Posted on November 10, 2009

Race Law Lacks Traction

Mandy Locke, News & Observer (Raleigh), November 10, 2009

Judges have been turning deaf ears to defendants’ requests to delay murder cases to examine whether they face the death penalty because of their skin color.

Four months ago, North Carolina lawmakers passed a ground-breaking law that allows defendants to avoid a capital trial or seek relief from a death sentence because of racial bias. In recent weeks, some judges have refused to consider requests to allow time to examine the role of race.


No one has been executed in North Carolina since August 2006, when legal challenges in state and federal courts halted the death penalty.

Despite that, prosecutors in the state have been pursuing punishment by death with as much fervor as in prior years. Of the roughly 1,200 pending first-degree murder cases, at least 250 are capital cases, according to the state Capital Defender’s Office. Of the 25 capital trials in 2007 and 2008, juries imposed death four times. The death row population is 163.


The law’s impact

Death penalty opponents heralded the law as a victory that could undo a system of punishment steeped in racial bias. Staunch supporters of the death penalty feared the law would circumvent a punishment delivered for centuries for the most heinous crimes. Now, four months after its passage, it’s not clear what, if any, impact the law will have.

Those already sentenced to death are being allowed to file appeals based on racial bias. The law also allows defendants to raise a claim of possible racial bias before hearings in which prosecutors declare that they will seek the death penalty at trial. Lawyers also have been making the requests after those hearings, but before capital trials begin.


This week, juries in Cumberland and Alamance counties are hearing evidence in murder cases against black men who prosecutors think should die for their crimes.

Johnson [Cumberland County Judge E. Lynn Johnson] and Alamance County Judge J.B. Allen refused to delay the trials so defense attorneys could examine the race issue.

Johnson told attorneys for Andrew McMillan to raise the issue to higher courts after trial, if the jury orders the death penalty. He said that he would not consider the claim since it was past the point at which prosecutors declared they would seek the death penalty.


Awaiting a study

Much is in limbo while a team of professors at Michigan State University Law School completes a study examining race in capital cases in North Carolina since 1990. The study, funded by private state and national foundations, was launched after the law passed.

The law professors, Catherine Grosso and Barbara O’Brien, will examine capital and non-capital murder cases. They are bearing down on non-capital cases that had at least one extenuating factor that would have allowed prosecutors to seek the death penalty.


Grosso said Monday that she’s not sure what the study will reveal. Her team will not be searching for racial bias in particular cases, but it will be looking for statistical trends within specific districts in the state.

The study could help defendants if it proves that the state or individual counties have been imposing the death penalty unfairly. The law requires defense lawyers to show a pattern of unfairness; the law does not require a lawyer to point to specific discrimination within a single defendant’s case.