07/17/2012 10:06 am ET Updated Sep 16, 2012

North Carolina Courts Continue to Struggle with Racial Bias in Jury Selection

In 1986, the Supreme Court held that prosecutors could not purposefully exclude African-Americans from trial juries "on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors." While all states permit attorneys to make "peremptory" challenges--dismissing a potential juror without stating a reason--the Court said the Fourteenth Amendment's Equal Protection Clause precluded prosecutors from using that power "to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."

More than 25 years later, some states continue to struggle with the Supreme Court's mandate. In April, North Carolina Superior Court Judge Gregory A. Weeks commuted the death sentence of Marcus Robinson, an African-American convicted of a 1991 murder. Weeks acted under the Racial Justice Act, a law passed by the North Carolina General Assembly in 2009 that stated, "No person 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." Among other provisions, death row inmates could present evidence that race "was a significant factor in decisions to exercise peremptory challenges during jury selection."

Robinson's attorneys presented a meticulous study by Michigan State University professors Barbara O'Brien and Linda Grosso, who reviewed the jury selection process in 173 North Carolina capital cases. They found that prosecutors were twice as likely to exclude African-American jurors with peremptory challenges than white jurors. Even adjusting for other factors, O'Brien and Grosso concluded, and Judge Weeks agreed, "prosecutors have intentionally discriminated against black [jurors] during jury selection by prosecutors when seeking to impose death sentences in capital cases." This included defendants tried in the same county and time period as Robinson.

North Carolina prosecutors tried to rebut the O'Brien-Grosso study by arguing that African-Americans were excluded at a higher rate because they are less likely to favor the death penalty. The government's expert witness, Methodist University political science professor Christopher Cronin, testified that as a group, African-Americans tend to be more concerned about inequality and injustice, which in turn creates "a cultural and political ideology that would make it less likely to be favored by the majority population which is represented by the State, and the State's interest is to represent the majority population and its intent for laws, punishment, etc." In his opinion, Judge Weeks said he was "especially troubled" by this line of reasoning, which implied that "African-Americans, as a group, will continue to be discriminated against in the future."

Unfortunately, North Carolina's Republican-controlled legislature is more concerned with shielding prosecutors (and executing African-Americans) than remedying the systemic discrimination found by Judge Weeks. In 2011, the General Assembly bowed to pressure from the state's prosecutors and voted to repeal the Racial Justice Act. Democratic Gov. Bev Perdue successfully vetoed the repeal, but on July 2, 2012, legislators overruled a veto of a second bill that merely makes it harder for future defendants to prove racial bias. Dr. William Barber II, president of the North Carolina NAACP, noted this new bill "is a direct attack on the broad, multi-racial coalition of organizations and legislators who helped pass the [RJA] just three years ago." Sarah Peterson of the American Civil Liberties Union also condemned the legislation: "Politicians have decided they would rather sweep disturbing information under the rug than work to ensure that racial bias plays no role in North Carolina's death penalty."

It's important to note that the RJA cannot be used to overturn a murder conviction, only to reduce a death sentence to life imprisonment, as Judge Weeks did with Marcus Robinson. Nor does the RJA address other flaws in North Carolina's death penalty system--which, as the NAACP's Dr. Barber noted, has yielded seven exonerations in recent years, including five African-Americans "who would have been murdered by the state if the system had only worked quicker."

In its zeal to maintain the death penalty at any cost, North Carolina officials ignore the problem the Supreme Court first tried to address in 1986 -- the widespread disenfranchisement of blacks from the judicial system. The Court noted race-based peremptory challenges not only violate a defendant's constitutional rights, but in "denying a person participation in jury service on account of his race, the State also unconstitutionally discriminates against the excluded juror." Indeed, the Court has tried to address this problem for over a century, dating back to an 1880 decision overturning a West Virginia law that openly forbade "colored" persons from serving on juries at all.

Ultimately, the solution to North Carolina's problem may be found in the words of the great civil rights Justice Thurgood Marshall, who wrote separately in the 1986 Supreme Court case. While supporting the Court's decision, he lamented his colleagues didn't go far enough in remedying the problem of race-based peremptory challenges. "Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge," Marshall wrote. Instead, he felt it was time for the Court to eliminate such challenges altogether.

Marshall understood his proposal was controversial even among his fellow liberals, as fairness would require eliminating a defendant's peremptory challenges as well. He said this was a small price to pay and that, in any event, the peremptory challenge was not a right of "constitutional magnitude." In fact, two years after Marshall wrote his opinion, the Conservative government of Margaret Thatcher abolished peremptory challenges in the United Kingdom, where the American system borrowed the concept from in the first place.