Tuesday, January 29, 2013

District Attorney Seeking Racial Justice in Texas

Months after North Carolina Judge Gregory Weeks commuted three more sentences under North Carolina’s Racial Justice Act; there is a buzz in Dallas, Texas for advocating for similar legislation.  Craig Watkins, District Attorney for Dallas County, has voiced his intentions of meeting with the state legislature to discuss the possibility of passing a Racial Justice Act for Texas that would allow defendants to appeal convictions or sentences where race is believed to be a factor.  Watkins addressed the Associated Press, “Throughout history, race has unfortunately played a part, an ugly part, in our criminal justice system.  This is an opportunity for us to address not only the past, and those individuals who are still being affected by the disparities in treatment, but also in looking forward to make sure that we don’t have those same disparities in our criminal justice system.”[1]

Texas Precursors

The District Attorney has yet to reveal any specific provisions he has in mind for the prospective legislation.  The language of the statute however could have a huge impact on the outcome of any future appeals.  Kentucky and North Carolina are the only states that have passed Racial Justice Acts thus far.  Both the process and the substance of the allowed evidence differ under the Kentucky and North Carolina statutes.[2]  For example, in Kentucky, all racial justice claims are to be made prospectively.  The claim must be raised at the pre-trial conference, and the court then schedules a hearing to take evidence on the matter.  If the trial judge finds that the conviction is being sought on the basis of race, the prosecution is ordered not to seek the death penalty at all. 

The Kentucky legislature was the first to use the “significant factor” language in death penalty legislation, stating simply that to prove his case, a defendant must prove that race was a significant factor in the decision to seek the death penalty.  The statute does not explicitly require that this proof be derived from evidence from the defendant’s own case.  Instead, the legislature chose language insinuating that proving that these decisions involving race were made in the Commonwealth at the time the sentence was sought is sufficient. 

Further, the substance of Kentucky’s law reflects the intention of the legislature to attempt to fix the broken death penalty system.  Kentucky’s legislation was the response to a study conducted by the ABA Death Penalty Moratorium Implementation Project that revealed an alarming racial disparity on death row.[3]  At that time in Kentucky, all of the black death row prisoners were sentenced after killing whites, while no white death row prisoners were sentenced after killing blacks.  The text indicates that a defendant may present statistical or other evidence that tends to establish that death sentences were sought “more frequently upon persons of one race than persons of another race” or “as punishment for capital offenses against persons of one race than as punishment for capital offenses against persons of another race.” 

Originally passed in 2009, North Carolina’s Racial Justice Act received a face-lift in July of 2012.[4]  The majority of the controversy surrounding the amendment to North Carolina’s Racial Justice Act was in the substance of the amendment.  The amendment seemingly dispelled the opportunity for defendants to prove their cases using only statistics.  This is significant because of the extreme difficulty in proving the explicit racial bias of a prosecutor.  North Carolina prosecutors have testified on the matter that it would be unlikely for a prosecutor to ever admit to racial bias in open court. 

There are but few saving graces of the North Carolina Racial Justice Act that are an improvement on the Kentucky version of the law.  Unlike Kentucky’s Racial Justice Act, North Carolina allows for defendants to challenge their death sentences pre-trial or post-conviction.  The expansiveness of the process is important for death row defendants, especially considering the multitude of cases in which ineffective assistance of counsel is reported in death penalty cases.  The post-conviction appeal acts as a safeguard so the defendant does not waive his claim under the Racial Justice Act.  Substantively, North Carolina’s Racial Justice Act also allows for defendants to challenge a sentence where race is a significant factor in the decision to use peremptory strikes during jury selection.   

Trailblazing Legislation in a Conservative State 

Given the Texas state legislature’s conservative nature, it comes as no surprise that many are skeptical of the District Attorney’s chances of succeeding in passing such progressive legislation.  Luckily, Mr. Watkins has received some support from democratic legislators such as Rodney Ellis of Houston, who said he would consider and seek bipartisan support for the bill.[5]  Agreeing on the terms of such a controversial law can be daunting, as the United States Congress found out in both 1988 and 1994 when it failed to pass nationwide legislation on the matter.  Mr. Watkins is not deterred however by past failures.  He insists that this effort towards racial equality is imperative for Texas to continue moving forward.  Some may question Mr. Watkins’ motives, as it is no secret that he does not support the death penalty.  Mr. Watkins insists his own views are irrelevant, stating that if the death penalty is to be administered at all; it ought to be done fairly, which certainly does not include seeking it based on a defendant’s skin color.  Additionally, Mr. Watkins encourages skeptics to consider that having a law like the Racial Justice Act on the books would increase the prosecution’s credibility with jurors in death penalty cases.

The Need for a Racial Justice Act in Texas

Numerous studies that have been conducted support a notion that racial disparities exist in the scheme of administering the death penalty.  Specifically, in Texas, forty percent of all death row inmates are black, while the state’s population is only eleven percent black.[6]  A professor from the University of Denver conducted a study that confirms death row population data, indicating that a black defendant is more likely to get the death penalty in Harris County, Texas than a white defendant.[7]  In addition to the information suggesting injustice in the death row population data, exonerations in Texas reveal strikingly similar disparities.  Since 2001, twenty-eight of Texas’s thirty-three exonerees have been black.[8]

The Implicit Bias Consideration

One often overlooked benefit to Racial Justice legislation is the impact it can have on curtailing implicit bias inherent in the death penalty process.  Implicit bias is the concept that subconscious attitudes and stereotypes have an effect on decision making.  Thus, the disparities in Texas’s death row population and exonerees may be attributable to unintentional decisions that were made on the basis of prejudice.  By incorporating a Racial Justice Act into a state’s death penalty scheme, the legislation can act as a check on those subconscious decisions being made.  For example, if states are constantly reviewing and defendants are continuously confronting the state with statistics that reflect a racial disparity, the courts will be forced to evaluate why these racial disparities continue to exist.  Mr. Watkins should continue to pressure state representatives to consider passing a Racial Justice Act in Texas, and more importantly the legislature should ensure that any legislation that is passed would adequately combat implicit as well as explicit racial bias.

Ali Eacho
Junior Editor, Criminal Law Brief 

[2] Kentucky Racial Justice Act, 532.30


  1. Unconscious and explicit bias can both result in an imbalanced use of discretion which will ultimately lead to a disparate impact. It is important that we address issues of bias in order to reduce the imbalance in our criminal justice system.

  2. I have been working with Marshall Davis Brown in TX on the same type of cases. It is staggering at how many cases I am presented with on a regular basis. It really is incredible!

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