Cassandra Stubbs, Robinson’s attorney and the director of the Capital Punishment Project at the ACLU, told me, “To finally have the full evidence of discrimination heard, to have a judge find that he is entitled to life without parole because of the intentional discrimination in his case, to be taken off death row, and sent to a new prison to serve what is still an unbelievably harsh sentence, only to then to be thrown back on death row without a new trial—it’s unimaginable.” She said Robinson wasn’t available to comment.
The hearings and their eventual outcomes are, of course, a matter of life and death for Robinson and the other defendants.They also raise a broader issue that, while discussed in criminal-justice circles, has yet to be satisfactorily resolved: Given that it’s now well understood that racial discrimination is pervasive in capital cases around the U.S., why is a flawed system still sending people to their death?
After the Civil War, under a set of laws adopted by Southern states known as the black codes, black citizens were often banned from serving on juries, along with voting, running for public office, and testifying against white people at trial. This changed with the 1875 Civil Rights Act, which names jury service as one of the guaranteed rights for once-enslaved people. In 1880, the United States Supreme Court reinforced this, ruling in Strauder v. West Virginia that states could not restrict jury service to white people. But in the years that followed, states regularly circumvented the Strauder holding by allowing prosecutors to keep black people off juries by making racist decisions under the guise of factors like intelligence, moral character, and home address.
Prosecutors also relied on peremptory strikes—their right to eliminate a prospective juror without explanation—to exclude black people. In the 1965 case Swain v. Alabama, the Supreme Court held that a prosecutor had not violated the Constitution when he used peremptory strikes to cut six out of eight potential black jurors (the other two turned out to be exempt from jury service); no black people had served on a trial jury in that county over the previous 15 years. The Court reasoned that the individual strikes of a prosecutor could not by themselves amount to racial bias, even if they occurred amid broader racial disparities. (Earlier this year, when the Supreme Court overturned the capital conviction of Curtis Flowers, the decision was based not on generalized racism but on intentional discrimination on the part of the Mississippi district attorney, Doug Evans, who had tried Flowers.)
This state of the law was modified slightly by the 1986 Supreme Court decision Batson v. Kentucky, which required “race-neutral” reasons for jury strikes. But after Batson, prosecutors continued to strike black people from juries, using a variety of excuses. One Georgia prosecutor struck a black jury candidate for having “gold teeth.”