Two years ago, North Carolina did what just one other state in the country (Kentucky!) has done: it passed legislation intended to make sure that death sentences were handed down untainted by racial bias. The Racial Justice Act allows current death row inmates to appeal their death sentences on the basis of statistical claims of racial bias in the state. If they can demonstrate a pattern of bias, they stand to have their sentence reduced to life imprisonment.
At the heart of the act is the concept that the death penalty is a system, comprised of a network of influences, that remains potentially responsive to racial bias. Overt racial bias in law has been illegal for a while. What is at issue now, in regard to the death penalty as in regard to so many social, political, and economic issues, is whether race continues to exert an influence despite being de jure excluded from the process. The answer is an obvious yes. This study found that death sentences were handed down much more often when the victim was white. This one, too. This study demonstrates a long history of bias in North Carolina.
How can race worm its way into a legal system intended to be colorblind? Well, first, the death penalty in North Carolina is deeply rooted in slavery and it may be the only significant socio-political institution that remains relatively untouched by the vast changes that have taken place since then. When North Carolina was a slaveholding state, it kept two sets of laws on the books, one for blacks and one for whites. (Freed slaves were basically treated the same as enslaved blacks under capital law.) Blacks were not believed to be victims of crime in any real sense of the word, and thus crimes involving black “victims” were rarely considered crimes at all; if a black slave was killed, for instance, the victim was considered to be his or her master.
A lot has changed since then, obviously. But the numbers have remained chillingly steady–for most of the twentieth century, African Americans were sentenced to death in numbers vastly out of proportion to their population for crimes against whites by juries that were virtually all white. In the first half of the 20th Century, African Americans comprised nearly 80% of those executed in North Carolina. This troubling number was moderated by the new laws enacted in the 1970s, but more than half of those sent to death row in North Carolina since the mid-1970s have been African American. North Carolina’s black population hovers around 20%.
But even if we pretend that the history doesn’t matter here, race remains a presence in the courtroom. The victims of crimes that result in death sentences are overwhelmingly white. When the victims are not white, it is most often African Americans who receive death sentences for their crimes. In other words, whites are sentenced to death for killing other whites, but blacks are sentenced to death for killing both blacks and whites. The juries that hand down these death sentences are always majority white and sometimes all-white. Circumstances like these often result from apparently innocuous factors. For example, a member of a minority community may be more likely to know other members of their minority community than they would members of the majority community. And jurors can’t sit in judgment of someone they know. Thus, an effort at basic fairness in jury selection tips the scales toward potential racial bias, which is often unconscious. (For more on this issue and others, see the articles cited above.)
Oddly (or not-so-oddly), race scarcely enters into the discussion of why the act is being repealed. The lawmakers in the state’s first majority-Republican Congress since the 19th Century have complained (and their complaints are echoed by prosecutors) that the act clogs up the judicial system and inspires frivolous claims, including from white inmates unlikely to have experienced racial discrimination. That’s not the point, of course–the point is that whoever the defendant, North Carolina should not be making use of a system that operates under the influence of racial bias. Years ago, civil rights lawyers argued that segregated schools harmed both black and white students. There doesn’t seem to be much difference there, except the Civil Rights Act was not repealed in 1966.
Republican leader Paul Stam did nod at the issue, though, saying, “Justice is personal; it’s not collective.” Setting aside how deeply wrong that claim is, Stam meant (it seems) that each case should be evaluated on its merits, without regard to larger trends and, um, biases. Right on.