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.”
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
[3]http://www.e-archives.ky.gov/pubs/public_adv/july98/racial.html
[4] North Carolina Racial Justice Act, Session Law
2012-136
[5] Scott Goldstein,Associate Presshttp://www.dallasnews.com/news/community-news/dallas/headlines/20130121-dallas-da-craig-watkins-to-push-for-law-allowing-appeals-based-on-racial-factors.ece
[7]http://www.dallasnews.com/news/community-news/dallas/headlines/20130121-dallas-da-craig-watkins-to-push-for-law-allowing-appeals-based-on-racial-factors.ece
[8] http://www.dallasnews.com/news/community-news/dallas/headlines/20130121-dallas-da-craig-watkins-to-push-for-law-allowing-appeals-based-on-racial-factors.ece
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.
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