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Racial justice? Bill that may be voted on this week would allow judges to throw out death penalties
On left: Ramona Stafford holds a photo of her first husband. On Right: Rep. Larry Womble
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Published: July 12, 2009
RALEIGH
When Ramona Stafford's husband was murdered in Winston-Salem in 1993, she didn't care about the killer's race.
She just wanted him punished to the fullest extent of the law.
"This fellow was black. But our family just wanted the person that did this. We just wanted justice and punishment," Stafford said. "Race, nationality, whatever, doesn't come into play."
Her husband's murderer, a defiant 21-year-old named Robbie Lyons who admitted the crime but never expressed remorse, was convicted and given the death penalty. Nearly 10 years later, with Stafford looking on, he was strapped to a gurney, wheeled into the state's execution chamber and given an injection that killed him.
A black defendant. A white victim. For Stafford, race wasn't an issue. But for critics of the death penalty, it can't be ignored.
That's the thinking behind a bill under consideration in the state legislature that could change the way the death penalty is applied in North Carolina. The bill, known as the Racial Justice Act, would allow judges to throw out the death penalty in a specific case if they found a trend indicating racial bias in other cases. The bill is up for a key vote in the N.C. House this week.
Supporters say the bill is needed to address a legacy of racial disparities in how the death penalty is applied, both nationwide and in North Carolina. In their view, no single death-penalty case can be fairly evaluated without considering the historical relationship of race and capital punishment.
"You can't just look at an individual case, because each capital case is a microcosm of the entire criminal-justice system," Mark Rabil, a capital defender in Winston-Salem, said.
As a legal matter, the argument behind the Racial Justice Act is controversial. It was rejected by the U.S. Supreme Court in 1987. And it's rejected by most prosecutors, who insist that cases should be decided only on their own facts, without reference to historical patterns.
The question now before state legislators is, in the narrowest sense, a strict policy question. But it's also fraught with issues of politics, race, and life and death. The question boils down to this: In a state that uses capital punishment, should a statistical pattern of racial disparities be enough to preclude the use of the death penalty against someone accused of first-degree murder?
A bill nearing passage
Two of the chief legislative sponsors of the bill are Winston-Salem Democrats: Rep. Earline Parmon and Rep. Larry Womble. For three years, the bill has been one of the top legislative priorities for them and for such groups as the NAACP.
So far this year, the bill has been through contentious hearings and major revisions, and it's now getting close to passage.
If it's approved in the House this week, it will be sent back to the N.C. Senate, which has approved a previous version of the bill. Parmon said the bill is likely to end up in a conference committee, where House and Senate negotiators would try to work out a compromise bill that could pass in both chambers.
The bill's passage would represent a foray into a largely untested area of death-penalty policy. Only one state -- Kentucky -- has a version of the Racial Justice Act on the books. But it's not a new idea. Opponents of the death penalty in many other states, and in Congress, have been floating similar legislation since 1987, when the Supreme Court handed down an influential decision in a case known as McCleskey v. Kemp.
In that case, Warren McCleskey, a black man who was convicted of killing a white man in Georgia, argued that the administration of the death penalty was racially biased and that his death sentence should be set aside. He cited statistical evidence showing that the death penalty in Georgia was imposed far more frequently in cases with black defendants or white victims. The reverse scenarios -- cases with white defendants or black victims -- were less likely to end in the death penalty.
The court rejected McCleskey's argument in a 5-4 decision. The court acknowledged profound racial disparities in the application of the death penalty, but it said they were not sufficient to establish that any of the decision-makers in McCleskey's case acted with bias.
In state hands
The McCleskey ruling does not prevent states from enacting their own laws that allow statistics to count as evidence for bias. That's exactly what the Racial Justice Act would do.
Under the bill, defendants could cite statistical racial disparities from other cases in the state as a whole, or in their local jurisdiction, as evidence of bias on the part of prosecutors or juries. Prosecutors could counter with their own statistics.
Other, more traditional forms of evidence -- such as testimony from attorneys or police officers -- could be offered to try to prove or disprove bias.
If a judge sided with the defendant, the judge could prevent the prosecutor from seeking the death penalty or, after a trial, the judge could convert a jury's death sentence into a sentence of life in prison.
The opportunity to try to prove racial bias would be open to any future defendant, and it would also be available to every inmate currently on death row. The bill would give death-row inmates one year to bring forth such an appeal.
"They don't get a free pass. The only thing that's going to happen is that their sentence is going to be converted to life without parole," said Sen. Floyd McKissick, D-Durham.
Critics say the bill's reliance on statistics is troublesome. One obvious potential problem has to do with sample size. The percentage of murder cases that end in death-penalty convictions is tiny, and the bill allows a statistical analysis not just of cases across the state, but also of cases in an individual county or prosecutorial district.
Any single county or district is unlikely to have more than a small number of first-degree murder cases -- much less death-penalty cases -- even over a long span of time. For instance, from 1999 through 2008 in Davie County, there was an average of just one first-degree murder conviction a year. Such small samples make it difficult to do meaningful statistical analysis.
"A lot of statistics is understanding when a signal is strong enough that it comes out of a background noise," said J.S. Marron, a statistician at UNC Chapel Hill. "If the sample size is small, you don't have enough signal to discern that."
Beyond the problem of statistics, opponents of the bill have denounced it on a philosophical level. Tom Keith, the Forsyth County district attorney, said the bill falsely implies that prosecutors are racist. Other prosecutors believe that the bill is a backhanded attempt to seriously reduce the use of capital punishment in North Carolina.
No executions have been carried out in the state since August 2006 because of a de facto moratorium created by several legal challenges, but those challenges have been mostly resolved by recent court rulings. As the resumption of executions becomes a real possibility, the stakes over the Racial Justice Act have increased for both sides of the debate.
One important player, however, has stayed notably silent. Attorney General Roy Cooper, a Democrat, has not taken any public position on the bill, and he declined an interview last week through a spokeswoman. His silence has frustrated some crime victims and their advocates, who wish that Cooper would oppose a bill they see as setting up a new hurdle toward justice for victims.
"It's just going to muddy the water in the courtroom as far as getting at who is guilty and what the correct punishment is," Ramona Stafford said.
Different treatment
As the bill has made its way through the legislature, both sides of the debate have used statistics to argue whether the Racial Justice Act is truly needed.
Supporters point out that the percentage of black inmates on North Carolina's death row far exceeds the percentage of blacks in the overall population. Opponents counter that the percentage of blacks who are convicted of murder is higher than the percentage of blacks who end up on death row.
But every serious study of race and the death penalty in North Carolina has found a clear link between race and how the death penalty is applied.
According to the studies, the race of the defendant matters, but what matters even more is the race of the victim.
For instance, a major 2001 study by two UNC professors found that defendants whose victims were white were 3.5 times more likely to be sentenced to death than defendants whose victims were black.
Other data confirm the pattern. In North Carolina, black murder victims outnumber white murder victims. But among all the executions that have occurred in the state since 1984, 80 percent were against people convicted of murdering white victims, and just 18 percent were against people convicted of murdering black victims.
In other words, black victims are murdered in greater numbers than whites, but people convicted of murdering white victims are executed far more frequently.
"There is a huge disparity. We essentially invoke the death penalty to protect white people," Rabil said.
Rabil said that the tendency to value the life of white individuals is not necessarily caused by overt racism by people in the court system. He said many of the biases that can enter into a capital-murder case are unintentional and subconscious.
The bill's supporters say the only way to assess those sorts of subtle biases is to look at the historical record.
"I think you have to look at the historical perspective," Parmon said. "And I think that's fair.''
Unclear implications
Looking at the history of racial bias is one thing. Proving it by using statistics in a court of law is another.
"We are for the first time with this act injecting statistics into the mix, and that's going to have some bad ramifications," said Rep. John Blust, R-Guilford.
No one knows for sure how the Racial Justice Act, if it becomes law, would play out in courthouses across North Carolina.
Republicans worry that defense attorneys will twist statistics to lead to irresponsible conclusions. They even worry that the bill could create a de facto system of quotas for the death penalty, where certain percentages of each race would have to be executed to fulfill the bill's requirements.
The bill's sponsors say that's a massive exaggeration of the bill's intent. "We've had a quota. And the quota has been more African Americans have died," said the Rev. William Barber, the president of the state NAACP.
Legislative supporters have tried to downplay the bill's potential effect, saying it would simply be one reasonable step in removing and preventing racial bias.
Matthew Robinson, a criminologist at Appalachian State University, said that the bill may contribute to an erosion of capital punishment in North Carolina and result in fewer death sentences. But he said judges would hold defendants to a high standard when they try to argue racial bias.
"I don't think they're just going to be willy-nilly throwing out death sentences," Robinson said. "And frankly, if a lot of death sentences get thrown out because of this bill, it's because they need to be thrown out, because there's a serious problem in this state."
■ James Romoser can be reached at 919-210-6794 or at jromoser@wsjournal.com.
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