As a national conversation about racial justice continues around the Trayvon Martin case, an historic decision was handed down in a North Carolina court today. In the first appeal under North Carolina’s Racial Justice Act, Judge Gregory A. Weeks of Cumberland County Superior Court commuted Marcus Robinson’s death sentence to life, citing evidence of “intentional discrimination” in jury selection at his capital trial. Lauren Winner, who teaches in School for Conversion’s Project TURN prison classes, has written a nice summary of this significant decision for Sojourners Magazine, noting the theological significance of this “turning point” during Eastertide. I’m glad to share this reflection from NC NAACP President William Barber, who has offered a prophetic defense of the Racial Justice Act since it was first proposed in our state.
By Rev. Dr. William Barber
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 deeply 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 low points in our long quest for equality and justice.
But today, almost 25 years later, because of the persistent, diligent, grassroots 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 a 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, as well as official capital punishment were 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 was not the content or context of the crime but 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 — the belief 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 here in North Carolina: “Repeal the Death Penalty.” So, we say again, in light of today’s historic decision: “Save money. Save our souls. Save and reform our criminal justice system. Repeal the Death Penalty.”