Racial Bias in Death Penalty Cases: A North Carolina Test

Here's a memorable passage from the (Durham) Independent Weekly from June 2009:

Speaking on behalf of the {NC] Conference [of District Attorneys], Wake County District Attorney Colon Willoughby appeared before the Ways and Means Committee and compared disproportionate sentencing based on race to similar sentencing based on "blood type" or "astrological signs."

Willoughby called the use of statistics, which the bill would allow, a "disingenuous and scientifically unsound method to insert some sort of causal relationship without proof."

A 2001 study conducted by two University of North Carolina professors, who analyzed cases over four years in the 1990s, found the odds of receiving a death sentence in North Carolina increased 3.5 times in cases in which the victim was white. In addition, the study found, black defendants were twice as likely to receive death sentences in instances of identical crimes.

Nearly half of the defendants North Carolina has sentenced to death since 1977 are black, although the state has had an African-American population of roughly 22 percent over the past three decades. This figure, collected by the N.C. Department of Correction, does not include defendants sentenced to death and later exonerated for wrongful convictions--the last three of whom were all African-American.

Seth Kotch and Robert P. Mosteller, in a smart 2010 law review piece about the Racial Justice Act and North Carolina's "long struggle" with race and the death penalty, offer a little more context:

From colonial times into the 1960s, the overwhelming majority of those executed were African American, and although most victims and perpetrators of crime are of the same race, the overwhelming majority of victims in cases where executions took place were white. Hundreds of African Americans have been executed for a variety of crimes against white victims, including scores of African American men executed for rape. However, just four whites have been executed for crimes against African American victims, all murders.

Not only does data indicate disproportionate racial impact, but events show that race frequently influenced capital prosecutions. In many cases in the first half of the twentieth century, juries sentenced African Americans to death in the shadow of lynch mobs. Newspaper reports of executions of African Americans included overtly racist images.

In some instances, fairness and mercy eased the pernicious effects of prejudice. However, history shows that whether dooming African Americans or saving them from death, racial prejudice played a powerful role in the death penalty in North Carolina, enduring across the state's history despite enormous social and legal change.

This is why Judge Weeks' decision is one of the most notable of the year.


Even the procedural story of this case helps illustrate the reluctance of prosecutors to do right by the system. In August 2010, Robinson timely filed his request for the evidentiary hearing contemplated by the law. Judge Weeks set an evidentiary hearing for September 2011, 11 months after Robinson's initial filing. The state asked for a continuance -- and the judge granted it to November 2011. Then the state sought to have the judge recused- the attempt failed when another judge denied the request. Then the state asked again for a continuance -- and was given one. It was only when the state asked a third time that Judge Weeks said no.

Prosecutors first argued that the state law required a defendant to show that prosecutors had intentionally discriminated against a defendant -- a standard the United States Supreme Court had employed in 1987 in a case styled McCleskey v. Kemp. In that case, the Court ruled 5-4 that a convicted black defendant, despite offering up statistics of racial disparity in Georgia, had not established that the state's capital sentencing scheme violated equal protection guarantees in the Constitution.

Judge Weeks rejected this argument. State lawmakers were aware of McCleskey, he wrote, and if they wanted to require defendants to prove intentional discrimination they would have and could have written that into the Justice Act. Then he rejected the argument that defendants under the Justice Act needed to prove that they had been prejudiced by the racial bias which had been a part of the peremptory challenges. "Both defendants and society are injured by the use of peremptory strikes in a racially-biased manner," he wrote.

Then, for a fulsome 65 pages, Judge Weeks turned to the statistical bases for his conclusion. What he found from the evidence (which alone, remember, would be insufficient under Batson) was a remarkable consistency in the percentage difference between black jurors and white jurors peremptorily struck from jury pools. The ratio was almost always 2:1 -- twice as many blacks were kicked off than whites. This was no accident, Judge Weeks concluded, citing another 50 pages or so of "non-statistical" evidence to hammer home his point.

The judge ruled that Robinson had met his burden of establishing race as a "significant factor" in the jury selection of his case. Judge Weeks then also found that Robinson's trial had been marked by intentional discrimination anyway, beyond the more general statistical support. The judge noted that state prosecutors as recently as last year had been instructed on jury selection-- not to be more sensitive to inherent racial biases but to hide or justify them. That's also what the justices had found was happening with prosecutors in Texas in Miller-El.


It is still too early to safely predict whether Judge Weeks' ruling will withstand its inevitable appeal. Unless the state appellate courts want to read into the statute language that is not there, or want to proclaim that the trial judge evaluated the evidence incorrectly, it's hard to see how the Act wouldn't apply to Robinson. In the meantime, there has been no legislative stampede in other death penalty jurisdictions to so directly and honestly confront obvious patterns of racial bias in capital cases.

North Carolina is out in front on this, in a very significant way, but it will likely be many years before we learn whether its approach to racial justice was an early sign of things to come or just another failed effort at bringing equal protection and equal justice to black defendants, victims and potential jurors. That we still have to wait that long -- 150 years after the Civil War -- is itself a testament to how far so many prosecutors and judges have strayed from their mission of justice.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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