This is the beauty of North Carolina’s Racial Justice Act: it represents the citizens’ refusal, when it comes to the death penalty, to give a pass to unconscious racism or to issue a “license to lie” (as Michael Boucai puts it) to perpetrators of racial discrimination.
Thus, if statistics show that prosecutors seek the death penalty for African Americans more often than they do for whites; or that prosecutors pursue the death penalty most often when the victim is white; or that prosecutors remove more African American potential jurors than white – if statistics show this (as they do for North Carolina), then a perpetrator who claims he did not intentionally discriminate doesn’t get a pass. Nor does a perpetrator who offers up race-neutral explanations for acts that are, at bottom, intentionally discriminatory. This is because the statistics tell a different story: whether unintended or intended but masked, racism has clearly reared its ugly head. It is this story that the Racial Justice Act permits judges to acknowledge and, yes, to act upon.
And act is precisely what Cumberland County Senior Resident Presiding Judge Gregory A. Weeks did in the case of Marcus Robinson. Weeks vacated Robinson’s death sentence on the basis of a statistical analysis of North Carolina’s capital punishment process, an analysis conducted by Michigan State University law school researchers. The researchers found that, at the time of Robinson’s trial, Cumberland County prosecutors (and prosecutors statewide) dismissed potential African American jurors twice as often as they dismissed whites.
Because the Racial Justice Act gives credence to statistics of racial disparity as evidence of racial discrimination and does not require proof of discriminatory intent, Judge Weeks was able to overturn Robinson’s death sentence. Race, Judge Weeks wrote, proved to be “a materially and statistically significant factor in the decision” by Cumberland County prosecutors “to exercise peremptory challenges during jury selection.” And since the prosecutors couldn’t come up with good enough reasons to explain their practice, the judge was left to conclude that racism had reared its ugly head.
This outcome signifies just how powerfully North Carolinians have rejected U.S. Supreme Court reasoning on racial discrimination generally and discrimination in the context of capital punishment. Ever since 1976 when the Court decided Washington v. Davis (an employment discrimination case), those who have sought redress from the courts for racial discrimination (under the Equal Protection Clause) have had to prove the perpetrator’s discriminatory intent or purpose – to prove, in other words, that she was “conscious of her unfair treatment.” Thus, establishing disparate impact is rarely enough to prove that one has been the victim of racial discrimination.
Not only did this rule ultimately give “all of us an incentive not to confront or counteract our unconscious racism,” as Boucai argues in his essay “Caught in a Web of Ignorances: How Black Americans are Denied Equal Protection of the Laws"; but the rule also created “an incentive” for racists “to hide the consciously racist grounds for their decision-making” (in fact, the Court itself has rationalized this deception by letting discriminators off the hook once they provide presumably rational, race-neutral explanations for their practices). Thus, “by ignoring the reality of unconscious racism,” writes Boucai, “the intent requirement mandates the exact opposite – namely, an unwarranted presumption of race-neutrality.”
Yet the rule also legitimized the notion that in order for an act to be considered racist, it must be an obvious and overt act of animus. Thus, in his response to Judge Weeks’ decision, assistant district attorney Rob Thompson of Cumberland County angrily asserted that the Michigan researchers “do not have evidence of purposeful discrimination. They do not have some secret society of prosecutors maniacally plotting to remove people from juries. They do not have any of that because there is no such evidence. It doesn’t exist. They have numbers.”
Wow. What a standard! To prove that the prosecutors acted with discriminatory purpose, one would have to show, according to Robinson’s logic, that they were “maniacally plotting” and that they were members of “some secret society.” In other words, you’d have to be the victim of a crazy bunch of racist prosecutors who operate in some kind of cell structure in order for your experience of discrimination to be valid. If only racism worked that way and that way only!
But it doesn’t – a fact that North Carolina has chosen to look at squarely, honestly, and in direct opposition to the U.S. Supreme Court’s jurisprudence of “willful ignorance,” jurisprudence that rejects the existence of unconscious racism and that has been, as a result, absolutely deadly for many capital defendants.
Take, for example, the Court’s 1987 decision McClesky v. Kemp. In this death penalty case, Warren McClesky provided ample evidence in the form of statistical analysis (the Baldus study) which demonstrated that racial “discrimination extend[ed] to every actor in the Georgia capital sentencing process.” Instead of reaching the obvious conclusion that race was “a materially and statistically significant factor” in McClesky’s death sentence, the Court instead readily retreated into the world of willful ignorance erected by its intent standard. McClesky had not shown, the Court held, that prosecutors acted with discriminatory intent in his particular case (Warren McClesky was eventually executed in 1991).
Just as Rob Thompson had, in the face of damning evidence, professed his ignorance concerning Cumberland County prosecutors’ discriminatory practices, so, too, had the Court professed ignorance concerning Georgia’s racist sentencing process.
But it is clear that the Court must profess ignorance, not only because doing so enables the Court to justify, as Boucai argues, its almost insurmountable intent standard, but also because it enables the Court to avoid the very thing that it has apparently feared most: “too much justice.” When “taken to its logical conclusion,” Justice Powell wrote for the majority in McClesky v. Kemp, “McClesky’s claim [and others like his] throws into serious question the principles that underlie our entire criminal justice system…Thus, if we accepted McClesky’s claim that racial bias has impermissibly tainted the capital sentencing decision, we would soon be faced with similar claims as to other types of penalties.”
As if to uncover what appears to be the expression of unconscious racism in Justice Powell’s analysis – and, perhaps, in a plethora of capital punishment decisions that address defendants’ claims of racial discrimination – Justice Brennan in his dissent zeroed in unflinchingly on the gist of Justice Powell’s statement: it “seems to suggest,” Brennan wrote, “a fear of too much justice.”
Having adopted the Racial Justice Act, North Carolina clearly decided not to be bound by that fear. So to those who are promising to overturn this act in light of Judge Weeks’ decision, and to those who are incensed by the very existence of a Racial Justice Act, we need to put the question: What makes you afraid of too much justice?
(your comments are welcome! shoot me an email at firstname.lastname@example.org)