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Racial Bias Still Plagues the Death Penalty

By Brian Elderbroom

In perhaps its last meeting of substance, the N.C. House Select Committee on Capital Punishment heard compelling evidence last week that racial bias taints sentencing in death penalty cases and that far too often considerations of race are involved in decisions of life and death. 

Some people would have you believe that the system works just fine, and that the good people of North Carolina would never consider race in a capital trial. On Wednesday, the committee heard from Barry McNeil of the Attorney General’s office and Elliot Cramer, a retired professor. Mr. McNeil argued that safeguards, such as the fact that District Attorneys are elected and it is illegal to dismiss a potential juror based on their race, ensure that race is not a factor. Professor Cramer argued that racial bias no longer exists, without the burdensome weight of proof or argument. 

Fortunately, brave people are still willing to stand up and call it like it is. The committee also heard from Prof. Jack Boger, Dean of the UNC-CH Law School, and Rev. William Barber, President of the NC NAACP, who eloquently reminded them that racial bias does in fact exist and is a plague on our criminal justice system. Using the analogy of a leaking bucket, Boger told the committee that while Mr. McNeil had told the committee about the makeup of the bucket and why it was a good bucket, others had put water in the bucket to see if it leaked. And it did. 

In 2001, Boger co-authored a Common Sense Foundation study that found the odds of getting a death sentence increase by 3.5 times if the victim is white as opposed to when the victim is a person of color. In fact, there have been at least 28 other studies that have found similar evidence of widespread racial bias – studies that have been upheld by the Supreme Court and defended by leading academic institutions such as MIT. If legislators aren’t going to pay attention to the large body of existing work that shows racial bias exists, then maybe they should conduct a study of their own. Last session, Rep. Beverly Earle sponsored a bill that would have done just that but it died in committee.

The committee also heard from Jonathon Broun, a capital defense attorney, who reminded legislators that racism can be subconscious and unintentional and that juries bring their biases into the courtroom with them. He also informed the committee members that in the time since the U.S. Supreme Court’s Batson decision, which prohibits the practice of striking jurors on the basis of race, not once has a prosecutor been shown to have acted inappropriately, a fact that Mr. McNeil conveniently failed to point out.  

Among the reforms suggested during the day was a moratorium on executions, during which time death penalty trials would continue. 

Talking about race is never easy, and the committee should be applauded for taking on that challenge, but there is a lot more to be said.  Rather than marching people to the death chamber only to ask questions later, doesn’t it make sense to halt all executions and ask tough questions such as does race play a factor in who lives and who dies

The people of North Carolina deserve answers to this and many other important questions related to capital punishment in our state. A moratorium would help us get those answers without risking any more injustice. 

Brian Elderbroom [1] is the Associate Director of the Common Sense Foundation [2]