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.

     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