Richard Luedeman (University of Connecticut School of Law) has posted The Prudential Standing Quandary When Discriminatory, Facially Neutral Laws Allegedly Cause Collateral Damage (BYU Journal of Public Law (Forthcoming)) on SSRN. Here is the abstract:
Imagine the following scenario: The government enacts a statute, regulation, or policy that is facially nondiscriminatory but motivated by intent to disfavor a constitutionally protected group—that is, the facial justification for the law is a pretext for discrimination. Take, for example, laws that harshly punish marijuana possession or disparately punish crack cocaine possession and that are enacted in part because they are expected to predominantly affect nonwhite defendants. Now suppose that those laws cause collateral damage to a non-targeted person—in our example, a white defendant prosecuted for possessing marijuana or crack cocaine. Collateral damage is, after all, virtually inevitable when government discrimination is achieved through generally applicable policies themselves, rather than through discriminatory enforcement of them, and when those policies do not explicitly target the disfavored group but instead hide behind pretext. Such collateral-damage-of-discrimination situations raise an important and unsettled question of who has standing to sue.
In our example, the drug law is likely unconstitutional, and it also clearly harms the white defendant. But does the white defendant have standing to seek to invalidate his prosecution on the ground that the drug law is unconstitutionally discriminatory against racial minorities? While few would dispute that the white defendant meets the minimum standard for Article III standing under federal law, the question becomes far more of a quandary once one turns to so-called “prudential” standing under federal law or to states’ standing doctrines that do not so sharply distinguish between constitutional and prudential standing. The temptation is to conceive of this question as a debate over “third-party standing,” i.e., a litigant’s standing to assert that the violation of someone else’s rights has harmed the litigant. But, as scholars have long understood, third-party standing is far too malleable a concept to explain reliably why the white defendant in our example either should or should not be able to pursue the claim.
Without retreading ground well covered by previous scholarship or offering a new grand theory of third-party standing, this article posits a narrow thesis: when addressing a claim that a generally applicable policy was motivated by unlawful discrimination, and when the claim is made by someone other than an intended target of the discrimination, courts should look beyond the first-party/third-party distinction and instead consider the special remedial implications that accompany such collateral-damage-of-discrimination claims. Namely, can the discriminatory policies’ various effects be separately remedied among classes of litigants in a manner that is not itself discriminatory? If not, then refusing to hear the “third-party” claim (brought by the party who was not an intended target of the discrimination) is unduly formalistic and pointlessly evasive.
This article illustrates its thesis with reference to the example of State v. Bradley, a Connecticut Supreme Court case decided in October 2021 in which a white man challenged the constitutionality of the marijuana criminalization statute under which he was convicted and which he alleged was purposely enacted by the Connecticut legislature to discriminate against Black and Latino people—a challenge that the court rejected based on a debate over third-party standing. Part II describes the Bradley decision. Part III then situates the court’s decision in the broader scholarly debate about the scope of third-party standing and explains why the Bradley court’s analysis misses the point. And Part IV offers suggestions for addressing cases like Bradley, including but not limited to additional constitutional challenges that could conceivably be brought to marijuana and crack cocaine laws around the country.
