There’s a simple assumption at the heart of North Carolina’s Racial Justice Act (RJA), which allows death row inmates to present statistical evidence to support the contention that race discrimination played a part in their case and possibly have their death sentence converted to life in prison without the possibility of parole. That assumption is this: whether or not a convicted murderer gets the death penalty should be based on his crime and his character, and not on his race.

We don’t execute every guilty murderer — far from it. We have a system of laws that is supposed to help juries decide who are the “worst of the worst,” and race discrimination should have no place in it.

Yet race discrimination has often played a role in capital prosecutions, and sometimes in an unexpected place: jury selection. There are other ways that race can affect a death penalty case (for example, there is ample evidence that the race of the victim or the defendant can influence the outcome), but the first hearing under the RJA, which began last week in Fayetteville, North Carolina, and continues this week is focused on faces seldom seen until now: those of people of color wrongly excluded from jury service. You can hear the stories of three such North Carolinians in this new ACLU video.

I have been attending the hearing, during which the defense team for death row prisoner Marcus Robinson has introduced its proof that the big ugly thumb of racism had been pressed on the scales of justice when the jury that would hear the case against Robinson was selected.  As a New York Times editorial noted today, that evidence included studies that “found a regular pattern of state prosecutors intentionally discriminating against potential jurors because of race.”

Days of damning statistical evidence of race discrimination in jury selection gave way to the testimony on Thursday of Professor Bryan Stevenson, an expert on race prejudice in capital cases.  His hours on the stand, questioned by Cassandra Stubbs of the ACLU’s Capital Punishment Project, were among the most riveting I have ever spent in a courtroom. In his testimony, Professor Stevenson took an absorbed judge, a rapt courtroom full of citizens, lawyers and students, a disciplined defense team and an uncomfortable prosecutor through the realities of being a black potential juror in a capital case in the South. He talked about former post-slavery laws that prohibited African-Americans from serving on juries at all, particularly in criminal cases, and laws that required that a juror be “upright and intelligent,” often interpreted by prosecutors to mean a white man. Over and over, his words packed a wallop.

One of the unexpected findings of Professor Stevenson’s research into race discrimination and the death penalty was “the tremendous sense of hurt” felt by potential jurors who suspected that they were struck from a capital jury because of their race. He talked about how that hurt affects those individuals and their communities, and told of one excluded juror who said he had been “trying his whole life to be acceptable to the kind of people making these important decisions” only to be told afresh that he was not. 

Excluding people of color from a system meant to protect the community does harm both the excluded individuals and the larger community. The RJA attempts to correct the worst effects of that harm by disallowing the execution of a person like Marcus Robinson whose jury was tainted by racial exclusions. 

Or better yet, as the Times suggests, the evidence of racial discrimination in death penalty cases in North Carolina and elsewhere is another very good reason to abolish the death penalty altogether.

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Unless Edwin Hart Turner gets clemency from the governor or a last-minute stay, he will be executed on February 8 by the state of Mississippi.

Turner murdered two men in botched hold-ups. His attorneys do not claim that he is innocent of their murders, and no one can diminish the tragic loss to two families. But executing Turner should be off the table: he is severely mentally ill, and it violates the Constitutional prohibition against cruel and unusual punishment and international human rights law to execute the mentally ill. Virtually every mainstream organization representing mental health experts and families of the mentally ill says so, and the American Bar Association (which does not take a position on the death penalty itself) agrees.

Turner is and was unquestionably mentally ill. He suffered in such an obvious and unmistakable way from his illness that the kids in my neighborhood would have called him “crazy.” When he was 18 he tried to shoot himself with a rifle, suffering such disfiguring wounds to his face that he thereafter wrapped a bath towel around his head, refusing to eat or drink even in front of his family because to do so he’d have to remove the towel. He wore it the night of the robberies and killings, which of course made him immediately identifiable.

Hart Turner came by his mental illness both by genetics and environment. His family has a history of psychosis and suicide, and his childhood was marked by abandonment, loss and violent abuse. He was hospitalized a number of times for mental illness, including a three month court-ordered stretch after another suicide attempt in his early twenties. In the six weeks between that hospitalization and the night of the homicides, he got sicker and sicker, staying up all night, crying uncontrollably and telling his friends that he was worried that something bad would happen. The crime itself was irrational, as Turner had no need of money. He had no criminal history. The jury that sentenced him to death heard almost none of this.

In 1765, the great Sir William Blackstone wrote in his Commentaries on the Laws of England that a law enacted in Henry VIII’s “bloody reign” permitting the execution of a madman was “savage and inhuman” and rightly repealed by the enlightened members of his own century. Those same 18th century Englishmen used to go for entertainment to the notorious Bethlehem Royal Hospital – better known as Bedlam – to stare at the “lunatics” held captive there. We’ve come a long way in our understanding of mental illness and the deep and terrible pain it inflicts on sufferers – but not far enough, at least not in Mississippi. Most mentally ill people are not violent. Those who are should not be executed.

If you live in Mississippi, take action today. Call Governor Bryant and urge him to stop the execution of Hart Turner. To learn more about mental illness and the death penalty, go here.

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Delaware Governor Jack Markell made history today when he announced that he would commute the death sentence of Robert Gattis to life in prison. Two days ago, the Delaware Board of Pardons for the first time in its history recommended that the death sentence be commuted. Gov. Markell cited that “unusual and perhaps historic” recommendation when he made the announcement.

Robert Gattis was convicted and sentenced to die in 1992 for the murder of his girlfriend Shirley Slay, and was scheduled to die by lethal injection later this week. Serious questions had been raised about the severity of the sentence, and a number of issues led opponents of the death penalty and others — the Delaware News Journal editorialized in favor of clemency for the first time in its history — to call on the governor to commute Mr. Gattis’ sentence.

They are some of the same issues that come up all over the country when problems with the death penalty system are analyzed and debated:

• The evidence of the horrible physical and sexual abuse that Mr. Gattis suffered from the time he was a small child was never consider by a jury or the sentencing judge, as it would be if the case were tried today. By the time appellate attorneys discovered this evidence and tried to introduce it, the judicial process was too far advanced andprocedural obstacles were too high to surmount.
• Gattis was not the “worst of the worst” and his sentence was unduly harsh. There were at least sixteen Delaware murder cases with similar, or more egregious, facts that resulted in life in prison without parole or a lesser sentence. Of these 16 cases, five where death penalty cases, at the end of which the jury and/or the judge decided that death was not an appropriate punishment.
• The jury verdict in the Gattis case was not unanimous. Back in 1991, the state legislature changed the system to allow the judge to make the final decision on death with a less-than-unanimous jury vote — a system that is only followed by Delaware, Florida and Alabama.

Clemency is an intricate and necessary part of a fair and impartial system of justice and the Gattis case is a perfect example of why. We applaud Gov. Markell for making this important decision.

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As 2011 comes to end, we’re taking a look back at the year in criminal justice. Over the next few days, we’ll run a series of blog posts on the developments, good and bad, that have shaped our justice system – from overincarceration and sentencing policy to the treatment of prisoners and capital punishment. Read the series here.

In reflecting on the last year in the criminal justice world, it’s easy to recall the bad – even sometimes devastating – milestones. Across the nation, we continued to see reliance on overincarceration and the private prison industry. The U.S. Senate failed to adopt (by 3 votes) an important amendment that would have created a bipartisan commission to study our criminal justice system and suggest reforms. In Georgia, Troy Davis was executed despite overwhelming doubt about his guilt, and in North Carolina the legislature voted to repeal the historic Racial Justice Act (which, thankfully, has been saved for now by Gov. Bev Perdue’s veto of that shameful vote). It’s true – the year was not without its grave injustices. But we can’t ignore the many good things that happened, either. As we head into 2012, let’s take a moment to celebrate the successes.

This year, we continued to see a steep decline in death sentences and executions in the United States, a trend we’ve observed over the last few years. Public support for the death penalty is at an all-time low, as more people recognize safe sentencing alternatives to the death penalty like life without parole and realize that the exorbitant costs of seeking the death penalty are simply not worth it.

In November, we got the welcome news that the state of Alabama will not appeal a ruling ordering a new trial for ACLU client Montez Spradley, who was sentenced to death despite inadequate and very weak evidence, after his trial judge rejected the jury’s 10-2 vote for a life sentence .

The confederate flag, deliberately adopted as a symbol of white race domination and control, no longer flies on the steps of the Shreveport, Louisiana courthouse. In November, Caddo Parish commissioners voted 11-1 to take it down, after litigation charging racial bias in several death penalty cases argued under the flag got the attention of the Louisiana Supreme Court and the national media. This is not the end of the story, but, as Rachel Maddow said, it is definitely good news.

In March, Illinois Gov. Pat Quinn signed into law Senate Bill 3539, ending Illinois' dysfunctional and broken death penalty system. The measure ends an embarrassing history in Illinois, during which 20 men sentenced to death have been exonerated and released from the state's death row.

Expressing regret that he allowed two executions to go forward 10 years ago, in November Oregon Gov. John Kitzhaber put a moratorium on the state's death penalty and granted a reprieve to a man scheduled to be killed in two weeks by lethal injection.

Adrian Estrada, an ACLU client whose death sentence was thrown out last year after the highest criminal court in Texas ruled it was based on the false testimony of a state expert, was resentenced this year to life in prison. He is one of many death row inmates whose lives have been spared by evidence of an unfair conviction.

Thanks in large part to the advocacy of the ACLU and the ACLU of Southern California, the nation finally took notice of the high levels of prisoner abuse in the LA County Jails, leading Sherriff Lee Baca to agree to an independent investigation.

Four states — Hawaii, Rhode Island, Idaho and Nevada — passed laws to eliminate the inhumane and unconstitutional practice of shackling pregnant women during labor and childbirth. In more good news, a federal jury in Tennessee awarded Juana Villegas $200,000 as compensation for the suffering she endured when the Davidson County Sheriff's Office unconstitutionally shackled her to her delivery bed in 2008. Meanwhile, just across the state line, the Virginia Department of Corrections agreed to implement regulations prohibiting the shackling of pregnant inmates during labor and post-partum recovery.

In 2010, the Federal Sentencing Act (FSA) decreased the unfair disparity between the mandatory minimum sentences for crack versus powder cocaine offenses to from 100-to-one to 18-to-one. While an unacceptable disparity remains, the change was an important first step toward fairness. This year, the U.S. Sentencing Commission took another step when it decided to apply new sentencing guidelines under the FSA retroactively. Beginning this year, those who were given an unfairly harsh sentence for crack possession under the old law can now apply for sentence reductions under the new guidelines. More than 12,000 people — 85 percent of whom are African-American — will now have the opportunity to have their sentences for crack cocaine offenses reviewed by a federal judge and possibly reduced. Especially close to our hearts, our client Hamedah Hasan will see her unconscionably long sentence reduced.

After a decade of New York City police officers unlawfully arresting large numbers of New Yorkers for carrying small amounts of marijuana in their pockets or bags, marijuana arrests in the city have finally declined 13 percent. This news is bittersweet: while it’s good to see the arrest numbers decline, 13 percent isn’t nearly enough of a drop. Clearly, the NYPD needs to commit more resources to training and monitoring officers to finally end the marijuana-arrest crusade.

In June, Ohio passed criminal sentencing reform. The ACLU of Ohio has been on the front lines advocating for sensible sentencing reform that would alleviate the state's overcrowded prison system. The bill will expand the availability of sentencing alternatives for low-level, nonviolent offenders; make uniform statewide standards for probation and parole; and correct sentencing disparities for crack and powder cocaine.

Our work to expose the sexual abuse of immigration detainees helped bring significant pressure on the Department of Justice, Department of Homeland Security and the White House to protect detainees by making sure they are covered by the Prison Rape Elimination Act.

The End Racial Profiling Act (ERPA) was introduced in the U.S. House. The ACLU submitted a statement to the Judiciary Subcommittee, highlighting why Congress should end racial profiling by passing the law.

2011 was not without its share of sadness and disappointment in the criminal justice world, and there is much to do in 2012. But with so many advocates working tirelessly for reform, and with so much progress in so many areas, it’s impossible to be without hope.

UPDATE: This post has been amended to include mention of our work to end sexual abuse in prisons.

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