It appears from recent reports that the House may look to find a compromise on the Racial Justice Act (RJA). The current bill (SB 9), which Governor Perdue vetoed, would take out much of the RJA language, but still would allow defendants to challenge a death sentence by proving intentional discrimination.

The RJA would allow defendants to challenge a decision to seek or impose the death penalty based on intentional or unintentional grounds.  If a defendant could show that discrimination occurred anywhere in the state at the time the death penalty was sought or imposed, then that is all that is required.

Recent analysis of the RJA can be found here and here.  I also shot down the argument that the use of statistical evidence as used in the RJA is similar to the use of disparate impact discrimination in employment law cases.

What Would a Compromise Look Like?

There are many flaws with the RJA, and SB 9 was a very good way to address race discrimination concerns without having a de facto moratorium on the death penalty based on race-baiting arguments.  It was bad enough that there was an end-run being made to block the use of the death penalty–it is even worse that race is being used to achieve that objective.  BTW: This isn’t to suggest one way or another whether placing a moratorium on the death penalty is a good idea.  The legislature should discuss that issue though on the merits in an open manner.

So what can possibly be done to provide a reasonable compromise?

That’s a good question and it looks like a House committee is going to be looking into this matter.  The 10-member committee is called the House Select Committee on Racial Discrimination in Capital Cases.

There aren’t easy answers, but I do have some initial thoughts.  I’m assuming (right or wrong) that some form of disparate (unintentional) discrimination claim would be necessary.

1) Identify what can’t be allowed to remain in the RJA:

– Defendants shouldn’t be able to prove a case using evidence that has nothing to do with the jurisdiction in which the death penalty was sought or imposed.

– Proof of discrimination shouldn’t be based on weak statistical evidence comparing apples to oranges.

– I have wrestled with how the law could be drafted in a way to ensure that death row inmates sentenced before 1994 wouldn’t become free almost immediately.  This is a real potential problem, regardless of what has been said.  I don’t see, at least as of now, a way to avoid the potential ex post facto problems.

The way I’d solve the problem is through my other changes to the law: require a discrimination claim to be a legitimate claim.  If someone was in fact wrongly convicted of the death penalty pre-1994, then they should receive the next most severe sentence that was available to them at the time (life with parole).

2) Changes

a) Unintentional discrimination claims should only be based on statistical evidence for the same jurisdiction.

b) The evidence must demonstrate a systemic problem, not a few examples of discrimination within that jurisdiction.

c) When saying the discrimination has taken place at the same time as when the death penalty was sought or imposed, I’d clarify that the same time means “within 6 months of the death penalty being sought or imposed.”  I could see this number being lower.

d) The RJA makes it possible for a defendant to show race was a significant factor if one factor such as the following existed: “Death sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of another race.”  When wouldn’t this be the case?

The entire proof of racial discrimination part of the law needs to be gutted and rewritten.

There are numerous variables that have to be controlled for when trying to do any type of analysis of discrimination in death penalty cases, and even then, it is unlikely to control for all the necessary variables.  John Hood wrote about this issue today.

It would be very difficult, if not impossible, to list within a law the types of variables that if not controlled for would lead to a conclusion that unintentional racial discrimination existed.

There are issues of the manner of the homicide (i.e. how someone was killed), number of victims, age of victims, sex of victims, race of victims, types of crimes, if any, committed during a homicide, wealth of alleged perpetrator, looks of alleged perpetrator (seriously), quality of attorneys (on both sides), location of crimes, number of crimes committed that would be eligible for the death penalty by race, etc.

Here’s a good op-ed in the Winston-Salem Journal on some of these issues.

Defendants should bear the burden of proving that racial discrimination was a “major” factor (not just a “significant” factor as written in the law now) for the death penalty.  In doing so, they should be required to prove that there is no reasonable reason other than race that would explain why the death penalty was imposed or sought for one race more than another.

They also should have to show that the discrepancy with the use of the death penalty allegedly based on race is more than “significant” or I’d just define significant to mean some type of concrete and large enough number so that it minimizes the chances that the reasons for the discrepancy have nothing to do with race.

The State in its rebuttal should only be required to establish that there is a reasonable alternative explanation other than race.

Such a system would allow defendants to make disparate impact (unintentional discrimination) claims but it would be difficult to establish, as it should be.

More to come on this from me.