Racial Bias in Death Penalty Cases: A North Carolina Test


In North Carolina, meanwhile, in 2009, state lawmakers passed the Racial Justice Act. The text of the law allows convicted murderers to challenge their death sentences -- but not their underlying convictions -- by proving patterns of racial "discrimination by county, district, division or state." For example, if race was a "significant factor in decisions to exercise peremptory challenges during jury selection," a convicted defendant has a right under the new law to come to court to present his case. Moreover, he has a right to present "statistical" evidence of such bias.

Because it eliminated the need for defendants to prove "discriminatory intent" in their case, the state law gave capital defendants more constitutional protections than the Supreme Court had identified as constitutional baselines in Batson and Miller-El. So did prosecutors champion this notable development in the ugly history of North Carolina's racial history? Did they earnestly acknowledge the need to fix discriminatory results? Nope. They were instead furious about the statute's acceptance of broader statistical evidence to show discrimination.

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.

Presented by

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

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