Discrimination and the “Leveling Down” Puzzle

MICHAEL C. DORF

Cornell law professor Michael C. Dorf considers how much freedom the government has to “level down” in response to a finding of impermissible discrimination. Dorf discusses several of the U.S. Supreme Court’s precedents on leveling down and points out that these decisions are difficult to reconcile with each other and leave unresolved the questions whether and when leveling down is permissible.

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Commonwealth v. Heywood

Docket: SJC-12724

Opinion Date: January 30, 2020

Judge: Budd

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed Defendant's conviction of assault and battery causing serious bodily injury, holding that there was no error with respect to the seating of a blind individual on the jury and that the evidence was sufficient to support the conviction. Defendant's conviction stemmed from an incident in which Defendant, without warning, punched the victim in the face. On appeal, Defendant argued, among other things, that his right to a fair and impartial jury was violated because the blind juror that served on the jury was unable to see the physical evidence and had to have the documentary evidence read to him. The Supreme Judicial Court affirmed, holding (1) seating the blind juror was not an abuse of the trial judge's discretion; and (2) the evidence was sufficient to establish beyond a reasonable doubt that Defendant caused serious bodily injury to the victim.

Commonwealth v. Kelly

Docket: SJC-12710

Opinion Date: January 30, 2020

Judge: Gaziano

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed Defendant's convictions of discharging a firearm within 500 feet of a building, in violation of Mass. Gen. Laws ch. 269, 12E, and unlawful possession of a firearm, in violation of Mass. Gen. Laws ch. 269, 10(h), holding that that section 12E does not require any mens rea as to the element of discharge and that the trial judge properly declined to instruct on an exemption for temporarily holding a firearm. Defendant's convictions stemmed from an incident in which, while showing a firearm to one of his friends, Defendant accidentally discharged it in a home, shooting his friend through the hand. On appeal, Defendant argued that section 12E includes a mens rea requirement and that the trial judge erred in declining to instruct on an exemption for temporarily holding a firearm. The Supreme Court affirmed, holding (1) section 12E does not require any mens rea as to the element of discharge; and (2) the trial judge did not err in declining to give the requested instruction on the exemption for temporary possession.