CRS Annotated Constitution

In McCleskey v. Kemp94 the Court rejected an equal protection claim of a black defendant who received a death sentence following conviction for murder of a white victim, even though a statistical study showed that blacks charged with murdering whites were[p.1858]more than four times as likely to receive a death sentence in the state than were defendants charged with killing blacks. The Court distinguished Batson v. Kentucky by characterizing capital sentencing as “fundamentally different” from jury venire selection; consequently, reliance on statistical proof of discrimination is less rather than more appropriate.95 “Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused.”96 Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination; jurors may not be required to testify as to their motives, and for the most part prosecutors are similarly immune from inquiry.97

Buchanan v. Warley98 invalidated an ordinance which prohibited blacks from occupying houses in blocks where the greater number of houses were occupied by whites and which prohibited whites from doing so where the greater number of houses were occupied by blacks. Although racially restrictive covenants do not themselves violate the equal protection clause, the judicial enforcement of them, either by injunctive relief or through entertaining damage actions, does violate the Fourteenth Amendment.99 Referendum passage of a constitutional amendment repealing a “fair housing” law and prohibiting further state or local action in that direction was held unconstitutional in Reitman v. Mulkey,100 though on somewhat ambiguous grounds, while a state constitutional requirement that decisions of local authorities to build low–rent housing projects in an area must first be submitted to referendum, although other similar decisions were not so limited, was[p.1859]found to accord with the equal protection clause.101 Private racial discrimination in the sale or rental of housing is subject to two federal laws prohibiting most such discrimination.102 Provision of publicly assisted housing, of course, must be on a nondiscriminatory basis.103