North Carolina reversal on death penalty law reopens old discrimination wound

Trailblazing Racial Justice Act, repealed by new governor, allowed appeals of sentences based on racial bias

by Kimberly Johnson     September 12, 2013  5:00AM ET


When Benjamin McKinney found himself on the jury of a death penalty case in North Carolina in 1996, his focus was on the defendant and the evidence presented. He had no idea at the time the level of scrutiny prosecutors were placing on him, too.
McKinney had served in the military and worked for the same company for three decades. He has no criminal record and, by his own estimation, is an upstanding citizen. More than 15 years passed before McKinney, who is black and now 65, learned prosecutors attempted to strike him from sitting on the jury for the capital case because he was also a member of the NAACP.
“He’s a member of an organization which I strongly associate with being anti-state and anti-death penalty,” the prosecutor then told the judge. The request to strike him, however, was found unconstitutionally discriminatory and McKinney was allowed to serve. The jury ultimately found the defendant guilty.
“Come to find out all of this happened behind closed doors,” said McKinney, who was informed of the statements by the ACLU while it looked into cases of racial discrimination in capital trials. “It didn’t really matter about my character, it was all about the color of my skin. It kind of makes you lose faith in the court system.”

North Carolina death penalty
An undated photo of the death chamber at the Central Prison in Raleigh, N.C.N.C. Department of Correction/Reuters/Landov

Race continues to threaten the balance of justice in North Carolina, critics say, as a new law has gone into effect cutting off appeals of death row inmates charging racial discrimination.
In North Carolina’s criminal court system, McKinney’s situation is an outlier only in how much was divulged in court records. A study of jury selection in North Carolina capital cases conducted by Michigan State University, for example, found prosecutors used their right to peremptory challenge – the mechanism for striking potential jurors without giving a reason – to block black jurors from serving on death-row cases in the state twice as often as other potential jurors.
“In every analysis that we performed, race was a significant factor in prosecutorial decisions to exercise peremptory challenges in jury selection in these capital proceedings,” the study found.
The question of how far racial discrimination affects death-row cases led the state to enact its Racial Justice Act in 2009. Signed into law by then-Gov. Beverly Purdue, a Democrat, it allowed executions to be commuted to life sentences without parole if race proved to be a significant factor in imposing the death penalty in their cases. It was the first law of its kind in the country – one supported by those for and against the death penalty as a safe guard against flaws in the criminal system.
A new state law signed into effect in June, however, unravels all that.
Newly elected Gov. Pat McCrory, a Republican, quietly endorsed a repeal of the Racial Justice Act. The repeal shuts down appellate claims based upon racial discrimination and effectively turns the lights back on in the state’s execution chamber.
“The policy implementation of the law was seriously flawed. Nearly every person on death row, regardless of race, has appealed their death sentence under the Racial Justice Act,” McCrory said in a press release (PDF) after signing the repeal. “The state’s district attorneys are nearly unanimous in their bipartisan conclusion that the Racial Justice Act created a judicial loophole to avoid the death penalty and not a path to justice.”

Legal limbo

After the Racial Justice Act was enacted in 2009, appeals were filed by the vast majority of the state’s death-row inmates. While only four of those cases had been heard by the end of 2012, all four were able to successfully prove discrimination and the death sentences were commuted to life in prison without parole. More than half – 52 percent – of the 151 inmates on death row are black. North Carolina’s population, by comparison, is 22 percent black.
The Racial Justice Act forced “a very uncomfortable conversation about discrimination, and discrimination in particular against jurors,” said Cassandra Stubbs, senior staff attorney at the American Civil Liberties Union’s Capital Punishment Project in Durham, N.C.
There is “enormous widespread, epidemic discrimination against qualified jurors,” she said. “There is no sign that it’s going to get better.”
While North Carolina lawmakers’ repeal of the Racial Justice Act reignites the fierce debate about the role race plays in capital cases in the state, it also leaves those 150 death-row inmates who had filed appeals in legal limbo.
“They’re sitting there, and nobody knows what is going to happen with them,” Stubbs said. “I think we have very good constitutional due-process arguments,” she said. “The legislature cannot retroactively take away those rights.”
One case caught in limbo is that of Kenneth Rouse, who was convicted of murdering a convenience store clerk in 1992 and sentenced to die. Following his conviction, however, a juror admitted to a law student conducting research that he lied about his mother’s murder in similar circumstances years earlier in order to ensure he’d be selected for the jury.
“There are numerous factors which I feel could be more influential in making a legal decision aside from my mother’s almost forgotten murder,” juror Joseph Scott Baynard wrote in a signed affidavit. Under the handwritten scrawl he clarified what he meant: “Bigotry.”
“This is a case where a juror signed an affidavit saying that racial prejudice was very important in his decision,” Stubbs said. “It’s an extraordinary case in terms of the very clear proof of discrimination.”
Those claims, however, were never heard in federal or state court, she said. Rouse has no further appeal claims outside of the Racial Justice Act.
“If he does not have his Racial Justice Act claim, he will be executed,” Stubbs said. “And there’s no question that he’s on death row because of the racism of his jury.”

Color of justice

According to the Death Row Information Center, seven death row inmates have been exonerated in North Carolina since 1973. A national look shows wrongful convictions at a more rapid clip – an average of five death row inmates were exonerated per year in the U.S. from 2000 to 2011, according to the DRIC.
“And yet with all this evidence of a flawed justice system, you want to apply the most permanent penalty that anyone can receive,” said Rev. Dr. William Barber, president of the North Carolina NAACP. “Now we’re in the place of legal quandary, because the (Racial Justice Act) has been proven constitutional and necessary.”
Barber, who was a vocal advocate for the Racial Justice Act, takes issue with complaints that the appeals process has been misused.
“Just because somebody applied, that’s no rationale for pulling the law out. That’s the point,” he said. “You can’t deal with a systemic problem without looking at it systemically.”
“There’s a long history of discrimination and the death penalty in the United States,” said Samuel Gross, a law professor at the University of Michigan who focuses on criminal procedure and wrongful convictions. “Before the Racial Justice Act – and now after it’s been repealed – if you didn’t have evidence of the sort of thing that nobody ever says out loud, then you didn’t get to court. This was a major advance.”
For now, however, the fate of the Racial Justice Act rests in the courtroom.
“One thing that is known is there is going to be a lot of litigation about how this ends,” Stubbs said. “There will be plenty of work to do in North Carolina for capital lawyers.”
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