EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, July 5, 2012

Damned Lies & Statistics?: North Carolina Severely Scales Back Its Racial Justice Act

Back in May, I posted an entry about North Carolina's Racial Justice Act. At the time, I noted that

On April 20th, Superior Court Judge Greg Weeks issued a landmark ruling. That ruling, the first issued after application of North Carolina's Racial Justice Act, found that race was a significant factor in the prosecution's use of peremptory strikes in the trial of Marcus Robinson, an African-American defendant. Accordingly, Judge Weeks vacated Robinson's death sentence and replaced it with a sentence of life imprisonment without the possibility of parole.

North Carolina's Racial Justice Act, enacted in 2009, is the second of its kind in this country, coming on the heels of Kentucky's Racial Justice Act, which took effect in 1998. "But [the] American Bar Association said in a report it was unclear exactly how often [Kentucky's Act] has been used except for during the 2003 trial of an African-American man accused of kidnapping and killing his ex-girlfriend, who was white." Indeed, all indications are that Kentucky's Racial Justice Act is little more than a dead letter.

Conversely, in North Carolina, Marcus Robinson's life was spared a mere 3 years after the passage of North Carolina's counterpart, and "[n]early all of North Carolina’s 157 death row inmates have filed claims under the act." So, what explains the difference? The answer is the different types of evidence admitted under the respective acts, and, in this post, I want to make two points about this distinction.

As noted in Seth Koch and Robert P. MostellerThe Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031, 2116-18 (2010),

differences between the North Carolina RJA and the Kentucky legislation of the same name reveal how the North Carolina RJA avoids indirectly limiting the defendant’s use of statistical proof. The Kentucky statute indirectly limits the defendant’s use of statistical proof by its requirement of particularity in proof linking the statistical evidence to the defendant’s specific case. By contrast, the North Carolina RJA focuses the particularity of proof on how statistical evidence supports "a claim that race was a significant factor in decisions...in the county, the prosecutorial district, the judicial division, or the State." It requires the defendant "to state with particularity how the evidence supports" the claim that race was a significant factor in decisions of the prosecutor or jury in any of these geographical areas at the time of decision, focusing the particularity requirement on proof of the impact of race in one of those areas. Thus, compared to the Kentucky statute, the North Carolina RJA imposes a particularity requirement regarding proof as to the four relevant geographical areas and not the individual defendant’s case.

When a state passes an act that leads nearly all of its death row inmates to file claims, with the first of those claims being successful, you're going to get some push back. And that's exactly what happened on Monday with North Carolina's RJA being scaled back so that it now resembles Kentucky's RJA.

Previously, the North Carolina legislature had voted to neuter the state's RJA. Governor Beverly Perdue then vetoed the legislation that would have weakened the RJA. And then, on Monday, the North Carolina legislature overrode that veto. So, what does the new RJA look like? 

The new law limits defendants' use of statistics they think prove racial bias from a time span 10 years before a slaying and two years after a sentence. There had been no time limit. The new law also says statistics alone cannot prove race was a significant factor in a death row inmate's conviction or sentence. Statistics also are now limited to conduct of prosecutors near where the murder occurred, rather than anywhere in the entire state as the previous law allowed.

The argument against the earlier, broader RJA seems to have been that it was a back-door way to accomplish a moratorium on the death penalty. 

Defense attorney Sen. Thom Goolsby, R-New Hanover, said the 2009 law was a back-door way by death penalty opponents to end capital punishment.

"I don't trust are statisticians or people who come in after the fact to find some way to get cold-blooded killers off of death row," he said before the 31-11 override vote.

But others, such as Sarah Preston of the Noth Carolina ACLU, argued that

"By gutting the Racial Justice Act, our Legislature has turned its back on the overwhelming evidence of racial bias in our state's death penalty system...."

As I noted in my previous post, I strongly supported the earlier version of North Carolina's RJA. Was it, as Gollsby claimed, a back-door way to place a moratorium on the death penalty? I don't think so, but, if it was, is that such a bad thing? In Furman v. Georgia, the Supreme Court placed a moratorium on the death penalty because of concerns that it was selectively enforced against racial minorities and others. In the one case heard under the old RJA, such selective enforcement against racial minorities was established in large part through a study by Michigan State University School of Law Professors Catherine M. Grosso and Barbara O'Brien as well as University of Iowa Professor George G. Woodworth. Given the statistics uncovered by these experts, I'm all for a moratorium. Instead, given the Kentucky precedent, I'm not sure how much we'll be hearing about North Carolina's RJA in the future.



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