Race as a death penalty factor
BY MATTHEW ROBINSON
BOONE - Several arguments are being made against the North Carolina Racial Justice Act, which is up for a state Senate vote. They include these: a law cannot assure racial justice; patterns of racial disparities are not useful for demonstrating evidence of racial discrimination in particular cases; other plausible explanations for racial disparities exist besides bias on the part of prosecutors, judges and juries; and there are other serious problems with the death penalty that this bill does not address.
A response to these claims is warranted. First, the law 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.
Second, patterns of racial disparities are relevant. In North Carolina, where killers of whites are far more likely to be sentenced to death than killers of blacks (especially when the offender is black), this pattern of racial disparities is made up of individual cases, cases like that of black man Robert Bacon who was sentenced to death by an all-white jury even as his white co-defendant did not receive a death sentence. In the absence of such individual cases, there would be no pattern of racial disparities.
Third, there are explanations besides prosecutorial, judge and jury bias that might account for racial disparities in death processing. The bill allows prosecutors to admit these into evidence, along with statistics in support of their argument.
The fact remains, however, that nationwide, about 98 percent of prosecutors are white, the vast majority of judges are white and blacks are underrepresented on juries. These are the most significant reasons for the racial disparities we see in capital punishment. When victims are white, white prosecutors are more likely to seek the death penalty, white juries are more likely to convict and recommend death and white judges are more likely to impose the sentence (especially when offenders are black).
Fourth, this bill does not fix other problems with the death penalty such as incompetent defense. Yet, North Carolina has already taken steps to address such defects, including establishing the N.C. Innocence Inquiry Commission.
Here's the bottom line. North Carolina has a unique opportunity to become only the second state in the country to pass such a law. Further, we have the chance to correct an error made by the U.S. Supreme Court when it ruled against Warren McCleskey in 1987.
McCleskey showed that, in the state of Georgia, 11 percent of people charged with killing whites received the death penalty, but only 1 percent of those charged with killing blacks received the death penalty. Even after controlling for legally relevant variables, killers of whites were four times more likely to receive a death sentence than defendants charged with killing blacks. In interracial murders, the death penalty was assessed in 22 percent of the cases involving black defendants and white victims, versus only 3 percent of cases involving white defendants and black victims.
The main source of the disparities? Prosecutorial discretion. Prosecutors sought the death penalty in 70 percent of cases involving black defendants and white victims, versus only 9 percent of cases involving white defendants and black defendants.
In the McCleskey case, the court ruled that statistics such as those offered by Warren McCleskey did not rise to a constitutional violation based on racial discrimination, and that the burden rests on the defendant to show purposeful discrimination by the prosecution or state. Thus, today in Georgia, nearly the exact disparities based on race are still found.
Two important studies illustrate similar racial disparities in North Carolina. The first (1993-1997) found that the "odds of receiving a death sentence rose by 3.5 times or more among those defendants ... who murdered white persons." The second (2000-2006) found that "blacks who kill whites were 14 times more likely to be sentenced to death than whites who kill blacks."
Exhaustive studies by the Death Penalty Information Center conclude that "race plays a decisive role in the question of who lives and dies by execution in this country. Race influences which cases are chosen for capital prosecution and which prosecutors are allowed to make those decisions. Likewise, race affects the makeup of the juries which determine the sentence. Racial effects have been shown ... in virtually every state for which disparities have been estimated and over an extensive period of time."
So, what are we to do about such disparities? Passing the Racial Justice Act is a necessary first step.
It may appear to some as mere "tinkering with the machinery of death," but is necessary tinkering nonetheless.
Matthew Robinson is professor of Government and Justice Studies at Appalachian State University. He is author of "Death Nation: The Experts Explain Capital Punishment."
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