Must read: The N.C. Racial Justice Act and why it still matters in the fight to end the death penalty

[Editor’s note: On August 26th and 27th, the North Carolina Supreme Court will hear oral arguments in six death penalty cases involving the Racial Justice Act – a law enacted by the North Carolina General Assembly and Gov. Beverly Perdue in 2009 and later repealed after Republicans took control of the legislature and the Governor’s mansion in 2013. The following review of the law and its history was published recently by the North Carolina Coalition for Alternatives to the Death Penalty. Skip to the bottom of the article to read the coalition’s call to action.]

The Racial Justice Act: An overview

In 2009, after several innocent Black men were freed from death row, the North Carolina legislature passed the ground-breaking Racial Justice Act (RJA). The law allowed people on North Carolina’s death row to present evidence that racial bias played a role in their death sentences. Those who could prove discrimination would be resentenced to life in prison.

The law led to a statewide study, which showed that people of color are systematically excluded from serving on capital juries at more than twice the rate of whites—along with a trove of evidence that prosecutors were purposefully striking Black jurors in violation of federal law.

In 2012, the first four people to bring their RJA cases to court won and were resentenced to life in prison because of discrimination in jury selection. But their victory was quickly snatched away, even though the state was unable to refute the evidence of discrimination. The state appealed the decisions and the North Carolina Supreme Court, finding procedural errors in the first hearings, remanded the cases for new proceedings.

In 2013, the North Carolina General Assembly voted to repeal the RJA. Governor Pat McCrory signed the repeal into law. Soon after, a court dismissed the four cases that had been remanded for new hearings, saying they were no longer entitled to hearings because of the law’s repeal. The four defendants were returned to death row.

From death to life to death again

Now, the N.C. Supreme Court must make a key decision.

On August 26 and 27, the state Supreme Court will hear six cases under the RJA. The Court will be asked to decide whether those first four defendants are entitled to reinstatement of their life-without-parole sentences, or whether they should get new hearings to present compelling evidence of race discrimination in their cases. In two other cases, the Court will decide whether people on death row who filed claims under the RJA will still get the chance to present their evidence in court, even after the law’s repeal.

Of the six defendants, three were sentenced to death by all-white juries; one by a jury with one person of color. This mirrors state-wide discrepancies. At the time of the RJA’s passage in 2009, North Carolina was 34 percent non-white, but almost half of North Carolina’s death row prisoners had been sentenced by juries with no meaningful minority representation.

As the Court considers these six cases, the essential question is this: Will North Carolina confront overwhelming evidence of racial bias in the death penalty and protect the constitutional rights of jurors and defendants? Or will it throw away a mountain of evidence without addressing it, sending a message that discrimination doesn’t matter and thereby eroding the public’s trust in the system?

The evidence

The RJA study, conducted by researchers at Michigan State University, analyzed N.C. capital cases from 1990-2010. It found that qualified Black jurors were struck from capital juries more than twice as often as white jurors. The researchers controlled for factors, and the disparity was attributable only to race.

In addition, defendants found direct evidence of discrimination such as prosecutors’ notes about potential jurors’ races. The notes about Black jurors who were struck included descriptions such as “blk wino” and “thug.” They also found documents from a training session, in which N.C. district attorneys were taught to strike Black jurors for preposterous reasons such as their hairstyles, clothing, or body language.

The history

Black people have been denied the right to serve on juries throughout American history. Many Black men in America, in spite of their innocence, have been convicted and sentenced to death with charges brought by white prosecutors, tried in front of white judges, and before all-white juries. While citizens of color were once kept off juries by openly racist laws and policies, the discrimination is now more difficult to detect. Prosecutors use peremptory strikes to remove Black jurors, and are often not required to provide any explanation for why they struck those jurors.

Why it matters

The right to a jury of one’s peers is a fundamental Constitutional right. For most Americans, serving on a jury is, along with voting, the most direct way to participate in democracy. Studies also show that diverse juries deliberate more thoroughly and are less likely to convict innocent people.

Evidence of discrimination in each case

Despite a prohibition against prosecutors using peremptory strikes in a race-conscious manner, all of the defendants obtained evidence of racial bias in jury selection. Many of the cases also included deeply troubling evidence of other forms of racial discrimination during legal proceedings. These include:

• During jury selection in Tilmon Golphin’s case, a prospective African American juror heard two white jurors saying that Mr. Golphin “should have never made it out of the woods” [when he was taken into police custody]. The African American juror was struck, in part, because he reported overhearing these statements. It is unknown whether the white jurors who made the comments served on Mr. Golphin’s jury. Read Tilmon Golphin’s full brief.
• “In front of an all-white jury, the prosecutor explicitly drew attention to [Rayford] Burke’s race. In closing arguments, while urging jurors to find [Mr.] Burke guilty, the prosecution referred to [Mr.] Burke as a ‘big black bull.’” Read Rayford Burke’s full brief.
• In the courtroom in which Andrew Ramseur was tried, there was “crime scene tape” cordoning off the four rows behind him; his family, including his elderly grandfather, was literally required to sit in the back of the courtroom despite no reason being provided. Counsel moved to have the crime scene tape removed. After the Court initially denied the request, the tape was eventually removed, but Mr. Ramseur’s family was still required to sit in the back of the courtroom rather than behind him, without explanation. Read Andrew Ramseur’s full brief.
• The prosecutor in Quintel Augustine’s case wrote racially-charged handwritten notes about prospective jurors. He described a Black juror who drank as a “blk. Wino” but a white juror who drank as a “drinks–country boy–OK.” He described a Black female juror as “ok” because she was from a “respectable blk family.”  Read Quintel Augustine’s full brief.
• During jury selection in Marcus Robinson’s case, the prosecutor asked a Black high school graduate whether he had repeated any grades or had trouble reading – questions he had asked no white juror. The prosecutor later testified that he recognized that he harbors implicit racial biases.  Read Marcus Robinson’s full brief.
• At Christina Walters’ trial, the prosecutor struck 10 of 14 potential Black jurors, a strike rate of 3.6 times that of potential white jurors. Her explanations for why she struck Black jurors did not hold up to scrutiny. For example, the prosecutor struck one Black juror because he “did not feel like a victim” after his car had been broken into and a CD player stolen. Yet, she kept two white jurors who minimized the impact of their experience as victims of minor property crimes. Read Christina Walters’ full brief.

What friends of the court (otherwise known as amici) are aaying:

NAACP Legal Defense & Education Fund (full brief here)

After a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty, this Court can pave a new path for North Carolina’s judicial system that demonstrates an unequivocal commitment to fundamental fairness and racial equality. Especially with respect to juries, which are a crucial exercise of citizenship that is essential to the integrity of the judicial process, there simply should be no tolerance for the taint of racial bias….

No act by the North Carolina Legislature can wish away what we now know to be true from overwhelming statistical evidence: racial discrimination impermissibly influences the administration of North Carolina’s death penalty.”

ACLU Capital Punishment Project, ACLU of North Carolina, North Carolina Advocates for Justice, and NC Conference of the NAACP (full brief here)

Whether our state courts will tolerate epidemic levels of racial bias and discrimination in jury selection is a question of grave importance to both our State and the perceived legitimacy of the criminal justice system.

In light of the evidence uncovered under the RJA, there can be no real question about whether race played a role in defendants’ capital trials. The only question is whether this Court will squarely face the record and respond in a way that honors our Constitution.”

Promise of Justice Initiative and 12 former judges, justices and law enforcement officials (full brief here)

Capital punishment is now constrained to a dwindling handful of locations, reserved not for the most culpable offenders, but for those unlucky few prosecuted under anachronistic circumstances. In North Carolina, whatever standard method of measurement used, it is now beyond dispute that use of the death penalty is unusual. Indeed, use of capital punishment has dropped to such low levels that it would be hard to argue that it fulfills an indispensable role in the criminal justice system. And yet, the death penalty has an out-sized effect on our confidence in the fair administration of punishment.

Experience has taught us that while many prisoners undergo significant transformation, the death penalty leaves no room for the possibility of redemption. It thereby diminishes the dignity of human life that it was designed to enhance.

In every generation, there are those who counsel deliberation, patience, and a measured approach to the evolution of the standards of decency. But it comes at a cost: delay in addressing the constitutionality of capital punishment serves to further undermine and erode confidence in the administration of the system that capital punishment was once enacted to protect. The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency.”

What other North Carolinians are saying:

Shirley Burns, mother of son on death row (full article here)

Marcus should not be executed, especially not before the courts hold a fair hearing on the evidence that his death sentence came about in a racially biased manner. One judge has already found that such bias existed. Our Supreme Court, which is bound to fairness, now has a duty to all North Carolina citizens to make sure that this evidence sees the light of day.”

James E. Ferguson II, renowned NC lawyer and civil rights champion (full article here)

The one thing that could not be repealed was the evidence that was brought out in the cases that we tried under the Racial Justice Act. We showed that racism has been a defining factor in jury selection in capital cases. So, the repeal of the act doesn’t change the facts. Our courts have the power, when racism is demonstrated as it has been under the Racial Justice Act, to take action and make sure that we don’t have people going to the death chamber because race played a role in jury selection or any other aspect of the case. I hope they will use their authority to ensure a more fair system, one that is not tainted by racial prejudice.”

James Coleman, Duke Law Professor (full article here)

Study after study has shown that North Carolina prosecutors exclude qualified African-Americans from juries at twice to three times the rate they exclude white citizens. Prosecutors’ notes sometimes reflect their distrust of Black jurors. In one case, for example, a prosecutor tagged African-American jurors with notations such as “blk wino,” and “blk/high drug area.” This is not an isolated occurrence.

My point is not that North Carolina prosecutors are racists or bigots; most likely intend to follow the law. But we now accept as fact that implicit bias affects human decisions, regardless of our legal training or good intentions. However, in a world in which the practice of excluding African-Americans from jury service is longstanding and tacitly accepted by our courts, such bias is persistent.”

Floyd B. McKissick, Jr., NC State Senator (full article here)

The RJA was only the second law of its kind in the nation and it was the first to address race discrimination in jury selection. The RJA established that no person in North Carolina could be capitally-prosecuted or executed if racial bias was a significant factor in the case. The law was sorely needed in the wake of several exonerations of African-Americans wrongfully convicted and even sentenced to death by all-white or nearly all-white juries.”

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Help protect the Racial Justice Act! We need you to:

1. Attend the hearings and invite your friends. The NC Supreme Court will hear arguments in five of the cases on August 26, beginning at 9:30 a.m. and the sixth case on August 27, at 9:30 a.m. Watch on WRAL if you’re unable to attend in person.
2. Follow us on Facebook, Instagram, and Twitter and spread the word.
3. Write a letter. Your voice matters. Think local, think statewide, think about your regional newspaper, faith group, or book club. Share this site and share your thoughts on why capital punishment must come to an end.

Show up. Share. Let your voice be heard: North Carolina Must End This Racist Machinery of Death.