Death penalty, by the numbers

North Carolina is in the midst of a struggle between the governor and the Legislature over whether death row inmates should be allowed to use statistical evidence of racial bias to challenge their sentences. In our view, they should. Some communities have imposed the death penalty in such an unequal way that it makes sense to deprive them of the power to do it again.

Among the compelling arguments against capital punishment are its inherent brutality and its potential for error. But documented patterns of racial discrimination in sentencing are also well established and deeply troubling, particularly in cases in which the crime victim is white. A 2005 study of homicides in California from 1990 to 1999, for instance, drawing on FBI data, found that 2.1% of the offenders suspected of killing non-Latino whites were sentenced to death, compared with only 0.68% of those suspected of killing non-Latino African Americans.

In 2009, North Carolina’s Legislature passed the Racial Justice Act, which allows defendants to make the case — at a pretrial hearing or after conviction — that statistics show that the death penalty has been imposed significantly more often on defendants in their geographical area because of their race or that of the victim. (Similar legislation was introduced in California in 2010 but languished in committee.) If the judge determines that race has been a factor — not in the individual case but statistically — then the death sentence may not be sought or would have to be vacated. Instead, the defendant would be sentenced to life without parole.

A year after the measure passed, a new, Republican-controlled Legislature came into office and sought to repeal it. The Legislature is now locked in a battle with Gov. Beverly Perdue, a Democrat, over the future of the law.

Admittedly, the use of statistical data is a departure from traditional notions of justice, which focus on the facts of the individual case. But it is possible that the system may be skewed as a whole without a judge consciously taking race into account when sentencing. Presenting statistical evidence could give a judge second thoughts about his unconscious biases.

In 1987, the Supreme Court rejected the argument that statistics showing bias in imposition of the death penalty amounted to a denial of equal protection of the law in a particular case. But the court left it up to state legislatures whether they wanted to authorize the use of statistical evidence in their own courts. In the long run, states should do away with capital punishment altogether. But as long as they permit it, they shouldn’t ignore evidence that it is being carried out unequally.