NC’s “Racial Justice Act”: Not really about “justice” nor “race”

This is going to be longish, but I do hope you’ll read it – or print it to read later, and forward this to people you think need to read it. This issue is one of paramount importance for all, especially anyone concerned with the (wrong) direction the criminal justice system appears to be headed in this state. Our elected officials and other public figures in positions of power depend on people to not pay attention to what’s going on in order to get away with the stuff like what I’m about to write about, but an informed person armed with the facts is a powerful weapon against the “we know better than you” crowd.

Read on …

It’s amazing what you find when you do a little digging, especially when it comes to the criminal justice system. And, sadly, that’s what one often has to do in this state, since we simply can’t depend on the Big NC Media outlets (the Charlotte Observer and the Raleigh News and Observer – both liberal McClatchy outfits) to do anything outside of “dig” just enough to write something that they feel backs up their preconceived negative and very biased opinions about conservatives and/or law enforcement (and sometimes both go hand in hand). As I demonstrated a couple of weeks ago after doing some in depth research on the Big NC Media’s “reporting” of the recent SBI “scandals,” there is usually always more to what these news outlets write than meets the eye when it comes to their “investigative” reporting, and usually it’s something that will, in the end, cause the reader to question whether or not the foundation for the entire story or “investigative series” is based even remotely on anything related to the facts.

Such is the case with a little law we have on our books now here in NC called the “Racial Justice Act.” To read the act in full, go here. As for the short version (August 2009):

RALEIGH – The General Assembly has approved a landmark bill that will allow death-row inmates to challenge the death penalty by arguing that there is systemic racial bias in the way that capital punishment has been applied.

Under the bill, which is expected to be signed into law by Gov. Bev Perdue, an inmate will be able to present statistical evidence showing racial disparities in how the death penalty has been used. If a judge finds the evidence convincing, the judge can overturn that inmate’s death sentence and convert it to a sentence of life in prison.

Similarly, in future murder trials in North Carolina, judges will be able to block prosecutors from pursuing the death penalty if they find a historical pattern of racial bias in the use of the death penalty.


The act allows defendants and death-row inmates to use statistics or other evidence to argue that race was a factor in decisions to request or impose the death penalty. The statistics can come from other death-penalty cases in the state as a whole, or in the local jurisdiction of the person making the challenge.

Got that? So instead of the cold, hard, brutal facts, statistics can and will be, in effect, “witnesses” for the defense.

When our Democrat Governor, Bev Perdue, signed this bill – proposed by Democrats and passed by our Democrat state legislature – into law last August, here’s what she had to say:

“I have always been a supporter of death penalty, but I have always believed it must be carried out fairly,” said Perdue. “The Racial Justice Act ensures that when North Carolina hands down our state’s harshest punishment to our most heinous criminals – the decision is based on the facts and the law, not racial prejudice.”

The Racial Justice Act will allow inmates on death row and persons charged with a capital crime to present a judge with evidence that shows race was a significant factor that led to the imposition of the death sentence. If the judge agrees with the evidence, the death sentence can be overturned to life in prison without possibility of parole.

“This is extremely significant legislation that will help to assure us that when the death penalty is used as an ultimate punishment that the decision is free of racial biases and prejudices,” said Sen. McKissick.

These people are so deeply, deeply misguided.

The reason I’m bringing the RJA back up over a year after its passage is because it’s recently been in the news again, as the deadline for death row inmates to file claims based on the RJA was last month. North Carolina currently has 159 inmates sitting on death row. At this point all but 7 are seeking to have their sentences changed to life without parole based on the RJA. It’s also being utilized in another 50 death penalty cases awaiting trial. Interestingly enough, though the act on its face appears to be geared towards helping black death row inmates escape the death penalty, it’s also being used in the cases of white death row inmates as well, including Carl Stephen Moseley, a brutal rapist and double-murderer. Here’s what his defense attorneys are asserting:

In seeking to have his death sentence reversed under the state’s Racial Justice Act, Moseley is claiming that the court system is biased against whites.

A motion filed by attorneys for the Mount Airy inmate states that the reverse bias he allegedly suffered was a result of efforts to eliminate discrimination against black defendants.

In attempting to prove that contention, Moseley’s motion cites figures showing that prosecutors around the state sought the death penalty against a larger percentage of white defendants than those of other races during the decade of the 1990s.

The dozen people executed in North Carolina between 1984 and 1991 were all white, Moseley’s motion further claims. And in another time frame during the 1990s, the numbers show that whites were much more likely to go to trial, face a death sentence and actually receive that penalty than non-whites.

Think the claim won’t go anywhere? Think again:

Rep. Sarah Stevens of Mount Airy, who has been an attorney for 24 years and is completing her first term in the General Assembly, said Saturday that Moseley’s reverse-discrimination claim “has teeth.”

“That’s not what they expected to happen when they did this bill,” Stevens, a Republican, said of the Racial Justice Act’s backers in the Legislature.

Like other of the new law’s critics, she views it as a back-door approach to curtail the use of capital punishment in North Carolina by showing that it is racially discriminatory against blacks.

However, Moseley’s motion is a twist on that. “He can use the exact-same statistics and he’ll use them from a different perspective,” the local lawmaker and attorney said in discussing the law.

“It seeks to do away with the death penalty.”

The main problem Stevens sees with the Racial Justice Act is that it relies on statistics in arguing whether a death sentence was appropriate for a particular inmate rather than the facts surrounding the specific crime.

“It’s the wrong way to approach this,” she said. “It simply has to do with the trial of a capital case by statistics, and it doesn’t go to the individual case — which is supposed to be what our justice system is all about.”

Just for the record: 87 death row inmates in North Carolina are black. 60 are white. 8 are Indian. 4 are “other.” (Source)

Stevens is almost entirely right: This law is another way the bleeding hearts in this state can continue to keep the unofficial death penalty moratorium (ongoing since 2007) in place, while defense attorneys can argue in favor of a more lenient sentence for death row inmates. However, I believe she was wrong when she stated that a white defendant challenging this law is not what the bill’s creators had in mind. I believe they had every intention of having as many guilty thugs on death row challenge their sentences as possible because liberals and Democrats in general tend to oppose the death penalty, and they will use whatever means they have at their disposal to do away with it.

By hook or by crook.

Just to show you as an example: Some of this bill’s supporters have suggested that, instead of overburdening court rooms with the mountains of forthcoming RJA claims, why not try them all at once?

Yes, you heard that right.


Tye Hunter, executive director of the Center for Death Penalty Litigation, a Durham nonprofit that represents inmates on death row, has suggested consolidating all of the Racial Justice Act cases so one judge could hear them, saving the state time and money.

“It’s made me smile a little bit because the state says this is going to clog the court system,” Hunter said. “Then, we’ve filed motions saying let’s consolidate them so we don’t clog the courts up, and their response to that is no.”

Dern right it should be no – more like a “hell no.” Doesn’t it strike you as deeply hypocritical that the same anti-death penalty folks who claim that each individual charged with a crime must have his or her day in court with an attorney entirely devoted and focused exclusively on creating reasonable doubt over his or her client’s individual case, all of a sudden want them to be all lumped in together before one judge? And does Hunter even think about the victim and the victim’s family when advocating this “lump trial”? What about their rights? What about their concerns? What about the pain they’re going to have to go through all over again as a result of this law? What about the impact on society and potential future victims? Doesn’t matter, not to folks like Tye Hunter. Because to folks like Tye Hunter, the actual victim means nothing. The “real” victim, to people like Hunter, is the “misunderstood” death row inmate who “had a bad home life” and who is being “targeted solely on the basis of race,” etc.

And Hunter and his ilk know full well that prosecutors in this state would and will never go for a “consolidation” of all these cases, because prosecutors have to much time and energy invested in the cases already to put the fates of all of them in the hands of one judge. That’s why Hunter “smiles a bit.” Because he knows this law is going to jam up our court system even more so than it already is, and will make prosecutors more reluctant to try death penalty cases.

Proponents of the law have also shamelessly argued that none of the death row inmates filing RJA claims will “go free” if their sentences are changed to life without parole. But they’re not being completely honest:

The law would also allow some convicted killers to go from death row to parole almost immediately. Nearly half of the 163 murderers sitting on death row now were sent there for crimes before October 1994, when the sentencing system changed to eliminate parole. If those death sentences were commuted to life in prison, the inmates would be considered for parole after serving 20 years. There are 10 murderers on death row now who have already served 20 years in prison, all according to information from the DOC.

Which means those convicted murderers could very possibly go free.

Chilling, isn’t it?

You may ask: What was the basis for the RJA in the first place? More from the Winston-Salem Journal:

Supporters of the bill point to numerous studies, both nationally and in North Carolina, that have shown racial disparities in capital punishment. Statistically, cases involving black defendants, or white victims, or both, are more likely to end with a death sentence.

In 2001, two UNC professors found that defendants whose victims were white were 3.5 times more likely to be sentenced to death than defendants whose victims were black.

These “studies,” as you might expect, were deeply flawed. I’ve read a strong critique of one myself. Elliot Cramer, a professor emeritus at the UNC Psychometric Laboratory and consultant to NC on the death penalty and discrimination cases, writes in response to the use of these flawed studies as evidence:

The so-called Racial Justice Act is just beginning to have its unfortunate effects as all 159 inmates on Death Row are expected to file appeals within the next week. Sixty of the inmates are white, and they could be the chief beneficiaries, claiming statistical evidence of racial bias. The bill was sponsored by well-intentioned but misguided legislators, misled by a well-publicized but deeply flawed 2001 study by UNC political science professor Isaac Unah and UNC Law School Dean Jack Boger.

Neither has any significant statistical expertise.

Based on their paper, it was widely reported that “a defendant is 3.5 times more likely to face the death penalty when the victim is white than when the victim is black.” This was NEVER a conclusion of the study; the study actually referred to odds, a completely different concept. The study was so flawed that, to this day, the authors have been unable to publish it in any scientific journal. Nevertheless, it was the driving force behind the passage of the “Racial Justice Act.” Despite publicly offering to release the data to critics in 2001, the authors refused to make the data available. What do they have to hide?

Most readers would assume that the “racial injustice” involves African-American murderers being more likely to receive the death penalty and the first five appeals involve African-Americans killing whites. In fact interracial murders are exceedingly rare and are the most horrendous of any murders. Between 1999 and 2009, only 3 percent of the 5,772 murders involved African-Americans killing whites, while 13 percent involved whites killing African-Americans. Since 1961, twice as many whites have been executed in North Carolina as African-Americans.

The claimed injustice is that murderers of African-Americans are LESS LIKELY to get the death penalty because black life is supposedly undervalued. Who are these murderers of African-Americans? Between 1999 and 2009, 94 percent of them were African-American themselves. Why are so few of these murderers of African-Americans given the death penalty? It is because, under state law, juries must balance 11 possible aggravating circumstances, such as kidnapping and robbery, against mitigating circumstances, such as family history and remorse. It is the case that murders involving white victims are much more likely to have serious aggravating circumstance and are much less likely to have mitigating circumstances.


A new study claiming this same kind of discrimination by Michael Radelet and Glenn Pierce is scheduled to be published in a nonpeer reviewed UNC student law journal. Their conclusion is, “Overall, for homicides in North Carolina 1980-2007, the odds of a death sentence for those who are suspected of killing whites are approximately three times higher than the odds of a death sentence for those suspected of killing blacks.” The obvious flaw that completely invalidates their conclusion is that they consider only two aggravating circumstance — multiple homicides and associated felonies — and fail to consider mitigating circumstances. Furthermore, they do not distinguish between types of felony, equating carjacking and kidnapping.

Need I say more? No, but of course you know I will. :)

Professor Cramer is exactly right when he talks about both the aggravating and mitigating circumstances. What are the aggravating and mitigating circumstances for capital punishment cases in North Carolina? Find out here. Once you read them, you’ll understand how it is that more black people are sentenced to death row than white, and why it’s more likely that a black person will be given the death penalty for the murder of a white person than a white person will be given the death penalty for the murder of a black person – as evidenced by this 1991 in-depth study of death row inmates in Georgia. I’d urge you to read it in full – as it includes charts I can’t copy over into this post, but I’ll snip the relevant parts as best I can:


If a defendant is convicted of murder and the prosecution asks for the death penalty, then the trial moves to the penalty phase. The jury is obligated to consider the combination of all relevant aggravating, mitigating and evidentiary facts of the case before imposing a sentence. Thus, it is impossible to judge the appropriateness of a defendant’s sentence based upon the knowledge of whether or not one or several particular factors occurred. However, if the revised statutes are working as designed, then death-sentenced defendants should have a relatively high frequency of incidents that tend to exacerbate homicides such as the mutilation or rape of the victim. Furthermore, death-sentenced defendants should also have a relatively low frequency of incidents that tend to excuse homicides such as the killing resulting from a family quarrel or other dispute. This is precisely the pattern that is depicted by the Georgia Charging and Sentencing Study database. Table I below compares the incidence of important aggravating and mitigating factors of the crimes according to the offender’s conviction and sentence.


The 1,082 defendants were divided into three distinct groups by crime of conviction (voluntary manslaughter or murder) and sentence: (1) defendants convicted of voluntary manslaughter and sentenced to prison for 1 to 20 years, (2) defendants convicted of murder and sentenced to life imprisonment and (3) defendants convicted of murder and sentenced to death. For several important aggravating and mitigating features of homicides, Table I displays the percentage of cases for which each of these factors occurred, broken down by crime of conviction and sentence. Table I is an abbreviated version of a more detailed exhibit with over 100 aggravating and mitigating factors that I presented to the court.

According to Table I, the victim was killed during an armed robbery in 55.8% of the death sentence cases, 28.0% of the life sentence cases, and 2.8% of the voluntary manslaughter cases. On the other hand, the homicide arose as the result of a dispute in 81.4% percent of the voluntary manslaughter cases, 46.8% of the life sentence cases and only 14.1% of the death sentence cases.


The Georgia Charging and Sentencing Study estimated that 7% of white defendants were sentenced to death as compared to only 4% of black defendants. Therefore, death sentences were imposed on a higher percentage of whites than blacks. However, when the cases were divided up by the race of the victim, 11% of the white victim killers were sentenced to death as compared to only 1% of the black victim killers. There are two plausible explanations for this 10 percent disparity.

Baldus testified that racial factors play a role in determining who receives the death penalty in Georgia. He contends that at least part of the difference in death sentencing rates is due to institutionalized racism in the Georgia sentencing system, in that a black life is not held to be as valuable as a white life. An alternative explanation for the 10 percent disparity in death sentencing rates is that white victim homicides generally occur in more aggravated circumstances than black victim homicides. The Georgia Charging and Sentencing Study database supports this position. Table II displays the percentage of cases in which several of the more important aggravating and mitigating features are broken down by the victim’s race.


White victim homicides have a much higher incidence of armed robberies, kidnapings, and rapes. For example, in 33.3% of the white victim cases, the victim was killed during the course of an armed robbery as compared to only 7.4% of the black victim cases. The 25.9% difference in armed robbery rates between white victim and black victim cases is approximately 10.2 standard deviations above 0%. Furthermore, white victim homicides show a greater percentage of mutilations, execution style murders, tortures, and beaten victims, features which generally aggravate homicides and increase the likelihood of a death sentence if one or more statutory aggravating factors is also present.

On the other hand, cases involving black victims are more likely to involve an enraged and remorseful defendant, who kills as the result of a fight or dispute. For instance, in 44.2% of the white victim cases, the homicide was precipitated by a dispute or fight as compared to 72.7% of the black victim homicides.


The Georgia Charging and Sentencing Study projected that 22% of black killers of white victims, 8% of white killers of white victims, 1% of black killers of black victims, and 3% of white killers of black victims are sentenced to death. Table III shows the incidence of important aggravating and mitigating factors broken down by the four defendant-victim racial combinations.


The four defendant-victim racial combinations provide the key that unlocks the race-of-victim sentencing puzzle. Each defendant-victim racial combination portrays a fundamentally different homicide pattern. The black defendant white victim cases are the most aggravated of all four defendant-victim racial combinations. In 67.1% of the cases, the homicide results from an armed robbery whereas only 18.2% of the time is the homicide precipitated by a dispute. The interracial nature of this kind of homicide minimizes the possibility that the killing arose due to a family dispute, a quarrel between lovers, or arguments between friends and relatives. The victim was a stranger 70.6% of the time, and a family member or friend in only 4.9% of the cases. Multiple offenders were involved in 58.6% of the cases. Black defendant white victim killings are invariably linked to felony circumstances which legally qualifies the defendant for a death sentence.

Of all four defendant-victim racial combinations, the black defendant black victim homicides occur most frequently with 477 cases. Only 6.6% of the time did the homicide result from an armed robbery, whereas 73.0% of the time the killing was precipitated by a dispute. In this category of homicide, the victim is a stranger only 9.6% of the time as compared to a family member or friend 51.4% of the time. Multiple offenders are involved in only 12.4% of the cases. This kind of homicide is characterized by poor defendants (83.9%), acting alone, who kill family members, friends, or other acquaintances during a fight or argument. This type of killing tends to have mitigating circumstances which explains why few of these defendants are ever sentenced to death.

The white defendant white victim cases reflect a mixture of two basic types of killings. Although the majority of these homicides are precipitated by disputes and fights, a significant percentage occur during the course of a felony or involve horrible brutal killings.

It’s complicated, but the facts are clear: death penalty sentencing has little to nothing to do with the race of the defendant and/or victim and everything to do with the aggravating and mitigating circumstances surrounding the case. A much more easier to read explanation of the differences in black and white death penalty rates can be found here in this excellent piece by Heritage’s David Muhlhausen, Ph.D.

Finally, I’d like to address one big glaring insinuation/accusation being thrown not just at alleged “racist juries” in this state but also at NC prosecutors: the belief that they try to eliminate black people from serving on a jury in capital punishment cases because they (prosecutors) are “racists.” Maybe if we rolled back the time machine to 60-150 years ago, you’d see some of that, but these days, the accusation is a nasty and false smear, designed to put the prosecutor on trial rather than the accused. The fact of the matter is that both the prosecution and the defense will seek to eliminate any potential juror who they feel will not give their client a fair shake. This is especially true in cases where the death penalty is on the table. Why would a prosecutor be reluctant to have a black person on the jury when hoping to have the accused sentenced to death? Because, by a large margin, black people are much more reluctant to support the death penalty than white people:

In the past 13 months, from May 2002 to May 2003, Gallup has asked Americans about their views on the death penalty four times. The large combined total of 2,979 cases included in these polls provides the basis for a detailed look at support for the death penalty by subgroup.

In the four polls overall**, 71% of Americans were in favor of the death penalty, and 26% were opposed. The data show some major differences by subgroup, with the most pronounced differences by race, political partisanship, and ideology. But differences are also apparent by gender and education. Specifically,


Seventy-five percent of whites favor the death penalty, compared with just 46% of blacks (48% of blacks oppose the death penalty).

In fact, studies show that black people are more prone to be more in favor of rehabilitation than long prison sentences, perhaps due to the fact that, as a percentage of their population, they’re more likely to have had either perceived negative or actual negative experiences with law enforcement – whether it be as a victim, a relative or friend of a victim, as a criminal or a relative or friend of a criminal, etc. Not only that, but black people are also keenly aware of the racial injustices of the distant past in which black people were often hung without trial.

So it’s no small wonder that a prosecutor would want a majority or all-white jury in a 1st degree murder case where the death penalty is being sought. Here’s the dirty little secret no one wants to talk about, though. Did you know that it’s not just prosecutors who have statistics like this in mind when questioning potential jurors? Nope. The defense attorney does as well. In case studies done in Dallas in 2006, here’s what the Dallas Morning News found about how defense attorneys took into consideration the race of a potential juror in Dallas County:

Nothing matters more than race to Dallas County defense lawyers when they play the high-stakes game of seating a sympathetic jury for their clients.

In fact, defense lawyers were more than three times as likely to reject whites as they were to reject blacks, according to an analysis of jury data by The Dallas Morning News.

But in following long-held, yet unproven, stereotypes that black jurors are softer on crime, defense lawyers are trampling a U.S. Supreme Court ban on race bias in jury selection.

“Most defense attorneys, if they’re honest, will admit that they want to get rid of the whites because the prosecution is getting rid of the blacks,” said David Baldus, one of the nationally recognized experts on race in jury selection who reviewed the newspaper’s findings. “It’s a kind of discrimination that no one is really objecting to very much because everybody is doing it.”

While defense lawyers say their jury selection tactics are motivated by a desire for a more diverse panel, they only occasionally challenge prosecutors who eliminate black prospective jurors, the newspaper also found.


The analysis showed that defense attorneys were more likely to strike potential jurors who had been crime victims or who worked in law enforcement or had friends or family in law enforcement. But even when blacks and whites had similar backgrounds or relationships, defense attorneys rejected white prospective jurors more often.

Where prosecutors were more likely to strike those who are single, the defense was more likely to strike those who are married. Prosecutors strike people in blue-collar jobs at higher rates; the defense strikes people in white-collar jobs at higher rates.

Next to preferring almost any black person over a white person, the analysis showed, the defense works to seat those who readily admit that they consider rehabilitation the most important aspect of punishment.

RACISTS! But seriously, isn’t it interesting how defense attorneys get away with this double standard on wanting to eliminate as many whites as possible, yet are not accused of “racism”? All the while the prosecuting attorney is almost always accused of “racism” by so-called “innocence” groups, groups who turn a blind eye when confronted with evidence that defense attorneys try to exclude certain races as well. This in spite of the fact that the the goals of BOTH attorneys are the same during the jury selection process: To try and get the best jury for their respective clients. One side or the other will seek to eliminate any potential juror who could be biased against their client. For example, in a case involving a marijuana grower and supplier, a prosecutor is not going to want anyone on the jury who is in favor of pot legalization, while the defense attorney wouldn’t mind having someone like that who very likely would be sympathetic to their client’s situation.

Both the prosecutor and defense attorney are going to go on their gut instinct about a potential juror, and they’re not going to just rely on what those jurors say but they’ll also rely on the knowledge they learn about their backgrounds, and attorneys will also rely on what they know from experience about how different types of jurors typically view the criminal justice process. This is what any good attorney will do, as one lawyer from the Dallas Morning News article above points out:

Larry Mitchell, an appeals lawyer from Dallas, said he never thought the law against race bias would succeed among lawyers.

“I didn’t think it was a good idea to try to do your social work in a jury room,” he said. “Lawyers are going to try to win their cases the best they can. They’re going to pick the best jury they can.”

Yes, and not just prosecuting attorneys but defense attorneys as well. They wouldn’t be doing their jobs if they didn’t.

Keep all of this in mind next time you hear about so-called “racial disparities” in the justice system. I’m not saying they don’t exist, but I submit that they are far less widespread than liberals, defense attorneys (I know, same thing), and “innocence” groups would have you think that they are. Remember: The ultimate goal of these groups is to eradicate the death penalty for ALL – not just black people, and they will rely on whatever they can get their hands on – including bogus, distorted, misleading “facts” and “studies” – to show that the system is “so bad” to the point that all executions must be put on hold “pending further review” – in hopes that eventually they can frustrate the state to the point that they give up on the death penalty altogether. In the meantime, who suffers? Both white AND black victims of crimes and their families, who have to relive the nightmares of the crime all over again. Who else suffers? Not just us, but also our children, who have the potential – if the bleeding hearts get their way – of growing up in a society where violent offenders of all races know they will be able to get away with more because of the “advocates” they have on their side both in the courtroom and out of it, advocates whose sole goal is to get people to view all defendants and convicted criminals as the real “victims.”

We owe it to victims, their familes, and our children to remain vigilant against any attempts at overturning the death penalty in this state. We can play an active role in this debate by staying in contact with our reps in the state legislature and letting them know how we feel, and by electing tough on crime representatives in place of the soft on crime crowd – many of who occupy places at the legislative table in Raleigh. Our legislature has effectively been controlled by Democrats for decades, and the Senate controlled by Democrats since the late 1800s. We have a real opportunity to come close to changing that this fall. I hope you’ll do your part when you go the voting booth. I know I will.

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