North Carolina’s Racial Justice Act

What can be done to stop racial discrimination in jury selection, and, in general, to make our courts equal to all defendants and victims?  In 2009, North Carolina’s legislature passed the Racial Justice Act which provided for commutation of an inmate’s death sentence to life in prison in cases where the defendant could prove “that race was a signficant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.” N.C. Gen. Stat. §15A-2010.

Death row inmates promptly sought relief under the statute, and at least four inmates’ sentences were commuted to life in prison after they presented conclusive evidence of racial discrimination in jury selection.  The North Carolina Supreme Court later reversed these decisions and remanded the cases to allow the state more time to respond to the studies that had been presented on racial bias in the North Carolina courts, and, in 2012, the North Carolina legislature repealed the Racial Justice Act.

What Was the Racial Justice Act?

The Racial Justice Act sought to ensure that the state of North Carolina was not unfairly and disproportionately imposing the death penalty on black defendants.  It was a positive move in the right direction, providing that a death sentence would be commuted to life in prison if a defendant could prove that the state was discriminating in the death penalty process.  Defendants could show discrimination by presenting evidence that:

  • The death penalty was either sought or imposed more often on members of a particular  race;
  • The death penalty was either sought or imposed disproportionately more often on behalf of victims of a particular race; or
  • Race is a significant factor in decisions to strike jurors of a particular race.

Marcus Robinson – What was the Evidence Presented?

Marcus Robinson was the first defendant to present evidence at a hearing under the Racial Justice Act.  Robinson presented evidence of a statistical study that had been performed by two law professors from Michigan State:

The court found the MSU study to be “a valid, highly reliable, statistical study of jury selection practices in North Carolina capital cases between 1990 and 2010. The results of the unadjusted study, with remarkable consistency across time and jurisdictions, show that race is highly correlated with strike decisions in North Carolina.”

Specifically, the Court found that N.C. prosecutors statewide struck 52.6% of all qualified black jurors in death penalty cases, 25.7% of all other eligible jurors, and that the probability of this occurring in a race-neutral process was less than one in ten trillion.  Even when the researchers analyzed the data with comparisons based on every possible factor, including age, profession, education, and the purportedly race-neutral reasons given by prosecutors, “racial discrepancies were still found, showing as conclusively as possible that race was a factor in peremptory strikes.”

What Was the State’s Evidence?

The state presented a statistical expert who testified about a study he had conducted where he asked prosecutors to provide racially neutral reasons for each black juror that was struck in the Michigan State study.  The Court rejected the study and pointed out the study’s incompetent methodology, which included:

  • Asking prosecutors for a race neutral reason, rather than asking them why they struck the juror;
  • There was only a 50% response rate to the survey;
  • The study relied on self-reporting by prosecutors;
  • The expert provided a sample affidavit to the prosecutors in advance, which could obviously affect their responses.

Despite the state’s failed opportunity to present evidence that the state does not discriminate in imposition of the death penalty, the N.C. Supreme Court reversed and remanded the case to give the state another chance to provide credible evidence.

Every state should be enacting their own version of the Racial Justice Act, and without legislation such as this there will be no progress or at best continued slow progress in achieving racial justice in death penalty cases.  And remember that capital cases in every state are only the tip of the iceberg – there are very few death penalty prosecutions each year in comparison to the thousands of trials that happen in other types of cases every year in South Carolina.  You could say that the death penalty cases are the “canary in the coal mine” – if we are discriminating against defendants in the most important and high-profile cases where the end result is death, you can bet we are also discriminating in non-death cases as well.

North Carolina’s Racial Justice Act was, for a brief period, a shining example of how state legislatures can act to end racial discrimination in the courts.  Law students should choose to research racial justice issues, law professors should encourage and participate in conducting similar studies, and attorneys should encourage or commission similar studies whenever possible.  South Carolina’s legislature should take similar action and those in the legislature who care about racial justice, fair application of the death penalty, and the people they represent should step up and take on this fight.



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