Saved From Death Row, Only to Be Returned

A set of unusual cases in North Carolina brings new attention to racism in death-penalty trials.

In 1991, an 18-year-old named Marcus Robinson, along with a friend, carjacked a white teenager, who was later found dead at a construction site. At trial, Robinson and his accomplice each said the other had shot the victim.

Both Robinson and the friend were black, and race immediately became a hallmark of the prosecution’s strategy in Robinson’s trial. During jury selection, John Dickson, the prosecutor, asked a potential black juror if he had trouble reading; he did not ask any white candidates that question. He struck five out of 10 black jury candidates and only four out of 28 nonblack candidates. The judge, prosecutor, and defense attorneys were white. So were a majority of the jurors, who, in 1994, sentenced Robinson to death. (His friend, Roderick Williams, received a life sentence.) Robinson was the youngest person ever sentenced to death in North Carolina.

He had been on death row for 15 years when, in August of 2009, the North Carolina legislature, dominated at the time by Democrats, passed the Racial Justice Act, which sought to reckon with a legacy of racism infecting capital cases. While overt racism in criminal trials had long been outlawed by the U.S. Constitution, the new law permitted capital defendants to get their sentence reduced to life without parole if they could show that their trial and sentencing had been tainted even by unintentional racism at any stage, including the jury-selection process. More than 90 percent of the 152 death-row inmates in North Carolina at the time filed motions under the RJA. They had good reason: At the time, in a state that was at least one-third nonwhite, almost half of the inmates on death row had been sent there by juries with one or no black jurors.

Robinson was the first death-row inmate to present claims of racial bias. During a two-week hearing before Superior Court Judge Gregory Weeks, in early 2012, his lawyers showed statistical evidence that prosecutors in Cumberland County rejected black jury candidates more than twice as often as they rejected white ones. Perhaps more damning was evidence involving the prosecutor who had tried the case. On the stand, Dickson admitted that he had “unconscious bias” against black people and that the criminal-justice system was racially biased. Robinson’s lawyers also presented evidence that Dickson had historically dismissed black jury candidates more often than their white peers and that he consistently kept notes on the race of prospective jurors.

In April of 2012, Weeks issued a 168-page ruling that found Robinson’s trial and sentencing had been affected by racial bias, writing that Robinson’s lawyers had shown “the persistent, pervasive and distorting role of race in jury selection throughout North Carolina.” He resentenced Robinson to life without parole—a ruling that advocates hailed as a success not just for Robinson but also for others on death row seeking relief. The celebration was short-lived, however.

Soon afterward, the state appealed Robinson’s new sentence to the North Carolina Supreme Court. A year later, while the appeal was pending, a newly Republican-led legislature repealed the RJA with the support of a recently elected Republican governor, Pat McCrory. (Those who supported the repeal used Weeks’s ruling in Robinson’s case as a talking point, calling the RJA a “loophole” that was being exploited by those condemned to die.) For Robinson, the consequences of the repeal were concrete and dire. The North Carolina Supreme Court found in 2015 that Weeks had made a procedural error and the case needed to be reconsidered. But since at that point the RJA had been repealed, another judge assigned to rehear Robinson’s claims dismissed the case, essentially sending Robinson back to death row.

Robinson’s legal team appealed his dismissal. Since then, his case has largely fallen out of the news. But early this week, it will arrive at an important inflection point. Robinson, along with three other death-row inmates convicted in Cumberland County who originally won their RJA claims only to be returned to death row when the law was repealed, will have the opportunity to argue for their lives at a series of North Carolina Supreme Court hearings.

The defendants are expected to argue that their life sentences under the RJA should have remained valid given the proof of racial bias; the state notes the 2013 repeal specifically disallows retroactive appeals such as these. Those four defendants will be joined by two others, whose claims were dismissed after the RJA’s repeal before they could present any evidence before a judge.

Cassandra Stubbs, Robinson’s attorney and the director of the Capital Punishment Project at the ACLU, told me, “To finally have the full evidence of discrimination heard, to have a judge find that he is entitled to life without parole because of the intentional discrimination in his case, to be taken off death row, and sent to a new prison to serve what is still an unbelievably harsh sentence, only to then to be thrown back on death row without a new trial—it’s unimaginable.” She said Robinson wasn’t available to comment.

The hearings and their eventual outcomes are, of course, a matter of life and death for Robinson and the other defendants.They also raise a broader issue that, while discussed in criminal-justice circles, has yet to be satisfactorily resolved: Given that it’s now well understood that racial discrimination is pervasive in capital cases around the U.S., why is a flawed system still sending people to their death?

After the Civil War, under a set of laws adopted by Southern states known as the black codes, black citizens were often banned from serving on juries, along with voting, running for public office, and testifying against white people at trial. This changed with the 1875 Civil Rights Act, which names jury service as one of the guaranteed rights for once-enslaved people. In 1880, the United States Supreme Court reinforced this, ruling in Strauder v. West Virginia that states could not restrict jury service to white people. But in the years that followed, states regularly circumvented the Strauder holding by allowing prosecutors to keep black people off juries by making racist decisions under the guise of factors like intelligence, moral character, and home address.

Prosecutors also relied on peremptory strikes—their right to eliminate a prospective juror without explanation—to exclude black people. In the 1965 case Swain v. Alabama, the Supreme Court held that a prosecutor had not violated the Constitution when he used peremptory strikes to cut six out of eight potential black jurors (the other two turned out to be exempt from jury service); no black people had served on a trial jury in that county over the previous 15 years. The Court reasoned that the individual strikes of a prosecutor could not by themselves amount to racial bias, even if they occurred amid broader racial disparities. (Earlier this year, when the Supreme Court overturned the capital conviction of Curtis Flowers, the decision was based not on generalized racism but on intentional discrimination on the part of the Mississippi district attorney, Doug Evans, who had tried Flowers.)

This state of the law was modified slightly by the 1986 Supreme Court decision Batson v. Kentucky, which required “race-neutral” reasons for jury strikes. But after Batson, prosecutors continued to strike black people from juries, using a variety of excuses. One Georgia prosecutor struck a black jury candidate for having “gold teeth.”

The Supreme Court again considered the relevance of patterns of discrimination in a 1987 case, McClesky v. Kemp, in which a Georgia man named Warren McClesky was sent to death row in 1978 for killing a white police officer in the course of a robbery he committed with three other men. (McClesky denied shooting the officer.) McClesky argued to the Supreme Court that the death penalty was racially discriminatory in Georgia, supported by a statistical study of the state that had found that the sentence was most often given to black men who killed white victims.

The Court was unmoved by the evidence of racial disparity, arguing that general racial disparities were “inevitable” and not enough to overturn McClesky’s death sentence. But, significantly, the Court suggested that states could enact legislation that would allow capital defendants to use statistical evidence of racial discrimination to argue against the death penalty in their case.

In the years since, while many states have cited widespread racial discrimination when eliminating the death penalty, North Carolina chose a more unconventional route to address concern over racial bias in capital sentencing. “The states taking problems with their death penalties seriously over the past decade or so decided it can’t be fixed, that it has to be abolished,” David Weiss, a staff attorney at the Center for Death Penalty Litigation, which represents death-row clients in North Carolina, told me. “North Carolina chose a unique path with the RJA, to keep the death penalty on the books, but provide a mechanism for ensuring it’s not racially biased.” (In a similar, but less robust, 1998 law, Kentucky began allowing some statistical evidence of racial prejudice to be introduced in capital trials.)

The Racial Justice Act was based on a radical idea. In lieu of being forced to prove intentional racism by the prosecutor, a defendant needed only to show through quantitative analysis that the system in North Carolina was racially biased in order to receive a maximum sentence of life without parole. Stubbs told me, “It was significant for a state to say, ‘We are going to break the link between the death penalty and racial discrimination.’”

The RJA’s passage reinforced a building interest on the part of researchers and reformers in discrimination in jury selection. Jury service isn’t as visible of a touchstone of democratic participation as voting rights, although it is no less significant. Weiss described jury service as “one of the most important ways to take part in the government.”

In the years leading up to the law’s enactment, a growing body of research suggested that discrimination in jury selection was widespread, and may have already brought about fatal consequences. Multiple studies had shown the impact of a racially diverse jury on sentencing.

In a 2010 report, after the RJA was enacted, the Equal Justice Initiative looked at the number of black jury candidates excluded from trials in eight southern states (not including North Carolina) in the 20 years after Batson and found that in some communities, a majority of black candidates were struck from juries. In Jefferson Parish, Louisiana, whose population has consistently been about 25 percent black, 80 percent of criminal trials had one or no black jurors. In one 1987 capital trial in Georgia, prosecutors marked black jurors “B#1,” B#2,” and “B#3.”

Researchers at Michigan State University conducted a statewide survey on jury selection in North Carolina. In 173 proceedings, including at least one for each of the state’s death-row inmates as of July 2010, they found that prosecutors struck potential black jurors two and a half times more than white ones.

The hearings this week will center largely on the vital question of whether Robinson and the others in his position should have ever been sent back to death row once they had been removed from it. It will also surely draw attention to the law that inspired these men’s removal from death row in the first place, and whether it should have ever been repealed. Stubbs said the hearings are symbolically significant because of the amount of racial bias still found in cases like Robinson’s, even as fewer people are sent to death row today than at the time of his first trial: “The death penalty is getting rarer, but it’s not getting less arbitrary or less discriminatory.”

Stubbs said that the RJA was meant to restore public faith in the criminal-justice process: “The system is rotten if there’s racial bias in it.” But perhaps the greatest achievement of the RJA was in inspiring research such as the MSU study that further established just how influential race is on the outcomes of capital cases. Those studies have definitively shown disparities at the “state, local, and individual level,” Weiss said. “The legislature repealed the law, but they can’t repeal what we now know.”