The Face of Exclusion and the Racial Justice Act

There’s a simple assumption at the heart of North Carolina’s Racial Justice Act (RJA), which allows death row inmates to present statistical evidence to support the contention that race discrimination played a part in their case and possibly have their death sentence converted to life in prison without the possibility of parole. That assumption is this: whether or not a convicted murderer gets the death penalty should be based on his crime and his character, and not on his race.

We don’t execute every guilty murderer — far from it. We have a system of laws that is supposed to help juries decide who are the “worst of the worst,” and race discrimination should have no place in it.

Yet race discrimination has often played a role in capital prosecutions, and sometimes in an unexpected place: jury selection. There are other ways that race can affect a death penalty case (for example, there is ample evidence that the race of the victim or the defendant can influence the outcome), but the first hearing under the RJA, which began last week in Fayetteville, North Carolina, and continues this week is focused on faces seldom seen until now: those of people of color wrongly excluded from jury service. You can hear the stories of three such North Carolinians in this new ACLU video.

I have been attending the hearing, during which the defense team for death row prisoner Marcus Robinson has introduced its proof that the big ugly thumb of racism had been pressed on the scales of justice when the jury that would hear the case against Robinson was selected. As a New York Times editorial noted today, that evidence included studies that “found a regular pattern of state prosecutors intentionally discriminating against potential jurors because of race.”

Days of damning statistical evidence of race discrimination in jury selection gave way to the testimony on Thursday of Professor Bryan Stevenson, an expert on race prejudice in capital cases. His hours on the stand, questioned by Cassandra Stubbs of the ACLU’s Capital Punishment Project, were among the most riveting I have ever spent in a courtroom. In his testimony, Professor Stevenson took an absorbed judge, a rapt courtroom full of citizens, lawyers and students, a disciplined defense team and an uncomfortable prosecutor through the realities of being a black potential juror in a capital case in the South. He talked about former post-slavery laws that prohibited African-Americans from serving on juries at all, particularly in criminal cases, and laws that required that a juror be “upright and intelligent,” often interpreted by prosecutors to mean a white man. Over and over, his words packed a wallop.

One of the unexpected findings of Professor Stevenson’s research into race discrimination and the death penalty was “the tremendous sense of hurt” felt by potential jurors who suspected that they were struck from a capital jury because of their race. He talked about how that hurt affects those individuals and their communities, and told of one excluded juror who said he had been “trying his whole life to be acceptable to the kind of people making these important decisions” only to be told afresh that he was not.

Excluding people of color from a system meant to protect the community does harm both the excluded individuals and the larger community. The RJA attempts to correct the worst effects of that harm by disallowing the execution of a person like Marcus Robinson whose jury was tainted by racial exclusions.

Or better yet, as the Times suggests, the evidence of racial discrimination in death penalty cases in North Carolina and elsewhere is another very good reason to abolish the death penalty altogether.

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