Adopting the Cumulative Harm Framework to Address Second-Generation Discrimination

Abstract

Analytical frameworks of constitutional review vary. One framework is the “cumulative harm framework.” This method examines the entirety of harm experienced by an individual to determine whether the harms rise to the level of a constitutional violation. For example, in the context of one’s right to a fair trial, a reviewing court will aggregate the harm from each error committed at trial. Here, a reviewing court may find that the total harm resulting from the accumulation of all errors may have deprived the defendant’s right to a fair trial—even if each error in isolation would not.

Another analytical framework is the “sequential approach.” This framework reviews each harm experienced by the individual in isolation to determine whether each harm independently violated an individual’s rights. For example, if the sequential approach was applied to the scenario above, a reviewing court would examine an error at trial and assess whether that specific error deprived the defendant’s right to a fair trial. If this specific harm is insufficient for a constitutional violation, a reviewing court would then examine the subsequent error at trial and conduct the same analysis. Under the sequential approach, even if the trial was saturated with minor errors—each of which were insufficiently egregious to result in an unfair trial—a defendant would not be entitled to a new trial. A reviewing court’s analytical framework, therefore, can alter the outcome of a case.

This Note analyzes different applications of the cumulative harm framework and the sequential approach. It then evaluates the
advantages and disadvantages of the cumulative harm framework. This Note concludes by arguing for broader adoption of the cumulative harm framework, particularly as an effective tool in addressing second-generation discrimination faced by minorities and people of color