The Racial Injustice Act

Photo by: Melanie Clayton

Have you ever heard of Marcus Reymond Robinson?  He is the man who was convicted of kidnapping 17-year-old high-school student Erik Tornblom and shooting him in the face with a sawed-off shotgun during a robbery that netted a grand total of $27.  In 1994, Robinson was sentenced to death in Cumberland County Superior Court for his heinous crimes – crimes with an arguably racially-tinged motive.  The facts set forth in the order of the North Carolina Superior Court state:

Other evidence tended to show, two days prior to the murder, that [Robinson] told [his accomplice’s] aunt that “he was going to burn him a whitey”. [sic] On the morning of the murder, [Robinson] obtained the shotgun from a friend, who heard [Robinson] tell [his accomplice] that he wanted to rob a Quik Stop or “do” a white boy.

Ironically, on April 20, 2012, Robinson became the first man in North Carolina to have his life spared under North Carolina’s Racial Justice Act.  To be sure, his sentence was not reduced because of questions surrounding his guilt or innocence, but rather, because the Honorable Superior Court Judge Gregory A. Weeks found that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” statewide during the time Robinson was on trial.

The Robinson case garnered national media attention as commentators described it as “a landmark ruling,” “historic,” “profoundly shap[ing] any ongoing debate about [the death penalty].”  While all of these descriptions are true, it now appears to be the last of its kind in North Carolina.

I will refrain from adding to the ad nauseam arguments the controversial case has generated and instead focus on the changes to the 2009 Racial Justice Act brought on this year by Session Law 2012-136 (Senate Bill 416 “An Act to Amend Death Penalty Procedures”).

In order to fully comprehend the ramifications of SB 416, it is necessary to have a basic understanding of the nuances and history surrounding the original 2009 Racial Justice Act.  This is true because many lawmakers argue that SB 416 essentially repeals, rather than amends it – similar to “amending” the First Amendment by removing that little part about the freedom of speech.

The Racial Justice Act of 2009 (hereinafter “RJA”) was a first of its kind, landmark legislation aimed at ameliorating the detrimental effects of racial discrimination in capital cases.  Specifically, the RJA provided a process by which statistical evidence could be used to show that race was a significant factor in decisions to seek or impose death sentences in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.  Accordingly, if the court found that race was a significant factor in such decisions in any one of the four relevant geographical areas, then “the death sentence imposed by the judgment shall be vacated and the defendant resentenced to life imprisonment without the possibility of parole.”

The RJA went on to set out a framework by which a defendant may prove that race was a significant factor in decisions to seek or impose the death penalty.  Since it is extremely rare, nowadays, to have direct evidence of racial discrimination, the RJA allowed defendants to prove disproportionate racial impact based on statistical data alone.  Of course, direct evidence, such as sworn testimony of attorneys, prosecutors, law enforcement officers, or jurors was still admissible in the rare case that it existed.

Furthermore, there were three different ways a defendant could employ statistical data to meet their burden of proof.  First, they could introduce evidence that “[d]eath sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of another race.”  This, of course, focuses on the race of defendants.

Second, they could demonstrate that “[d]eath sentences were sought or imposed significantly more frequently as punishment for capital offenses against persons of one race than as punishment of capital offenses against persons of another race,” which focuses on the race of the victims.

Third, they could show that, “[r]ace was a significant factor in decisions to exercise peremptory challenges during jury selection,” focusing on the race of the jurors who were excused.  This is the route Marcus Robinson took.

Therefore, based on the language of the RJA, a defendant could have his sentence reduced based on evidence that was in no way directly related to his case – that is, it was wholly irrelevant whether the particular jury that imposed the death sentence was biased in any way.  While this fact brought hope to many death row inmates, it prompted then Senate Minority Leader Phil Berger to point out that, “this law has little to do with justice and nothing to do with guilt or innocence.”

To be sure, the RJA was never intended to address concerns of guilt or innocence, but rather, it was aimed at maintaining the integrity of our justice system by eradicating racial discrimination within it, which unquestionably is a necessary and noble purpose.  However, after almost all of the inmates on death row in North Carolina (151 out of 158), many of whom were white, contested their sentences, and the Department of Justice estimated the costs for appeals at approximately $4 million dollars, and the Administrative Office of the Courts predicted the extra court fees for the first year between $2.4 million and $6.2 million, lawmakers began to question whether the RJA was the best method of redressing potential wrongs.

It was these facts that led to passage of SB 416 on July 2, 2012.  While technically it only amends the RJA, many lawmakers persuasively argue that it guts the Act so thoroughly that it renders it ultimately useless.  I must agree.

SB 416 makes four relatively minor changes, and one major one.  First, SB 416 defines “at the time the death sentence was sought or imposed” as ten years prior to the offense and two years after the sentence was imposed.  Second, it provides that defendants seeking relief must waive all claims of parole eligibility if their case is successful.  Third, it limits the use of statistical evidence to the county or prosecutorial district where the sentence was sought or imposed, rather than allowing general evidence of statewide discrimination.  Fourth, it removes the race of the victim from the equation altogether, allowing only for the introduction of evidence to show racial discrimination against defendants or potential jurors.

Finally, the one major change that effectively eviscerates the RJA can be found in §15A-2011(e), which reads, “Statistical evidence alone is insufficient to establish that race was a significant factor under this Article.”  As noted earlier, statistical evidence is typically the only kind of evidence that exists in cases falling under the purview of the RJA.  By inserting this provision, lawmakers have effectively ensured that one can never prove racial discrimination in jury selection, as no right-minding prosecutor would ever admit to excusing a juror because of his skin color.

Undoubtedly, eradicating all forms of discrimination should be a priority of the highest degree and one that is continuously pursued.  However, in a culture as rich and diverse as ours, this monumental task presents a slippery challenge.  Therefore, the means chosen to achieve this elusive end must be chosen with scrupulous exactitude; especially, when the choice is made by a handful of lawmakers tasked with balancing delicate issues such as capital punishment, justice for defendants, and justice for victims and their families.  As for the case of Marcus Robinson, I cannot help but wonder whether the parents of Erik Tornblom feel that the Racial Justice Act delivered justice for Erik.





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About Michael Hedgepeth, Former Senior Staff Writer (8 Articles)
Michael graduated from Campbell Law School in 2013 and from North Carolina State University in 2008 with a Bachelor of Arts degree in Economics and a minor in Business Management. Michael served as the Attorney General for the Student Bar Association. While at Campbell Law, he worked at the North Carolina Supreme Court as an intern for Justice Paul Newby, at the North Carolina General Assembly as an intern for Representative David Lewis, and as a Webster’s Scholar performing research for Professor Pat Hetrick. Michael was the 2013 recipient of the J. Bryan Boyd Award.
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