by Daren Bakst
Senior Research Fellow in Agricultural Policy, Heritage Foundation
A common argument by proponents of the Racial Justice Act is statistical evidence is used in employment and housing discrimination cases, so why not for death penalty cases?
Using employment discrimination cases as a comparison: It is true that intentional discrimination isn’t required under the law. There’s something called disparate impact discrimination.
This is a type of “discrimination” that is unintentional. It would cover an employer applying a neutral employment practice that has a discriminatory effect on a protected class of people. For example, If an employer required job applicants to have a college degree and such a requirement excluded far more African-Americans than whites, this could be a form of disparate impact discrimination.
There are major differences though in how employment discrimination cases operate and how the Racial Justice Act works:
1) Relevant Jurisdictions
Disparate impact cases in the employment discrimination context require an analysis of job markets that are relevant to the inquiry.
This means that plaintiffs can’t prove their cases using some area completely unrelated to the job market in question. The Racial Justice Act, on the other hand, allows inmates and defendants to use statistical evidence from anywhere in the state regardless of whether it has anything to do with the jurisdiction in question.
2) Business Necessity
A defense in disparate impact cases is business necessity. This defense allows a defendant/employer to prove that the particular practice is necessary for the job.*
This is a major difference between employment discrimination cases and the Racial Justice Act. There’s no mechanism for the state to make the case that the death penalty is necessary and therefore should be allowed in cases. If it were allowed, it would just be a death penalty debate, and the legislature, which is the final arbiter on policy matters, has already made it clear that it feels the death penalty is necessary. For all practice purposes then, if we went with the employment discrimination model, the death penalty should always be allowed because it is necessary.
Comparison is Misleading
Proponents are correct that employment and housing discrimination cases use statistical evidence and so too does the Racial Justice Act. There’s little to no similarities beyond that, however, in how the statistical evidence can be used.
*Plaintiffs can counter the business necessity defense by showing there are workable alternatives to the employment practice.