Reading Race in the Death Penalty

by Michelle Chen

The power of racial bias has long loomed over the death penalty, yet has seldom been directly confronted in the courts. But in North Carolina, a race analysis of capital punishment is now being written into law.

The passage of the Racial Justice Act by North Carolina lawmakers on Thursday won't rescue innocents from execution or redress centuries of discrimination in criminal justice. Instead, the bill offers people sentenced to death a more modest, but nonetheless vital, legal tool: the ability to challenge their conviction by looking at trends of racial disparities in death sentences. A defendant could be granted relief "upon the ground that racial considerations played a significant part in the decision to seek or impose a death sentence." In a state where Blacks are vastly over-represented on Death Row, it would be up to the government to prove racism did not steer the sentencing decision.

Conservatives argued the law would distort the judicial process by relying too heavily on statistical trends. Republican State Senator Phil Berger told the Winston-Salem Journal, "What this does is it places the determination of a significant part of first-degree murder cases into the hands of statisticians, regardless of what the facts are."

But NC Policy Watch counters that the recent exoneration of three Black Death Row inmates shows that to just look at "the facts of the case" is to further blind the criminal justice system to its inherent racism. Statistics alone shouldn't decide a legal case, but neither should racial prejudice, and the law is intended to help prevent bias from substituting for evidence.

Appalachian State University professor Matthew Robinson wrote in a recent News & Observer commentary:

[The Racial Justice Act] does not assure racial justice, but it can help bring it about. The law is one of the most powerful legitimate weapons we can use to rid our state criminal justice practice of racial bias. It does not address the roots of the problem -- stereotypes, fear and even racism -- but it is a start. And the bill provides a potential remedy for those who can conclusively demonstrate to a judge that race played a role in their case.

Yet the bill, to the extent that it opens the door to relief for some death row inmates, reveals the need to address other barriers to justice.

Relief under the Act is limited; it would simply convert a death sentence to life imprisonment. It also exposes deeper problems in the handling of capital punishment cases-the insidious influence of jury bias, prosecutors' manipulation of racial stereotypes, or, more generally, the establishment's tendency to value white lives more than Black ones.

On the national level, the bill is a reaction to a landmark Supreme Court decision, McCleskey v. Kemp, which has been dubbed the "Dred Scott decision of our time." Warren McClesky, a Black man convicted in Georgia of killing a police officer, tried challenge his sentence by presenting research showing that race was a strong factor in the risk of being sentenced to death. Rejecting equal protection claims, the court ruled that the cited study did not offer convincing enough evidence of racial bias. The decision left state legislatures to deal with issues of racial disparity in sentencing.

Yet laws designed to remedy racial discrimination in capital punishment cases raise questions about broader injustices. This is one reason why North Carolina and other states have effectively imposed a moratorium on executions altogether. Exposing the opposition's penchant for state-sponsored killing, some lawmakers tried to amend the bill to facilitate the resumption of executions.

The debate rages on about the ethics of hate crimes laws, which ramp up penalties according to individual motivations, a law like the Racial Justice act could be one way to bring criminal justice further in line with the struggle for racial equity. Incorporating into the legal framework an analysis of systemic bias could help redress discrimination, while moving the judicial process in the direction of humanity, rather than punishment.