the defendant can
satisfy the elements required to plead "insanity" as a defense.28 1
Unfortunately, state laws have at times taken advantage of one's
inability to advocate their own rights through discriminatory pre and
post trial procedures. The Equal Protection Clause, however, has
consistently invalidated such laws, thus affording equal protection to
those most vulnerable to discrimination.
2 82 the Court addressed the constitutionality
In Baxstrom v. Herold,
of a New York state statute that permitted, through a judicial order
alone, the commitment of a prisoner deemed insane to the custody of the
commissioner of mental health upon the expiration of his or her penal
sentence in the state hospital.283 The Court held:
[P]etitioner was denied equal protection of the laws by the statutory procedure
under which a person may be civilly committed at the expiration of his penal
sentence without the jury review available to all other persons civilly
committed in New York. Petitioner was further denied equal protection of the
laws by his civil commitment to an institution maintained by the Department
of Correction beyond the expiration of his prison term without a judicial
determination that he is dangerously mentally ill such as that afforded to all so
committed except those, like Baxstrom, nearing the expiration of a penal
sentence.
In fact, the state statute expressly granted de novo review by jury
trial to determine the question of the individual's sanity before civil
279.
280.
281.
282.
283.
284.
Id.
Id.
It should be noted that these are two distinct tests.
383 U.S. 107 (1966).
Id. at 110-11.
Id.at 110.
2006]
AN EQUAL PROTECTION REVOLUTION
commitment ensues. 285
The Court disregarded the state hospital
director's contention that the "state has created a reasonable
classification differentiating the civilly insane from the 'criminally
insane,' which he defines as those with 'dangerous or criminal
propensities,"' as irrelevant to the appellant's case: 286 the "classification
has no relevance whatever in the context of the opportunity to show
whether a person is mentally ill at all"; the latter entitlement is of the
Court's concern. 287 With respect to this issue, "there is no conceivable
basis for distinguishing the commitment of a person who is nearing the
end of a penal term from all other civil commitments., 288 In other
words, the Court made the rare determination that there was no rational
basis pursuant to the Equal Protection Clause for denying a de novo
hearing to determine the individual's mental status before he or she was
civilly committed.
In Jackson v. Indiana, the Supreme Court addressed the
constitutionality of an Indiana statute which instructed more lenient
commitment standards and more stringent release standards than those
generally applicable to all others not charged with criminal offenses.28 9
The petitioner was a "mentally defective deaf mute with a mental level
of a preschool child" charged with separate robberies of two women
amounting to nine dollars and two purses.29 ° Pursuant to the procedures
set forth in the state statute at issue, the petitioner was deemed unable to
understand the nature of the charges against him or to participate in his
defense.291 According to that statute, it was mandated that the petitioner
be committed to the Indiana Department of Mental Health until the
292
Department could certify to the court that "the defendant [was] sane."
However, a report by two separate physicians indicated doubt as to
"whether petitioner had sufficient intelligence ever to develop the
necessary communication skills" to stand trial.293
Accordingly,
petitioner's counsel argued that Jackson's commitment under these
circumstances amounted to a "life sentence" without his ever having
been convicted of a crime; this commitment deprived Jackson of his
285. Id. at 110-11.
286. Baxstrom, 383 U.S. at 111.
287. Id.
288.
289.
290.
291.
292.
293.
Id. at 111-12.
Jackson v. Indiana, 406 U.S. 715 (1972).
Id. at 717.
Id. at 718.
Id.at 719.
Jackson, 406 U.S. at 719.
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Fourteenth Amendment rights to equal protection and due process. 294
The Court agreed and held as follows: "commitment under [the statute at
issue] amounted to a commitment for life. This deprived [the petitioner]
of equal protection . . . because, absent the criminal charges pending
against him, the State would have had to proceed under other statutes
generally applicable to all other citizens" which would have yielded, if
commitment were warranted, more lenient release standards and
assignment to a special institution that provided appropriate care.2 95
Pursuant to this finding the Court explained that "if criminal conviction
and imposition of sentence are insufficient to justify less procedural and
substantive protection against indefinite commitment than that generally
all others, the mere filing of criminal charges surely cannot
available29to
6
suffice.,
Furthermore, the Court determined that such commitment of the
petitioner was also a violation of the Due Process Clause.297 As a
general rule, the Court stated that "without a finding of dangerousness,
one committed [under the federal or state statute] can be held only for a
'reasonable period of time' necessary to determine whether there is a
substantial chance of his attaining the capacity to stand trial in the
foreseeable future., 298 Therefore, the petitioner's commitment violated
due process since it was determined, pre-commitment, that he would
likely never attain the level of intelligence necessary to stand trial.299
H. Equal Protection Can Offer ProtectionFrom Pretext Stops
The term "pretext" stop is an unfortunately common phrase that
refers to the intrusive and unacceptable police practice of procuring a
stop based upon a suspicion that is completely unrelated to the proffered
basis. 300 This practice may be a reflection of the broad deference courts
generally bestow on officers in effectuating their duties, which has the
adverse consequence of disguising stops that are executed only because
294.
295.
296.
Id.
297.
Jackson, 406 U.S. at 731.
298.
299.
Id. at 733.
Id. at 731-33.
Id. at 723.
Id. at 724.
300. See Brooks Holland, Safeguarding Equal Protection Rights: Searching for the
Exclusionary Rule under the Equal Protection Clause, 37 AM. CRIM. L. REV. 1107, 1108
(2000).
20061
AN EQUAL PROTECTION REVOLUTION
of racial profiling or racial discrimination.30 ' In fact, "several recent
studies suggest the routine role that race plays in law enforcement
decision-making regarding whom to investigate. '30 2 Acknowledging
this as an impermissible racial classification, the Supreme Court has
suggested pretext stops should be challenged on equal protection
grounds.3 °3
However, the Supreme Court first made matters worse by
increasing the already substantial deference afforded police officers in
Whren v. United States.304 There, the Court determined that an officer's
"subjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis. 30 5 The Court further stated that even though the
officer does not in fact possess the state of mind that is implied by the
reasons supporting the legal justification for the officer's action, that
"does not invalidate the action taken as long as the circumstances,
viewed objectively, justify that action. 30 6 In so holding, "the Court thus
eliminated any Fourth Amendment basis for a criminal defendant to
claim that objectively supported law enforcement conduct, such as a
routine traffic stop, represents a pretext to investigate the defendant due
to his or her race., 30 7 Consequently, it would be difficult to support a
due process challenge in such situations, which beg for some means to
protect individual rights from this invidious discrimination. The Equal
Protection Clause can offer these much-needed safeguards. In fact, the
Supreme Court suggested such an alternative in Whren: "[T]he
Constitution prohibits selective enforcement of the law based on
considerations such as race. But the constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal Protection
Clause, not the Fourth Amendment., 30 8 However, in order to prove the
pretext stop was motivated by racial bias, rather than a valid traffic
violation, for example, the plaintiff must prove both a discriminatory
effect and a discriminatory intent. 309
For example, in Texas, if a car is equipped with safety belts, a
301.
See id.
302.
Id.
303. Whren v. United States, 517 U.S. 806 (1996).
304. Id.
305. Id. at 813.
306. Id. (quoting Scott v. United States, 436 U.S. 128, 138 (1978)).
307. Holland, supra note 300, at 1108.
308. Whren, 517 U.S. at 813.
309. See Holland, supra note 300, at 1109 (citing United States v. Armstrong, 517 U.S.
456, 463-67 (1996)).
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front-seat passenger must wear one, according to Tex. Tran. Code Ann.
§ 545.413(a) (1999) and the driver must secure any small child riding in
front, according to § 545.413(b). 1 ° Violation of either provision is "a
misdemeanor punishable by a fine not less than $25 or more than
$50.''31 Furthermore, Texas law expressly authorizes "any peace officer
[to] arrest without warrant a person found committing a violation" of
these seatbelt laws, although it also permits police to issue citations in
lieu of arrest. 312 These code sections were at issue in Atwater v. City of
Lago Vista.3 13 There, an African-American woman pulled over by a
police officer for not wearing her seat belt, and for her two minor
children not wearing seatbelts, was not only fined, but arrested and
placed in jail for about one hour, after which she was taken before a
magistrate and released on $310 bond.31 4 Atwater challenged that
treatment as a violation of her Fourth Amendment right "to be free from
unreasonable seizure., 31 5 However, the Court stated as a general rule,
"if an officer has probable cause to believe that an individual has
committed even a very minor criminal offense in his presence, he may,
316
without violating the Fourth Amendment, arrest the offender."
Therefore, because Atwater violated the relevant Texas statute, there
was probable cause for the officer to believe that Atwater had committed
1 7 Thus, Atwater's
a crime in his presence.
arrest satisfied constitutional
31 8
requirements.
However, Justice O'Connor argued in her dissent that the
reasonableness of a Fourth Amendment seizure is established by
"assessing, on the one hand, the degree to which it intrudes upon an
individual's privacy and, on the other, the degree to which it is needed
for the promotion of legitimate governmental interests. 31 9 O'Connor
instead focused on the superiority of Atwater's interest to "live free of
pointless indignity and confinement" which in her opinion, "clearly
310.
311.
312.
Atwater v. City of Lago Vista, 532 U.S. 318, 323 (2001).
Id.; See TEX. TRAN. CODE ANN. § 545.413(d).
Atwater, 532 U.S. 318.; see TEX. TRAN. CODE ANN. § 543.001; see also TEX.
TRAN. CODE ANN. § § 543.003-543.005.
313. Atwater, 532 U.S. 318.
314. Id. at 323-24.
315. Id. at325.
316. Id. at 354.
317. Atwater, 532 U.S. at 354.
318.
Id.
319.
Id. at 361 (O'Connor, J., dissenting) (quoting Wyoming v. Houghton, 526 U.S. 295,
300 (1999)).
2006]
AN EQUAL PROTECTION REVOLUTION
320
outweighs anything the City can raise against it specific to her case.,
O'Connor was seemingly critical of the majority's willingness to evade
the equal rights issue that is arguably present in this case, by adhering to
a strict interpretation of the statute at the expense of equal protection.
For instance, she alleged that the majority was swayed by the concern
that "every discretionary judgment in the field [would] be converted into
an occasion for constitutional review. 3 2' O'Connor further criticized
the majority by illustrating its inconsistency; she cited to cases that
expressed disapproval of warrantless arrests as in Atwater, one of which
suggested unexplored grounds for an equal protection challenge.3 22 Had
Atwater challenged her arrest on equal protection grounds, she would
have had to show that such an arrest violated a fundamental right, and
would have received strict scrutiny review by that approach. In the
alternative, as an African-American woman, Atwater could have
challenged the arrest as racial profiling or racial discrimination, if she
could adequately show a pattern of such discrimination either by the
specific officer, of by the police department as a whole.323
However, unlike Atwater, a successful equal protection claim was
made for racial profiling or race related stops by a police officer in
Christopherv. Nestlerode.324 There, the court began by acknowledging
that "racial profiling" has become a common claim in the last decade.325
Similar to those claims, the appellant alleged that members of a county
sheriff's department stopped his vehicle and issued him a traffic citation
because he was an African-American driving an expensive car in the
wrong neighborhood.32 6 In their own defense, the officers claimed they
were unaware of the appellant's race when the car was stopped and did
not discover his race until the officer approached the window and
requested his license and registration due to his excessive speed limit on
the two lane road.327 After quoting the Equal Protection Clause of the
Fourteenth Amendment, the court expressly recognized the possibility of
Id. at 361.
Atwater, 532 U.S. at 361 (O'Connor, J., dissenting).
322. Id. at 362; See Gustafson v. Florida, 414 U.S. 260, 266-67 (1973) (Stewart, J.,
concurring) ("[A] persuasive claim might have been made ... that the custodial arrest of the
petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth
Amendments. But no such claim has been made.")
323. Atwater, 532 U.S. 318.
324. 373 F. Supp. 2d. 503 (Dist. Penn. 2005).
320.
321.
325.
326.
Id. at 508.
Id.
327.
Id. at 509.
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a violation in this case: "Selective enforcement of laws or regulations,
based on race or ethnicity of an individual, may give rise to a violation
of the Fourteenth Amendment." 328 Accordingly, if the officer's conduct
deprived the appellant of such "guarantees [of] fairness and equality in
the treatment of individuals by government officials," appellant's
constitutional rights were violated. 329 Recognizing the possibility of
unconstitutional behavior, the court determined "to allow a jury to
decide whether the traffic stop at issue was a responsible exercise 33
of0
police authority or an example of unconstitutional racial profiling.,
Although the Equal Protection Clause does not guarantee protection
from such pretext stops, the possibility that it may is far superior to the
protection due process offers, considering the Supreme Court decided
the officer's stated reason for the stop does not have to be the actual
reason, given the "hypothetical" makes sense.
I. IncreasedDeath Sentencesfor African Americans are Not Prohibited
By the Equal Protection Clause
"People live or die, dependent on the whim of one man or of 12. "331
Eloquently stated by Justice Douglas in his concurring opinion, this
quote expresses the crucial nature of affording a defendant the rights he
or she is entitled, for error can be unforgiving. Despite this stark truth,
the Supreme Court has often ignored the applicability of the Equal
Protection Clause to allegations of discriminatory issuance of the death
penalty.
The leading example of this discrimination is McCleskey v.
Kemp. 332 In this controversial case, an African-American man was
sentenced to death for the murder of a white police officer during an
armed robbery.33 3 Filing a petition for a writ of habeas corpus in federal
court,334 McCleskey claimed, among other things, that the "Georgia
328. Christopher,373 F. Supp. 2d at 519 (citing Bradley v. United States, 299 F.3d 197,
206-07 (3d Cir. 2002)).
329. Id.
330. Id. at 523.
331. Furman v. Georgia, 408 U.S. 238, 253 (1972) (Douglas, J., concurring).
332. 481 U.S. 279, 283 (1987); The following discussion of McCleskey v. Kemp was
significantly aided by the remarkable research and analysis of an article authored by Steven
Graines & Justin Wyatt: The Rehnquist Court, Legal Process Theory, and McCleskey v.
Kemp, 28 AM. J. CRIM. L. 1, 8-10 (2000).
333.
334.
McCleskey, 481 U.S. at 284-85.
Id. at 286.
AN EQUAL PROTECTION REVOLUTION
2006]
capital sentencing process [was] administered in a racially
discriminatory manner in violation of the Eighth and Fourteenth
Amendments to the United States Constitution. '335 To support this
claim, McCleskey submitted a statistical study, referred to as the Baldus
study,336 which analyzed the disparity between sentencing for the murder
of a white victim versus murder of a black victim, and also the disparity
between the number of black defendants versus the number of white
defendants who received the death penalty.337 Although the Baldus
study indicated that black defendants convicted of murdering white
victims had the greatest likelihood of receiving the death penalty, the
study surprisingly revealed that more white defendants received the
death penalty than black defendants. 338 As a general principle, the Court
articulated that a defendant who "alleges an equal protection violation
[not only] has the burden of proving the existence of purposeful
discrimination [but he or she must also] . . . prove that the purposeful
discrimination has a discriminatory effect on him., 339 Ultimately, the
Court held that "[b]ecause discretion is essential to the criminal justice
process, [the Court] would demand exceptionally clear proof before [it]
would infer that the discretion has been abused;, 340 the Baldus study was
"clearly insufficient" to support this inference.34'
335.
Id.
336. Id. at 286.
337. McCleskey, 481 U.S. at 286-87 ("The raw numbers collected by Professor Baldus
indicate that defendants charged with killing white persons received the death penalty in 11%
of the cases, but defendants charged with killing blacks received the death penalty in only 1%
of the cases. The raw numbers also indicate a reverse racial disparity according to the race of
the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the
white defendants. Baldus also divided the cases according to the combination of the race of
the defendant and the race of the victim. He found that the death penalty was assessed in 22%
of the cases involving black defendants and white victims; 8% of the cases involving white
defendants and white victims; 1% of the cases involving black defendants and black victims;
and 3% of the cases involving white defendants and black victims. Similarly, Baldus found
that prosecutors sought the death penalty in 70% of the cases involving black defendants and
white victims; 32% of the cases involving white defendants and white victims; 15% of the
cases involving black defendants and black victims; and 19% of the cases involving white
defendants and black victims.").
338. Id. at 286.
339. Id. at 292 (citing Whitus v. Georgia, 385 U.S. 545, 550 (1967)).
340. Id. at 297.
341. McCleskey, 481 U.S. at 281-82; see Graines & Wyatt, supra note 332, at 8-10.
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VI. CONCLUSION
The purpose of this paper is to provide a guide for the application
of the Equal Protection Clause to individual rights issues in the context
of criminal procedure. Although Lawrence v. Texas revealed the Due
Process Clause's tired impact on such issues, it has consistently
functioned as the "norm" for challenging a law or act as a constitutional
right violation of a criminal defendant. However, this paper has
revealed that it is by no means the only approach. Clearly, equal
protection claims have been alleged and are increasingly, though
unevenly, accepted by the Supreme Court. In spite of its pitted legacy,
this constitutional provision is a crucial tool for advocating and
vindicating the rights of the accused and convicted.
The advantage of the use of this clause is that a High Court
predisposed to originalism, 342 that is, the original intent of the Framers,
need not stretch for meaning that all Americans are required to be given
the equal protection of our land and our law, priding itself on fairness
and liberty. The three-tiered approach of scrutiny simply answers the
question by unprincipled construct. The classification will usually
determine the result. A mandate of equal protection of the law does not
need such an obfuscated and apparently disingenuous mode of analysis.
All equal protection questions
need "strict scrutiny" (or words/concepts
343
to that effect) analysis.
The contradictory, non-use, inconsistent use, and over-ruling of
equal protection cases, paradoxically, gives the High Court a near blank,
but principled,slate to help solve some of the terribly pressing problems
of today. That other courts have often missed the mark with equal
protection analysis allows the present Court the freedom it needs, and
rightfully has, to be arbiter of the United States Constitution. Two
Hundred and Thirty Years ago, our Declaration of Independence averred
that all are created equal. 34
As we enter into the Twenty-First Century, our country is terribly
and shamefully divided by race, ethnicity, gender, religion, sexual
orientation, body type, and other forms of prejudice. We have had one
342.
343.
See generally, RICHARD POSNER, OVERCOMING LAW (1995).
See generally JOHN E. NOWAK AND RONALD D. ROTUNDA, CONSTITUTIONAL LAW
680 et seq. (7th ed. 2004). While race should and does enjoy positive result-oriented
"scrutiny," gender is mid-tier (ridiculously and erroneously), and sexual orientation appears to
be rational basis (low tier) only. This is the epitome of unprincipled law. It is the step above
"pick the judge, pick the result."
344.
THE DECLARATION OF INDEPENDENCE.
20061
AN EQUAL PROTECTION REVOLUTION
Civil War based on non-equal protection. Not only is such ethically and
axiomatically evil; pragmatically, this discrimination threatens to destroy
the Republic.
In beginning to all live together in peace at home, the Equal
Protection Clause is the principled 345 legal tool to begin to eradicate the
growing tensions. In using the clause, the transparent outcomedeterminative classification standards should be abandoned. Either one
who is similarly situated was treated by the government dissimilarly, or
not. It amazes this author that a test that classifies and then reaches an
answer without mature and honest legal analysis has lasted to this day.
The United States of America must begin to set an example to a
world which is tragically best characterized as one divided and at war
based on race, religion, ethnicity-and a world that is armed to fight
these issues. Charity and clarity must begin at home. The mechanism is
there. There is a principled tabula rasa waiting to enliven our law.
See generally Herbert Wechsler, Toward Neutral Principlesof ConstitutionalLaw,
345.
73 HARV. L. REV. 1 (1959).