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18 Wm. & Mary Bill Rts. J. 75 (2009-2010)
Discriminatory Acquittal

handle is hein.journals/wmbrts18 and id is 77 raw text is: DISCRIMINATORY ACQUITTAL Tania Tetlow* ABSTRACT This article is the first to analyze a pervasive and unexplored constitutional problem: the rights of crime victims against unconstitutional discrimination by juries. From the Emmett Till trial to that of Rodney King, there is a long history of juries acquitting white defendants charged with violence against black victims. Modem empirical evidence continues to show a devaluation of black victims; dramatic dis- parities exist in death sentence and rape conviction rates according to the race of the victim. Moreover, just as juries have permitted violence against those who allegedly violated the racial order, juries use acquittals to punish female victims of rape and domestic violence for failing to meet gender norms. Statistical studies show that the appropriateness of a female victim's behavior is one of the most accurate predictors of conviction for gender-based violence. Discriminatory acquittals violate the Constitution. Jurors may not constitutionally discriminate against victims of crimes any more than they may discriminate against defendants. Jurors are bound by the Equal Protection Clause because their verdicts constitute state action, a point that has received surprisingly little scholarly analysis. Finally, defendants have no countervailing right to jury nullification based on race or gender discrimination against victims. The Sixth Amendment promises defendants an impartial jury, not a partial one. Double jeopardy prohibits a direct remedy for the problem of discriminatory acquittal, and jury secrecy makes proof difficult. Yet recognizing the unconstitu- tionality of discriminatory acquittal would result in fundamental normative shifts. It would create a new constitutional language for prosecutors and judges to protect victims against jury discrimination within our existing criminal procedure. Most of all, the pervasiveness of discriminatory acquittals could no longer serve as a legiti- mating excuse for police and prosecutors to magnify the problem by conducting their own anticipatory underenforcement of the law. * Felder-Fayard Associate Professor of Law, Tulane Law School, and former Assistant United States Attorney. J.D., Harvard Law School. The author would like to thank Claire Dickerson, Laurence Tribe, Randall Kennedy, Pam Metzger, Keith Werhan, Robert Westley, Roberta Kwall, Brandon Garrett, Stacy Seicshnaydre, Janet C. Hoeffel, Becki Kondkar and Elizabeth Townsend-Gard for their helpful comments and ideas, as well as Matt Finkelstein, Galen Hair, Jason Boothe and Heidi Bowman for their excellent research assistance.

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