Racial Justice In North Carolina

Judge Finds Racial Bias In Death Penalty Sentencing

By Keith Kamisugi, cross-posted from Equal Justice Society

Just days before the 25th anniversary of McCleskey v. Kemp, a North Carolina judge today ruled that racial bias impacted the death penalty conviction of Marcus Robinson and re-sentenced him to to life imprisonment without possibility of parole.

This was the first case applying the historic and ground-breaking Racial Justice Act, enacted by the North Carolina General Assembly and Governor Bev Perdue to reject the influence of race discrimination in the administration of the death penalty. The RJA represents a landmark reform in North Carolina, a state which has long been a leader in forward-thinking criminal justice policies.

As reported by The New York Times, Judge Gregory A. Weeks of Cumberland County Superior Court said that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” at the time of the trial of the inmate, Marcus Reymond Robinson. The disparity was strong enough, the judge said, “as to support an inference of intentional discrimination.”

Judge Weeks found that prosecutors deliberately excluded qualified black jurors from jury service in Robinson’s case, in Cumberland County, and throughout the state.

Rob Thompson, one of the prosecutors in Cumberland County, said in his closing arguments: “They do not have evidence of purposeful discrimination. They do not have some secret society of prosecutors maniacally plotting to remove people from juries. They do not have any of that because there is no such evidence. It doesn’t exist. They have numbers.”

This prosecutor’s argument demonstrates the importance of EJS’s goal to replace the intent standard of the Fourteenth Amendment with a disparate impact standard. Instead of having to prove intent, criminal defendants could use statistical evidence of racial bias – the “numbers” referred to by the Thompson.

From the ACLU Blog of Rights: “The Robinson decision is really the first significant win since the Supreme Court dealt a blow to fairness in the death penalty 25 years ago this Sunday, ruling in McCleskey v. Kemp that statistical evidence of systemic racial disparities could not be used to overturn death sentences because such disparities were ‘inevitable.’ Today’s decision, and the RJA itself, stand as a powerful rebuke to the Supreme Court’s defeatist view of discrimination.”

To observe this tragic anniversary of McCleskey on Sunday, April 22, the NAACP Legal Defense and Educational Fund, Inc. (LDF) and the Equal Justice Society (EJS) joined with organizations across the country – including the ACLU Capital Punishment Project, the Capital Litigation Communications Project, the Center for Death Penalty Litigation Inc., the Death Penalty Information Center, Equal Justice USA, the Innocence Project, the National Coalition to Abolish the Death Penalty and the Proteus Fund – to raise awareness of how this landmark decision fundamentally threatens equality and opportunity in this country.

Together, we launched mccleskeyvkemp.com, a website that provides information about the ongoing crisis of race in criminal justice and offers information about specific activities that individuals and organizations can take to repeal the death penalty and ameliorate the racial disparities in the criminal justice system.

The site includes publications and reports, media articles, links to take action, as well as information about the LDF/Columbia Law School Symposium, “Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp,” which was held in March of 2007 to mark the 20th anniversary of the McCleskey decision.

Join us in the effort to raise awareness of this landmark decision that every day threatens the ideals of equality and opportunity in this country. Visit mccleskeyvkemp.com to learn more.

Photo Of The Day

President Obama seated in the bus in which Rosa Parks refused to give up her seat.

25 Years After McCleskey, Racial Bias Remains "An Inevitable Part Of Our Criminal Justice System"

Twenty-five years ago, the United States Supreme Court issued McCleskey v. Kemp, one of its more shameful decisions.  Despite overwhelming statistical evidence of systemic racial bias in Georgia's imposition of capital punishment, the Court upheld Warren McCleskey's death sentence.  It held that statistics proving a discriminatory effect were insufficient and that a showing of deliberate, purposeful discrimination -- a nearly impossible burden -- was required to establish a constitutional violation on equal protection grounds.  The majority 5-4 opinion, authored by Justice Powell, acknowledged that racial bias was "an inevitable part of our criminal justice system," but cynically concluded that if sentences stemming from such bias were tossed out it would call the entire system into question. 

I am not a fan of analogies to Nazi Germany, which in many ways was an incomparable horror.  But in the piece written below by my dear friend, the remarkable Denny LeBoeuf, the thought experiment she proposes is quite apt.  -- Lovechilde

If Germany Had The Death Penalty:  A Thought Experiment

By Denny LeBoeuf, cross-posted from the ACLU Blog of Rights

Imagine it's 1976. A high crime rate afflicts German cities, and the government reinstates the death penalty. "We'll have the strongest possible protections for people accused of capital crimes, providing them with free lawyers, right to experts, investigators, appeals to higher courts, and trial by a jury of their peers. This is not the Germany of the Nazi Party. We will never repeat those terrible errors."

Now imagine that 30 years later, statistical evidence shows that Jewish citizens disproportionately get the death penalty; crimes by Jews against Christians are more likely to be selected for a capital prosecution; Jews are routinely excluded from jury service. Further imagine that prosecutors defend all this by saying that Jews shouldn't sit on capital juries because they are mistrustful of German authorities, and that the German high court has ruled that statistical evidence of discrimination against Jews is inadmissible in a death penalty case.

You see where we're headed. My guess is that most people can't get past the second sentence of this thought experiment, let alone past the discrimination against Jews.

Bryan Stevenson, whose idea this is, asks this of America: "Do we deserve to have a death penalty?" If Germany does not — and they emphatically believe they do not — then why do we? Think the parallels are forced? Not accurate? Really?

Consider this: before the Civil War, crimes against Black people in the South were considered only as property crimes against their owners. The Supreme Court issued its Dred Scott decision in 1857, finding that Blacks have "no rights which the white man is bound to respect." Within a few years after the Civil War, the criminal justice system became an engine to produce bodies — Black bodies — to work in the same agricultural fields they had tended as slaves, and in the burgeoning industries of the post-Reconstruction South.



Doug Blackmon's Pulitzer-winning book, Slavery by Another Name, carefully documents the re-enslavement of Black Americans after the Civil War — by a re-tooled criminal justice system that charged, convicted and sentenced freed slaves and their children, grandchildren and great-grandchildren based on the need for free convict labor — not on guilt, innocence, culpability or fair procedures.

Meanwhile, as Black people were being targeted by the criminal justice system for undeserved punishment, the very same system was protecting the vigilante members of white supremacist domestic terrorist groups like the KKK and the Knights of the White Camellia, who were allowed to commit murder, arson and property theft in the open, without fear of arrest or prosecution.

So if a criminal justice system functions to protect white criminals (the Klan) and convict Black workers (for convict labor) with little or no regard for innocence or guilt, what is the one thing that system cannot accommodate? The equal participation in the system of Black people. That means no Black people on juries — by law for many years and by unlawful and unconstitutional discrimination after that. It also means shutting out statistical evidence of discrimination, no matter how explosive, careful and well-documented, that would prove the system — up to and including the sentencing of a person to death — is tainted by race discrimination. That's according to McCleskey, decided by the U.S. Supreme Court 25 years ago.

As a part of a coalition of capital defense attorneys, earlier this year ACLU Capital Punishment Project attorney Cassandra Stubbs participated in the first-ever hearing under North Carolina's Racial Justice Act, which aims to reverse the harm of McCleskey by allowing capital defendants to introduce statistical evidence showing race is a factor in the administration of the death penalty.
The lawyers are challenging the death sentence of Marcus Robinson, a Black defendant convicted for the death of a white person, who was sentenced to death by a jury tainted by a racially biased jury selection process.

Faced with overwhelming proof that Black people are continually excluded from death penalty juries in North Carolina, the prosecutors in Robinson's case argued, essentially, that Black people tend not to trust the criminal justice system, and don't believe in the death penalty as much.

Now back to the thought experiment. Prosecutors in North Carolina argue that Black people, who have been deliberately excluded from and discriminated against by America's criminal justice system since the Civil War, are less likely to trust that system, and therefore it's okay to continue to exclude them from participating in it. Now let's answer Bryan Stevenson's question: Does the United States deserve to have the death penalty?

The 65th Anniversary Of Jackie Robinson's Debut

By John Schachter, cross-posted from American Constitution Society

To many wise people, baseball possesses an importance beyond the comprehension of non-fans. Emotions and moods ebb and flow with the fate of our favorite teams. Baseball lingo fills our conversations, as we talk about a ballpark figure, a whole new ballgame, playing hardball, covering all the bases, stepping up to the plate and hitting it out of the ballpark. Or someone batting a thousand or being off base, something being bush-league or inside baseball. And, of course, people invoking the infield fly rule because of a routine and playable, if fair, pop-up in the infield with less than two outs and the bases loaded or runners on second and third. (OK, maybe that’s not as common.)

But baseball as hobby, diversion and pastime is merely one aspect of the game. The sport is sometimes so much more, a reflection of our times and our society, for better and for worse. This Sunday, April 15, will be a reminder of one of those “for better” examples. That day will mark the 65th anniversary of Jackie Robinson breaking the so-called color barrier and making his major league baseball debut. Teams and fans across America will celebrate Jackie Robinson Day to pay tribute to the son of Georgia sharecroppers who grew up to become an incomparable leader and symbol of civil rights challenges and advancement.

Humorist Dave Berry once pinpointed what he saw as a critical difference between the sexes. “If a woman has to choose between catching a fly ball and saving an infant's life,” Barry remarked, “she will choose to save the infant's life – without even considering if there are men on base.” While men and women may quibble over various aspect of the sport, there is virtual unanimity when it comes to recognizing the magnitude of Jackie Robinson’s role.

The Major League Baseball tribute to Robinson on his day includes all players wearing his uniform number 42, which has otherwise been retired by all teams. The league website devotes a page to Robinson’s story and his “immeasurable impact” on the game and beyond. The page salutes Robinson’s courage, commitment, determination, teamwork, persistence, integrity, citizenship, excellence, and quest for justice. Countless other adjectives could further describe Robinson.

Robinson’s career numbers are impressive enough. A .311 batting average, an on-base average of .409, nearly 200 stolen bases, a Rookie of the year Award in 1947 and a Most Valuable Player Award two years later when he hit a career-high .342 to go with 203 hits, including 38 doubles, 12 triples, 16 home runs, plus 124 runs batted in. But, of course, Jackie Robinson is so much more than his stellar statistics.

“If Jim Crow seems distant today, it is because of men like Robinson,” wrote Chris Lamb, a professor of communication at the College of Charleston. “We need to remember him for what he accomplished inside the white lines of baseball, but we also need to remember him for what he accomplished outside. His life teaches us that progress often depends on individuals willing to sacrifice themselves for something bigger.”

Few people can imagine the contemptible abuse Robinson faced when he joined the Dodgers, from fans, opponents, and even some teammates. Aside from the on-the-field challenges of beanballs and high-flying spikes aimed his way, Robinson had to deal with a steady flow of death threats in nearly every city to which the team traveled. But Robinson rose above the hatred and proved his critics and detractors wrong. His success made him an All-Star player and civil rights leader.

“There's not an American in this country free until every one of us is free,” Robinson said. He knew his success was but a small step toward a much grander goal. “The right of every American to first-class citizenship is the most important issue of our time.” Some 65 years after Robinson set foot upon his first major league field, the fight for freedom for all people continues. But thanks to his efforts along the way, we all have that much less to travel to see our ultimate goals achieved.

Robinson died far too early, at the age of 53 in 1972. He’s buried in Brooklyn next to his son and mother-in-law. His gravestone reads, “A life is not important except in the impact it has on other lives.”

John Schachter is the Vice President of Public Education and Outreach for American Constitution Society