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DA: Bias test an attempt to end death penalty

Posted August 6, 2009

— Legislation that would allow statistical evidence to establish racial bias as the reason prosecutors sought or jurors imposed death sentences could do away with capital punishment in North Carolina, Wake County District Attorney Colon Willoughby said.

Lawmakers gave final approval to the so-called Racial Justice Act late Wednesday. Gov. Beverly Perdue has indicated she would sign the measure, making North Carolina the second state – Kentucky was the first – with a bias test to challenge death penalty cases.

RAL-Death Penalty (Generic) Bill would allow using stats to prove racial bias

"For the first time, as a matter of public policy, the General Assembly has essentially stated that race should not be a consideration in the imposition of the death penalty," said Sen. Floyd McKissick, D-Durham, the bill's sponsor. "We're going to be out front in this country in ridding our nation of these types of problems."

The proposal would allow inmates on death row and future defendants in capital cases to use statistics to argue their death sentences were racially motivated. Current inmates would have one year to appeal their sentences under the bill.

A University of North Carolina study found defendants were 3.5 times more likely to be sentenced to die for killing a white person than for killing one of any other race.

"It was concern that we needed to rid our system of the prejudices that might be exercised," McKissick said, adding that he thinks it would be extremely difficult to eliminate all racial bias in the justice system.

Prosecutors statewide have opposed the legislation, saying it will make trying capital cases exorbitantly expensive, which could deter district attorneys from seeking the death penalty in any case.

"It's a thinly veiled attempt to get rid of the death penalty and cloak it in racial terms," Willoughby said. "It doesn't matter about the race. Showing some statistical abnormalities about the numbers in one case or the other can be used by anyone, irrespective of race."

North Carolina hasn't executed an inmate in three years because the death penalty has been tied up in legal disputes over the role of physicians in executions and state officials' approval of protocols for carrying out a death sentence.

Willoughby and other prosecutors said they fear setting convicted killers free. Almost half of those on death row were sentenced for crimes committed before guidelines were adopted in 1994 that eliminate the possibility of parole for life sentences in murder cases.

He pointed to the cases of James Edward Thomas, who killed Teresa West at the Sir Walter Raleigh Tourist Home in 1986, and Elmer McNeill, who with his brother killed two Food Lion clerks during a 1993 robbery. Thomas is black and West was white; McNeill and his victims were white.

"It certainly will be difficult to go back and look at cases 15 to 20 years ago, to somehow prove the actions that juries took were biased," he said. "In most of those, we don't know what race the jurors were. We don't know what went on in the jury room during the deliberations, and to assume that for some reason that there was some racial bias, I think, is insulting and false."

McKissick said the law wouldn't allow anyone out on parole, saying any death sentences found to be flawed would be converted to life in prison without parole.

"(Releasing prisoners) is not the intent of the bill. That is not the purpose of the bill. It's just to make sure that, when people are sentenced to be killed, it's done without regard to race," he said.

Willoughby said he thinks the bill will make it difficult to sentence anybody to death in North Carolina.

"I think it will put the brakes on," he said. "This case is an example of an attempt to manipulate statistics to achieve some social goal, which is to do away with the death penalty."


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  • LEOsprtr Aug 7, 2009

    Willoughby is absolutely correct. This law is terrible, and it is ridiculous that any murderer gets this kind of help.

    N.C. citizens need to stop electing those who would help the crimiinal element and instead elect statesmen that will be in favor of law and order.

  • FragmentFour Aug 7, 2009

    A try at ending the death penalty? Possibly. Certainly hope so - given the rate at which people have been erroneously incarcerated, and the number of them who have been sentenced to death, North Carolina definitely doesn't need to go killing people whose lives it can't restore.

  • jurydoc Aug 7, 2009

    The data on executions since 1976 clearly show the following: 1)whites were executed more than blacks (57% to 34%); 2) the race of the VICTIM for those executed was overwhelmingly white (79%); and 3) for interracial crimes specifically, there have been 243 black men executed with a white victim, while only 15 white men with a black victim have been executed. Given that there are more whites on death row than blacks, this last observation may be particularly problematic, although in the absence of data on the number of white men with black victims on death row it is difficult to ascertain.
    This law allows for a defendant to make a claim of a PATTERN of biased actions over time. This may include the DAs charging pattern or a jurisdiction's sentencing pattern. The DA would have the opportunity to rebut the claim. It is NOT about showing motivation of a "hate crime" in the original crime commission, nor having to show the motivation of the jury in an individual case.

  • Harrison Bergeron Aug 7, 2009

    "I highly doubt that studies done across cases are able to show that a murder towards a white was done out of prejudice or not, and vice versa and compare THOSE stats.

    If I'm wrong in this, please say so." -MakoII

    To partially answer your question, blacks are actually twice as likely to commit a bias crime according to national criminal victim survey data, but those charges are rarely leveled in conjunction with capital crimes.

    Regarding the studies, the problems are two-fold. First the small sample sizes of affected offenders makes it difficult to create a meaningful statistical result. Second, many of the studies fail to account for aggravating factors, prior records, and jury demographics.

  • Harrison Bergeron Aug 7, 2009

    There are a few corroborating studies (federal and state level convictions) that show that there is bias toward the race/gender of the victim, specifically white female victims. Since most murders are intra-racial, white males are more likely to be affected by this bias.

    So, if this law is to protect those affected by a statistical bias, it SHOULD disproportionately protect white male offenders, NOT black offenders.

    Of course, we all know that is not the intent.

  • MakoII Aug 7, 2009

    Just putting this out there. But what if, just what if some murder crimes against white people are committed out of racial prejudice?

    I don't know, but I suspect that crimes against white people may be more heinous due to prejudice yielding the result seen.

    The point being, that cases should be taken as a case-by-case basis.

    I highly doubt that studies done across cases are able to show that a murder towards a white was done out of prejudice or not, and vice versa and compare THOSE stats.

    If I'm wrong in this, please say so.

    This law looks like a nice gesture on the surface, but you can't look at the back end of stats and make assumptions. You need to look at the FRONT end of these stats.

  • rcrdngcountry Aug 7, 2009

    if these stupid law makers keep coming up with such hogwash,
    they will soon be handing our medals for going into stores and
    shooting poor workers, trying to make a living. if this is all
    floyd mckissick has to come up with, he needs to go home. no
    one said anything about the black guy in chapel hill, who
    murdered a white woman right beside a busy highway, while she
    joged. that was a few years back. he got 9 years, he may have spent 5 or 6. lets be honest here, mr mckissick, black people do comit crimes, just like whites. lets don't go over board to protect one race.

  • rallyann2 Aug 7, 2009

    I look for this stupid law to be repealed in January of 2011.

  • Tarheel born Aug 7, 2009

    Too bad this bill passed. Just another way for lawyers to waste the tax payers money on frivolous and decades long appeals on convictions meant to provide justice for the VICTIMS. We need to be much less worried about the MURDERERS.

    What about the "Victims Assistance" fund that hasn't been fully funded AND had funds raided from it by the powers at be?!?!?!?

  • jnstevens Aug 7, 2009

    This is easily one of the most pointless laws ever enacted by the NC General Assembly. The RJA will do nothing more than clog up the judicial system, drain North Carolina's already broken economy (think of how much it will cost the state to hire new attorneys and expert statisticians), and cause Constitutional problems in terms of the enactment of ex post facto laws. The RJA is just another example of what happens when people who know nothing about the law start meddling with complicated legal matters. Shameful.