Discrimination by the Numbers

North Carolina’s district attorneys have seen the promise of that state’s Racial Justice Act (RJA) up close, and they don’t want it to get any closer. This week they sent a letter to state legislators asking them to scuttle the RJA fast.

The law, which passed in August 2009, aims to correct racial bias in North Carolina’s death penalty by allowing capital defendants use statistical evidence to show bias in their cases. But the state’s prosecutors seem to think the RJA provides entirely too much racial justice, and are urging the legislators to get rid of it before the first death penalty cases being challenged under the Act are heard.

They’ve already done everything else they could do to avoid going to court — the case of Marcus Robinson, set to be the first challenge heard under the RJA, was originally scheduled for September; the prosecutors on that case asked for more time and the judge re-scheduled it for November. Then the prosecutors tried to get rid of the African-American judge who had presided over the case from the beginning; they made this request on the flimsiest of excuses — that he might be called as a material witness in the case. The judge hearing the recusal motion took all of 30 seconds to deny it. Then, looking more and more desperate to avoid actually having to go to court, the prosecutors pulled a Hail Mary and asked for another delay in the hearing, which was then re-scheduled for January. That last delay gave the prosecutors time to take it to the legislature — a few days after they lost their attempt to get rid of the judge, they wrote the letter to the legislators asking for repeal of the RJA.

The RJA changed the law for death row inmates in North Carolina. Previously, a condemned prisoner who believed that his or her death sentence was tainted by racial bias had to prove it by showing that the prosecutor in the case had “discriminatory intent,” and deliberately excluded African-Americans from the jury or chose to prosecute African-American defendants more often than white ones — in other words, they essentially had to prove that the prosecutor was racist. But that clearly doesn’t work: proof of racism is often very hard to find, since it usually isn’t as visible as it was in the old days when Bull Connor set the dogs and fire hoses on people who wanted to vote.

Thankfully those days are gone, but that is exactly why the RJA is needed. Nowadays, much race discrimination is lies below the surface, unconscious and unspoken. So the RJA makes a simple and profound change in the law: it allows a death row defendant to use statistical evidence and numbers to prove the role of race in his case. And numbers don’t lie.

Lawyers for Robinson say that the numbers indeed tell the story. They plan to introduce a study by Michigan State which they say reveals that, in cases of people now on death row in North Carolina, qualified African-Americans were kicked off the jury two to three times the rate of white people.

Despite the numbers, the North Carolina district attorneys still insist there’s no need for the RJA in North Carolina. They say it’s too expensive, requires too much time and work on the part of prosecutors and that it could lead to the release of inmates (despite clear language in the law that successful challenges would only lead to the commutation of death sentences to life in prison). Apparently, they are less concerned with the human cost of executing people following racially biased convictions.

The death penalty is tainted with racial discrimination, in North Carolina and everywhere else. Take action now to end the death penalty in your state.

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