A quarter century after the U.S. Supreme Court ruled that racism in the application of the death penalty doesn’t matter, we’re finally beginning to have an honest discussion about how we justify legally killing people.
On Apr. 20, a judge in North Carolina relied on a new state law to order that a death-row inmate’s sentence be reduced to life in prison, after finding that his trial had been so irreversibly tainted by racism that executing him would violate the Constitution.
I want to pause here to recognize the momentousness of this ruling: A judge in a Southern active death-penalty state just upheld the rule of law, even though it meant sparing the life of a convicted murderer.
To be clear, there was no question about the man’s guilt.
Twenty-one years ago, Marcus Robinson shot and killed 17-year-old Erik Tornblom. He stole Tornblom’s car and took $27 from his wallet. But Superior Court Judge Gregory Weeks concluded that despite Robinson’s horrendous crime, there was no doubt that racism infected the state’s criminal-justice system—specifically, that prosecutors intentionally kept blacks off of capital juries—and that this same racism presumptively infected Robinson’s trial too. He ruled that even abhorrent crimes do not nullify the Constitution’s guarantee of racial equality.
Weeks’s ruling—the first invocation of the new Racial Justice Act—was the first step in repairing the damage done by one of the Supreme Court’s most notorious holdings: McCleskey v. Kemp, decided 25 years ago this month.
In that case, lawyers for Warren McCleskey—who had been sentenced to death for killing Atlanta police officer Frank Schlatt—proved that black defendants are statistically more likely than whites to face the death penalty, and that murderers whose victims are white are more likely to face death than killers whose victims are black. In numerous contexts—for instance, allegations of employment discrimination, charges of bias in university admissions, and claims of police misconduct—parties can use general statistics to prevail, even in the absence of specific wrongdoing in their case. But in a 5-4 vote, the justices in McCleskey swatted it all away, carving out an exception for death-penalty cases.
Even overwhelming statistical evidence, they said, does not prove racism infected a particular trial. The court might as well have said that just because the KKK is a racist organization doesn’t prove that the murder of Emmett Till was racially motivated. The ruling was the legal equivalent of sticking your fingers in your ears and saying, “I can’t hear you!”
There were a few honest reactions one might have to the fact that the death-penalty system in America is deeply racist. You could say that we should punish whites more harshly, rather than blacks less severely. Or you could say people who commit murder forfeit their right to invoke legal niceties. The McCleskey court chose neither of these routes; instead it effectively said, So what? Racism doesn’t matter.
This was all the more galling since, to those of us in the death-penalty- defense business, none of what the McCleskey case brought to light was news. Study after study has shown that race often plays a role in death-penalty trials, in multiple ways: prosecutors are more inclined to seek a death sentence where the defendant is black, or where the victim is white. And, as Judge Weeks found in North Carolina, prosecutors routinely remove people of color from juries, leaving black defendants to be judged by juries that are overwhelmingly white. (In Texas, which carries out the overwhelming majority of executions in the country, the Dallas district attorney’s office was still using a manual in the 1980s instructing prosecutors to eliminate certain jurors based on their race.)
By holding that statistical evidence couldn’t establish the presence of racism, the McCleskey court effectively insulated racist practices, since prosecutors rarely send emails announcing their racist motivations (although sometimes, astonishingly, they do).
North Carolina’s Racial Justice Act serves as a corrective to McCleskey by permitting death-row inmates to prevail even in the absence of a smoking gun. They can use statistical evidence to show the pervasive influence of race, and that demonstration carries with it a presumption that race infected their trial as well. In Robinson’s case, lawyers relied on a new study that examined 173 death-penalty trials in North Carolina (PDF) and concluded that prosecutors strike blacks jurors at twice the rate they strike whites.
(Remarkably, the only two states to have taken steps to overturn the deplorable decision in McCleskey, Kentucky and North Carolina, are members of the old Confederacy.)
An optimistic take is that this could be the start of a new conversation about race and the death penalty in America.
Ever since the Supreme Court reinstated the death penalty in 1976, the practice’s supporters and opponents have engaged in what amounts to a three-decade therapy session, where all the scaffolding of rationalization has been stripped away, and what is left is human emotion.
You want to argue the death penalty deters crime? The day before Weeks’s ruling in North Carolina, the prestigious National Research Council issued a report concluding that after countless academic studies, there remains no evidence one way or the other for the death penalty’s deterrent effect.
The McCleskey ruling was the legal equivalent of sticking your fingers in your ears and saying, “I can’t hear you!”
You want to argue the death penalty is a good way to spend our money? In California 4 billion dollars has been spent on capital punishment … to execute 13 people. The cost of keeping those 13 in prison for the rest of their lives would have added up to around one half of one percent of that amount. (This is assuming a cost of $50,000 per inmate, which is on the high side, for 50 years, which is also on the high side.)
There are still politicians who remain willing to break the bank to execute a few murderers, but it’s getting harder and harder to be fiscally irresponsible, and when California gives up on lethal injection because its costs are extravagant, the impact will be cataclysmic. The same California politicians who pushed for reinstatement of the death penalty 30 years ago have now changed sides.
Now that we have indisputable proof, once again, of embedded racism, capital punishment can no longer be dressed up in intellectual garb. Death- penalty supporters and opponents are therefore divided by a single fault line: the so-called retributive rationale, the simple belief that someone who kills should be killed.
So how will this debate turn out? We don’t yet know, but it won’t end anytime soon: At least 150 people are waiting to have their cases reviewed under the new law. But we do know that, thanks to one North Carolina court, we’ll at least begin talking more honestly.