By Melissa Gohlke, J.D. Candidate

            This week marked the beginning of a new milestone for critics of capital punishment and its racially disparate effect.  A new law in North Carolina, designed to battle systemic racism in capital punishment sentencing, made its first appearance in court thanks to Marcus Reymond Robinson.  The Racial Justice Act, N.C.G.S.A. § 15A-2010, the first of its kind, allows death row inmates to commute their death sentences to life without parole if they can provide evidence, including statistical analysis, that shows that their sentence was racially motivated.  This includes evidence that shows that there are statistically significant racial disparities in the seeking or imposing of death penalties, in addition to the use of race as a peremptory challenge in jury selection.  Out of the 158 convicts on North Carolina’s death row, 151 have filed claims under the Racial Justice Act, including a number of white inmates.[1]  Robinson’s case is the furthest along in the legal pipeline despite a delay, and the outcome will likely set the tone for the many challenges to follow. 

            Robinson, a black man, is challenging his 1994 death sentence for the murder and armed robbery of Erik Tornblom, a white 17-year-old.  Robinson’s challenge under the Act alleges his death sentence was the result of improperly racially biased juror selection by the prosecutors and harsher sentencing based on his race.  The complaint alleges that the prosecutors in Robinson’s case dismissed only fifteen percent of jurors of other races, while dismissing approximately fifty percent of potential black jurors.[2]

            Robinson’s attorneys are employing a number of statistical studies to bolster their claims of racism.  One study, completed by Michigan State University, concludes that those convicted of murder of a white person are 3.4 times more likely to receive the death penalty than those convicted of murder of persons of any other race in North Carolina.  The study also allegedly proves prosecutorial racial bias in the state generally and Cumberland County specifically (the county in which Robinson was convicted) by showing that prosecutors more often dismiss non-white, qualified jurors than white jurors.  The Racial Justice Act allows these types of statistics to be used to bolster an appellant’s claims of a racially motivated sentencing.

            The preliminary hearing for Robinson was scheduled for Tuesday, September 6, 2011 in North Carolina’s Superior Court.  The hearing was delayed because the state requested additional time for its statisticians to evaluate the validity of the Michigan study Robinson is using.  Statistician Joseph Katz, the state’s expert, requested three to four months to evaluate the data, but Senior Resident Superior Court Judge Greg Weeks only postponed the hearing for two months—until November 2011.[3]  North Carolina has already responded to the motion by arguing that the studies are incomplete, invalid and do not constitute not substantial evidence to meet Robinson’s burden under a Racial Justice Act claim.  Additionally, it alleges that because Robinson did not allege any racial bias defense in his initial trial, the argument cannot be made on appeal even under the new Act.

            Robinson and his accomplice, Roderick Williams, who is serving a life sentence, convinced Tornblom to give the men a ride one evening in 1991.  While threatening him with his shotgun, Robinson forced Tornblom to drive the men into a field where they shot him in the face and then stole his car and $27 out of his wallet.  Robinson was sentenced to death and was originally scheduled to be executed in 2007, but he benefitted from the statewide halt of executions resulting from problems with the lethal injection procedure.[4]

            The Racial Justice Act, passed in 2009, is extremely controversial, and it was almost repealed earlier this year by the now Republican-dominated North Carolina legislature, which expressed its concern that the Act was only being used to delay cases and prolong sentences.[5]  Republican legislators have introduced a proposal to limit the effects of the provision that requires proof of prosecutorial discriminatory intent in addition to the discriminatory treatment burden outlined by the RJA.[6]

            The Racial Justice Act already shows leadership in addressing the legitimate concerns illustrated by various recent studies of the disparate effect of capital punishment.  As the Executive Director for the Center for Death Penalty Litigation, the non-profit organization representing Robinson, described, the RJA “is an attempt to destroy a promise made to the citizens of North Carolina that we would examine whether racial bias plays a role in our criminal justice system.”[7]  While this is only the first step towards addressing racial inequalities, it does indicate an effort to respond to discrepancies presented not only in North Carolina’s capital punishment system but in death penalty systems across the country.

            The success of a challenge to Robinson’s sentence could mark a dramatic shift in the way capital punishment sentence challenges are heard in North Carolina, which houses the sixth largest death row population in the country.  Allowing statistical evidence as proof of discriminatory intent is an approach not generally recognized in most states, which follow tightly to the Supreme Court’s precedent in McClesky v. Kemp, 481 U.S. 279 (1987).  However, depending on the success of the large number of litigants already challenging their sentences, the Racial Justice Act could provide an example for more progressive states to establish a legal framework by which to address racial disparities in their capital punishment regimes.