Repealing Racial Justice

Legislators in North Carolina are trying to repeal the ground breaking Racial Justice Act.  Act now to help prevent them from doing so.

It is a commonly heard tale, the familiarity of which makes it no less shocking. In 1992 Kenneth Bernard Rouse was sentenced to death for the murder of a woman. Rouse is African-American. The woman, Hazell Broadway, was white. Rouse was convicted by a 12-member jury. All were white. After the trial, as is standard practice, Kenneth’s lawyers interviewed members of the jury. One said: “black men rape white women so that they can brag to their friends about having done so.”

Race discrimination in some areas of North Carolina is common. Kenneth Rose of the Center for Death Penalty Litigation there told me that in Johnston County, which until about 15 years ago had a sign at the boundary line saying “home of the Klan,” 40% of white defendant capital cases resulted in death penalties; 100 percent of black defendant capital cases resulted in death penalties.

Not all racism, of course, is so overt. But racial prejudices weave a poisonous thread through society, whether we know it or not. In 1998 two psychology Professors, Anthony Greenwald and Mahzarin Banaji, developed the Implicit Associations Test. They wanted to measure the extent and effect of biases on decision making, particularly those biases that are considered socially sensitive i.e. ones that people don’t know, or would rather not admit, that they have, such as race.

The authors don’t exactly mince their words when describing the results. “…about 70 percent of those who took a version of the test that measures racial attitudes have an unconscious, or implicit, preference for white people compared to blacks.” For many it is controversial to suggest that juries impose the death penalty because of racial biases that exist in society, writ-large. As Greenwald says, “The Implicit Association Test is controversial because many people believe that racial bias is largely a thing of the past. The test’s finding of a widespread, automatic form of race preference...”

It is well understood among members of the death penalty community that this particularly barbaric punishment is applied in a racially discriminatory manner. Catherine Grosso and Barbara O’Brien at Michigan State Law School conducted one of the most recent and sophisticated studies on race and the death penalty. It concluded what many others over the years have shown: jurors and prosecutors in capital trials make decisions based on race. Grosso and O’Brien analysed 5,800 “death eligible” cases between 1998 and 2009. They found that more than 40% of people on North Carolina’s death row were sentenced by a jury that was either all white or included only one person of colour. In every case this study controlled for over 200 variables that could have affected the juror’s decision.

You will no doubt have noticed that I have focused here on one state, North Carolina. This is not because North Carolina is some weirdly racist anomaly. It is, in fact, one of only two states in the US that has made attempts to correct the racially-based skew inherent in capital punishment. But now, some politicians in the state are trying to reverse this attempt.

In 2009 North Carolina passed the Racial Justice Act to much political fanfare Governor Bev Perdue, who signed the act into law, said “I have always been a supporter of death penalty, but I have always believed it must be carried out fairly…The Racial Justice Act ensures that when North Carolina hands down our state’s harshest punishment to our most heinous criminals – the decision is based on the facts and the law, not racial prejudice.”

What the RJA does is allow people facing the death penalty to go to the courts and file an appeal, arguing that their case should be granted reconsideration because race played a part in their sentencing. Crucially, it allows them to use stastical studies, such as the one by Grosso-O’Brien, as evidence for their claim. Anyone who ‘succeeds’ under the Act would be given a sentence of LWOP (oh, all the acronyms: Life Without the Option of Parole) or, if they were pre-trial, would be re-tried without the death penalty as an option. It allows people to ask that the courts consider whether their conviction was based on racially biased decisions, and if it was that they not be killed on the basis of such racism.

What the RJA does not do is offer a quick fix or wave a magic wand. It does not ‘set-free’ any one held on death row. Republican state legislators pushing the repeal bill are suggesting otherwise, however. In a horrific example of falsified fear-mongering, they sent out flyers implying that the RJA would result in death row inmates being let loose to terrorise the general population. A recipient of one of these odious flyers, Hugh Holliman, is a state Democrat politician. In 1985 Holliman’s daughter was murdered and he witnessed the execution of the man convicted for her murder. Apart from being deeply offensive (he demanded an apology) they were labelled by Holliman as “a new low in political campaigns.”

What’s more, opponents of the RJA are being deceptive about what their bill, which is being touted as a ‘reform,’ actually does. They said that reform is necessary to make the RJA constitutional. This is highly misleading on two counts. First, when you read the text of the ‘reform’ bill, it is clear that it is in fact a complete repeal. The text has been gutted.

Second, the RJA is already constitutional. Let’s delve a little deeper into this one. This is the Reprieve blog equivalent of that bit in the Loreal adverts when Jennifer Aniston flicks her ludicrously shiny hair and says: ‘Here comes the science.’ It’s a bit of a faux-pas for those in human rights to be too glamorous, so let’s just say, ‘Here comes the law.’

Those opposed to the RJA claim that it is not in line with the Supreme Court precedent set by McCleskey V. Kemp, decided in 1987. In brief (ahem, sorry), this decision upheld the death penalty for Warren McCleskey, who appealed for relief on the grounds that his conviction and sentence had been based on racial bias.

SCOTUS opined that McCleskey would have needed to show ‘discriminatory purpose’ for them to grant him relief on the basis of his claim. In other words, to get a death sentence reversed on the grounds of racial bias you would all but have to get a prosecutor or DA to say ‘The reason I sought death in this case was because of the race of that person.’ Unsurprisingly no one, despite many flagrant examples of racial prejudice tainting all aspects of a case, has been able to prove ‘discriminatory purpose.’ It is worth bearing in mind, moreover, that Justice Powell, who gave the deciding vote in upholding McCleskey’s death sentence, and who wrote the opinion for the majority, has since stated publicly that this is the one vote in his long and esteemed career that he regrets.

This aside, however, McCleskey does not make the Racial Justice Act unconstitutional. Because what SCOTUS also said, in denying the appeal, was that it was beyond their jurisdiction to rule on whether state courts could allow the use of statistical studies when considering petitions for appeal in capital cases. They invited state legislators to allow statistical evidence to be used if deemed appropriate. “It is the [state] legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people." Legislatures also are better qualified to weigh and "evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the court."

This is exactly what state legislators in North Carolina did. And now Republicans in the state are trying to reverse their attempts; they are doing so using lies. Lies, damned lies, and no statistics.

Act today and contact Governor Bev Perdue. Tell her and politicians on both sides of the aisle, that you don’t think a person’s race should decide whether they live or die. For a sample letter or for more information email Gerda Stein at the Center for Death Penalty Litigation: gerda@cdpl.org