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 .
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.