by Bob Geary
The ruling today in the Marcus Robinson case, the first appeal to be decided by a trial court under the Racial Justice Act, made national news. North Carolinians dealt a blow to racism. Still, not every North Carolinian acknowledges what the statistics tell us is obvious: That racism in NC death penalty cases, and in particular in the jury selection procession, is real, pervasive and undeniable. I was struck by this statement by Robinson's prosecutors, quoted in The New York Times —
“They do not have evidence of purposeful discrimination,” Rob Thompson, an assistant district attorney in Cumberland County, said in his closing arguments. “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.”
Only numbers? How about a crushing load of numbers embedded in a long, terrible history of racist practice? What Thompson is saying is, sure, we exclude more black jurors, and sure, we sentence more black convicts to death; but hey, don't go by the numbers, go by what we say, because we'd never do a racist thing.
And just now, the Rev. William Barber of the state NAACP sent a statement, which captures the reality of this case, and where North Carolina is today with capital punishment, far better than I can. Very much worth your while to read it all the way through:
Statement Reflecting on First Racial Justice Act Decision
Rev. Dr. William J. Barber, II, President
North Carolina State Conference of the NAACP
First, allow me, on behalf of the National, State, and Local units of the NAACP to express our deepest sympathy to the family of Eric Tornbloom. Many NAACP members, their families, and friends, have been victims of similar violence. I know how deep his loss is felt, and I ask that we take a moment to pray for him and his family.
It is fitting that, on Sunday, April 22nd, we mark the 25th anniversary of the Supreme Court decision in McCleskey v. Kemp. That decision ruled a defendant cannot rely upon statistical evidence of systemic racial bias to prove his death sentence was unconstitutional, no matter how strong that evidence may be. Those of us who have tried to breathe life into the words "Equal Protection Under the Law" have marked April 22nd as one of the lowest points in our long quest for equality and justice. But today, almost 25 years later, because of the persistent, diligent, grass-roots struggle of literally hundreds of thousands of people of good will in North Carolina who fought for, passed, and then worked to implement North Carolina's historic Racial Justice Act, we now have the first finding of racial discrimination in the prosecution of a defendant on Death Row. This decision will automatically change Mr. Marcus Robinson's sentence to life without parole. . According to the law, and verified by an analysis made by the Institute of Government in Chapel Hill, this is a final judgment
We take this moment to remind prosecutors and their staffs that the Racial Justice Act mentions the idea of training program, to help weed out racial bias as they exercise their broad discretion in capital cases. We encourage the Association of District Attorneys to take advantage of such training to drain some of the unconscious and conscious racial bias out of our courthouses.
This major decision in the long struggle against racism in southern courthouses prompts me to comment on the connections between the McClesky decision a quarter century ago and this first decision under our historic Racial Justice Act. When justice appears to value some victims less than others, it does not deserve the name 'justice.' Those of us who have been paying attention know this problem did not begin with the admitted denial by the McClesky v. Kemp decision 25 years ago. Over a century ago, the NAACP was founded to bring to the nation's attention the use of vigilante lynchings of Black men who were rumored to have committed crimes against whites. As the NAACP began to win the struggle for national public opinion against lynching, southern states quickly moved the lynching tree inside their all-white courthouses, and changed the name to capital punishment. Official lynchings became the norm in southern courthouses against any Black man accused of raping a White woman, although it was practically unheard of to bring a capital case against a White man accused of raping a Black woman.
History books and professors, the media, and the New South apologists kept this well-known fact under the sheets until after World War II. To Kill a Mockingbird, the book and the movie, helped to challenge this denial in the early 1960's. The obscene racial disparities that were accepted across the South in the application of the death penalty became a major embarrassment during the cold war, as case after case of unofficial capital punishment, such as Emmitt Till in 1955, and official capital punishment was brought to light by the NAACP and other civil rights groups. In 1972 the Supreme Court effectively stopped the death penalty for all crimes, but only a few years later, what became known as the Nixon court, reinstated the costly and race-based practice in 1976.
In 1987, Jack Boger, now the Dean of the UNC School of Law, brought the case of Warren McClesky to the Supreme Court, arguing that racial considerations played a part in his client's receiving the death penalty. The Court wrote that such considerations were so embedded in our courthouses they were an "inevitable part" of our system of justice, and therefore statistical evidence of systemic racial bias could not be used to overturn a death sentence. Who cares, the Court told Mr. McClesky and his young advocate, Jack Boger, whether defendants convicted of murdering White victims were over four times more likely to be sentenced to death than defendants who were charged with murdering a Black person? Who cares if study after study showed the best predictor of who lives and who dies in southern courts has nothing to do with the content or context of the crime, but everything to do with the color of the victim's skin.
Obviously, the answer to this riddle is not to execute more defendants who have been convicted of killing Black people. The answer is to focus on the cowardly fallacy that underlay the McCleskey decision — that there is nothing we can do about the endemic racism in the southern criminal justice system because it is an "inevitable part" of it. We believe that racism need not be inevitable, and that truth will win out. Today, almost 25 years after the Supreme Court implied racial considerations were an inevitable part of Southern Justice, another Court, following carefully the guidelines set for us by the Racial Justice Act, said No. It is not an inevitable part. We will face the racial considerations in our system, and we can face the truth in the South. This decision reveals the lie of the inevitability premise.
In the past few years at least five Black men were released or barely missed death row because brave media reporters; hard-working, underpaid lawyers; and the NAACP have proven that N.C. prosecutors had tried or convicted the wrong man! Today another Black man has successfully presented evidence that showed his sentence was polluted by racial considerations. Each of these revelations strike the public consciousness like the hammer of justice. Each revelation helps more of us face the hard truth about our criminal justice system.
Each of these revelations lead to a broader, deeper commitment to the truth that the simplest way, the surest way, the safest way, to be sure the 'inevitable" racial considerations the Supreme Court mentioned 25 years ago play no part in the decision of who lives and who dies, is to repeal capital punishment. The NAACP has studied this question for 103 years. The question helped start our organization. It is a question we have never wavered about. It is part of our 14 Point People's Agenda. Repeal the Death Penalty. Save money. Save our souls. Save and reform our criminal justice system. Repeal the Death Penalty.