Racial discrimination remains a plague on criminal justice system

by Gretchen Engel, Center for Death Penalty Litigation, published in NC Policy Watch, November 5, 2015.

One of the fundamental promises of the American criminal justice system is that ordinary citizens have the power to help decide how justice is handed down. But the truth is, we have never fully extended this power to African Americans.

The U.S. Supreme Court underscored that truth Monday, when it heard arguments in Foster v. Chatman, a Georgia case in which jury selection notes reveal that prosecutors purposely excluded every potential black juror and that they ranked the African Americans in case “it comes down to having to pick one of the black jurors.”

If the court rules for the defendant in Foster, its decision will force courts across the country to stop ignoring clear evidence that African Americans have been systematically denied the right to serve on juries across the country. Here in North Carolina, we should watch this case closely.

In the investigation of cases tried under N.C. Racial Justice Act, we found evidence even stronger than that which drew the Supreme Court’s attention this week. The prosecutor’s handwritten notes in a Cumberland County capital case labeled jurors with terms like “blk wino” and “blk, high drug neighborhood.” Another juror was deemed “ok” because she was from a “respectable blk family.”

RJA defendants also discovered that their prosecutors attended a training seminar, sponsored by the N.C. Conference of District Attorneys, where they were given a cheat sheet of “race-neutral” excuses they could use to justify excluding African-American citizens from jury service.

To top it off, a comprehensive statewide study of more than 150 capital cases from 1990-2010 found that prosecutors dismissed qualified African-American jurors at more than double the rate of white jurors. The disparity was even more pronounced when the defendant was African American.

Despite this clear evidence, North Carolina has hardly begun to remedy the problem.

In the 30 years since it became illegal to strike a juror based on race, the North Carolina appellate courts have heard more than 100 cases where prosecutors were accused of intentionally excluding jurors of color. These courts ruled there was evidence of discrimination against African-American jurors in only one, a case where the prosecutor failed to provide any explanation for his strikes.

The courts’ record was so troubling that the General Assembly enacted the Racial Justice Act, a law that forced the courts to consider statistical evidence of racial disparities in jury selection and charging and sentencing. The hope was that RJA would finally force our courts to root out racial injustice, a major factor in wrongful convictions. (Eight of the nine innocent men who have been sent to death row in North Carolina are black.)

Following two evidentiary hearings under the RJA, the court found “powerful” evidence that prosecutors “regularly took race into account in capital jury selection and discriminated against African-American citizens.” The defendants involved in these hearings were resentenced to life without parole. Sadly, only these four of the state’s nearly 150 death row inmates had their RJA claims heard before the legislature repealed the law. Now, the state Supreme Court is mulling whether to overturn the lower court’s finding of pervasive race discrimination in those four cases.

Sometimes it feels as if no amount of evidence will force our state to change. But watching the arguments this week in the U.S. Supreme Court, I find reason to hope.

Hope that North Carolina will not sweep this problem under the rug forever. Hope that we will finally see that denying African Americans the right to serve on juries not only violates their rights, but makes wrongful convictions more likely and undermines the integrity of our system as a whole. Hope that we will one day truly live up to our creed: Equal Justice Under Law.

Gretchen Engel is the Executive Director of the Durham-based Center for Death Penalty Litigation.