Ford

A veto in the search for fairness

June 30, 2012 

North Carolina’s Racial Justice Act is a bold effort to ensure that when murderers are condemned to death, the sentence does not reflect any degree of racial bias. The law was approved in 2009 by a Democratic-controlled General Assembly and signed by Democratic Gov. Beverly Perdue.

Death penalty supporters were aghast. Not that they condoned the idea of racially skewed sentencing. But they rejected the notion that racial bias could be influencing North Carolina’s handling of capital cases. Prosecutors were especially vocal.

They also characterized the law as having an ulterior motive. By opening up a fresh avenue for condemned inmates to appeal their sentences, the law was seen by opponents as another way to keep the death penalty from being enforced – broadening the state’s de facto moratorium on executions (none since 2006 because of various legal snarls) into de facto abolition.

Along came the Republicans in 2011 to take charge of the legislature. A bill to nullify the Racial Justice Act was approved in November, but Perdue vetoed it.

That set up an intense push by Republican leaders to override the veto. The Senate in January agreed to the override, but in the House, Speaker Thom Tillis and Majority Leader Paul Stam couldn’t convince enough Democrats to side with the GOP bloc.

The upshot was a GOP-led attempt to reshape the act in a way that arguably retained some of its features. Yet the act’s supporters – including black legislators and the state NAACP – declared the “compromise” rewrite to be an out-and-out gutting. They had a point.

The original act, which has generated appeals from virtually all of the state’s death row inmates, takes a broad approach in terms of the evidence an inmate can use in trying to show sentencing bias.

For example, statewide statistics showing that the murderers of white people are more likely to be sentenced to death than those who kill black people could become grounds for a successful appeal, which would entitle the inmate to have his sentence converted to life without parole.

The first appeal to be heard, in Cumberland County, yielded a judge’s finding that the exclusion of qualified black citizens from service on juries was evident both in Cumberland and throughout the state – another basis under the act for having a death sentence vacated, as occurred in the case of Marcus Robinson. No wonder prosecutors worried about death sentences evaporating.

The so-called compromise was sent to Perdue on June 21. With good reason, she has now hit it with another of her vetoes. Whether the veto will stand looks to be a close call.

Among several changes weakening the current law, here’s one that hasn’t gotten the attention it deserves: The race of the victim could not be taken into account, only the race of the defendant.

Well, proponents might say, if this is all about preventing racial discrimination in sentencing, then we should look at the race of those being sentenced. There should be no disparities when people of different races have committed similar crimes.

But racism also could be manifested in a tendency to punish more harshly blacks who kill whites than blacks who kill other black people. It could reflect the racist assumption that the lives of white people have more value.

Cases will differ in the factors that could lead a prosecutor to seek a death sentence, but other things being equal, it’s not fair to let the victim’s race be one of those factors. If white death row inmates are making that point as well, perhaps they’re entitled.

Writing about the Racial Justice Act a couple of weeks ago, I noted Paul Stam’s belief that the death penalty is a deterrent to murder. Since in his view the act is designed to make it even harder to execute somebody, it follows, to him, that more murders will occur with the act in place. But as I noted, the National Research Council recently concluded that available studies collectively neither prove nor disprove a deterrence effect.

Stam responded with a packet of information about studies purporting to show that the death penalty does work as a deterrent.

Fine – let’s grant that if every person convicted of murder were straightaway marched to the scaffold and publicly drawn and quartered, as they used to do to those who got crosswise with the king in Merry Olde England, that likely would give some potential killers pause.

Our courts don’t operate that way, however, and they shouldn’t. Aside from avoiding barbarity, we try to make sure that everyone found guilty has a meaningful chance to appeal – to show that the verdict was wrong or that the sentence was excessive. There have been more than enough mistakes to show the folly in a rush to execute.

We should never surrender those protections, and stamping out racial disparities in how justice is applied is fundamental. In that process, as Perdue again has affirmed, the Racial Justice Act plays a worthy role.

Editorial page editor Steve Ford can be reached at 919-829-4512 or at steve.ford@newsobserver.com.

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