By Alan Bean
In the dwindling days of the 2009 legislative session, lawmakers in North Carolina, voting along party lines, passed a Racial Justice Act that allows death row defendants to use statistics to corroborate claims of racial bias in the criminal justice system. Then came the 2010 election. With the Republicans now in control of the state legislature, prosecutors from across the state are calling for the repeal of the Racial Justice Act.
The controversy centers in a study by the Michigan State University Law School finding that qualified black jurors in North Carolina are more than twice as likely to be excluded from juries as qualified white jurors.
Of the 154 inmates currently on death row in North Carolina, 33 were tried by all-white juries and 40 had juries with only one person of color. The state is approximately 70% white and 25% African-American.
Among the findings of the Michigan law school researchers were that qualified black jurors have been excluded from capital trials at more than twice the rate of white jurors. Of the inmates currently on death row, 33 had all-white juries and 40 had juries with a single person of color.
The researchers also found that defendants of any race whose victims were white were nearly three times as likely to get a death sentence as those who killed victims of other races.
The Racial Justice Act inspired hope in progressive legal circles that the legal tide might be turning. Since the mid-1970s it has become increasingly difficult for inmates to make racial claims in the appeals process. The legal landscape has become so bleak that some civil rights attorneys have been reluctant to make aggressive claims of racial bias for fear that defeat would establish yet another restrictive legal precedent.
I am not sure if the Racial Justice Act was a hot issue in the 2010 election, but Republican legislators will likely make the most of an opportunity to brand the Democrats as the party that coddles black criminals. In 2009-2010, there were nine black senators and 20 black representatives in North Carolina. In 2011-2012, there will be seven senators and 18 representatives.
At least North Carolina Democrats did the right thing while they had the chance, but with the dramatically diminished presence of black Democrats it remains to be seen how aggressively the party will push back against the Party of White.
For four brief and chaotic years, 1964-1968, the federal Democrats went from being the prime enablers of southern Jim Crow politics to being the party of civil rights. To illustrate, in 1964 the Democratic Convention in Atlantic City refused to seat Fannie Lou Hamer of the Mississippi Freedom Democrats. In Chicago, four years later, Hamer was seated to a standing ovation. This four-year embrace of diversity and the principle of racial equality was the 20th century equivalent of Reconstruction. This heroic embace of civil rights (tentative though it was) damaged democratic political fortunes in the 1968 federal election and American politics has been driven by racial resentment and anti-civil rights backlash ever since.
The typical response of Democrats has been to prove they can be even tougher on crime than Republicans. Many of the draconian laws driving mass incarceration were introduced by ostensibly liberal politicians–“the man from Hope” being chief among them.
If a Republican-controlled legislature repeals the Racial Justice Act will the national media take notice? Not likely. The American public has little interest in arcane legal issues and the media generally ignores all but the most explosive developments in the legal world. The right to a jury of ones peers is a no-brainer for progressives.
Here’s the rub; you can’t fight for racially representative juries without standing up for condemned racists and murderers. The case of Curtis Flowers is instructive in this regard. Juries with no more than a single white juror have convicted him four times; juries with more than one black juror have split along racial lines on two occasions. Only once did the composition of the jury reflect the racial demographics of Winona, Mississippi. In that instance, seven white jurors voted to convict while all five black jurors held out for acquittal. As a practical matter, these trials were over at the end of voir dire.
The real surprise is that the Racial Justice Act passed in the first place.