Racial Justice Revisited

The death penalty is troubling on many levels. Among them: The public must bear the extraordinary costs associated with death penalty trials and appeals. The penalty’s effectiveness in deterring other murders is ambiguous at best. There is no margin for the kind of errors that can result in a wrongful conviction.

But if capital punishment is to be on the books, as it is in North Carolina, then the entire process of putting people on trial for their lives must be scrupulously fair. Legislation now poised for final consideration in the General Assembly would sound retreat from that principle.

Four years ago, legislators took a bold step forward. They approved the Racial Justice Act, intended to minimize the chances that death penalty prosecutions and sentences could be tainted by racial prejudice.

A successful claim under the act would convert someone’s death sentence to life in prison without parole. Gov. Beverly Perdue signed the act into law over the objections of many district attorneys and conservatives impatient to see North Carolina’s informal moratorium on executions, in place since 2006, come to an end.

When state House and Senate majorities tilted to the right after the 2010 elections, the so-called RJA was targeted for scuttling. Perdue vetoed one such effort. What emerged from the fray last year was a revised law dramatically narrowing the original law’s scope. But a key concept survived, even if in weakened form: In trying to show that the handling of their cases was influenced by racial bias, accused or convicted killers can present statistical evidence of such bias.

The statistics must be drawn from the area where the case arose and must be bolstered by other evidence, but a judge is allowed to consider them. An inmate thus can present an analysis of court records indicating that a certain prosecutor, for example, makes a habit of excluding a disproportionate number of qualified black residents from juries, or that he tends to seek the execution of black defendants at a higher rate than white defendants accused of similar crimes. Used in tandem with anecdotal evidence drawn from a defendant’s own case, a statistical pattern of discrimination could help paint a full picture of what that defendant was up against as he fought the charges against him or tried to avoid execution.

It’s of course true that most people charged with first-degree murder did in fact kill someone. But that doesn’t give the state a license to treat blacks more harshly than whites in trying to prove charges that may indeed have been lodged against a person who was innocent, or in seeking the death penalty.

Now even the modest and common-sense safeguards of the scaled-back RJA hang in the balance. The Senate has approved a bill that would prevent defendants from using statistics in attempting to show they were discriminated against. On May 29, S.B. 306, sponsored by Sen. Thom Goolsby of Wilmington, cleared a House subcommittee. If the bill becomes law, North Carolina will have canceled out specific measures to counter racism that judges have said still infects some corners of the state’s criminal justice system when it comes to capital punishment.

Rep. Paul Stam of Apex, the House speaker pro tem, helped argue the case for Goolsby’s bill during the committee meeting. He noted that anyone who might now make a claim under the RJA would still be entitled to multiple appeals and motions for relief in the state and federal courts. And the state and federal constitutions still would shield that person from deliberate racial discrimination in jury selection and in sentencing, Stam contended.

It’s a glorious thing that Americans have these protections. But in a state and country where racism was so embedded that black people within living memory were treated under the law as inferior beings, it’s naïve to think that the promise of equality before the law always holds.

Countering Goolsby and Stam during the discussion were Reps. Mickey Michaux of Durham and Rick Glazier of Fayetteville. Even though almost all of the state’s 156 condemned inmates, irrespective of race, have filed claims under the RJA, Michaux said judges could be trusted to weed out claims lacking substance. Indeed, what’s wrong with letting judges review these cases to see if death sentences might have been influenced by race prejudice?

Glazier brought a historical perspective. He said that racial discrimination, especially in jury selection, “has marred the criminal justice system for decades.” To eliminate all vestiges of the RJA, Glazier said, would be to ignore clear evidence of such discrimination in death penalty cases – evidence that nevertheless can be hard to document via conventional legal appeals.

“If this bill passes,” he said, “our legacy will be that we hid from the truth.” It doesn’t require sympathy for people who may well have committed horrible crimes to want to see North Carolina’s justice system continue down the road toward colorblind fairness and impartiality.

S.B. 306 includes another provision meant to make it easier for North Carolina to resume executions. It would prevent the boards that set professional standards for physicians, nurses and pharmacists from disciplining someone who assisted in giving a lethal injection. This is an unwise intrusion on the authority of those boards to decide what sort of conduct is ethically proper, all in the name of carrying out a penalty that carries large risks of injustice.

The N.C. Council of Churches opposes the death penalty as a matter of principle, rooted in a belief that taking life should not be the state’s prerogative and that the spirit of retribution is foreign to our faith. Life in prison with no chance of parole is a sentence that shields the public from dangerous criminals while leaving open the possibility that miscarriages of justice can be corrected. When S.B. 306 comes before the full House, members would do well to remember that what’s left of the Racial Justice Act is a very limited version of the original law. Keeping it in effect would be a modest gesture toward making sure that the death penalty, so long as it remains an option in North Carolina, at least is applied in a way that as much as possible takes race off the table.

— Steve Ford, Volunteer Program Associate