3.12 Equal Protection under the Law

3.11 A Dispassionate Gatekeeper

Book Three / 12

The judge and I sat in his office one afternoon, a few days after the hearing on the defense motion to strike the death penalty proceedings against Mackey and Anders.  We were reviewing the attorneys’ arguments.  He sat leaning back in a large chair that was tucked between a computer monitor and his desk.  I sat opposite him in one of two smaller chairs, propping my feet on the other chair with my shoes off.

This was our discussion mode, and our two capital cases had brought us here many times, whether to challenge one another’s early positions on an issue or provide support after a difficult hearing.  Though sometimes it seemed as though the only thing we had in common was a law degree, the state’s Supreme Court had acknowledged the role of a bailiff as a judge’s alter ego — in Latin, his other self — and we understood the importance of that relationship.  Enjoying our surface incongruities, we sometimes joked that his other self was my Mr. Hyde to his Dr. Jekyll, or my bad cop to his good cop, but we thought we knew how to use our dual personalities to the court’s advantage.  We each brought a different perspective to bear upon the most difficult issues facing the court and we believed that, in this way, we best met the demands of the office.


On the issue before the court now, for example — whether a prosecutor could consider the facts of the crime when determining the sufficiency of a defendant’s personal mitigation to avoid the death penalty— the judge knew from our previous discussions that I thought the defense had the stronger argument.  The statute’s language and decision-making flow had to be understood through the layers of case law published both before our statute’s enactment, and after.  Those cases, I believed, supported a requirement that in every case before him the prosecutor was to consider the facts of the crime when deciding first whether to charge aggravated murder, but then only the facts of the defendant’s mitigation when deciding whether to pursue his death.

As we continued to discuss the attorneys’ various arguments, I offered a summary of my thoughts to counter the judge’s initial skepticism.

Let’s assume, I began, that the U.S. Supreme Court cases that have decided the constitutionality of a state’s death penalty scheme apply to our own statute, and therefore apply to the prosecutor’s decisions throughout that scheme.  Those cases require that within the scheme’s flow, as it channels some defendants toward death while releasing others, every discretionary decision it authorizes must be subject to the same process, and be based on the same criteria.

In fact — the judge and I both knew — this was the crux of equal protection under the law.  Imagine, for example, a group of individuals who are all in a similar situation with respect to the government’s exercise of a specific power over them.  The government gets to decide which individuals among that group deserve to lose what’s termed “an interest” in either their property, their liberty, or their life:  being sentenced to prison, for example, or experiencing the forced sale of a family home through eminent domain.  To assist its decision, the government must establish a process.  This process will guide how its decisions are made with respect to each person confronting any similar situation.

The constitutional guarantee of equal protection means that each of those individuals confronting the government’s authority to decide his fate is guaranteed the benefit of the same, equally protective process that the others received.  They are all protected from the arbitrary act of a government by the same method that protected those who came before him, and those who will follow.  The government cannot decide to create two or more different processes and apply them randomly.  It cannot decide that it will apply one set of criteria to some, and another set to others.  Rather, each individual is guaranteed the equal protection of the same, single process — whatever kind of process is due — when confronting the same legal results of a government’s decision.

Moreover, in theory at least, the guarantee of equal protection becomes progressively stronger — and a court’s scrutiny of alleged transgressions progressively heightened — as the potential level of loss becomes greater.  And no loss is greater than that of one’s own life.


When applied to our death penalty statute, I said to the judge, molding my argument as I felt its pieces assembled, equal protection had to mean that wherever its scheme authorized a decision that would result in some individuals being captured in the flow and steered toward a death penalty verdict, while the rest are released from that flow and never face death, the process of making that decision must be the same for each of them.  The stakes are simply too high.  The process must be the same reliable process, and the criteria the same lawful criteria, from case to case and defendant to defendant.

For example, I tossed out, a prosecutor may not, when deciding whether to pursue the death penalty, give full consideration to one defendant’s history of mental illness while downplaying or disparaging another’s.  Or, more ominously, he can’t allow a defendant’s race or religion to influence his decision, or a defendant’s education level or professional status to persuade him toward leniency.

The latter examples seemed obvious, of course.  Most people would agree that no prosecutor should be allowed to seek the death penalty only against Black people, or only against poor people.  They would agree that he may not set aside death as an option because the defendant is a wealthy professional, or because his family is well-connected.  Yet many would also agree that our legal systems are not perfect, that their histories reveal evidence of just such patterns and practices.

Constitutional requirements like due process and equal protection exist to prevent this type of practice as much as possible, but they can only prevent it where they can detect it.  A public official’s unlawful practice is difficult to detect when it occurs behind closed doors, where no public record is made of his decisions, or the reasons behind them.  For this very reason governments routinely enact open government laws, such as public records acts and the federal Freedom of Information Act.  States have begun to strengthen their transparency requirements, often termed “sunlight laws,” understanding that the ability to observe our elected representatives in action is one of the most reliable ways to ensure fairness and prevent corruption.

This point was important because, as our death penalty statute had been interpreted, a prosecutor never had to reveal his reasons for seeking one defendant’s death while relieving another of that fate.  His reasons and his criteria for consideration could be perfectly sound, or they could be based on prejudice or bias, and no one would ever know:  not the trial judge responsible for the fairness of all procedures in his court; not the defense attorneys, whose professional obligation was the zealous defense of their client’s interests; and not the defendant himself, who could wind up on trial for his very life.

In fact, that defendant could be put to death as the direct result of the prosecutor’s decision — made secretly, in the permanent privacy of his office.  Not even the voters who elected him to that office would have any right to know how such decisions are made, though they are arguably the most important he will make in their name.

A prosecutor’s death penalty decisions are shielded from view because the highest appellate court in the state permits no sunlight through the shade that surrounds them.  And that fact alone makes equal protection principles a critical backstop.  It would take just one prosecutor, in one county, to be able to pursue the death penalty randomly, or unlawfully, for the entire scheme to be unconstitutional.  And the chances of that occurring are greatest — given the secrecy a prosecutor enjoys — in proportion to his ability to choose his own process of elimination every time.

It was precisely because no one may observe a prosecutor’s death penalty decision-making, I’d concluded, that the courts must require that it guarantee equal protection by closely defining the parameters of the process.  Each of the county’s prosectors sits alone in his office, unaccountable to anyone beyond his doors, and he decides whether or not to pursue the death penalty against a defendant whose information appears in the files on his desk.  Given the lack of transparency or accountability, the possibility that he may make his decision for any random reason, or for any unlawful reason, is especially high when the law imposes no constraints on the process or the criteria, from county to county, case to case, defendant to defendant.

Alternatively, however, when those cases and those defendants are guaranteed equal protection under the state’s death penalty law, prosecutors’ decisions either to pursue death or to eliminate that option will be properly and fairly constrained.  Each defendant who must confront a death penalty prosecution will feel assured that the process the prosecutor applied to his case was as equally protective of his rights as the process he applied to those for whom the option of death was eliminated.


In fact — the judge and I were now observing, as we dug deeper into the complexities of the way the statute could be applied — that power to eliminate a particular defendant from ever facing the death penalty revealed another important aspect of the constitutional principles at play.  A prosecutor’s ability to pre-select, and therefore guarantee, the sentence of not death for any particular defendant might render that decision a quasi-sentencing decision, and not purely a charging decision.

This was the constitutional separation of powers issue, and it too had emerged from the parties’ briefing on the defendants’ motion to prevent the State from pursuing their clients’ deaths.  A violation of the separation of powers occurs when one independent branch of government usurps a power that another branch exercises exclusively.  In the briefing on the defendant’s motion, the defense was accusing the State of usurping the power of the judiciary, and the State was accusing the court of usurping the power of the executive.

The power to charge an individual with a particular crime, or a particular level of that crime, or even to refrain from charging, resides in the executive branch of government through its prosecuting attorneys.  The power to impose sentence, however, resides not in the executive branch but exclusively in the judicial.  It is exercised by the courts’ judges.

So when a prosecutor confronts a defendant who’s been charged with aggravated murder, and he must decide whether or not to pursue the state’s death penalty, is he making a charging decision or is he imposing sentence?  Or a little of both?

From the prosecutor’s perspective, if a judge tries to peer around the curtain that cloaks his charging decisions, or to influence or impede those decisions, that judge is usurping the prosecutor’s authority.  The prosecutor will accuse that judge of violating the constitutional separation of powers between the two branches.  Where the death penalty statute is concerned, the state’s prosecutors insist that their authority to decide which defendants will face a death penalty prosecution and which will not resides firmly in their discretionary charging authority.

From the defense perspective, however, the effect of that decision is to pre-sentence some defendants — those who do not proceed to a death penalty prosecution — to life in prison without parole.  To not death.

The statute’s decision flow makes this consequence inevitable.  Every defendant who is charged with aggravated murder is equally qualified — right out of the starting gate — for the two sentences available for that one crime:  the presumptive sentence of life in prison without parole, or a sentence of death.  Moreover, these two sentences are the only options.  There is no lesser penalty available for any defendant convicted of that crime.

Under the statute, however, a prosecutor’s decision at this early stage will establish the sentence for some of them conclusively simply by deciding not to pursue the death penalty, thereby eliminating that defendant from the death penalty process going forward.  When a prosecutor decides not to pursue the death penalty against a particular defendant, he removes that option forever.  In effect — and it’s an enormous effect — he pre-sentences that defendant to a mandatory sentence of life in prison and never death.  No judge or jury may ever impose a sentence of death on that defendant, no matter how morally culpable he may be.  A prosecutor alone, not a judge, has decided what that defendant’s sentence will be.

When that happens, when the prosecutor eliminates the death penalty as an available option and secures for that defendant a sentence of no death, has he made a mere charging decision into which no judge may inquire?  Or has he made a sentencing decision?  Maybe a sort of sentencing decision?

To the extent that the prosecutor’s decisions to seek the death penalty implicate a judge’s sentencing authority, his process would be properly an area into which a judge could inquire, or one which he could monitor, without violating the separation of powers.  At the very least, some amount of judicial oversight would be due to any defendant subjected to it.  Ordinarily, due process requires at a minimum that decision-making be open and adversarial, and held before an impartial tribunal.

The defendants had placed before our court the question of what, exactly, could a prosecutor consider as his “reason to believe” that a particular defendant deserved a sentence of death.  A due process answer to that question might mean that all defendants had a right to know how a prosecutor would make his decision:  to be informed of the criteria he would apply, and the standard of proof; to examine the evidence he intended to rely upon, and the evidence he would discount; to argue before a judge for or against the accuracy and relevance of that evidence; to ask that portions be thrown out if unlawful, or supplemented if appropriate; and to seek judicial review of the final decision if it appeared unlawful.

An equal protection answer to that question might mean that the prosecutor’s discretion had to be constrained and the basis for his decisions clearly delineated.  It might mean that the process and criteria he employed had to be the same process and criteria from defendant to defendant.  After all, it was clear that his decisions could result in a pre-sentence of not death for some.  Whatever a prosecutor’s process had been that proved, on some occasions, sufficiently protective of those defendants’ interests, all defendants would be guaranteed the protection of that same, equal process.

The threshold question, however, remained.  Was that crucial decision of a prosecutor whether to seek the death penalty a charging decision, or something more akin to sentencing?  If the latter, then a prosecutor’s refusal to permit inquiry into his process or his reasons might be perceived as a violation of the separation of powers:  an unconstitutional exercise by the executive of the courts’ power to impose sentence.  If the former, however, then a judge’s insistence on intervening in that process, maybe imposing an exclusive set of criteria as the basis of a prosecutor’s “reason to believe,” those acts might also be seen as violating the separation of powers — in the other direction.

This was just one more set of issues confronting the court, all of them arising from the one motion of the defendants to strike the death penalty prosecution against them.  At this point neither the judge nor I were sure whether the matter could get any more complicated.


Later that afternoon, after returning to my own office, I thought more about the practical considerations of equal protection and due process.  On their own the ideas can seem arcane, like relics from some historical moment with which only pundits or legal philosophers remain interested.  They may seem insignificant or inconsequential to a casual observer of the courts, or to one who hears the phrase “rule of law” tossed about in the media.  Or, understandably, it may seem that anyone charged with the most horrific crimes on some level just doesn’t really deserve the benefit of those protections.

But the moment it’s our own sons or daughters, I thought, our own husbands or wives who are the object of a prosecutor’s powers, the concepts take on more urgency and immediacy.  They become instantly important, for instance, the moment it’s my son facing the possibility of a stiffer sentence than his friend and I’m trying to discover why.  They are important when I want to know why the prosecutor has decided to expose my son to a sentence of ten years, but to cap his friend’s sentence at five, even though they will both be on trial for the same crimes, facing the same charges.  They are important when the prosecutor is allowed to keep his process and his reasons for that decision a secret because no trial court can intervene to hold him accountable.  And they are important when nothing can be done to ensure that my own child receives a level of protection against the government’s arbitrary decisions that is equal to the level his friend received.

At that moment the possibility of equal protection and due process for my child may be the only hooks upon which to hang my hopes for his freedom, or for his life.

It could sound like a cliche, I knew, but it was true enough:  these constitutional principles only protect the innocent and the most deserving if they are strong enough to protect the guilty and the least deserving.  There would be nothing easy about their application to the two defendants on trial in our court, and defense counsel might not prevail, but we would make sure that the defendants, their attorneys, the prosecutor, the principles at play and the arguments they inspired, would all receive a fair hearing.

3.13 Death-Qualified