The death penalty in the United States has a race problem. African Americans are vastly overrepresented on death row: 42 percent of death row inmates are African American, which is more than three times higher than their share of the US population. But it’s not the racial disparities in the outcome that are most illustrative of the death penalty’s race problem. It’s the racial disparities throughout the entire process: African Americans are simultaneously the people most affected by death-penalty cases, and the people least likely to have a say in them.
A feature in the fall 2014 issue of the Virginia Quarterly Review tells the story of North Carolina’s Racial Justice Act, a 2009 law that aimed to uncover some of these racial discrepancies — and allow death-row inmates to have their cases reconsidered if they found enough evidence that their initial trial was racially skewed. The law was repealed in 2013, and the only inmates who got off death row under the law are in danger of having their death sentences reinstated.
My emphasis added above. As the article notes later, Republicans took over the state legislature in 2013. Shocking, I know.
Of course, it’s illegal to strike a potential juror just because of race. That’s the result of a Supreme Court case from 1986 called Batson v. Kentucky. But when North Carolina started reconsidering the cases of some death-row inmates under its now-repealed law, attorneys for the inmates found out how prosecutors were trained to get around this
An additional important point:
Juries in death penalty cases aren’t racially skewed because prosecutors are individually, deliberately racist — or if they are, as the training document shows, they’ve learned how to cover their tracks. The death penalty’s race problem is that a bunch of overlapping phenomena, which look neutral in any particular case, add up to a general disparity in who’s represented on juries and who is sentenced to death. It’s only possible to see that disparity once you zoom out to the level of statistics or aggregate research. But those statistics don’t say much about what to do in an individual case — where, again, bias isn’t immediately apparent.