For just over three years, it looked like North Carolina was going to pull out in front of states that still have the death penalty on the books. The state's Racial Justice Act was the only in the country to prohibit racial discrimination in jury selection and in the imposition of the death penalty in capital cases – bias we know to be pervasive. This week, Governor Pat McCroy repealed the law, wiping off the books a historic piece of civil rights legislation.
It is clear that the law was removed because of its successes: four North Carolina death row inmates had prevailed in showing systemic discrimination across North Carolina and in their own cases. Using the law, these defendants had uncovered evidence that prosecutors made racially derogatory notes during jury selection and discriminated against large numbers of African American prospective jurors.
We cannot help but be discouraged by such a direct assault on civil rights and racial justice by our government. Adding insult to injury, the North Carolina legislature chose the 50th anniversary of Medgar Evans' murder to enact the repeal bill, and the Governor chose the anniversary of the Senate passing the Civil Rights Act to sign it. The dates are just another sign of the legislature's and the Governor's lack of concern about the protection of civil rights.
Our struggle for racial justice in capital cases will nonetheless move forward. The vast majority of death row inmates in North Carolina had already filed claims under the Racial Justice Act based on the widespread evidence that prosecutors discriminated against African American jurors in almost every capital case. The repeal bill does not wipe out those claims, and instead only buys the State years of litigation about impact of the repeal bill on those claims.
Most importantly, no law can change the facts. We now have conclusive proof of system wide discrimination in capital cases and jury selection in North Carolina. It will be up to future juries, future legislators, and all citizens to decide how to use that information.