The Death Penalty and the “Plague of Racism”


11.01.09lethalA new North Carolina law bans executions if racial bias is proven

When a judge in Greensboro, N.C., held in 2007 that Tony Summers was eligible for the death penalty if convicted of murder, it was not an unexpected decision. Summers, a convicted sex offender, is accused of raping and killing Lavell Williams and stabbing her two young daughters in Nov. 2006.

But Summers' lawyers are now asking the judge to reconsider, not because of new evidence in the case, but because of alleged racial bias in how the death penalty is imposed in North Carolina.

Their request, citing statistics and examples of what they call the “plague of racism” in mostly urban Guilford County, is one of the first of what lawyers in North Carolina expect will be a wave of legal challenges under the state's newly enacted Racial Justice Act, which bars executions “on the basis of race.”

“Race matters. When you walk into the courtroom and the only African-American face in the room is the defendant, that matters,” said David Clark, an attorney for Summers, who is black.

The Act allows judges to stop executions based on local or statewide statistics or other evidence that suggests a pattern of racial bias in the imposition of the death penalty. Defendants must show that, at the time of their trial, the death penalty was sought or imposed “significantly more frequently” in the county, judicial district or state against members of one race or as punishment for crimes against members of a particular race. That evidence can be rebutted by statistics or other evidence that race did not play a role in any specific case.

But, with several studies already finding evidence of racial disparities in who is sentenced to death, the Act could open the door to challenges from many of the state's 161 death row inmates – and could make North Carolina a bellwether for how states handle the delicate interaction between race and the death penalty.

“It's a very large change; we've really never seen anything like it,” said Professor David Baldus of the University of Iowa College of Law, one of the nation's leading experts on race and the death penalty. “Nothing comes close to it anywhere else in the country.”

It's well known that death sentences are handed down unevenly. Blacks make up about 13 percent of the U.S. population, but more than 40 percent of the nation's death rows. A 2001 University of North Carolina study found that killing a white victim is 3.5 times more likely to lead to a death sentence than killing a black victim. Studies in several other states have found similar results.

But those statistics are rarely discussed in the courtroom. In its 1987 decision in McCleskey v. Kemp, the Supreme Court refused to strike down the death penalty based on statistical evidence of racial disparities in Georgia's justice system. Justice Lewis Powell, writing for a 5-4 majority, said defendants must prove that individuals in their cases, such as prosecutors or jurors, were motivated by racism.

Powell later said that McCleskey was the one decision he regretted. “McCleskey put the imprimatur of the Supreme Court on a racist system,” said Baldus, who conducted the study that was the basis of McCleskey's legal challenge.

At the end of his opinion, Powell invited the states to address the issue. So far, only Kentucky and North Carolina have done so, and only North Carolina's law applies retroactively.

The use of statistical evidence of racial bias to challenge death penalty cases has met with intense opposition from conservatives and many prosecutors. North Carolina prosecutors argue that the Act will be burdensome and unnecessary — and could lead to years of litigation over statistics while removing the focus from the facts of the case.

“In over 20 years in the criminal justice system I've never felt that race was a factor that prosecutors considered,” said Jim Woodall, the Orange County District Attorney and president of the state Conference of District Attorneys. “You're going to be able to hire statisticians on both sides to say whatever you want them to say.”

Prosecutors have already received lengthy requests from defense lawyers for information about every murder case in their districts since 1990. “It's going to take tremendous amount of resources to go back and reconstruct cases from years and years ago,” Woodall said.

The result, prosecutors say, will be a de facto end to the death penalty. “This has nothing to do with making the death penalty fair,” said William Clark Everett, the Pitt County District Attorney. “It's just a way to do away with the death penalty by making it so cumbersome and expensive that we'll all just throw up our hands and walk away.”

But defense lawyers say that, without statistical evidence, it is often nearly impossible to prove that jurors or prosecutors acted with racial bias in any particular case. The few cases with direct evidence of apparent racism, they say, are emblematic of a much larger problem.

Kenneth Rouse, a black man, was sent to death row in 1992 by an all-white jury for the attempted rape and murder of a white woman. His lawyers later discovered that a juror at Rouse's trial allegedly said that black people, whom the juror called “niggers,” cared less about life than white people and that black men rape white women to brag to their friends.

Rouse's bid to overturn his death sentence based on the juror's comments was rejected by the state and federal courts. His lawyer, Gordon Widenhouse, plans to file a new appeal under the Racial Justice Act.

Other cases, though, are not as clear. Tony Summers is accused of breaking into Williams' house early in the morning in Nov. 2006 and binding and raping her before repeatedly stabbing her. Both Summers and Williams are black, and Clark, Summers' lawyer, said he did not have direct evidence that anyone involved in the case was motivated by race.

Though he has asked for more information from prosecutors, Summers' motion is based on statistics and other examples of racism in the Greensboro area. Clark said it was unclear if that would be enough to bar prosecutors from seeking the death penalty. “No one really know what the heck this Act means,” he said.

The Act comes as some opinion polls show waning support in the state for the death penalty. The last execution in North Carolina was in 2006, and several death row inmates recently have been exonerated. So far this year, two people have been sentenced to death.

“This will cause more serious reflection about when we seek to impose [the death penalty] and make sure we're more just in its application,” said State Sen. Floyd McKissick, one of the Act's sponsors. “If the result is we more sparingly use it, then that's an appropriate outcome.”

Any broader influence outside North Carolina remains to be seen. Kentucky's law, passed in 1998, has had a limited impact in the state, and did not spark other states to pass similar laws. Many lawyers in North Carolina are awaiting the results of a new statewide study on race and the death penalty, which will largely determine how strong a case their clients have, said Ken Rose, an attorney with the Center for Death Penalty Litigation in Durham.

It could take years to litigate and fully understand the law's impact, attorneys said. Until then, other states will be watching.

“If someone wins a challenge under this law, that's clearly bigger than one case,” said Richard Dieter, the director of the Death Penalty Information Center in Washington, D.C. “That's going to have reverberations in other states.”

Scott Michels is a freelance writer in New York City.

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