GUEST EDITORIAL: Freed from N.C.'s death row, Republicans put them back

Posted August 25, 2019 5:00 a.m. EDT

The N.C. Supreme Court will hear a case that’s a matter of life or death for some inmates of color.

EDITOR'S NOTE: The following is an editorial from The New York Times and represents the opinions of the editorial board, its editor and the publisher.

One prosecutor called the defendant in a murder case a “big black bull” in front of an all-white jury.

Another prosecutor, taking notes on prospective jurors, described a black juror who drank as a “blk wino,” while describing a white juror who drank as “drinks — country boy — OK.”

In a third case, a prospective black juror was struck from the jury of a black murder defendant after reporting that he heard two white jurors say that the defendant, who had been captured by police in the woods, “should have never made it out of the woods.”

These cases have two things in common. They happened in North Carolina, which has long had one of the most racially biased criminal-justice systems in the country. And they involve people who are on death row despite evidence that prosecutors racially discriminated during their trials. Two of the prisoners were released from death row and given life sentences — only to be returned to death row a few years later.

How they wound up there, without a new trial or any additional hearing, is the subject of a lawsuit that will be argued before the North Carolina Supreme Court this week. Ten years ago, the state, then led by Democrats, passed the Racial Justice Act to address persistent racial disparities in capital sentencing. It worked — but four years later, a newly elected Republican legislature and governor repealed the law, and the state is now trying to execute the people who briefly benefited from it.

To understand why this is such an egregious violation of the Constitution, consider some background. Prosecutors have been keeping black people off juries forever, on the assumption that all-white juries will be more likely to convict black defendants. Normally, prosecutors and defense attorneys must give a valid reason for striking a potential juror — and race is not a valid reason. But each side is also given a small number of so-called peremptory challenges, allowing them to remove prospective jurors without having to explain why. By using their peremptory challenges, prosecutors have been able to strike black jurors with impunity.

The practice was so insidious that the U.S. Supreme Court banned it in 1986, in a case called Batson v. Kentucky. The court in Batson held that when prosecutors intentionally exclude black jurors because of their race, they aren’t only hurting the defendant’s chances at a fair trial; they are “undermining public confidence in the fairness of our system of justice.”

After the Batson decision, prosecutors didn’t stop striking black jurors because of their race — they just got better at masking their reasons. Especially in places like North Carolina, this wasn’t the behavior of a few bad apples. It was standard operating procedure. A document distributed to North Carolina prosecutors in training listed 10 categories of apparently race-neutral explanations for striking a juror, in case a judge should ask. The categories included “inappropriate dress,” “physical appearance,” “attitude” and “body language.” If the racial subtext wasn’t clear, the document was titled “Batson Justifications: Articulating Juror Negatives.”

Sometimes a prosecutor gets sloppy. Earlier this summer, the U.S. Supreme Court overturned by a vote of 7-2 the murder conviction of a Mississippi man whose prosecutor tried him six times, and finally got him sentenced to death, using all but one of his peremptory challenges against black jurors. But most prosecutors avoid detection, either because they are more careful to cover their tracks or the courts reviewing their actions are not as vigilant.

That’s why North Carolina lawmakers in 2009 passed the Racial Justice Act, after a string of exonerations of black men on death row who had faced all-white or nearly all-white juries. One of the first laws of its kind, it allowed a death-row inmate to have his or her sentence reduced to life by presenting statistical evidence of a pattern of racial discrimination by prosecutors.

In North Carolina, showing that pattern was easy. A study by researchers at the Michigan State University College of Law looked at jury selection in 173 North Carolina death-penalty trials over 20 years and found that black jurors were struck at twice the rate of whites. In a state that is more than one-third nonwhite, roughly half of the state’s current death-row population was convicted by all-white juries or juries with only one black juror.

More than 130 condemned men and women brought claims under the Racial Justice Act. In 2012 the first plaintiff, a death-row inmate named Marcus Robinson, won his case. Three more cases followed, all with the same result: The court found not only a pattern of racial discrimination by prosecutors but also that they had purposefully discriminated in each of the cases. All four inmates were resentenced to life without parole. (Two other inmates whose cases are being reviewed were in the process of seeking relief when the Racial Justice Act was repealed.)

But even as the new law was exposing the scope of racial discrimination by North Carolina prosecutors, the state’s Republican legislature was trying to wipe it off the books. In 2011, lawmakers passed a bill gutting the Racial Justice Act, but it was vetoed by the Democratic governor, Beverly Perdue. When Perdue was replaced in 2013 by Pat McCrory, a Republican, the now-unified government wasted no time in dumping the law.

With the racial-justice act out of the picture, the state appealed the re-sentencings in the four cases that had been decided under it, and in 2015, the North Carolina Supreme Court sent the cases back for further review, because the state had not been given enough time to respond to the Michigan State study on biased juror strikes.

Shortly after, state officials disregarded the state Supreme Court’s order and returned the four plaintiffs to death row without a court holding hearings or considering new evidence or arguments. The state still has not provided any explanation for the racial discrepancy in juror strikes, arguing only that the repeal of the law means the plaintiffs go back to death row.

In the state Supreme Court this week, these plaintiffs, including Robinson, will make numerous constitutional arguments, but they all boil down to the same issue: State lawmakers passed a law to find racial bias in their justice system. They found it. Rather than build on that success, new lawmakers repealed the law and re-punished the people who had benefited from it. These plaintiffs aren’t bringing claims of innocence; they are arguing that they deserve the same constitutional protections as anyone else, including against double jeopardy.

This situation is a travesty not only for the prisoners involved but for everyone in North Carolina, which had taken an important step toward addressing persistent racial discrimination in its justice system, only to turn back the clock once Republicans took power.

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