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February 6, 2012

NY Times editorial on "Race and Death Penalty Juries"

Today's New York Times has this new editorial discussing racial issues in the operation of the death penalty.  Here are excerpts:

North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.

A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias....

Under a 1986 Supreme Court case, it is unconstitutional for a prosecutor to strike any potential juror on the basis of race, ethnicity or gender. But the court allowed dismissals of jurors for other reasons — like their attitude toward the death penalty or even their demeanor. Prosecutors often use these reasons as pretexts to eliminate blacks from juries. North Carolina’s Racial Justice Act expressly allows consideration of a pattern across many cases. The study found a regular pattern of state prosecutors intentionally discriminating against potential jurors because of race, even though a judge had ruled that the potential jurors could be counted on to render a fair verdict and sentence in a death penalty case.

This bias is not news in North Carolina. Since colonial times into recent decades, racial prejudice has been a huge factor in the imposition of death sentences in the state. The Racial Justice Act, a response to that terrible history, uses statistical studies in regulating the death penalty, as the Supreme Court said legislatures could properly do in a 1987 case. Opponents of the law are battling to repeal it and have scheduled a hearing on it this week. The evidence of gross racial bias presented in Mr. Robinson’s case calls for commuting his sentence — but also for abolishing the death penalty in North Carolina.

February 6, 2012 at 09:02 AM | Permalink


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The sad irony is that
"The racial part was on (Robinson's) side," she said….a witness testified at the trial that Robinson said he was going to

"kill a whitey."


Posted by: Adamakis | Feb 6, 2012 9:26:10 AM

Adamakis --

It's not an irony. It's the whole point.

Posted by: Bill Otis | Feb 6, 2012 1:04:05 PM

Racial discrimination pervades our criminal justice system. Batson reversals are quite frequent.

Prosecutorial racial discrimination is particularly prevalent in capital cases.

Should discretionary death penalty charging decisions be left to prosecutors whose discrimination is manifested over and over again during the jury selection process?

Posted by: Calif. Capital Defense Counsel | Feb 6, 2012 6:04:31 PM

CCDC, you really don't seem to be all that precise. Good thing you litigate in front of friendly courts. Prosecutors are certainly able to "discriminate" on the basis of demeanor, criminal history and all sorts of things. My guess is that you glide over the distinction.

Posted by: federalist | Feb 6, 2012 9:18:53 PM

Obviously in North Carolina, the powers that be don't want the DP anymore. The Racial Justice Act, the lethal injection delays going on 6 years now, and the mental retardation cases that have reduced 17 death sentences to life speak for itself.

Posted by: DaveP | Feb 6, 2012 10:06:02 PM

Federalist - You dwell in a fact-free bubble.

The California Supreme Court is not a "friendly" forum from the perspective of attorneys who represent the condemned. Take a look at the statistics. (Rose Bird is no longer the CJ of the Cal. Supreme Court, and she hasn't been for decades.)

With respect to precision, discrimination in the Batson context is a very specific type of discrimination.

Wake up.

Posted by: Calif. Capital Defense Counsel | Feb 7, 2012 2:33:46 AM

There was a NYTimes article (by Shaila Dewan) a few months ago talking about the paucity of Batson reversals in some states, one of which was North Carolina. So that means you couldn't have been talking about NC. So I guess I misunderstood you--you think that Batson problems generally mean that all prosecutors (whether they have a Batson problem or not) should not be able to make the DP charging decision? Wow. I think I may be forgiven for misunderstanding you, given the import of what you meant.

But wait a minute--since we've already established that a flawed conviction of an innocent on any charge is worse than a flawed death sentence for a guilty murderer, then you have to support the idea that prosecutors don't get to make any charging decision.

You really weren't all that precise.

Posted by: federalist | Feb 7, 2012 9:19:11 AM

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