Proving Unlawful Discrimination in Capital Cases: In Quest of an Adequate Standard of Proof

Author:Gregor Mau?ec
Position:Centre for Health and Development, SI
Gregor Maučec, ‘Proving Unlawful Discrimination in Capital Cases: In Quest
of an Adequate Standard of Proof’ (2017) 33(85) Utrecht Journal of
International and European Law pp. 5–37, DOI:
Proving Unlawful Discrimination in Capital Cases:
In Quest of an Adequate Standard of Proof
Gregor Maučec*
In spite of some early judicial, political and scholarly discussions, as well as more recent scientic
explorations of the topic, problems and concerns with proving discrimination in individual capital
cases continue to be among the most debatable issues in human rights and criminal justice. In
general, domestic courts (in particular US courts) seem to remain relatively perfunctory and
hostile to individual discrimination challenges in capital trials. They normally require capital
defendants alleging discrimination to prove something which is virtually impossible to prove. On
the other hand, numerous capital defence attorneys, legal commentators and even some of the
trial judges themselves lay strictures on the existing judicial approach which almost routinely
rejects discrimination claims in capital cases. They contend that appropriate modications in
current legislative arrangements and mechanical adjudication policy and practice are urgent
and indispensable for more equitable resolutions and for a truly even-handed criminal justice
system. In particular, there are concerns regarding the adequate distribution of the burden of
proof between the litigants. Moreover, no clear or uniform approach to this conundrum can be
identied in the international jurisprudence. This article seeks to provide some denite answers
to open and conceptual questions posed in an attempt to legally dene ‘the minimum core
content’ of the evidentiary standard – as implicitly contained in the relevant international human
rights treaties’ provisions – to be applied in capital sentencing discrimination cases. Additionally,
part of this same standard of proof can also qualify as a general principle of international law,
particularly in relation to impartial, unbiased and non-discriminatory approaches and decision-
making by the judges and jurors involved in complex capital cases.
Keywords: capital cases; discrimination litigations; standard of proof; fair trial and equality
protections; international law
I. Introduction
Discrimination in the administration of the death penalty constitutes a substantial segment of miscarriages
of criminal justice in death penalty jurisdictions. Given the wide range of discretion assigned to decision-
makers involved in capital cases, pervasive bias, prejudice and stereotypes related to race, national or ethnic
origin, gender, religion or belief, socio-economic status, place of origin, sexual orientation, disability, level of
education and similar characteristics (grounds of discrimination) of defendants/victims involved in capital
crimes can play a role in decision-making processes in capital trials. Some of these decisions include a pros-
ecutor’s decision to file an indictment and seek a death penalty for an alleged perpetrator or offer a plea
bargain, and the ‘careful’ selection of jury members, or the fact-finder’s final decision concerning a capital
defendant’s culpability and punishment.
Obviously, it is extremely hard to prove such hidden and covert preconceptions and stereotypical attitudes
which often lead to discriminatory decisions in capital cases, unless they are articulated in some way. In
some instances, decision makers in capital cases may not even realise that they are applying stereotypes
in their decisions or acting discriminatorily because the ideas are so deeply ingrained or institutionalised
* Centre for Health and Development, SI
Proving Unlawful Discrimination in Capital Cases6
within a criminal justice system. Moreover, prosecutors, jurors and judges will always be astute enough to
think of ingenious rejoinders to rebut claims of alleged disparities in the application of the death penalty
and it will be impossible to elicit statements admitting or indicating when a discriminatory decision was
adopted in a particular capital sentencing process. Hence, without tangible evidence of biased treatment in
their particular case it is extremely difficult, if not impossible, for those claiming to have been subjected to
discrimination during the capital sentencing process to substantiate their claims and to prevail upon the
judge hearing their case.
Providing sufficient evidence of discrimination in the capital sentencing process is a central issue of
civil procedure when it is claimed that the death penalty was sought and/or imposed on a defendant in a
discriminatory manner. Against that backdrop, the question arises as to what and how much evidence must
be provided by victims of discrimination in death penalty cases to establish a prima facie case of discrimina-
tion so as to successfully meet the requirement for shifting the burden of proof to the respondent (state).
This article addresses these key questions in order to develop an adequate and contemporary standard of
proof that courts and other competent adjudicative authorities should apply as far as the issue of proving
discrimination in capital sentencing processes is concerned.
At the outset, it is fair to say that this article attempts to address the research problem primarily from
international legal perspectives and thus complements and upgrades the existing body of American
scholarly research and literature in this area which is, for the most part, concerned with domestic legal and
judicial considerations. These predominantly federal- and states-oriented analyses and evaluations usually
overlook a simple but very intriguing fact that there is an absence of a clear, uniform and well-defined
approach to the issue that is currently witnessed at the international level and bespeaks a great unease
towards identifying an appropriate standard of proof within domestic death penalty legal systems. While
some specialised international human rights treaty bodies, such as the Committee for the Elimination of
Racial Discrimination and the Committee on the Elimination of Discrimination Against Women, chose
to espouse the modern standard of proof which is reminiscent of the concept codified in the advanced
European Union (EU) non-discrimination law – according to which, the rule on shifting the burden of proof
lies at the heart of evidentiary procedure in discrimination cases and aims at somewhat easing the claimant’s
burden of proof in civil proceedings – the Inter-American Commission on Human Rights seems to opt for
a more conservative, reserved and prudent, if not retrograde, approach.1 The Inter-American Commission’s
approach requires a significantly higher standard of proof which asks the claimant to present direct,
abundant and clear-cut evidence of discrimination (as evident from the Commission’s findings in Celestine
and Andrews)2 and is thus much closer to the US Supreme Court’s reasoning in the famous McCleskey case
demanding a discriminatory purpose on the part of decision makers in capital sentencing be proven,3
thereby calling into question its compliance with international non-discrimination standards as correctly
observed by some authors and commentators.4
By adding an international legal dimension to the subject, it is argued in the present article that the
standard of proof to be employed in civil procedures dealing with discrimination in capital sentencing cases
constitutes, in part, a general principle of law recognized by (civilized) nations and therefore, at least in this
respect, should be one and the same regardless of the jurisdiction or criminal justice system and irrespec-
tive of the form or type of discrimination alleged. Moreover, these same rules of proving discrimination
in capital cases should provide for an equitable and balanced distribution of the burden of proof and also
enable specific evidence – such as relevant statistics – to serve as a sufficient proof of discriminatory effect;
they would thus constitute an instrument which can trigger a shift in the burden of proof. This position is
primarily based on the extant international human rights jurisprudence evolved through the interpretation
of relevant international human rights treaties’ provisions by the Human Rights Committee, the Committee
on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination Against
Committee on the Elimination of Racial Discrimination, Concluding Observations regarding the United States of America, 8 May
2008, CERD/C/USA/CO/6, para 35; Committee on the Elimination of Racial Discrimination, General Recommendation No 14:
Definition of discrimination (Art. 1, par.1), 22 March 1993, A/48/18 at 114 (1994), para 2; V. K. v Bulgaria (20/2008), CEDAW/
C/49/D/20/2008 (2011), para 9.9.
Case 10.031, Willie L. Celestine v United States Resolution No. 23/89 (1989), para 45; Case 11.139, William Andrews v United States
Report No. 57/96 para 165.
McCleskey v Kemp, 481 U.S. 279, 107 Supreme Court 1756 [1987].
Robin Gise, ‘Rethinking McCleskey v. Kemp: How U.S. Ratification of the International Convention on the Elimination of All Forms
of Racial Discrimination Provides a Remedy for Claims of Racial Disparity in Death Penalty Cases’ (1998) 22 Fordham International
Law Journal 5 2313–6.
Maučec 7
Women, the European Court of Human Rights, the Court of Justice of the European Union and also the
European Committee of Social Rights.
Furthermore, it is argued that, in view of contemporary insidious bias and discriminatory attitudes
of the decision-makers involved in capital cases, such standard of proof should be much closer to the
one applied in civil law cases of discrimination. This assertion can find its foothold in the existing legal
scholarship, relevant international and domestic case law and jurisprudence, and current evolutionary
trends in discrimination law. The central thesis is that especially the rule on the shared burden of proof – as
defined and applied in the context of advanced EU anti-discrimination law – should serve as a good example
of a minimal, decent and just standard of proof to be followed in proving discrimination in capital cases
in order to amend the status quo and remedy the existing state of affairs. This underlying thesis elaborates
on several relevant starting-points and criticisms and is predicated on some crucial international legal
arguments and remarks which are outlined and discussed below.
Following a critical appraisal and in-depth analysis of relevant international and domestic (case) laws, it is
argued that – against the backdrop of contemporary practices and forms of discrimination which normally
are and remain subtle and insidious – the methods of proving discriminatory decision-making procedures
in criminal trials in general, and in capital cases in particular, call for an appropriate transposition of the evi-
dentiary machinery introduced and established by the EU non-discrimination directives if the international
fair trial and equal treatment standards are to be utilised and enforced to their full potential. Subsequently
this article attempts to formulate some critical remarks and give some reasoned arguments why the stand-
ard of proof worked out and pursued by some domestic courts – such as those from US death penalty
jurisdictions – and international quasi-judicial bodies, such as Inter-American Commission on Human
Rights, ought to be seen as old-fashioned and inadequate in light of contemporary discrimination claims.
II. International, European and Inter-American legal approaches to
discrimination in death penalty cases
A. Establishing Direct Discrimination in Capital Cases
If, for example, a certain legislator enacts a law which sanctions homo- and bi-sexuality with the death
penalty, whereas heterosexual relations are not punishable at all, this may result in many more homo- and
bi-sexuals being sentenced to death and executed than those having preference for the opposite sex. However,
nowadays, cases and situations where discrimination is manifested or expressed in such a direct and easily
identifiable way are extremely rare. This holds true also for capital sentencing processes. Thus, discrimina-
tion in capital sentencing decision-making processes is in many cases subliminal and invidious. As a result,
proving direct discrimination in capital cases is usually a very demanding task, although, by definition, the
difference in treatment is ‘overtly’ based on one or more characteristics of the capital defendant and/or of
the victim of a capital offence. The fact is that decision-makers in capital cases will not always declare their
differential treatment between persons of various backgrounds, nor will they reveal their reason(s) for such
For example, an Afro-American capital defendant may be sentenced to death with a simple explanation
that ‘specific circumstances in which the capital crime was committed and the principle of justice’ in their
particular case call for the ultimate sentence and punishment. However, there are several precedents where
white defendants were sentenced to life imprisonment for the same capital offence in similar circumstances
and with a similar criminal history. In this situation, the capital defendant who would believe that the death
penalty was imposed on them in a biased and discriminatory manner may find it difficult to prove that they
were directly discriminated against because of their race or ethnic origin.
This section considers and analyses several issues which are of key importance to the interpretation,
realisation and effectiveness of statutory provisions on proving direct discrimination in the context of the
death penalty application. These include the question of causation and identifying a proper comparator in
establishing direct discrimination, the relevance of stereotyped and prejudiced views as well as discriminatory
intent and motive on the part of decision makers, and the meaning of the notion of less favourable
treatment in the capital sentencing context.
B. Identifying a Suitable Comparator and Causation
One of the core conditions required by discrimination law (including relevant EU non-discrimination
directives) is that the complainant claiming the existence of direct discrimination is able to show that they
have been treated less favourably than another person is, has been or would be treated in a comparable

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