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After the failure of the two federal proposals, two states, North Carolina and Kentucky, imple- mented their own versions of a Racial Justice Act. Although the intent of each act was similar, they were very different in practice. North Carolina’s Racial Justice Act allowed a defendant sentenced to death to present statistical evidence to establish that his or her race, or the race of the victim(s), infl u- enced the probability of receiving a capital sentence in a specifi c jurisdiction, or that race infl uenced the dismissal of potential jurors. This legislation was set up so that evidence of discrimination in the jurisdiction was enough; defendants did not have to prove discrimination in their own cases. If they were successful in meeting that standard, their sentences would be commuted to life without parole (Alexander, 2014; Phillips, 2012). This act was criticized for being too favorable to defendants, was amended in 2012, but was ultimately completely repealed in 2013.

Kentucky’s Racial Justice Act is still active, though it is much more restrictive than North Caro- lina’s legislation. The Kentucky statute only allows defendants to bring challenges against the prosecu- tor’s decision to charge; it does not allow for challenges of jury discrimination or race impacts during any other part of the process. Kentucky’s Act has not been used very often because it is diffi cult for defendants to present substantial evidence that race infl uenced the prosecutor’s decision to seek the death penalty (Alexander, 2014).

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The introduction of the federal proposals, followed by similar acts in two states, provided hope for legitimate opportunities to produce more equality in death sentences. While the original process would still be fl awed, there would be room for adjustment on the back end. Regrettably, the remain- ing Racial Justice Act in Kentucky is so restrictive that it is unlikely to result in considerable changes.

In the wake of the failed legislative forums, defendants sentenced to death are once again forced to turn to the courts with claims of racial discrimination in their own cases. Although constitutional challenges based on race-related factors have not been very successful historically, some modern cases have offered room for more optimism. In 2005, a death row inmate challenged his death sentence

 

 

Kristie R. Blevins and Kevin I. Minor

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by claiming that prosecutors were rejecting and selecting jury members based on race. The Supreme Court recognized that prosecutors had excluded 91% of black prospective jurors and ruled in his favor ( Miller-El v. Dretke , 2005). More recently in Foster v. Chatman (2016), the Court struck down a capital conviction in Georgia based on documents showing that prosecutors had struck all prospective black jurors due to race.

Most recently still, the Court heard Buck v. Davis (2017), in which a black petitioner claimed that he was denied effective assistance of counsel during his Texas death penalty trial, which was a viola- tion of the Sixth Amendment. His argument was based on his attorney calling an expert witness to provide evidence concerning the petitioner’s likelihood of committing future violent acts. The attor- ney had reviewed the expert’s report and knew its content, yet he allowed the expert to testify that the defendant’s race—being black—increased the probability of violence in the future. The petitioner won his challenge based on the Sixth Amendment, but Chief Justice Roberts made a noteworthy statement in delivering the opinion of the court. When rejecting the lower court’s statement that the mention of race in this case was minimal, Chief Justice Roberts wrote,

when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses. The State acknowledges, as it must, that introducing ‘race or ethnicity as evidence of criminality’ can in some cases prejudice a defendant.

(pp. 19–20)

Perhaps this statement will be the fi rst of many in an era in which legal and procedural improvements will be implemented within the capital punishment process. At the same time, though, the chief jus- tice offered an observation of a quite different kind:

In fact, the distinction could well cut the other way. A prosecutor is seeking a conviction. Jurors understand this and may reasonably be expected to evaluate the government’s evi- dence and arguments in light of its motivations. When a defendant’s own lawyer puts in the offending evidence, it is in the nature of an admission against interest, more likely to be taken at face value.

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