By:Marc Seelinger
Among the General Assembly’s more hotly debated bills this year is Senate Bill 9, “No Discriminatory Purpose in Death Penalty,” which would eliminate the use of statistical trends for appealing death sentences, the centerpiece of the 2009 Racial Justice Act. North Carolina is only the second state in the country to enact a “Racial Justice” law (the first being Kentucky) and the first (and only) state to allow death row inmates to use statistical evidence to allege racial discrimination in their sentencing. A successful appeal under the law allows death sentences to be commuted to life in prison. So far, 154 of North Carolina’s 157 death row inmates (including nonminority inmates) have filed appeals under the law. Such liberal use of the law’s appeals process has led many to wonder whether the Racial Justice Act is about racial justice at all and is not simply an under-handed attempt to eliminate the use of the death penalty in North Carolina and to undermine the integrity and rulings of the judicial system.
All of the state’s 44 elected district attorneys (including many Democrats support passage of SB-9. Susan Doyle, District Attorney for Johnson, Harnett, and Lee Counties, said, “The Racial Justice Act passed in 2009 purports to protect murderers from racial bias. Let me assure you, it does not. This act simply allows complex statistical maneuvering to over-rule a jury’s decision, ignore the heinous acts of a murderer, and ultimately put an end to the death penalty in our state.” Wake County District Attorney, Colin Wiloughby (a Democrat) said, “This bill will create witnesses out of statistics.” Some of the district attorneys’ support might stem from the fact that racial discrimination is already (very) illegal. To take but one example, in the North Carolina State Constitution, Article I, Section 19 states, “No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the state because of race, color, religion, or national origin.” So, the Racial Justice Act is primarily geared to addressing something that is already illegal, which raises some questions about its necessity. If not for the statistical element, the Racial Justice Act would be a fairly non-consequential law, but it on Lady Justice’s blindness. Justice is, indeed, blind, until of course she determines that you are part of an “oppressed” class and subject to special treatment.
Additionally, the law provides little guidance in explaining what statistical threshold must be met (beyond noting that such statistics must be “significant”) in order for proof of racial discrimination to be established. This gives judges hearing the appeals significant latitude I determining whether the justice system is racist. Could not one judge have a different definition of significance” than another judge? Could not one judge looking at the same data as another judge reach a different conclusion about the significance of the data? Could not one judge declare the North Carolina justice system a bastion of racist hatred and another declare it a pinnacle of virtue? Such potential for arbitrary application of the law is no way to run a justice system. And what of the hard-working judges and prosecutors, who everyday work to ensure a fair and equitable application of the law? Are we really to believe that they is the new use of statistical evidence in alleging racial discrimination that is the problem.
Liberals often like to lump thing into groups. Everything is divided up and compartmentalized into little boxes. The Racial Justice Act simply takes this mentality and applies it to the justice system. Rather than requiring defendants to prove that the specific people involved in their cases (i.e. the judge, jury, prosecutors, etc.) are racist, defendants need only claim that “The System” is racist. As long as the defendant can argue that the system is racist, the particular circumstances of his case do not really matter.
A black defendant with a black judge, a black prosecutor, and a black jury can use statistics to claim that he was the victim of racial discrimination. This is simply absurd. Of further concern is the nature by which the statistical “evidence” of racial discrimination can be collected. According to Jeff Hunt, District Attorney for Henderson, Polk, and Transylvania Counties, there are four areas under the law by which a defendant may search for proof of racism. The first area is at the state level. However, if the defendant is unable to rouse accommodating statistics from statewide data, he can mine the Judicial Division (North Carolina has 
in which his trial was held. If that does not work, he can use his Prosecutorial District (there are 43 in North Carolina). If he is still unsuccessful, he can use the statistics of the county (North Carolina has 100) in which his case arose and was tried. The problems involved with this procedure should be obvious. In the interest of commuting his sentence, every death row inmate in the state will embark on a fishing expedition as he searches for proof of the hidden racism embedded in North Carolina’s justice system.
Another questionable aspect of this law is its effect on turning the rule of law into the rule of men. First, the law unnecessarily injects race into the criminal justice system and casts significant doubt are part of some racist conspiracy that desperately needs correcting? And are we really to believe that the men and women who take time away from their jobs and families to serve on a jury are racist automatons and incapable of independent thought? I think not and assuming so, as the Racial Justice Act does, is insulting to the hard, honest work these people do every day. In political debate, the person who lobs a charge of racism at his opponent does so out of desperation because he has no other basis on which to make his argument and because it is impossible to defend against. The same principle holds true here. Accusing the judge, jury, or prosecutor of being a racist is an un-provable charge meant to cast doubt on the integrity of the justice system. In cases where racism actually played a role in the judicial proceedings, existing law already provides a process for redress. North Carolina’s Racial Justice Act is fraught with problems. It elevates race and statistics over fact and truth. The Act makes a mockery of justice and besmirches the character of everyone working in the justice system. The General Assembly is right to repeal it and to put North Carolina’s judicial standards back in line with the rest of the country.
