Like most Americans, I was elated by the Supreme Court’s recent decision to broadly interpret the Fair Housing Act. Even as a white teenager, I understood that discrimination didn’t have to be deliberate for it to undermine equality.

The 5-4 ruling prevents the Texas Department of Housing and Community Affairs from only awarding tax credits to citizens moving to underdeveloped areas. The court rightly justified this decision by arguing such behavior perpetuates racial segregation, even if it is not intended to do so.

Though this is clearly a victory for civil rights, I quickly became disappointed by a fundamental contradiction.


Why hasn’t the Supreme Court applied the same rationale to the death penalty?

Warren McCleskey was convicted of two counts of armed robbery and one count of murder. He petitioned the Supreme Court in McCleskey v. Kemp to have his death penalty sentence reversed, arguing that capital punishment in Georgia was shown to disproportionately favor whites. Using a study of 2,500 murder cases in the state, McCleskey’s lawyer presented evidence that defendants killing white victims were 4.3 times more likely to receive a death sentence than defendants killing blacks.

In the recent Fair Housing Act judgment, the Supreme Court held that “racial balancing” that “supposedly springs from good intentions” is “patently unconstitutional.” In contrast, in the 1987 McCleskey case, the Supreme Court upheld the death sentence. Despite the “racially disproportionate impact” of the death penalty in Georgia, which the court did not contest in its ruling, the justices in the majority concluded that the mere existence of racial bias is not enough to overturn a sentence without showing a “racially discriminatory purpose.”

I am perplexed as to why discrimination protection is held to a higher standard when dealing with houses than lives. It’s time to remove the law’s immunity from equality criticism and abolish the death penalty.

There is little argument that minorities are not disadvantaged by the criminal justice system’s treatment of the charge of murder. After all, according to the Death Penalty Information Center (DPIC), the majority of death row inmates (56 percent) are black or Hispanic. A study by University of Iowa Professor David Baldus found that black defendants in Philadelphia were nearly four times more likely to receive the death penalty than their white counterparts. These are just two examples of the overwhelming correlation between race and sentencing.

Though supporters of the death penalty argue that racial biases in criminal justice are symptoms and not causes of the disadvantages faced by minorities, I believe that this argument glosses over the abundant statistical evidence showing the ways in which defendants are treated differently based on their race.

Although it is unreasonable to believe that lawmakers deliberately intended to heighten discrimination when enacting death penalty statutes, the Supreme Court has demonstrated in Texas Department of Housing and Community Affairs v. Inclusive Communities Project that intent need no longer be a prerequisite for striking down practices that hurt the equality of human beings.

The Fair Housing Act ruling unfortunately noted that racial discrimination’s “vestiges” remain part of the economic, social and cultural fabric of American society. Notwithstanding the countless other reasons to abolish the death penalty, I believe that in this situation of life and death, a policy that so openly disadvantages minorities must be abolished.


Browder is a student in Stanford University's Class of 2019 interested in human rights and political science.