In 2009, North Carolina enacted the Racial Justice Act (RJA), becoming one of the first states to pass a law that addressed racial discrimination in the selection of jurors for capital cases. Studies have revealed that juries are more likely to seek the death penalty in cases involving black-on-white murders, and that prosecutors have been more likely to strike African Americans from juries. Nonetheless, the RJA’s repeal was recently passed by the North Carolina General Assembly and signed by North Carolina Governor Pat McCrory.
Governor McCrory announced that “[n]early every person on death row, regardless of race, has appealed their death sentence under the Racial Justice Act.” He believes that the Act “created a judicial loophole to avoid the death penalty and not a path to justice.” The RJA states that “[n]o person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.” Under the RJA, four North Carolina inmates have successfully appealed their sentences based on racial bias. 1 These inmates were removed from death row and their sentences subsequently changed to life in prison with no possibility of parole.
Throughout the process of jury selection, race is supposed to be a non-factor; realistically, however, race plays an important role.
In order to understand how racial bias affects the outcome of death penalty cases, one must first inquire about jury selection. Jury selection has been described as a process of elimination, whereby potential jurors are called for jury duty, questioned by the judge or the attorneys, and excused for cause or by a peremptory challenge from either side. Throughout this process, race is supposed to be a non-factor; realistically, however, race plays an important role. In capital cases, the number of potential jurors who can be excluded for cause is much larger than in non-capital cases. Anyone opposed to the death penalty can be turned away.
In addition to excusing a juror for cause, the defense attorney and prosecutor both have a certain number of peremptory challenges to excuse a juror for any reason. However, it has been shown that prosecutors often use peremptory challenges to strike a disproportionate number of minority jurors when minority defendants are on trial.
In Batson v. Kentucky, the Supreme Court of the United States held that the defense can object to the prosecution’s use of a peremptory challenge if the defense suspects that the prosecution is intentionally limiting the number of minority jurors. The prosecution must then provide a race-neutral reason for the use of a peremptory challenge, or the judge can declare a mistrial. The threshold for overcoming the defense’s objection to a peremptory challenge is fairly low, and many race-neutral reasons, legitimate or not, may be accepted by the courts.
There are currently 152 inmates on death row in North Carolina. Of these, seventy-nine are black, sixty are white, seven are Indian, and four fall into other racial categories.
Although capital punishment is still legal in North Carolina, an inmate has not been executed since 2006. There are currently 152 inmates on death row. Of these, seventy-nine are black, sixty are white, seven are Indian, and four fall into other racial categories. According to the 2010 United States Census, 22% of North Carolinians are black, yet the percentage of black inmates on death row is nearly 52%.
There is little doubt that racial bias has affected black defendants facing capital punishment in North Carolina, but bias also likely exists in other areas of the United States and between other races. Hispanics are the largest growing minority population in the United States and account for almost 17% of the United States’ population. However, the Hispanic population in many states such as Texas (38%), New Mexico (47%), and California (38%) is much larger. There have been fewer studies on the implications of racial bias toward Hispanics facing the death penalty, but one study has indicated that defendants in Hispanic-victim cases were less likely to face a death-eligible charge than defendants in White-victim cases.
Fourteen states, in addition to the District of Columbia, have abolished the death penalty. The States of Wyoming and South Dakota were the most recent states to do so in 2004. These states have seemingly followed the national trend away from support for the death penalty. A Gallup poll in December of 2012 shows that almost two-thirds of the population is in favor of the death penalty, but this number has generally declined over the past twenty years. However, the respondents’ opinion is closely split on whether the death penalty is applied fairly, and almost two-thirds of respondents stated that they believed an innocent person had been executed.
There are, however, many states that still support the death penalty—Texas being the front runner. Between the date of this publication and the end of this year, there are seven executions scheduled in Texas. This is particularly concerning because of the large Hispanic population in Texas and the possibility that race may have been a factor in the defendants’ sentencing. Other states with scheduled executions during the remainder of 2013 include Alabama, Florida, Georgia, Ohio, and Oklahoma.
Although the RJA has been repealed in North Carolina, one can only speculate as to when executions will recommence.
With race continuing to be a factor in criminal prosecutions even today, it is unclear why other states have not passed their own versions of the RJA. Yet, both Democrats and Republicans have opposed enactment, arguing that the death penalty would become virtually unenforceable.
In 1998, Kentucky became the first state to pass a Racial Justice Act, which was loosely modeled on the federal Racial Justice Act. The federal Racial Justice Act was first introduced in 1988, but was never passed by both houses of Congress. However, in Kentucky’s Racial Justice Act (KRJA), the defendant has the burden (pdf) of proving by clear and convincing evidence that race was the basis of the State’s decision to seek the death penalty. 2 This standard of proof is more burdensome for Kentucky defendants than the standard of proof that would have been required by the federal Act. The KRJA is seldom used by public defenders because of the high standard of proof, their unfamiliarity with the Act, the difficulty of compiling statistical information necessary to prove discrimination, and their unwillingness to raise claims of racial discrimination because of feared backlash by prosecutors and judges.
Although the RJA has been repealed in North Carolina, one can only speculate as to when executions will recommence. After all, nearly every inmate currently sitting on death row has appealed his sentence, and may potentially bring claims of due process violations for repeal of the Act . These anticipated new legal challenges will arise out of the retroactive repeal of the RJA, taking away the vehicle by which those on death row sought to contest their sentences.