The Death Penalty And North Carolina's Racial Justice Act

By Abby Bar-Lev, cross-posted from Equal Justice Society

On August 11, 2009, North Carolina Governor Purdue took an affirmative step in providing racial justice advocates a tool to ferret out racial bias in the criminal justice by signing the North Carolina Racial Justice Act.

The Racial Justice Act, the product of a concerted effort by legislators and racial justice advocates, provides defendants in capital cases the opportunity to argue that their death sentence or charge was based on race in court.  In doing so, North Carolina confronts the real and deplorable fact of racial injustice in death penalty process. The RJA leads the way in rooting out race as a basis for the death penalty though it does not necessarily ensure racial justice.  Efforts and legislative actions such as these are deeply needed.

Study after study exposes that racial disparities remain rampant in capital cases, from jury selection through the sentencing phase.  Specifically in North Carolina, a report authored by faculty of the Michigan State University College of Law reveals that those charged with murdering white victims are 2.6% more likely to end up on death row than those charged with murdering a person of color.

North Carolina’s Racial Justice Act allows defendants to present statistical evidence to challenge the prosecutor’s decision to seek the death penalty or the actual capital punishment sentence.  If the state cannot specifically refute the evidence, the judge must order that the prosecutor not seek the death penalty, or, if the defendant has already been sentenced to death, that sentence must be substituted with life imprisonment without the possibility of parole.

Republicans in North Carolina have been calling for the RJA’s repeal and have challenged it in court. They claim the law is too vague to fit with the North Carolina Constitution, but the RJA survived its first court challenge when a judge rejected that argument.  Republicans have attempted to repeal the RJA in the legislature, but Democrats have managed to table that discussion until May of 2012.

Meanwhile, nearly all of North Carolina’s 158 death row convicts are challenging their death penalties through the RJA.

The first hearing is slated for later this summer when Marcus Robinson, who was sentenced to death for the murder of a white teenager, will allege that his death sentence was based on racial biases.  He will present statistical evidence showing that the race of the victim has been a significant factor in the decision for prosecutors to seek the death penalty in the county where he stood trial, that defendants of color in his county are much more likely to receive the death penalty than white defendants, and that significant racial disparities pervade the jury selection process.

In Robinson’s case, the state struck 50% of all qualified jurors of color, compared to only 14.8% of all other qualified jurors.  Robinson’s case is just the tip of the iceberg in terms of jury selection.  In fact, the case of Kenneth Rouse focuses on him being one of thirty-three death row inmates in North Carolina sentenced to death by an all-white jury.

Overt acts by district attorneys are also at issue here.  There is the especially startling case of Guy LeGrande, a black defendant who was sentenced to death by an all-white jury despite being declared mentally incompetent to be executed.  He was prosecuted by a district attorney known for wearing a lapel pin in the shape of a noose to court and who gave similar pins to assistant district attorneys who secured death penalty convictions.  This is the same district attorney who made allusions to a noose by telling jurors that “as the evidence mounted and became overwhelming, those strings were bound into a rope.  A rope.”

As North Carolina paves the way in capital punishment reform, other states are following. Last year, the California legislature failed to pass its own version of the Racial Justice Act.  We cannot afford to let that defeat be the end of the battle for racial justice in capital punishment cases.

In 1987 the United States Supreme Court was presented statistical evidence showing that the race of the victim played a significant role in whether a defendant would receive the death penalty.  The Court ultimately decided that the statistical study did prove that the sentence violated the Eight and Fourteenth Amendments.  The author of that opinion, Justice Powell, later expressed that he would change his vote if he could.  By 2011, the findings have not changed. It is unacceptable that race discrimination continues to saturate the death penalty process.  Through litigation, advocacy, education, and policy efforts, North Carolina’s Racial Justice Act can become a tool for  racial justice advocates to challenge racial disparities and eventually abolish the death penalty.