North Carolina Op Ed: "Beyond Fixing" (Put it in mothballs! )

Op Ed from Raleigh, NC's New & Observer
NORTH CAROLINA:

Beyond fixing----An effort to purge racial bias from death penalty decisions is well-intentioned, but the death penalty itself is flawed.

If a mere law enacted by the General Assembly and signed by the governor could guarantee racial justice in North Carolina, then people of good will already would have taken care of that important piece of business. Alas, if it were only so simple. But it's not hard to understand why now, many of those same people of good will have rallied behind a bill ambitiously titled the "North Carolina Racial Justice Act."

The bill, which cleared the state House last week after an impassioned debate, actually focuses on one perceived aspect of racially driven mistreatment. It is intended to shield criminal defendants from discrimination in the justice system that could result in an unfair sentence of death -- unfair in that it was influenced by racial prejudice.

On its face, this is a proposition with much to recommend it. Yet the bill, in inviting statistical evidence of discrimination that is not necessarily linked to the particulars of a case at hand, stumbles in its attempt to reach a worthy goal.

Patterns of crime and punishment may show that social ills place an extraordinarily heavy burden on minority groups. Racial bias surely can be, has been, part of that unfortunate picture. But as specific cases play out in the courtroom, those patterns are of limited usefulness in determining either guilt or appropriate sentences.

The Racial Justice Act has been spearheaded by Democratic Rep. Larry Womble of Winston-Salem, who is African-American, and has received vigorous support from the state chapter of the NAACP. Here's a clue as to why: Of the 163 people on Death Row as of April 13, the latest total on the prison system's Web site, there were 60 white men, two white women, 87 black men and one black woman. That's in a state where the African-American population is about 22 %.

To detect a tilt?

It's reasonable to wonder if the disproportionate number of condemned inmates who are black reflects a lingering bias in the justice system. It's reasonable to declare, as the Racial Justice Act does, that no one "shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race."

How, though, to determine whether such a hideous outcome was in the offing? The proposed act allows for the use of statistical evidence that the scales have tilted against defendants of a certain race in a certain jurisdiction. But those statistics can lead the courts into a confusing and ambiguous minefield. For example, what if white defendants received most of the death sentences in a county, as has happened? Would that suggest the need to send more black murderers to death row?

The act's supporters point to what they say is a finding that the killers of white people in North Carolina are more likely to be sentenced to die than the killers of black people. However, if that is true, there are plausible explanations other than that prosecutors, judges or juries are biased. And, in fact, interracial killings are the exception, not the rule. So to correct the imbalance, it could well be that more black killers of black victims would have to be condemned. That surely isn't what Womble and his allies wish.

Is the justice system that condemns a small fraction of murderers reliably accurate and consistently fair in its findings? Sadly, no. The roster of people exonerated after having been convicted of killing someone tells that tale. African-Americans, for a host of regrettable reasons, are too often caught up in the wheels of the court system, and the chance that they will pay a price for flaws in that system is high.

System errors

Those flaws have included instances of trial attorneys unprepared to handle the demands of a capital case and prosecutors who wrongfully withheld evidence favorable to the defense. Any defendant who can show that his counsel was ineffective or that the prosecution cheated is entitled to relief. Statistics involving alleged racial bias in other cases would tend to be beside the point.

Still, it requires a leap of faith to assume that every defendant wrongfully convicted or unfairly sentenced will manage to persuade the courts to correct the mistake. Couple the possibility of a horrible miscarriage of justice with the costs and inefficiencies of capital punishment, with its years of appeals, and there is a strong argument for simply letting North Carolina's death penalty fade into disuse.

Clearly there is no reason to follow the state Senate's lead. In passing a version of the Racial Justice Act, senators also moved to resume executions, which have been on hold for the last couple of years because of court challenges. The act's House champions know better than to swallow that kind of poison pill.

No one should quarrel with the concept of purging any residual racial bias from the process of determining which murderers are sentenced to death. But rather than continuing to tinker with death's machinery, as a Supreme Court justice once described the grim effort of trying to fix the unfixable, better to put it in mothballs.

(source: Editorial, News & Observer)