CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, July 27, 2010

Kotch & Mosteller on the Death Penalty and the North Carolina Racial Justice Act

Mostellerrobertp Seth Kotch and Robert P. Mosteller (pictured) (University of North Carolina (UNC) at Chapel Hill - Center for the Study of the American South and University of North Carolina (UNC) at Chapel Hill - School of Law) have posted The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina (North Carolina Law Review, Vol. 88, No. 6, 2010) on SSRN. Here is the abstract:

In August 2009, the North Carolina Legislature enacted the Racial Justice Act (“RJA”), which commands that no person shall be executed “pursuant to any judgment that was sought or obtained on the basis of race.” One of the most significant features of the RJA is its use of statistical evidence to determine whether the race of defendants or victims played a significant role in death penalty decisions by prosecutors and jurors and in the prosecutor’s exercise of peremptory challenges. The RJA commits North Carolina courts to ensuring that race does not significantly affect death sentences.

This article examines the RJA and North Carolina’s long struggle with race and the death penalty. The first part traces the history of race and the death penalty in the state, showing that racial prejudice exerted a consistent, strong, and pernicious influence on the imposition and disposition of death sentences. From colonial times into the 1960s, the overwhelming majority of those executed were African American, and although most victims and perpetrators of crime are of the same race, the overwhelming majority of victims in cases where executions took place were white. Hundreds of African Americans have been executed for a variety of crimes against white victims, including scores of African American men executed for rape. However, just four whites have been executed for crimes against African American victims, all murders.

Not only does data indicate disproportionate racial impact, but events show that race frequently influenced capital prosecutions. In many cases in the first half of the twentieth century, juries sentenced African Americans to death in the shadow of lynch mobs. Newspaper reports of executions of African Americans included overtly racist images. In some instances, fairness and mercy eased the pernicious effects of prejudice. However, history shows that whether dooming African Americans or saving them from death, racial prejudice played a powerful role in the death penalty in North Carolina, enduring across the state’s history despite enormous social and legal change.

The second part of this article examines major legal changes in the modern period that may limit the influence of racial prejudice by restraining discretion. It shows that discretionary determinations by prosecutors and jurors continue, allowing racial motivation - particularly unconscious racial prejudice toward defendants or empathy for victims - to influence decisions. Some racial disparities are less extreme but have not been eliminated, and troubling features continue. For example, jury participation by African Americans has remained limited in many cases, and the disproportion of white victims seen throughout North Carolina’s history is virtually unchanged.

The task of the RJA is to ensure that the strong link between race and the death penalty shown by history is finally severed. In its concluding section, this article analyzes how the key features of the RJA will operate. That analysis, together with the historical record and legal framework of the modern death penalty, provide insight into North Carolina’s effort to eliminate the effects of race from the operation of its death penalty.

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