Playing racial-justice roulette

Suppose the state legislature came up with the harebrained idea to pass a law to exempt the killers of white women from the death penalty, no matter how brutal and premeditated the crime. Kill a black woman, though, and you'd still be looking at possible capital punishment.

There's no way legislators would do something that stupid, you say. The governor, a white woman herself, would never sign it.

Well, it appears she did. It's called the Racial Justice Act, and it became law in August with Gov. Bev Perdue's signature. It goes far beyond barring racial discrimination in capital cases, proof of which was already enough to challenge a death row sentence. It set up a bizarre reverse affirmative action system for the death penalty based not on actual discrimination, but on theoretical discrimination.

All an ax murderer now has to do is to make a mathematically sound statistical argument that the death penalty is handed out more frequently to people of his race in his county, prosecutorial district or the state. Or he could argue that there was a statistical pattern of outcomes in cases with racial circumstances similar to his that made getting the death penalty more likely. He wouldn't have to prove there was actually any discrimination in his own case.

The law was written to decrease the number of black men on the state's death row -- to hell with their victims -- and the NAACP lobbied hard for it. But statistics are funny things, and, as I warned for more than a year before the law's passage, virtually anyone of any race could potentially use it to get out of a death sentence.

Enter Sgt. Richard D. Smith. He convinced a second Fort Bragg soldier to kill his wife, Sgt. Christina Smith, in 2008. According to an article in the Fayetteville Observer, Smith lured his wife into a trap near their home and then watched as his accomplice stabbed her to death.

In a meeting before a Cumberland County judge recently, the Observer reported, Smith's lawyer revealed he planned to use the Racial Justice Act to get his client out of the death penalty. Because Christina Smith was white, statistically Richard Smith has a higher chance of getting the death penalty in North Carolina. One problem. Richard Smith is also white. So is his accomplice. But if they can prove that a white man who kills a white woman has a higher chance of getting the death penalty than one who kills a woman of another race, which statistically appears to be the case, Smith may face life in prison instead if convicted of first-degree murder. Worse yet, other men who kill white women, regardless of their race, might then have legal standing to claim the same thing.

Anthony Tyrone McMillan, who is black, stands accused of killing a white woman and a white man in Stedman in 2006. His lawyer was also in the meeting with the Cumberland County judge to strategize on McMillan's planned use of the Racial Justice Act.

The possibilities in McMillan's case are endless because the whole thing is dangerously open to statistical interpretation. He could argue that since he killed a white woman, or man, that he is more likely to get the death penalty and that that is racially unfair. Or he could argue that African-Americans make up 22 percent of North Carolina's population, but 53 percent of inmates on the state's death row, therefore he is being discriminated against. A liberal judge might buy that and commute his death sentence to life in prison. A less liberal judge might buy the prosecutor's rebuttal that blacks make up 62 percent of all convicted murderers in the state's prison system, as the Winston-Salem Journal recently theorized, and are actually underrepresented on death row.

Smith might not be down for the count either. He could argue that while they are underrepresented on death row when compared to their numbers in the state population, once convicted of murder, white killers are more likely than black killers to get the death penalty. In 2005, for instance, 38 percent of convicted killers in the state were white, while 39 percent of those on death row were white.

The idea that a victim's race could influence the amount of justice they qualify for, that a couple of these cases could establish a precedent that makes it harder for homicidal maniacs to get the death penalty for killing a white woman in this state, is simply outrageous.

I recently sent an information request to the governor, asking if a lower standard of justice for entire victim classes based on their sex or race was an acceptable outcome from the bill she signed. I got back a non-answer from Perdue that dodged my question.

"The Racial Justice Act was enacted by the General Assembly to assure that no person is discriminated against because of race in application of the death penalty," the statement said. "Certainly the courts may be called upon to interpret this new law, and we are confident they will apply the RJA consistent with the legislature's purpose."