THIS week in the paper I'm writing about the commutation of Marcus Robinson's sentence from death to life without the possibility of parole. In 1991, Mr Robinson and an accomplice abducted Erik Tornblom, a 17-year-old high-school student who had stopped at a convenience store on his way home from work. At gunpoint, they forced him to drive to an open field. On the way he was begging for his life. They forced Tornblom to lie down in the field, where they shot him in the face with a sawed-off shotgun and took the money from his wallet: a grand total of $27. Mr Robinson was convicted and sentenced to die three years later. 

I include the gory details of Mr Robinson's crime to make sure that readers understand that I am not writing this out of any sympathy for Mr Robinson. His crime was cruel, horrific and premeditated. He belongs in jail. But the commutation of Mr Robinson's sentence had nothing to do with his grisly crime, and everything to do with a long and shameful legacy of racial bias among prosecutors in North Carolina. 

In 2009, that state became the second to pass a Racial Justice Act, which allows inmates to appeal their death sentences on racial-bias grounds, and holds that evidence of racial bias in capital sentencing is grounds for commuting that sentence. Proving racial bias under the Racial Justice Act requires proving one of three things: that in the jurisdiction in which the inmate was sentenced at the time of his sentencing, the death penalty was sought more often for members of one race than another; that it was sought more often as punishment for killing people of one race than another; or that race was "a significant factor" in jury selection—specifically, in how prosecutors exercised their peremptory challenges. (Peremptory challenges allow lawyers to strike prospective jury members without reason; the Supreme Court—the Rehnquist Court, no less—ruled in Batson v Kentucky in 1986 that while such challenges by law did not have to be explained, it violates the sixth and 14th amendments to use them in a racially discriminatory manner.) Unlike Kentucky, which passed its Racial Justice Act in 1998, inmates can use statistical evidence on their behalf; they do not need to prove active, intentional discrimination. 

Shortly after North Carolina's Racial Justice Act became law, two professors at Michigan State's law school undertook a statistical study of jury selection and composition in North Carolina between 1990 and 2010 for trials of all defendants on death row. The study found that prosecutors at all levels struck 52.6% of black potential jurors, and 25.8% of all other potential jurors. The chance that this disparity resulted from race-neutral strikes is less than one in ten trillion. In cases involving black defendants, the average strike rate rose to 60% for black potential jurors and 23.1% for everyone else. The study observed similar disparities in the county, prosecutorial district and judicial division in which Mr Robinson was sentenced, as well as in his own trial. These disparities held firm even when controlled for other potentially mitigating factors. Against this evidence, as far as I can tell from Mr Weeks's ruling, the state offered little but quibbles, and on this evidence Mr Weeks found in Mr Robinson's favour. These are topline numbers; the study goes into far more detail.

But Mr Weeks's ruling went even further than just the numbers, much further. (Although it is 168 pages long, Mr Weeks writes extremely well, and not just for a lawyer. I read the ruling cover to cover in one sitting, like a thriller.) He explains why jury service is particularly important to black Americans, and how they have been systematically excluded for much of North Carolina's history. He also explains why prosecutors are reluctant to accept them on juries, particularly in capital cases ("African-Americans are perceived as less inclined toward the prosecution generally and the death penalty in particular than members of other groups"). But of course, black Americans have the same right/obligation to serve on a jury as anyone else, and a jury is supposed to be comprised of one's peers: of a broad slice of society.

A witness for the state argued that prosecutors tend to strike black jurors not because of their race, but because "African-Americans as a group disfavor the death penalty" and because "African-Americans as a group tend to be more concerned than other groups about fairness and inequality in the justice system." I will give you a moment to pick your jaw up off the floor and/or to stop conking yourself on the forehead. First of all, there is the bald-faced statement that the prosecution wants to exclude jurors concerned with fairness. Not jurors sympathetic to the defence, but jurors who are concerned with fairness! The prosecution in capital cases believes it cannot win before fair-minded jurors! Second, more mendaciously, excluding specific black jurors because of a perception of blacks generally is as close to a textbook case of racism as exists. I fear this post has gone on long enough, so I will not cite specific, incredible reasons prosecutors gave for striking black jurors, but if you want a good laugh/cry, read the last 48 pages of Mr Weeks's ruling.

Republican legislators in North Carolina already tried once to repeal the Racial Justice Act. They failed. Bev Perdue, the state's Democratic governor, vetoed their attempt. Ms Perdue is not long for office, and North Carolina may have a Republican governor soon enough. They will try again. Some have condemned the act as a backdoor method to end the death penalty, which of course it is not. It simply bans the racist application of the death penalty. In 2012, those two things should not be as synonymous as they have been.