Sparing a life

It's not news that a black man who kills a white person is more likely to get the death penalty than a black man who kills a black person or a white man who kills someone. The courts have long held that such statistical analysis, however, has no place in determining whether the death penalty is meted out.

But now Marcus Reymond Robinson is about to be a test subject.

Mr. Robinson was convicted of the murder of Eric Tornblom while both men were teenagers. Mr. Robinson is black. Mr. Tornblom was white. Mr. Robinson was sentenced to death.

A series of studies over the past 30 years show that race is often a significant factor in who gets the death penalty: that black convicts are more likely to receive the death penalty than white ones, that white victims are more likely to result in a death sentence than black ones.

In 2009, the state of North Carolina passed the Racial Justice Act which allows prisoners sentenced to death to challenge their sentence based not upon the facts of their case but upon statistical analysis showing racial injustice. Should an inmate convince the court that he was sentenced to death based upon either the color of his skin or the race of the victim, he would be eligible to have his sentence commuted to life in prison.

The court may also look at the role race played in jury selection in Mr. Robinson's trial.

The RJA says that racism has more to do with subtle shifts and built-in prejudices that permeate what should be a fair process. 

"People can be motivated by race without even realising it," said defence attorney James Ferguson in his opening arguments. Later, he presented expert witnesses testifying to that same claim.

The RJA may or may not be a step in the right direction. It is no secret that prosecutors generally want fewer blacks on capital juries and that the defense tends to want more. But there is a bigger issue that the RJA doesn't address.

Whenever the death penalty is on the table, prosecutors are allowed to strike for cause any panelist who states he could not sentence a person to death. A juror who supports the death penalty is a juror who is predisposed to convict a defendant. A juror who supports the death penalty is more likely to sentence someone to death if given the chance.

The RJA also sidesteps the very injustice of the death penalty itself. The issue isn't just who is sentenced to death or the color of their skin. The issue is the arbitrariness of the death penalty. Prosecutors are given great latitude to decide who faces the needle and who faces death in prison.

We cannot allow the state to be so capricious in the way in which it decides who lives and who dies. The ability to kill is the most invasive power in the hands of the state and it's a power that should be removed from those hands. The very notion of the death penalty is an affront to the ideal of limited government upon which the Republic was founded.

Mr. Robinson's life shouldn't be spared because he is black. And it shouldn't be spared because the victim was white. It shouldn't be spared because the prosecutor struck black panelists for no other reason than the color of their skin. Mr. Robinson's life should be spared because the death penalty is wrong.