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June 9, 2009

Bill addressing capital racial injustice making progress in North Carolina

More than two decades ago in the famous McClesky case, the Supreme Court suggested it was less able than legislatures to address systemic racism in the application of the death penalty. As detailed in this local article, headlined "Committee OKs bill meant to help defendants challenge death penalty," it appears that North Carolina's legislature is now moving forward on this project:

A bill that would establish a new pro­cedure for defendants to challenge the use of the death penalty advanced yesterday in the General Assembly.

The bill, known as the "North Carolina Racial Justice Act," was approved 7-5 by a committee in the state House.  It now moves to a different committee before coming up for a vote in the full House.  The Senate passed a previous version of the bill last month.

Supporters of the bill say it would give defendants and death-row inmates clear legal channels through which they could argue that the application of capital punishment was racially motivated, either on the part of a prosecutor who sought the death penalty or on the part of a jury that imposed the death penalty.  "It takes steps toward eradicating the problem of racial bias in the capital-punishment process," said Jeremy Collins, the campaign coordinator of the N.C. Coalition for a Moratorium....

Opponents say that the bill, while well-intentioned, goes too far because it would allow defendants to use statistical evidence from previous cases to show racial bias.  For instance, if a black death-row inmate proved that, in his county, other black defendants were significantly more likely than white defendants to be sentenced to death, that would be enough for a judge to throw out the inmate's death sentence.  The sentence would be converted to life in prison without parole.

State Rep. Sarah Stevens, R-Surry, argued yesterday that statistics can be misleading.  Simply showing racial disparities in overall death sentences is not an accurate picture, she said. "Who's committed the crimes?" Stevens asked.  "How many of the white race have created this murder? How many of the black race have created this murder?"

I know that Kentucky has an interesting death penalty racial justice act on the books, though I am not aware of much (any?) capital litigation it has impacted.  Similarly, I am not aware of many (any?) other states that have been working legislatively on these issues despite McClesky's shout out to state legislatures.

June 9, 2009 at 12:22 PM | Permalink


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The New Jersey Supreme Court adopted something similar judicially. They appointed a succession of special masters. Special Master Judge David Baime concluded: "The statistical evidence does not support the thesis that the race of the defendant affects the likelihood that he or she will receive the death penalty.... The statistical evidence does not support the thesis that the race of the victim affects the likelihood that the defendant will receive the death penalty." (Report to the Supreme Court, June 1, 2001)

Posted by: Kent Scheidegger | Jun 9, 2009 3:37:22 PM

Let's see--according to DPIC, NC currently has 167 death row inmates, 88 of whom are white and 65 of whom are black (and 14 others). That puts white offenders at over 50% of death row inmates. Given national stats, it's highly unlikely whites commit even 50% of the capital murders in NC.

Posted by: federalist | Jun 9, 2009 6:51:24 PM

I hate juries as much as the next guy. They are made up of the kind of people that hate America and show their hatred by not going to law school. But, wouldn't it be better to let juries decide these issues rather than legislatures.

Being able to make such arguments to the jury would allow a state to claim that they were raised and decided, so that the poor people that are convicted can't raise it on habeas. And nobody can disagree merits of putting poor scum on death row or in jail.

Posted by: S.cotus | Jun 9, 2009 9:50:55 PM

Federalist wrote: "Let's see--according to DPIC, NC currently has 167 death row inmates, 88 of whom are white and 65 of whom are black (and 14 others). That puts white offenders at over 50% of death row inmates. Given national stats, it's highly unlikely whites commit even 50% of the capital murders in NC."

Why do you suppose it is that blacks commit more capital murders per capita? Since we know this is a fact, what is the explanation for it? Are blacks just an inferior race or is there something external to inherent characteristics of people that cause crimes to occur? Let's talk.

Posted by: DK | Jun 9, 2009 11:51:43 PM

DK: Blacks do not have higher rates of antisocial personality disorder, the condition associated with criminality.

The lawyer has devalued the black crime victim.

The lawyer has deterred the police with ruinous litigation. So, the police do not show up in black areas, or they show up after everything is over. Black crime victims are on their own.

The KKK, a lawyer and judge founded and led fraternal organization, may have lynched 5000 people. This mass, genocidal murder had a business plan. The lawyer here will not tell you, but the lynching victims were rich. Their assets were seized and given to white people, including real property. (Can title ever quiet down if acquired by murder?) It was done in public, and postcards of the lynchings were for sale to send to family and friends. The lawyer prosecutor immunized this genocidal mass murder. It may have profited from the seizure of the assets.

OK. That was bad. But, the lawyers here should not get too uppity about it. The current system has caused an excess burden of murder that is 6 fold that of whites. That burden has resulted in more murders of blacks than those lynchings by an order of magnitude (10 fold or more). The rent seeking value and lawyer job creation from the murder of black folks far exceeds that of the wrongfully taken assets in lynchings, perhaps by far more than one order of magnitude, perhaps by 3 orders of magnitude.

Because the murder victimization greater burden takes place decade after decade, it has acquired the foreseeability of planetary orbits. That means this mass lawyer tort has scienter, and exemplary damages have justification.

I live in a lawyer neighborhood. An armed robber who wanders into it by mistake has police arrive in 2 minutes, blasting. The death penalty is for showing up, is at the scene, in a minute. It is only a few miles from a Fallujah like black area, where anything goes, and no one does anything about it.

Posted by: Supremacy Claus | Jun 10, 2009 6:27:00 AM

Hmmmmmmm......now let's see. Men commit a grossly disproportionate number of murders, and men receive a grossly disproportionate number of death sentences, therefore society must be biased against men.

And here I thought that men had been on top of the heap all these years. How could I have been so naive for so long??!!

And one more thought: What happened to the notion that the justifiability of MY punishment depends on what the facts are in MY case, as opposed to what happened in past cases unconnected to my behavior?

If the past ten cases in the courthouse resulted in erroneous convictions, should I therefore be acquitted no matter what the evidence is against me?

If it's group "justice" we want, instead of individual justice for the individual litigant, there are plenty of places to get it, starting with North Korea.

Posted by: Bill Otis | Jun 10, 2009 9:09:35 AM

If the prosecutor doesn't indict you for capital murder because of some irrelevant factor like race, then you are not getting sentenced based on the (relevant) facts of YOUR case. The prosecutor will not put his hand on a Bible and say "well I indicted Bill Otis for manslaughter because I usually only really push and go for the death penalty when a black person kills a white person." Therefore, to prove that an irrelevant factor is involved in the process, you need to use circumstantial evidence, including past patterns of activity. (Of course, a white defendant would have no incentive to prove he was treated unequally in the direction of leniency; any litigation would come from defendants who are members of racial minorities.)

It has nothing to do with you being less guilty or less blameworthy because of mistakes in other people's cases. It has to do with whether justice is being applied equally to you and to others. After all, your case doesn't exist in a vacuum. The "justifiability of YOUR punishment" depends in part on how other defendants are punished for similar acts.

Posted by: Anon | Jun 10, 2009 9:56:44 AM

Anon -- A serious enough argument, but incorrect in my view. It would be a burlesque of equality to say that, because some litigants have received undeserved leniency, all should. Such a view would put a premium not on ending error, but spreading it. Some things should be spread evenly; error is not among them.

Presumably no one here would say that, because some litigants have received undeserved harshness, all should. But from the standpoint of enforcing equality, the logic is exactly the same.

As Batson challenges illustrate, the courts are not required to take the prosecutor's word for it. Other CONTEMPORANEOUS evidence about the behavior of THE PARTICULAR PROSECUTOR is viewed as fair game, and properly so. But the behavior of different prosecutors in the past, handling factually unrealted cases, simply tells us nothing about whether this defendant received disfavored treatment from this prosecutor on account of race.

Posted by: Bill Otis | Jun 10, 2009 10:54:09 AM

Since blacks commit 48% of the murders in the USA in spite of making up just 13% of the population, isn't it quite predictable that they would be disproportionately represented on death rows across the nation? Aren't this bill and debate thus rather pointless?

Posted by: Alpino | Jun 10, 2009 5:49:59 PM

Bill: Your post above seems inconsistent with your view, stated in a different post, that "lottery justice ain't justice at all."

Posted by: one | Jun 10, 2009 6:08:55 PM

one -- There is a difference between reasonable discretion in sentencing, which is historically well-grounded, inevitable and desirable, and outright chaos, which is what crack sentencing has become with its untrammeled freedom to choose, based entirely on the judge's personal opinion, any ratio from 1:1 to 100:1.

Posted by: Bill Otis | Jun 11, 2009 12:19:38 AM

I think that y'all ignore the progress made in some parts of our country since 1965 or thereabouts. In the old Jim Crow days, when Congressmen were creeching about states rights and fuming against anti-lynching laws, the bulk of those who now are sitting on death row would be hanging from trees in public view. Emmett Till will look down upon all this and say Progress.

Posted by: mpb | Jun 11, 2009 10:12:35 AM

mpb -- Correct. The more on looks to historical patterns developed before the employment of the prosecutor handling any given case today, the more one is likeley to find evidence of discrimination that is no longer there.

Posted by: Bill Otis | Jun 11, 2009 10:54:17 AM

Does anybody have any experience with these North Carolina Lawyers ?

Posted by: Felix Chesterfield | Jul 17, 2009 1:21:09 PM

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