The wind of revolution is beginning to blow through the halls of justice. It’s a small breeze now and the impact of what many consider one of the worst Supreme Court decisions of the 20th century still weighs heavily, but in North Carolina something called the Racial Justice Act is suggesting that a change is gonna come.
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Many studies have shown that there is significant racial bias in the administration of the death penalty. Defendants are more likely to be sentenced to death for killing whites than for killing blacks and black defendants are more likely to get the death penalty than whites, as was referenced in David Baldus’s 1998 report “Racial Discrimination and the Death Penalty”. But a study by Jennifer Eberhardt found the impact of race to be even more nuanced: judges and juries perceive defendants who have physical traits that are stereotypically associated with blackness (broad nose, big lips, dark skin) to be more “death worthy.” What a horrific term. In Eberhardt’s study, stereotypically black-looking defendants were twice as likely to be sentenced to death. Sociologists know that race matters in capital punishment, but the Supreme Court has refused to notice since a 1987 decision in McClesky v Kemp.
A Los Angeles Times survey of liberal legal scholars named McClesky one of the worst decisions since World War II. NYU law professor Anthony Anderson called it “the Dred Scott of our time,” referencing the 1857 decision that upheld slavery. Ohio State University Professor Michelle Alexander told me it was the Plessy v Ferguson of our time, referencing the 1896 decision to justify racial segregation. Justice Lewis Powell, who wrote the majority opinion on McClesky, later told his biographer that was one of two votes he regretted.
Warren McClesky was a black man who was convicted of killing a Georgia police officer in 1978. His legal team produced a study showing racial inequality in the death penalty — specifically that blacks convicted of killing whites in Georgia were four times more likely to be sentenced to death than those convicted of killing non-whites. The court accepted the statistics but rejected McClesky’s appeal and wrote, “disparities in sentencing are an inevitable part of our criminal justice system.” So racism is in the mechanism of administering death but … so be it. Bias was found to shape capital punishment and that was acceptable? In dissent, Justice William Brennan wrote, “That a decision to impose the death penalty could be influenced by race is a particularly repugnant prospect, and evidence that race may play even a modest role in levying a death sentence should be enough to characterize that sentence as ‘cruel and unusual.’ ” In another dissenting opinion in a different capital punishment case, 1994’s Callins v Collins, Justice Harry Blackmun famously wrote that it’s impossible to rid racial bias from the death penalty so “I no longer shall tinker with the machinery of death.”
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Since McClesky, judges have not allowed defense attorneys to show juries studies proving racial bias in death sentencing, making it impossible to challenge bias at any stage of the judicial process. It’s as if racism only matters when it operates as a specific stated conspiracy rather than a ghost in the machine animated by an accumulation of bias. But two challenges have arisen. From the South.
Racial Justice Acts were passed in Kentucky in 1998 and in North Carolina in 2009, stipulating that if race is found to be a significant factor in the imposition of the death penalty, then death will be commuted to life without parole. North Carolina’s act allows three areas in which to argue significant racial bias: that a death sentence is more likely because of the race of the defendant; that a death sentence is more likely because of the race of the victim; or that jury selection was racially biased.
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Almost as soon as North Carolina’s act was passed, nearly all death row inmates began challenging their sentences. The first challenge to reach the court was filed by 38 year-old Marcus Reymond Robinson, who was sentenced to death for the 1991 kidnapping and murder of a 17-year-old from whom he stole a car and $27. Robinson was convicted by a jury composed of nine whites, two blacks and one American Indian in a county that’s 40% black. Last month, Robinson’s sentence was commuted to life because his legal team successfully argued that race was a significant factor in the dismissal of potential jurors. A racially diverse jury is crucial to countering stereotypes and getting fairness. Imagine, white readers, being on trial for murdering a black person and watching the prosecutors remove white people from the jury pool just because they’re white, and finding yourself in a room all but filled with blacks who would judge your guilt and whether or not you would die for killing a black person. Does that sound fair? Or frightening? Linking who lives and who dies to race is unacceptable but we do it. Even if you believe in the death penalty from a moral standpoint, racial disparities and other human errors make it hard to trust humanity with the ultimate penalty.
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