Death Row Inmates Get Reprieve with Racial Justice Act

North Carolina has been in the news recently, and not in a good way.

It made headlines when figures released by Public Policy Polling showed that only 24 percent of Republicans in the state believe that Barack Obama was born in the United States. Adding Democrats and Independents only brought the number up to 54 percent.

What an easy punchline, a political footnote that played into regional stereotypes.

What didn't get nearly as much notice was news that North Carolina put a law on the books to combat racial disparity in sentencing. The Racial Justice Act would allow defendants in death penalty cases and death row inmates the right to challenge prosecutions on grounds of bias. They could use statistics and trends of racial disparities in death sentences, and judges could consider that evidence, as well as testimony, to change a death sentence to life in prison without parole or stop prosecutors from filing a death penalty case to begin with.
Kentucky passed a similar bill in 1998. Several other states have policies to prevent racial bias in the trial process, such as in jury selection.

In North Carolina, Gov. Bev Perdue, who said she supports the death penalty, signed the bill. She said in The Charlotte Observer: "The Racial Justice Act ensures that when North Carolina hands down our state's harshest punishment to our most heinous criminals, the decision is based on the facts and the law, not racial prejudice."

The Rev. William Barber II, president of the NAACP North Carolina State Conference, said passage of the act "is a major step not only in North Carolina but potentially in the South for dealing with the continuing legacy of systemic racism in the application of the death penalty."

Not all agree that the new law is a good thing. Mecklenburg District Attorney Peter Gilchrist told the Observer that while nobody should be prosecuted based on race, he fears the measure will make prosecutions more difficult. "We make our decisions based on the facts – not on the race of the defendant or the victim," he said.

Studies have shown that the race of the victim is a determining factor in deciding death penalty cases. It is true in the Carolinas and in the country that killers of whites were more likely to end up on death row than those who killed blacks. A study released by Common Sense Foundation and the North Carolina Council of Churches, based on the work of University of North Carolina at Chapel Hill academics, showed it was three and a half times more likely that the death penalty would be imposed in the state when the victim was white.

The U.S. Supreme Court has weighed in on the issue, ruling that death penalty laws are constitutional even when statistics indicate they have been applied in racially biased ways. But it said states can enact laws like the new Racial Justice Act.

Prosecutorial misconduct in North Carolina – three black death-row inmates have been exonerated in recent years – helped spur support for the newly signed measure, which made it out of the state House in 2007, but sat in the Senate. The three freed men were among those who lobbied for the bill this time around.

There does not seem to be much enthusiasm for the death penalty in North Carolina, though 163 inmates sit on death row. The North Carolina Medical Board had adopted a policy threatening disciplinary action against physicians taking an active role in executions, though the state Supreme Court ruled 4-3 in early May that the board exceeded it authority. The last execution was three years ago, and polling shows public support declining, though the majority in the state and the nation still support capital punishment.

Since a 1976 ruling by the U.S. Supreme Court reinstated the death penalty after a four-year moratorium, science has added to doubts about the fairness of the ultimate punishment. The Innocence Project was founded in 1992 to help prisoners prove their innocence with DNA testing; so far, more than 240 people have been exonerated. Seventy percent of them, according to a report on the Innocence Project blog, were people of color.

In one well-publicized case – the subject of the 2006 documentary, "The Trials of Darryl Hunt" – North Carolina's Hunt was twice convicted and served more than 18 years in prison for a rape and murder he didn't commit. He served 10 of those years, working on legal appeals, even after DNA tests cleared him. A man whose DNA matched evidence found on the victim later confessed to the crime.

Hunt says he was one juror vote away from getting the death penalty.