By Cassandra Stubbs, Staff Attorney, ACLU Capital Punishment Project

Last week, five North Carolina death row inmates filed motions seeking to have their death sentences vacated under North Carolina’s new Racial Justice Act (RJA), a law that allows death row inmates to use statistics to show that race played a role in their cases. Buried in the fine print of the inmates’ motions is a story worthy of its own headline: a new study by researchers from Michigan State University (MSU) found that prosecutors in North Carolina removed qualified African-American jurors at more than twice the rate that they removed all other jurors.

The MSU study looked the use of "peremptory strikes," the practice by which attorneys for both sides remove jurors whom they don’t want on the jury. The MSU study found that prosecutors in North Carolina, by overwhelming numbers, don’t want African-Americans on their juries, even if they are not opposed to the death penalty and are fully qualified to serve. Even more revealing, the MSU study found that prosecutors statewide removed African-American jurors at even higher rates in cases where the defendant was African-American: proof that prosecutors are even more intent on reducing the number of African-American jurors if the person to be tried is African-American.

The disturbing results of the MSU study are unfortunately not limited to North Carolina. A report issued by the Equal Justice Initiative of Alabama just last month documented racial discrimination in jury selection in death penalty cases across the South.

What is unique about North Carolina is that it is the only state in the country that has a law in place to address the problem of discrimination in the exercise of peremptory strikes. Although the Constitution prohibits racial discrimination in jury selection, the courts have not developed an effective way to stop the problem. In North Carolina, for example, the appellate courts have never reversed a capital case because of discrimination in jury selection.

The country will be watching closely to see if North Carolina’s law can remove the historically fused link between race and jury selection in capital cases. African-Americans were excluded historically from jury service first by laws directly prohibiting their participation, and later by poll taxes, property and literacy requirements. The racially based use of peremptory strikes is the on-going legacy of this history.

Kenneth Rouse’s case will be one of the key tests of the new law’s force. Rouse, one of the first five to file his motion, is one of 33 North Carolina death row inmates sentenced to death by all-white jury. One of the white jurors chosen by the prosecutor to serve on Rouse’s jury routinely referred to African-Americans as "n—–s" and later stated that "bigotry" was influential in his decision to vote for death. In Rouse’s county, the prosecution struck African-American jurors at almost three times the rate it struck all other jurors.

The RJA gives the North Carolina court the power to commute Rouse’s death sentence to life based on the evidence of bias in jury selection in his case. The court’s ruling could be the leap forwarded needed to finally prevent prosecutors from sending home African-American jurors.