By Raina Mahapatra and Gaurav Puri, L.L.B., Symbiosis Law School, Pune.
The arbitrary role of race as a factor for discrimination in the United States criminal justice system, especially against the long-ostracised group of African Americans has been talked and debated since long. And yet, the vagueness of stance adopted by multiple state institutions is a testament of pertinent barriers to the full realisation of civil and human rights of such groups.
Although racial discrimination in the criminal justice system can take up multiple forms, racial inequality in jury selection is significant and problematic. During the jury selection attorneys often seek jurors’ removal, it is often done in two ways- by striking off a juror for cause and using a peremptory challenge.
Studies[i] have outlined a continuous and consistent pattern of discrimination in North Carolina. According to them, for over 20 years, state prosecutors had removed more than twice the number of black jurors as non-black jurors in capital cases.
In cases involving a black defendant, prosecutors had eliminated nearly three times the number of black jurors as non-black jurors. Such selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of the justice system.[ii]
Such a systematic process of racial prejudice, intentional or not, is also reflected in the statistics on arrest, imprisonment and conviction. Black males imprisonment rate is 128 per 10,000 resident population that is eight times the national rate for all groups of 16 per 10,000, constituting the most overrepresented category in state and federal prisons.[iii]
In a study conducted by Alfred Blumstein on race and imprisonment titled ‘On the Racial Disproportionality of United States Prison Populations’.[iv] He emphasised on how blacks became increasingly disadvantaged as the amount of permissible criminal judicial discretion increased, and discrimination is a plausible explanation for a major part of that effect. The same has been reiterated in multiple studies[v] by various scholars.
The present case, Marcus Raymond Robinson v. State of North Carolina stands testament to extensive practice of racial discrimination in the North Carolina criminal jury system. The case involved one of the first attempts to invoke the provisions of the Racial Justice Act (RJA), which was subsequently repealed.
The RJA aimed to provide statutory relief from the death penalty if statistical evidence of any form of racial discrimination could be successfully proved by the sentenced person.
I. Case History
Marcus Raymond Robinson, an African-American man, was sentenced to death in Cumberland County, North Carolina, for the murder of a white person. At the time of the crime, he was barely 18 years old and became the youngest person on North Carolina’s death row.
It was argued that the prosecutor struck Fifty per cent of all black jurors and only 14.4 per cent of non-black jurors. In the end, there were only two black jurors on Robinson’s jury. Thus the jury was not representative of the general population: the jury was only 16.7 per cent black while, in 2016, North Carolina was 21.2 per cent black and Robinson’s county was 36.5 per cent black.
The American Civil Liberties Union (ACLU) and co-counsel challenged Robinson’s sentence under the RJA, which allowed capital defendants to present evidence, including statistical evidence, to show that racial bias was a factor in the imposition of the death penalty.
II. Issues Raised
The case emphasised the pressing need to address the influence of racial discrimination in the criminal justice system, and more specifically, in the case of death row prisoners. It sought to secure individuals sentenced to death row with the ability to solicit judicial relief in situations where such sentencing might have been a result of racial prejudice.
III. Arguments Advanced
The defendant claimed that racial discrimination constituted the sentencing of the claimant to death. The line of arguments posed is summarised as follows:
African Americans comprised 71% of those executed between 1726-1865.[vi] It was argued that this trend of primarily executing African Americans had persisted in North Carolina.[vii] The statistics were troubling as they suggested a persistent trend of execution especially in crimes committed against the white population.
Equally worrying is the long-time exclusion of the blacks from capital juries. Despite the Supreme Court ruling in Strauder v. West Virginia[viii] that prohibited states from enacting laws that barred African Americans from serving on juries. The statutory requirements to serve as jurors in North Carolina were, tax payment, ‘good’ moral character, and ‘sufficient intelligence’. These requirements gave wide discretion to exclude African Americans from juries, leading to a clear void of African Americans, even though they made up a majority of the population[ix].
This, in concurrence with the common and flagrant misuse of the peremptory challenge to exclude black jurors, added to the woes of the community.
Defendant Marcus Robinson’s statistical evidence comprised of an exhaustive study of jury selection that utilized:
(1) “a complete, unadjusted study of race and strike decisions for 7,421 venire members drawn from the 173 proceedings for the inmates of North Carolina’s death row in 2010”
(2) “a regression study of a 25% random sample drawn from the 7,421 venire member data set that analyzed whether alternative explanations impacted the relationship between race and strike decisions”; and
(3) “a regression study of 100% of the venire members from the Cumberland County cases.[x]”
The statistical evidence in the case revealed the type of racial discrimination that continued to exist beyond the protection of the Fourteenth Amendment and the type of discrimination that the RJA was designed to redress.
Further, it was argued that the jury played a crucial role to ensure public confidence in a judicial system. Ignoring the compelling evidence of jury discrimination in their case, could, therefore, not only harm the petitioner and unlawfully struck jurors but also undermines the integrity of the judicial process itself.
They pleaded that substantial evidence of racial discrimination in the selection of Robinson’s jury eroded public confidence in North Carolina’s judicial system and must be remedied. [xi]
Robinson was successful in proving that racial discrimination was a significant factor in bringing about his death sentence. The judge also found intentional and systemic discrimination by county prosecutors against Black potential jurors in capital cases.
The judge commuted Robinson’s death sentence to a sentence of life without parole in April 2012, but the State appealed the decision to the North Carolina Supreme Court. With the repeal of the RJA in 2013, he was again at risk of having the death sentence reinstated.
The North Carolina Supreme Court ruled in 2015 that the State was entitled to more time to prepare its statistical evidence, and remanded the case. On Remand, rather than holding a new hearing with more time for the State’s case, the new trial court simply dismissed Robinson’s case entirely.
Robinson had asked the state high court to grant review because this dismissal violated a host of constitutional protections and state laws, including those prohibiting racial discrimination in capital cases.
McCleskey v. Kemp[xii] is a landmark case that recognised how sentencing in the use of capital punishment is probably the most profound expression of racial discrimination. The case heavily relied on the Baldus study.[xiii] The study showed that death sentences were being imposed in murder cases in a clear, consistent pattern that reflected the race of the victim and no non-racial factor could explain the phenomenon.
In Batson v. Kentucky, the US Supreme Court took a historic step and eliminated the dishonourable practice of racial discrimination in the selection of juries. Yet, the case did not address the use of peremptory challenges faced by defence attorneys.
In August 2009, the North Carolina General Assembly enacted the Racial Justice Act, which commands that no person shall be executed ‘pursuant to any judgment that was sought or obtained on the basis of race’.
One of the most significant features of the RJA was its use of statistical evidence to determine whether the race of defendants or victims played a significant role in death penalty decisions by prosecutors and jurors and the prosecutor’s exercise of peremptory challenges. The RJA committed North Carolina courts to ensure that race did not significantly affect death sentences.
The RJA explicitly authorized proof by “statistical evidence” that race was a significant factor in decisions to seek or impose death sentences in the county, the prosecutorial district, the judicial division, or the State at the relevant time[xiv].
It also declared that based on the process set out and the proof admitted, if the court finds that race was a significant factor in such decisions in any one of the four relevant geographical areas, relief is to be granted. The death sentence was to be vacated, and the defendant was to be resentenced to life without parole[xv].
The RJA opened a new chapter in North Carolina’s history. Many factors made its enactment possible, including a heightened concern for innocence inspired by exonerations of death row prisoners in North Carolina and around the nation.[xvi] concern that has also played an important role in the decline of death penalties in the state in recent years.
Another factor was quite important. Throughout the state’s history, many politicians, judges, prosecutors, and jurors have worked sincerely on behalf of the state’s citizens to fairly dispense justice. Nevertheless, throughout much of the state’s history, African Americans were not involved in making important decisions in the criminal justice system. For example, until well into the twentieth century, almost exclusively white jurors determined death penalty decisions for victims and defendants of all races. Whether African Americans were effectively included in the modern period is still subject to debate. In contrast, African Americans played a major role in fashioning and enacting the RJA.[xvii]
Since the inclusion of evidence is imperative to the RJA it helped in taking accountability beyond the ambit of an individual case or juror. It also sought to impose accountability for the decision making process as a cumulation of factors, which may prove to be more effective. Such accountability promoted a thorough evaluation of all evidence and in turn, helped in the identification of patterns that propagated such racial bias[xviii].
Further, RJA’s acknowledgement of race as a factor for discrimination allowed it to focus on a single important reason to remove bias: specificity[xix]. The relevance of statistical analyses that identify the role of race after taking common race-neutral explanations into account encourages prosecutors to look beyond stereotypes by exposing what factors do matter and the importance of race[xx].
In cases such as North Carolina v. Tilmon Golphin,[xxi] Christina Walters, and Quintel Augustine, the judges held that prosecutors in these three defendants’ cases impermissibly relied upon race in its jury selection practices and granted appropriate relief. Even though RJA was a one-of-a-kind piece of legislation in the country, it was shortly repealed in the year 2009.
The importance of verdicts pronounced impartially cannot be overstated.[xxii] Any racial bias in the jury is the violation of the fundamental right of the defendant.[xxiii] Nothing like the Racial Justice Act exists anywhere outside the US legislative system. Most of the countries, following a jury system, ensure fairness by a random selection of jurors and maintaining a representative character of the jury.[xxiv]
In Canada, the right to be tried by a jury is not an absolute right. It is embedded in section 11(f) of the Canadian Charter[xxv]which grants the right of a jury only in circumstances where ‘the maximum punishment for the offence is imprisonment for five years or a more severe punishment’.
The form that a jury trial takes falls in the provincial list under the Criminal Code of Canada, allowing every province to decide the eligibility and disqualification of jurors.[xxvi] The main objective of jury selection in Canada is to reconcile the twin goals of impartiality and representative nature of the jury.[xxvii] This is achieved by selecting jurors randomly from jury panel assisted by Provincial Jury Centre.[xxviii]
Under Section 629 of the Criminal Code of Canada,[xxix] both the prosecution and the defence have the opportunity to request of the judge that every member of the jury panel be questioned regarding certain subjects related to the accused or the offence to screen out any personal bias that shall affect the rights of either party. Each party may challenge for a set number of times any juror peremptorily without challenging for cause[xxx] subject to the ineligibility under section 638.[xxxi]
A vaguely similar practice prevails in Australia and England. In Australia, each province has developed its own legislative process by creating various juries acts. The jurors are selected from a list of registered adults on electoral roll and residents in the said district.[xxxii] In England, the law governing juries is the Juries Act, 1974.[xxxiii]
A comprehensive understanding of the criminal justice system of the United States reveals that it has not escaped the effects of discrimination, prejudice, and racism. These biases are rooted in the history of America. Minorities are more likely to be suspects, get arrested, killed or get hurt during an arrest, and less likely to secure bail. This speaks volumes about the lack of effective policies in the legal and socioeconomic sphere to recognise and solve the underlying issues contributing to such a trend.
Since discrimination is more likely to take place in areas with greater discretion, jurisdictions must aim at attempting to limit such discretion by using appropriate guidelines and legislation. In the United States, peremptory challenges have been extensively used to exclude black jurors.[xxxiv]
The repealing of RJA has inevitably reinstated upholding death sentences irrespective of proof of implicit or explicit bias which goes against the ‘Equal Protection Clause’.
England has already done away with the use of peremptory challenges.[xxxv] The RJA challenged racially motivated peremptory strikes and the repeal of RJA has taken away courts weapon against discrimination in jury selection.[xxxvi]
To restore the confidence of the African American citizens of North Carolina and the States in the rule of law, racial discrimination in jury selection must be eliminated. Given the constraints from the McCleskey decision, defendants must be able to use statistical evidence to show how their cases reflect a pattern of systemic and widespread racial discrimination in jury selection. The same is necessary to fully address the harm suffered by capital defendants, the illegally struck jurors, and the community at large. This is precisely why the North Carolina legislature passed the RJA.
Statutes such as the RJA that open a vast arena of possibilities for minority communities must be revisited instead of being repealed. To reiterate,
“Inequality weakens and stresses the social institutions that make for the healthy growth and development of individuals”
The American criminal justice system needs to overcome such inequalities to secure itself a system that guards the rights of its people by abolishing racial prejudices.
[i] David C. Baldus, Charles Pulaski, George Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & Criminology 661, 728 (1983).
[ii] Batson v. Kentucky, 476 U.S. 79 (1986).
[iii] Bureau of Justice Statistics Publications Catalog, NCJ-164385, August 1997.
[iv] Alfred Blumstein, On the Racial Disproportionality of United States’ Prison Populations, 73 J. Crim. L. & Criminology 1259 (1982).
[v] Joan Petersilia, Racial Disparities in the Criminal Justice System: A Summary, RAND Corporation (June 1983), available at https://www.ncjrs.gov/pdffiles1/Digitization/127137NCJRS.pdf
[vi] Seth Kotch & Robert P. Mosteller, The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031 (2010).
[viii] 100 U.S. 303 (1880).
[ix] State v. Speller, 229 N.C. 67 (N.C. 1948)
[x] North Carolina v. Robinson, 91 CRS 23143 (2012).
[xi]Supra note 6, at 1969 (2012).
[xii] 481 U.S. 279 (1987).
[xiii] Supra note 1.
[xiv] North Carolina General Statutes, 2009, Ch. 15A.
[xvi] Frank R. Baumgartner Et Al., The Decline Of The Death Penalty And The Discovery Of Innocence In America, Cambridge University Press (2008).
[xvii] Supra Note 6.
[xviii] Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. Gen. Psychol. 175 (1998).
[xix] Samuel R. Sommers, Phoebe C. Ellsworth, Race in the Courtroom: Perceptions of Guilt and Dispositional Attributions, 26 PSPB (2000).
[xx] Miller-El v. Cockrell, 545 U.S. 231 (2005).
[xxi] No. 97 CRS 47314-15 (N.C. Super. Ct. Dec. 13, 2012).
[xxii] State of North Carolina v. Marcus Raymond Robinson, N.C. No. 411A94-6 (2018).
[xxiii] Strauder v. West Virginia, 100 U.S. 303 (1880).
[xxiv] Brent Kettles, Impartiality, Representativeness and Jury Selection in Canada, 59 Crim. l.q. 462 (2013).
[xxv] Canadian Charter of Rights and Freedoms, 1982, s. 11(f).
[xxvi] Criminal Code of Canada, 1867, s. 626.
[xxvii] Supra note 24.
[xxviii] Ministry of the Attorney General, The Annual Jury Selection Process, Attorney General, available at https://www.attorneygeneral.jus.gov.on.ca/english/courts/jury/jury_selection_process.php.
[xxix] Criminal Code of Canada, 1867, s. 629.
[xxx] Id., at s. 634.
[xxxi] Id., at s. 638.
[xxxii] T Anthony, C. Longman, Blinded by the White: A Comparative Analysis of Jury Challenges on Racial Grounds, 6(3) Jcj&sd (2016).
[xxxiii] Juries Act, 1974.
[xxxiv] Supra note 22.
[xxxv] Criminal Justice Act, 1988, s. 118
[xxxvi] Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Preemptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).