Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty

58 Pages Posted: 15 Nov 2013 Last revised: 8 Apr 2015

Date Written: November 12, 2013


Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination change from context to context? That is the message courts send when discrimination is judged differently based on the context, despite the United States Supreme Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” No equivalent safeguards exist in criminal law outside of jury venire to protect against discrimination as there are in civil law. Congress and state legislatures have tried to pass legislation often called “Racial Justice Acts” to provide additional safeguards with little to no success. With the legislature’s lack of success in addressing the problem, the only opportunity to address discrimination claims may be judicially.

Keywords: discrimination, death penalty, capital punishment, eighth amendment, fourteenth amendment, due process, equal protection, punishment

Suggested Citation

Thomas, Joseph, Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty (November 12, 2013). Available at SSRN: or

Joseph Thomas (Contact Author)

Independent ( email )

No Address Available

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics