Arriving relatively quietly in December, Netflix’s true crime documentary, Making a Murderer, consumed television sets, becoming both a critical hit and a cultural phenomenon over the holidays. Describing the show as an almost “Dickensian account of the tragedy of the Averys,” the New York Times praised the filmmakers for “insinuat[ing] themselves into the lives of the Avery family in a way that pays steadily mounting emotional dividends.” Noting the “praise [it has received] for presenting a portrait of a criminal justice system that is both damning and nuanced,” others commended the show for “cutting a compellingly broad swath across American social class not often seen on television or in the movies.”

For the few who haven’t heard the story, Making a Murderer tells the story of Steven Avery, a member of the poor, but working class, Avery family. Avery was wrongfully convicted for the sexual assault of Penny Beernsten and exonerated after serving 18 years in prison. After his exoneration, he brought a multi-million dollar lawsuit against Manitowoc County, its former sheriff, and its former district attorney. Shortly after filing the suit, Avery, along with his nephew, Brendan Dassey, were arrested, charged, and convicted of murdering Teresa Halbach. Making a Murderer explores the possibility that Avery and Dassey were framed by the County as retribution for the embarrassment Avery’s exoneration and lawsuit brought the County.

The rage generated by Manitowac County’s treatment of Steven Avery and Brendan Dassey eventually manifested itself in demands for President Barack Obama to pardon both of them. Amassing over 160,000 signatures by early January, the petitions to pardon Avery and Dassey prompted the White House to respond that the President couldn’t pardon them because, while he “is committed to restoring the sense of fairness at the heart of our justice system… and to better address[ing] the vicious cycle of poverty, criminality and incarceration that traps too many Americans and weakens too many communities,” he does not have the constitutional authority to pardon a state criminal offense.

While Avery’s story has both shone an important light on the intersection of class and justice and generated a very warranted rage, underpinning our anger is the understanding that individuals in Manitowac County purposefully targeted Steven Avery. Avery’s story is a condemnation of personal prejudice in the criminal justice system, but it fails to touch the institutional discrimination that permeates our justice system.[i] Institutional discrimination occurs when “persons engage in actions with clear and even recognized discriminatory effects, and yet stridently insist and genuinely believe that they possess no discriminatory intent.”[ii] Significantly, institutional discrimination often takes the form of racial prejudice.[iii]

This distinction is significant because the neglect of institutional racial discrimination in our condemnation of the criminal justice system is paralleled by our legal system’s refusal to acknowledge its existence. For its part, the Supreme Court has refused to acknowledge the effects of institutional discrimination. In McCleskey v. Kemp, Warren McCleskey, who had been sentenced to death in Georgia, argued that racial discrimination had informed his sentencing. To support this, he presented empirical evidence showing that race informed the likelihood that one would receive the death penalty and that, specifically, African-Americans who were convicted of killing white victims had the greatest likelihood of receiving a death sentence.[iv]

Although it assumed the validity of the statistical evidence showing a racial disparity in capital sentencing, the Court nevertheless held that for a racial discrimination claim “to prevail under the Equal Protection Clause, [a criminal defendant] must prove that the decision makers in his case acted with discriminatory purpose.”[v] Extended beyond the sphere of capital sentencing, McCleskey now stands for the proposition that a constitutional claim based on institutional discrimination in the criminal justice system must always fall. In fact, in an internal memo to members on the Court, Justice Scalia wrote “Since it is my view that the unconscious operation of irrational sympathies and antipathies including racial upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot honestly say that all I need is more proof.”[vi]

Congress has similarly refused to prohibit institutional racial discrimination. In the aftermath of McCleskey, the Federal Racial Justice Act, which would have prohibited an individual being put to death if he could demonstrate he was subject to institutional racial discrimination, died in the Senate.[vii]

Making a Murderer exposed the continued existence of purposeful prejudice in our criminal justice system. In doing so, Steven Avery’s story has become a touchstone for our indignation with the justice system. While the purposeful targeting of Steven Avery would not be tolerated by our legal system if proven outside of Manitowoc County, proven institutional discrimination and racism is. Given the ability to recognize and coalesce around Steven Avery’s injustice, perhaps the next step is to recognize and challenge the legal system’s neglect of the more latent, but ever-present, injustice of institutional racism and discrimination.

[i] Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345, 348-49 (2007) (collecting sources discussing the existence and prevalence of institutional racism in the legal system).

[ii] Ian F. Haney Lopez, Institutional Racism: Judicial Conduct and A New Theory of Racial Discrimination, 109 Yale L.J. 1717, 1823 (2000).

[iii] Id. at 1726.

[iv] McCleskey v. Kemp, 481 U.S. 279, 287 (1987).

[v] Id. at 292.

[vi] Erwin Chemerinsky, Eliminating Discrimination in Administering the Death Penalty: The Need for the Racial Justice Act, 35 Santa Clara L. Rev. 519, 528 (1995) (a copy of the memorandum is on file with the Santa Clara Law Review).

[vii] Federal Racial Justice Act, H.R. 4017, 103rd Cong. (1994).