North Carolina’s Shield Against Race-Driven Death Sentences Gets Its First Day In Court

Sarah Bufkin, a former intern for ThinkProgress, filed this report from Fayetteville, North Carolina

In 2009, North Carolina enacted the Racial Justice Act, which enables death row inmates to reduce their sentence to life in prison without parole if they can demonstrate that race played a substantive factor in “decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.” Thus, the law, which barely survived an effort to repeal it by GOP lawmakers earlier this year, is unusual because it enables inmates to challenge widespread racial disparities rather than being forced to focus narrowly on whether they themselves were the victims of discrimination. It is now being invoked for the first time in court this week.

Prosecutor Cal Colyer expressed concern that the act would be used to start a witch hunt within the prosecutor’s office for “racial animus,” but, as defense attorney Henderson Hill explained, the law extends far beyond purposeful acts of racism within the court system.

“If you look at the language of the act, if you look at the Racial Justice Act itself, you’ve almost been convinced that the state legislators don’t want to get into whether or not there was racial animus in the prosecutor’s office in 2009,” Hill said. “[What the act acknowledges] is that we’re operating in a context, in a culture, that allowed those legacy [racial] issues to continue.”


Hill represents Marcus Robinson, “someone who came within hours of execution,” in his Racial Justice Act petition. Robinson, who is black, was convicted of first-degree murder for killing a white man in 1991 and then sentenced to death row by a mostly white jury three years later. And he has significant statistical evidence on his side showing that his petition should be granted:

“Over the past twenty years, North Carolina prosecutors have continued the tradition of excluding black citizens from juries through the use of peremptory strike…The MSU Study shows that, at the time of Mr. Robinson’s trial in 1994, prosecutors statewide struck qualified black and racial minority citizens from service on death penalty juries at more than twice the rate they struck white citizens.

Statewide from 1990 through 1994, the State struck eligible black venire members at an average rate of 57.3 percent but struck all other venire members at an average rate of only 26.0 percent. The probability of observing a statewide racial disparity of this magnitude in a race neutral peremptory strike system is less than 0.001. […]

The MSU Study shows that, at the time of Mr. Robinson’s trial in 1994, death eligible defendants were significantly more likely to receive the death penalty if they were convicted of killing at least one white victim…Statewide, from 1990 to 1994, death eligible cases with at least one white victim were 3.1 times more likely to result in a death sentence than all other cases.

Although Robinson’s appeal is the first to be heard by the North Carolina court system and will set much of the precedent for how this new statute will be applied, he is not the only person contesting his sentence under the RJA. Out of the 158 people on death row statewide, 152 inmates are currently in the process of filing a petition. The outcome of Robinson’s case — whose first evidentiary hearing is currently scheduled for November — will be worth watching to see if the Racial Justice Act proves to be an effective remedy for the racial bias that marks the application of the death penalty today.