For good reason, the Racial Justice Act (RJA) was recently repealed by the North Carolina General Assembly. People of good will with honest intentions should take racial or ethnic bias seriously, but the aim of RJA was not racial justice. Its real purpose was to end the death penalty in North Carolina.
RJA was poorly written and abused by death row inmates. Under this bad law, proof of racial discrimination was established if “death sentences were sought or imposed significantly MORE FREQUENTLY upon persons of one race than upon persons of another race.”
It is important to understand that frequency is a measure of occurrence, NOT a measure of disproportion, discrimination or measurable bias. For example, if 10 death sentences are sought and imposed for both black and white murderers, the frequency of death sentences for each race is equal. However, equal frequency can be totally disproportionate.
This means that if whites had committed 100 death penalty eligible murders, yet only 10 death sentences were sought and imposed, and blacks had committed 12 “identical” death penalty eligible murders, yet 10 death sentences were sought and imposed, there would be equal frequency, but striking disproportion. RJA in no way addresses disproportion or actual bias. It was never meant to do so. It could have been written in such a manner, but it was not.
For those truly looking for discrimination, it does not matter how frequent, how often or how rare the death penalty is sought or imposed for murderers of different races or ethnicities. It only matters if it is disproportionately sought or imposed based upon discrimination by significant and measurable means.
The “study” most often cited by the media establishing racial bias in North Carolina’s death penalty was written by two UNC law professors and is entitled, “Race and the Death Penalty in North Carolina”. In actuality, the paper establishes no facts.
First, the only alleged racial “disparity” (not bias) uncovered in the study is based upon a “death odds multiplier” of 3.5, indicating that, on average, the odds of receiving a death sentence are increased by a factor of 3.5 when the murder victim is white.” IF true, the 3.5 odds multiplier might be a 2 to 4 percent differential. Such statistics are completely meaningless, based upon actual cases sent to death row.
Many in the media and elsewhere misinterpreted the 3.5 as “times” (a 350 percent differential) as opposed to the actual “odds multiplier” (maybe a 2 to 4 percent differential). There is no report of the authors, Professors Boger or Unah, ever attempting to correct this misunderstanding.
Second, the study looks at 1993 through 1997, or 16 percent of the 32 years of current death penalty laws and 99 out of the 383 death sentences, or 26 percent. Even in the unlikely case the study is sound, the results show no discrimination. In the context of the full 32-year database, this study is irrelevant in discussing the death penalty in North Carolina.
The bottom line is that the RJA was never about race or justice. The law was intentionally written to allow cases to be challenged and overturned based upon a definition of “discrimination” that had nothing to do with discrimination. RJA made a mockery of justice and was a direct insult to those who truly wish to end racism and discrimination. The law was a sham with no validity. It was used by Democrats and death penalty opponents to create a de facto moratorium on executions in our state. From its inception, RJA was never about racial justice. With its total repeal, the sham is over.
— Thom Goolsby is a state senator, practicing attorney and law professor. He is a chairman of the Senate Judiciary 1 and Justice and Public Safety Committees.
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