A Rewrite to Restore Justice | Eastern North Carolina Now

   Publisher's note: The article below appeared in John Hood's daily column in his publication, the Carolina Journal, which, because of Author / Publisher Hood, is inextricably linked to the John Locke Foundation.

    RALEIGH     For the activists who have fought for years to abolish North Carolina's death penalty, the just-completed short session was a crushing disappointment. Their chief accomplishment, the Racial Justice Act of 2009, was substantially rewritten. Both chambers then voted to override Gov. Bev Perdue's veto of the rewrite.

    The Racial Justice Act was just the latest in a series of initiatives used by death-penalty foes to maintain a de facto moratorium on executions in North Carolina, as nearly every death row inmate had filed RJA claims to convert their sentences to life in prison. The newly rewritten RJA, however, is no longer so easy to abuse. Rather than use old or irrelevant data to assert racial bias in sentencing, murderers on death row now have to cite recent statistics from the counties or prosecutorial districts where their sentences were imposed as well as other evidence directly related to the handling of their cases.

    For many North Carolinians opposed to the death penalty, the RJA's obvious logical and legal flaws were quite beside the point. They believe capital punishment to be immoral, and are willing to try just about anything to suspend or abolish executions. In the past, they tried to manipulate medical licensing as a means to their end, in clear contravention of the state constitution. In this case, they attempted to use sweeping claims of racial bias. They ended up stretching those claims beyond the breaking point.

    No one doubts the continued presence of prejudice in the criminal justice system. Over the past several decades, racism among the public at large has diminished, but not to the point of disappearance. As a social institution, the criminal justice system will inevitably reflect society's virtues and vices. If you look for perfection here, your search will forever be fruitless.

    Still, by refusing to recognize either the limits or the implications of their own statistical evidence, death-penalty foes set themselves up for failure. First, while the activists themselves know very well that there is no statistical support for the notion that North Carolina's death penalty is biased against black criminals, they nevertheless allowed others to make the claim incessantly without clarification or rebuttal. This weakened the movement's credibility among state lawmakers who might otherwise have been open to persuasion on the issue.

    Second, and more significantly, death-penalty foes tried to make the statistical claim for which they do have some evidence - that prosecutors and juries are more likely to seek executions of those who kill white people than of those who kill black people, regardless of the race of the killer - into a compelling argument against capital punishment. But it isn't.

    You see, the theory behind the statistical claim of racial bias in death-penalty sentencing is that prosecutors and juries put a greater value on the lives of white victims than on black ones. If a murder victim is white, states this theory, folks tend to be more outraged and to view the death penalty as a just punishment. But if the murder victim is nonwhite, there are fewer social, cultural, and political motives for prosecutors to pursue the ultimate punishment, and for jurors to approve it.

    Although there continues to be disagreement about the underlying statistics, assume for the sake of argument that this racial-bias claim is true. What is its implication? That the more North Carolinians value the lives of victims, the more they favor executing murderers.

    This is a rhetorical problem for those who seek to abolish capital punishment. They are asking us to choose a lesser penalty, life in prison, for those who commit the most egregious crimes in our society. Given their own assumptions about their racial-bias claim, their argument sounds like they are asking us to place a lower value on the lives of murder victims. That's not an argument likely to persuade many North Carolinians.

    The debate about capital punishment isn't over. Perhaps its foes will convince the rest of us that it is morally wrong to execute criminals, or that as a practical matter its costs exceed its benefits. But the kinds of arguments they've been making lately are entirely unpersuasive.

    Hood is president of the John Locke Foundation and author of Our Best Foot Forward: An Investment Plan for North Carolina's Economic Recovery.