Last week, the North Carolina Supreme Court broke new ground for a state court in the South. Not only did the justices nullify a death sentence poisoned by racism, they also spoke directly to the death penalty’s “egregious legacy” of racially discriminatory application. “The same racially oppressive beliefs that fueled segregation manifested themselves through public lynchings,” the court wrote, “the disproportionate application of the death penalty against African-American defendants, and the exclusion of African-Americans from juries.”
The support for the court’s conclusion that the death penalty is a racial justice issue is overwhelming and the remedy apparent: End the death penalty.
A 2017 study by UNC Professor Frank Baumgartner in North Carolina found that 0.7% of homicides of white people resulted in executions, compared to 0.12% of homicides of Black people. This is only the latest of numerous scholarly reports demonstrating pervasive racial discrimination in seeking or imposing the death penalty, and the racially biased exclusion of jurors from deciding who lives and who dies in death penalty cases. The state does not execute people convicted of the worst of the worst crimes. Overwhelmingly, the state executes people who are poor and accused of killing white people, and it achieves that outcome in part by seeking to exclude Black persons from serving on juries.
For example, in 2003 North Carolina executed Robbie Lyons for an unpremeditated murder following a botched robbery of Stephen Stafford, the white owner of a small Winston-Salem store. Lyons was a severely mentally ill 21-year-old Black man with no prior history of homicide, who had suffered violent beatings and exposure to drugs and alcohol beginning at age 4. Robbie Lyons would not have been executed if he were white and the victim Black.
Despite the overwhelming evidence of racial bias in the death penalty, the U.S. Supreme Court found in the 1987 case McCleskey v. Kemp that statistical evidence is not enough to challenge the constitutionality of the death penalty, though it invited state legislatures to take on this task. McCleskey is harshly criticized by many, including N.Y.U. Law Professor Anthony G. Amsterdam, as “the Dred Scott decision of our time.” The author of the opinion, Justice Powell, later said the decision was the biggest regret of his tenure on the Court.
That decision led North Carolina to pass in 2009 the Racial Justice Act, the first law to permit the use of statewide statistics to demonstrate that race was a significant factor in seeking or imposing the death penalty. The Republican-led General Assembly and then-Gov. Pat McCrory, however, repealed the law after an election filled with racist depictions, including of my client Henry McCollum, who has since been found innocent.
Eleven years after the passage of the Racial Justice Act, the North Carolina courts are doing their part by acknowledging the plague of racism infesting our criminal justice system, and by starting to root out those injustices on a case-by-case basis. Now is the time for the governor and General Assembly to respond with equal vigor by commuting the sentences of persons currently on death row to life imprisonment and ending the death penalty. This is no pipe dream; 10 other states have abolished their death penalties in the last 15 years.
In June, Gov. Cooper announced a task force on racial equity in criminal justice, which will “work to eliminate” racial inequities in the justice system. In the announcement, Attorney General Josh Stein said, “I look forward to working alongside them to find real and meaningful solutions to improve the way Black people are treated in North Carolina. Now it’s time to get to work.”
In eliminating the death penalty, an extreme punishment inextricably linked to lynching and the perpetuation of white supremacy, our leaders have the opportunity to leave one clear legacy of racial justice.
Ken Rose, former director of the Center for Death Penalty Litigation, is an attorney who has represented multiple clients sentenced to Death Row and a longtime advocate for abolition of the death penalty. He lives in Durham.