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North Carolina Moves Against Executions Based on Race

Brian Stull,
Senior Staff Attorney ,
ACLU Capital Punishment Project
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August 11, 2009

“Ain’t it a great day in North Carolina!” North Carolina General Assembly Representative Larry Womble celebrated with these words this morning, moments before North Carolina Governor Beverly Perdue signed into law a bill Rep. Womble championed entitled the “Racial Justice Act”. The bill will allow criminal defendants facing the death penalty to introduce statistics as evidence of impermissible racial discrimination in their capital sentencing proceedings.

North Carolina joins only Kentucky in passing legislation that says, as a matter of state law, proof of systemic racial discrimination in capital sentencing decisions may be introduced in challenges to a death sentence or capital prosecution.

North Carolina’s progress in developing its own law to fight racial discrimination in capital sentencing is significant because the Supreme Court, in a 5-4 decision called McCleskey v. Kemp, ruled 22 years ago that statistical evidence of systemic racial bias may not be used to challenge a death sentence under federal constitutional law: such a challenge requires, instead, proof of that the individual decision makers in a particular case acted with racially discriminatory purpose.

The Supreme Court’s decision in McCleskey was startling. The court’s ruling effectively condoned substantial racial disparities in Georgia’s use of the death penalty, proven by sophisticated statistical analyses which the court accepted as true. These statistics showed that, after controlling for nonracial factors, a person convicted of killing a white person was 11 times more likely to receive the death penalty than a person who killed a black person, and that convicted killers of white victims faced odds of being sentenced to death that were 4.3 times higher than the odds faced by convicted killers of African-American victims. (When later asked by a biographer if he could change his vote on any decision, the author of this opinion, Justice Lewis Powell, replied: “Yes. McCleskey.”).

Although we are living in what some commentators call a post-racial society since the election of President Obama, we have yet to heed Martin Luther King Jr’s admonishment to judge people by their character and not the color of their skin. Regrettably, the racial discrimination shown in McCleskey continues to play a substantial role in the decision of whom states choose to execute.

In North Carolina alone, three African-American men in the last two years have been exonerated from death row after being false convicted of murders involving white victims. That list includes Levon “Bo” Jones, who served 16 years on death row for a murder against a white man that he did not commit. Jones was represented by the Capital Punishment Project. Similarly, the findings the Court considered in McCleskey are not limited to Georgia 20 or more years ago. A study done at University of North Carolina -Chapel Hill several years ago found that a defendant’s odds of getting the death penalty in North Carolina increased by 3.5 times if the victim is white.

Passage of the Racial Justice Act constituted an enormous victory for civil rights activists, concerned religious leaders, and other advocates. The victory took years of organizing and hard work, against a determined opposition.

And passage was particularly gratifying for the Capital Punishment Project and ACLU of North Carolina. The legislators and advocates who spoke at the bill-signing ceremony today acknowledged Sarah Preston, the ACLU of North Carolina’s legislative counsel for her hard work on the bill. They also recognized our client, Bo Jones, for the part he played in drawing attention to this issue. Finally, the chief advocate for this bill statewide was the Reverend William J. Barber, II., the President of the North Carolina NAACP, whom the ACLU of North Carolina honored this past November with its Paul Green Award for Efforts to Abolish the Death Penalty.

Yes, indeed, a great day in North Carolina.

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