Recentering Concerns about Uneven Enforcement of Criminal Laws
David Super
As I am not on this
blog for sophisticated constitutional analysis, I will leave that to my
colleagues whose talents lie in that area.
I do, however, want to comment on another case that keeps coming back to
me during the requiem for Roe v. Wade.
This case was
decided half a year before Roe. It
was quite sickly from the beginning, in marked contrast to Roe’s
impressive seven-justice majority. It
survived only four years, and the principles it sought to vindicate have been seriously
eclipsed in the years since. The case is
Furman v.
Georgia, which struck down capital punishment as cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments.
Furman was
a 5-4 decision, but even as such it was particularly feeble:
each of the five justices in the majority wrote
his own opinion, with none concurring in any of the others.
Several of the opinions took very seriously
the task of discerning the Eighth Amendment’s original intent, delving deeply
into the history of proscriptions against capriciously applied laws going back even
before the Norman Conquest.
Justices Brennan
and Marshall found that the death penalty was unconstitutional in all
applications. The other three justices of
the majority, however, ultimately found the death penalty statutes before them unconstitutional
because of their grossly inconsistent application.
The Court abandoned Furman
after only four years, supplanting its concerns about substantive justice with a
set of procedural rituals supposedly designed to reduce arbitrariness. About a decade later, the Court effectively renounced inquiries
about unfair administration of the law when it held that even a highly rigorous
study showing a profound racial skew in the death penalty’s imposition was
irrelevant absent (effectively unobtainable) proof of discriminatory
intent.
The current debate
about Dobbs would benefit enormously if Furman’s concern about
grossly unequal application of laws were a more central feature of mainstream legal
discourse. Most of those acting to criminalize
abortion have no real expectation that they are preventing all women from
having abortions. In most states, a
serious attempt to do so would deprive the Republican Party of crucial upper-
and upper-middle-class support. Indeed,
Justice Kavanaugh’s concurrence all but makes this explicit, noting that abortion
will remain lawful in several states and that the right of interstate travel will
allow women with sufficient means to travel to those states for abortions.
The debate over Dobbs
would benefit from Justice Douglas’s insight in Furman that
Any law which is nondiscriminatory
on its face may be applied in such a way as to violate the Equal Protection
Clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356
(1886). Such conceivably might be the
fate of a mandatory death penalty, where equal or lesser sentences were imposed
on the elite, a harsher one on the minorities or members of the lower castes.
Justice White
concluded that “as the statutes before us are now administered, the penalty is
so infrequently imposed that the threat of execution is too attenuated to be of
substantial service to criminal justice.”
If Justice Kavanaugh is correct about Dobbs’s lack of effect on
women of means, the laws it upholds may also be too attenuated to be of
substantial service to the cause of protecting fetuses.
Justice Stewart acknowledged
the danger of racial discrimination in the application of the death penalty but
found it inconclusive. Nonetheless, he found
that, among a large class of persons whose conduct was comparably bad,
the petitioners are among a
capriciously selected random handful upon whom the sentence of death has in
fact been imposed. … I simply conclude that the Eighth and Fourteenth
Amendments cannot tolerate the infliction of a sentence of death under legal
systems that permit this unique penalty to be so wantonly and so freakishly imposed.
Much is in flux at the moment, but it seems likely that
after some transition period the states banning abortion will settle into a
routine in which more affluent women travel fairly easily to states allowing abortions
while low-income women must try to navigate the Scylla and Charybdis of criminal
prosecution and injury or death from unqualified abortion providers.
Alas, not only is Furman
no more but the concerns about arbitrary imposition of criminal penalties has
been marginalized significantly.
Reproductive
rights advocates, to be sure, have persistently warned that outlawing abortions
would fall hardest on low-income women.
The Court, however, largely walked away from these concerns early in Roe’s
history. In 1977, just four years after Roe
(and one year after Furman’s demise), the Court held that
excluding abortions from Medicaid coverage was constitutional; it reaffirmed this
holding three years later, and except in a handful of states this question has largely
been considered settled since then.
Concerns about capricious
application of nominally uniform laws have certainly played a significant role
in our constitutional history beyond the Eighth Amendment. They animate several prominent features of
criminal procedure. And they were part
of what led the country to abandon
Prohibition
after less than fifteen years.
Today, skewed
enforcement of criminal law is one of the key themes of the movement against
mass incarceration. For example, a large
body of research
shows that marijuana laws are far more aggressively enforced in communities of
color than they are against more affluent whites. The offense of "Driving While Black" -- pulling over African-American drivers for things that would have been ignored had the driver been white -- causes widespread harm in its own right and initiates encounters with even more serious consequences.
We can hope that
those protesting selective application of other criminal laws and those seeking
to mobilize the public against abortion bans will work together and learn from
one another. Furman was right
about the death penalty, but also its reasoning has much to teach us about
abortion laws and about many other aspects of how our legal system applies nominally
uniform laws.
@DavidASuper1
Posted
1:03 AM
by David Super [link]