Legislators Limit North Carolina’s Death Penalty Fairness Law

Major changes were made last week to North Carolina’s controversial racial justice act, which allowed death row defendants to challenge their sentences based on statewide statistical evidence that racial bias played a role in the sentence or in jury selection. The legislature significantly limited the scope of the act, and reaffirmed its decision by overriding Governor Bev Perdue’s veto.

“The so-called Racial Justice Act frees people not from prison, but from the consequences of what they did,” said Republican House Speaker Paul Stam, in an interview with NBC-17, “not because of their crime but because of something that happened in another century. This bill is not a repeal, but it certainly ameliorates the worst problems with the so-called Racial Justice Act.”

What Stam saw as problems with the law, others saw as progress. “(The racial justice act) could have been a model for the rest of the nation,” said Mike Meno of the ACLU of North Carolina. “Instead, we only got to have one case successfully tried under the law, and the judge found pervasive patterns of discrimination. For the politicians to react to the ruling by saying that we’re not going to confront this finding but sweep it under the rug is really disgraceful.”

Meno was referring to the first decision under the racial justice act, this past April. After evaluating a comprehensive study of the disqualification rate for jurors by race in the state, Judge Gregory Weeks found that the defendant, Marcus Robinson, was entitled to have his sentence waived down to life without parole because racial bias played a decisive role in the imposition of the sentence.

“Discrimination in jury selection frustrates the commitment of African-Americans to full participation in civic life,” Weeks wrote in his opinion. “African-Americans who have been excluded from jury service on account of race compare their experiences to the injustice and humiliations of the Jim Crow era.”

Under the changes to the law, some statistics can still be used as evidence to vacate a death sentence. But statistical evidence alone is not enough, and statistics can be taken only from the county or district where the case was originally tried, and for the 10 years before the sentence and two years after. This means that new statistical analyses will have to be conducted for each appeal, says Thomas Maher, executive director of the North Carolina Office of Indigent Defense Services, and that will take time.

The changes to the law addressed major concerns of the state’s district attorneys, who argued that appeals of death sentences should be based on the individual facts of each case, rather than statistics from other parts of the state. “People should not be punished because they belong to a certain class,” says Benjamin David, president of the North Carolina District Attorney’s Association, “nor should they be exonerated because they belong to that class…we want to ensure that the appeals are focusing on the crimes and the facts and the law.”

David notes that North Carolina has other safeguards in place to protect against race-based sentencing. The state Supreme Court conducts a “proportionality review” of every death sentence in the state to evaluate whether the facts of the individual case merit the death sentence based on the existing death row cases in the state. Also, the state is bound by the 1986 U.S. Supreme Court decision Batson v. Kentucky, which prohibits dismissing a juror based on his or her race.

While the law has been changed, the appeals filed by nearly all of the 156 death row inmates under the old version of the law will continue to be litigated. On Friday, Judge Weeks heard four challenges to the new racial justice act. The defendants are arguing that their cases should be tried under the old law since they filed their appeals while it was still in place.

Opponents of the changes say that by amending the law, the legislature simply added another layer of litigation rather than achieving its expressed goal of speeding up death penalty cases. Tye Hunter, executive director of the North Carolina Center for Death Penalty Litigation, says that the new law could add at least another two years to a defendant’s appeals process.

The Racial Justice Act originally passed in 2009, when Democrats held a majority in both the state House and Senate. Governor Perdue, also a Democrat, lauded the legislation, and civil rights activists across the country praised it for addressing the fact that race sometimes taints the criminal justice process. But district attorneys and Republican legislators were overwhelmingly against the law, and when Republicans won a majority in the legislature in 2010, the racial justice act was an obvious target. An attempt to change it last year couldn’t overcome Perdue’s veto, but this time five House Democrats voted with Republicans, which created the three-fifths majority needed to strictly limit the law.