A bill repealing the Racial Justice Act and ending a six-year moratorium on capital punishment in North Carolina passed House Judiciary Subcommittee B Wednesday morning along party lines.

The bill has already been approved by the state Senate, and will likely be debated on the House floor later this week.

The Racial Justice Act initially allowed inmates on death row to have their sentences commuted to life without parole if they could prove race played a significant role in decisions to seek the death penalty in the county, prosecutorial district, or state at the time of their sentencing. In 2012, the General Assembly restricted the law to the county or district level.

Supporters of the law say it addresses institutional racism in the state judicial system, while opponents argue that the RJA is a costly waste of district attorneys’ time and a barrier to closure for victims’ families.

Sen. Thom Goolsby (R-New Hanover), the bill’s sponsor, called the Racial Justice Act a “sham,” and said the law “turns our hard-working district attorneys into racists and turns cold-blooded murderers into victims.”

Rep. Paul Stam (R-Wake) argued “evidence did not prove the need for the law,” contending that discrimination had only been proven in past cases, not current ones.

Gov. McCrory, in 2012, said this of the law: “It’s not just African-Americans using the racial justice act to delay the death penalty, it’s everyone, white, black, anything. And that shows the joke that it’s become, and it’s just a delay tactic, which is costing the taxpayers money.”

A look at the numbers

The issue of whether or not hard data supports a need for the Racial Justice Act was taken up in 2011 by researchers at Michigan State University College of Law. Barbara O’Brien and Catherine Grosso performed extensive statistical analysis on jury selection in trials of defendants on death row in North Carolina as of July 1, 2010, specifically examining whether or not race was a significant factor in peremptory challenges of potential jurors. This is a useful point from which to analyze whether or not the numbers support the RJA, as the law cites race-based peremptory challenges as key evidence in proving discrimination in judicial proceedings.

During jury selection, attorneys have the chance to interview and challenge potential jurors in order to determine the final makeup of the jury. Attorneys can contest members of the jury pool for cause, requesting the judge remove a candidate who the attorney has reason to believe would not issue an impartial verdict, or they can use a limited number of peremptory challenges to remove potential jurors without justification or judge approval. Attorneys are legally prohibited from using peremptory challenges to target potential jurors based on race, and must be able to provide a race-neutral explanation when choosing to eliminate a minority member of the jury pool if the decision is challenged. Unfortunately, as O’Brien and Grosso’s research shows, this requirement doesn’t always prevent attorneys from factoring race into their decision to cut potential jurors.

O’Brien and Grosso initially found that prosecutors in North Carolina between 1990 and 2010 exercised peremptory challenges against African American potential jurors in capital cases at a significantly higher rate than people of other races — a disparity that increases in cases where the defendant is black. Prosecutors struck 52.6% of eligible black jury pool members, compared to only 25.8% of others. This difference has a statistical significance of < .001, meaning that there is less than a one in one thousand chance of observing these results in a race-neutral environment.

Next, O’Brien and Grosso controlled for race-neutral explanations offered by prosecutors in order to weed out any possible confounding variables that  might have caused the correlation — for example, a high rate of opposition to the death penalty among African American potential jurors. Here’s what they found:

None of the factors we controlled for in the regression analysis eliminated the effect of race in jury selection. While we found many non-racial factors that were highly relevant to the decision to strike, none was so closely associated with race or so frequent that it could serve as an alternative explanation of the racial disparities. Note that throughout the process of building this model, we found no factor or combination of factors that rendered the effect of race non-significant. In other words, the statistically significant influence of race on the odds of being struck was robust; its predictive power did not depend on the inclusion or exclusion of any particular variable or variables in the model.

Read the full study here.

In addition to O’Brien and Grosso’s broad statistical findings, Marcus Robinson’s appeal under the Racial Justice Act in 2012 offers specific examples of how race-based peremptory challenges occur in the North Carolina judicial system.

Robinson was found guilty of the murder of Erik Tornblom and sentenced to death in August of 2004. After his conviction, Robinson attempted a number of appeals, all of which failed. The North Carolina Supreme Court found no prejudicial error in Robinson’s trial, while the U.S. Supreme Court declined to review the case altogether. When Robinson appealed his verdict under the Racial Justice Act, Cumberland County Superior Court Judge Greg Weeks found the following:

In some instances, prosecutors reviewing the jury selection materials conceded that they could not find a race-neutral explanation for the strike. In other cases, the prosecutors’ explanations do not withstand scrutiny, either because they are contradicted by the record, or because the prosecution did not strike non-black jurors who were similarly situated. There are additional documented instances where the prosecution engaged in targeting, asking different questions of African-American venire members than other venire members, or asked explicitly race-based questions. Unbelievably, in some cases the proffered explanations are not facially race-neutral.

Judge Weeks did not believe that prosecutors discriminated consciously in all cases, but rather pointed to the large potential for implicit bias in peremptory challenges:

The un-refuted evidence regarding the role of implicit bias in decision-making provides a critical and logical link between the overwhelming statistical evidence of bias against African-American venire members and the undoubtedly sincere protestations of scores of prosecutors that they did not discriminate. As Dickson, the prosecutor who selected the jury in Robinson’s case, concedes, we are all subject to the unwelcome influence of our implicit biases. The experimental evidence, which shows both that actors discriminate without knowledge, and then that they unconsciously ascribe non-discriminatory motives to their own actions, is further confirmation of the likelihood that an individual prosecutor could both simultaneously discriminate against African-American venire members and sincerely and in good faith deny such discrimination.

Read the full ruling here.

Judge Weeks also decided to commute the sentences of Tilmon Golphin, Quintel Augustine, and Christina Walters on the basis that race played a significant factor in the selection of their juries. Read the ruling here.

In Batson v. Kentucky, the U.S. Supreme Court ruled that the exclusion of jurors based on race constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment. Statistical evidence showing race as a significant factor in peremptory challenges indicates that defendants in capital murder trials across North Carolina are not receiving constitutional trials. Case evidence also points to attorneys circumventing Batson through discriminatory practices, albeit not always consciously, or disregarding the ruling altogether.


More information
Michigan State University College of Law – Report on Jury Selection Study
WRAL – Racial Justice Act Repeal goes to House floor
Fay Observer – Judge: Racism played role in Cumberland County trial, death sentence converted in N.C.’s first Racial Justice Act case
News & Observer – Why racially mixed juries and the Racial Justice Act are important
News & Observer – McCrory, Dalton trade barbs on tax policy, Racial Justice Act
DPIC – The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides

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