A Criminal Enterprise

Expansive Possibilities for Relief Under the N.C. Racial Justice Act

Posted in Uncategorized by Bidish J. Sarma on August 21, 2009

On August 11, Governor Perdue signed into law a bill that enables capital defendants in North Carolina to challenge their death sentences based on evidence that race played a significant role in the determination of the punishment.  The Racial Justice Act’s passage culminates years of hard work by attorneys and legislators who want to expose the death penalty’s prominent racial dimensions.

The law provides a legislative solution to the problem created by the United States Supreme Court’s decision in McCleskey v. Kemp.  In McCleskey, the Court held that statistical evidence of racial disparities in capital sentencing could not establish the finding of intentional discrimination needed to prove a violation of the Equal Protection Clause.  The Racial Justice Act obviates the need to prove intentional discrimination – something that is notoriously difficult to demonstrate.  Instead, a litigant can persuade a court either to preclude the state from seeking the death penalty or to overturn a sentence if “the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.”

The Act allows defendants to marshal “statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system” to meet their burden of proving that race was a significant factor.

Perhaps the most intriguing aspect of the Act is its unmistakable breadth.  First, race need not mean the defendant’s race.  A litigant could use statistical evidence that the race of the victim – not the defendant – played a crucial role in the State’s decision to seek death or the jury’s decision to impose it.  Such evidence could lead courts to strike down the sentences of white death row inmates as well as minorities.

Second, a judge can overturn a defendant’s death sentence if she finds that race played a major role in decisions to seek or impose the death penalty in the State as a whole (but not necessarily the defendant’s local jurisdiction).  Given the widespread evidence that race-of-the-victim has statistical significance in death sentences across the entire state, any defendant convicted of killing a white victim may have a colorable claim to relief.

Third – and most interestingly – the legislation may provide relief to defendants even if race seemingly played no role in his particular case.  In other words, that race played a role in other cases by itself could be enough – even if the defendant’s case shares no similarities at all with those other cases.  Presumably, individuals convicted of killing white defendants will be able to rely on race-of-the-victim evidence to make a somewhat ‘particularized’ claim.  Similarly, African Americans and other minorities may also be able to mount the claim that the State has discriminated against individuals of their same race.  However, even a white defendant convicted of killing an African American victim might be saved.  How?  The Racial Justice Act does not impose a ‘nexus’ or ‘similarity’ requirement.

The Act’s language is mandatory: where a judge “finds that race was a significant factor,” the judge “shall” grant relief.  Therefore, some judges may be more hesitant to find that race was a significant factor where the case at bar shares no similarities with the cases upon which the defendant relies.  But, if judicial hesitation stems from the lack of similarities between this case and the others, it will be unfounded.  The Racial Justice Act provides relief to all.

Because some judges may prove reluctant to give relief to someone who has not shown a ‘particularized’ racial influence in his case, it may behoove defendants to articulate the specific harm they suffer.  It would be interesting to hear a white defendant convicted of killing an African American victim articulate how discrimination against others in the administration of the death penalty has negatively impacted him.  Perhaps being compelled to participate in a system that oppresses others qualifies as its own dignitary harm?  Or, maybe a racially-motivated system is inherently suspect.  Such a system may seek the death penalty in this case to provide cover… to level out the statistics (in the same way that some racist prosecutors allow one African American juror to serve in order to buttress their claim that they did not strike potential jurors on the basis of race).  These “system-sanitizing” cases are just as flawed and reprehensible as the racially-motivated sentences imposed on minorities or those who kill white victims.  A racist system may raise the inference that race always matters, even in those cases that seem to restore the balance.

There is no doubt that the Racial Justice Act has the potential to cause massive headaches to prosecutors (even the honorable ones) all across North Carolina.  However, until the capital sentencing system becomes less arbitrary and more rational, the State rightfully bears the burden of these headaches.  North Carolina’s Racial Justice Act will help ensure that race – in any shape or form – no longer permeates its capital cases.

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