Today the House Committee on Ways and Means and Broadband Connectivity narrowly approved the Racial Justice Act (SB 461), which would prevent the execution of defendants who can prove race was an underlying factor in the decision to seek, or impose, the death penalty at the time of their trial. The bill, which passed 7-5, will now be taken up by the House Judiciary I Committee, which has already approved an earlier House version this session. (Ways and Means today passed the Senate version,
which currently contains while removing a controversial clause that would ensure capital punishment will resume in the state.)
Before it passed, the bill faced stiff opposition from Minority House Leader Paul Stam (R-Wake) and Wake County District Attorney Colon Willoughby, who each provided the committee with strained analogies to argue against the use of statistical data in proving racial bias.
Speaking on behalf of the N.C. Conference of District Attorneys, Willoughby compared disproportionate sentencing, based on race, to disproportionate sentencing based on "blood type" or "astrological signs."
He said all of the examples represent a "disingenuous and scientifically unsound method of using statistics to insert some sort of causal relationship without proof."
A 2001 study conducted by two University of North Carolina professors, which analyzed cases over a four-year period in the 1990s, found the odds of receiving a death sentence in North Carolina grew 3.5 times in cases where the victim was white. In addition, the study found, black defendants were twice as likely to receive death sentences when comparing identical crimes.
Willoughby argued that analyzing prior death-sentencing decisions, and comparing them to current cases, was the equivalent to punishing defendants for past crimes (which, under North Carolina's habitual felon law, we do.) Rep. Stam, raising his hand to speak "in favor" of the Racial Justice Act, said he "took issue" with the analogy.
"What this bill does is say that, because Rep. [Thom] Tillis [R-Mecklenburg] did a breaking-and-entering five years ago, I must've done it this year--because we happen to be the same race," he said, grabbing Tills--himself a Racial Justice Act opponent--by the shoulders.
Stam said that two-thirds of the defendants North Carolina has executed are white. Because of this figure, Stam suggested, "Every white defendant will say, 'We're being disproportionately executed.'"
He added, of prosecutors' likely response, "We've got to execute some more black people before we can fill up that quota, and execute whites."
Taking into account those who are currently on death-row, 49 percent of defendants North Carolina has sentenced to death since 1977 are black, although the state has had an African-American population of roughly 22 percent over the past three decades. This figure, collected by the N.C. Department of Correction, does not include defendants sentenced to death, and later exonerated, for wrongful convictions--the last three of whom were all African-American.
In an interview, House bill sponsor Rep. Larry Hall (D-Durham) dismissed Stam and Willoughby's arguments as "misstatements of the issue."
Referring to Willoughby's insistence that the U.S. Constitution already guarantees equal protection for sentencing decisions, Hall said, "We come back to those people on death-row, who were released on the basis of DNA evidence, who were proven to be innocent. Had they given up at any point in time, and not fought for 17 years, they wouldn't be with us today. The idea that that piece of paper guarantees those rights? No, it's the efforts of people. You have to be willing to seek the truth, and again, D.A.'s are officers of the court who are supposed to be seeking truth and justice--not just seeking prosecutions."
In an interview, Willoughby acknowledged that "we can show periods in history where a person's race may have affected the judgment they got--without question." But, he added, "I don't think that jurors are racist, and I don't think prosecutors are racist. And, [with this bill] I think you're trying to take a statistical correlation and equate that to causation, and that's an unsound principle."
Willoughby insisted judges already have the opportunity to admit statistical evidence as the basis for racial bias, and cited as an example "a case in Durham."
"Statistical evidence would be admissible, under our current laws, if it were relevant," he said.
By contrast, the Racial Justice Act would require judges in all capital cases to consider this evidence, based on other capital cases in the same county, judicial division or prosecutorial district. If a judge determined that racial bias existed in a capital case, the sentence would be reduced from death to life in prison without parole.
"This is the most significant, irreversible thing we do in the justice system," Hall said of the death penalty. "If we do not have credibility on this issue, then everything else is called into question."