In June 2013, North Carolina Governor Pat McCrory signed legislation repealing the state’s Racial Justice Act of 2009 (the Act), a controversial law that supporters said was an effort to address racism in death penalty cases. Opponents, however, argued it merely clogged the legal system and denied justice to victims of the state’s 154 prisoners sentenced to death.

“Nearly every person on death row, regardless of race, has appealed their death sentence under the Racial Justice Act,” Governor McCrory said in a statement that accompanied his repeal of the law. “The state’s district attorneys are nearly unanimous in their bipartisan conclusion that the Racial Justice Act created a judicial loophole to avoid the death penalty and not a path to justice.”

The Act was passed following the exoneration of three North Carolina prisoners who had been wrongfully convicted and sentenced to death. All were black. [See, e.g.: PLN, Aug. 2010, p.32].

The Racial Justice Act allowed condemned prisoners to challenge a death sentence “sought or obtained on the basis of race” if they could prove that race was a factor in their prosecution, jury selection or sentencing, and to petition to reduce their sentence to life in prison without the possibility of parole. According to the North Carolina Department of Public Safety, slightly more than half – approximately 53% – of the state’s death row prisoners are African-American. U.S. Census Bureau statistics indicate that blacks only comprise around 22% of the state’s population.

When the Act was passed in 2009, opponents contended it was a thinly-veiled attempt by a Democratic governor and a Democrat-controlled state legislature to essentially do away with capital punishment. Due to various legal appeals, North Carolina has not carried out an execution since 2006. Republicans took control of the legislature in 2010, and McCrory, a Republican, was elected in 2012.

“It [the Act] tries to put a carte blanche solution on the problem,” said Republican state Rep. Tim Moore. “A white supremacist who murdered an African-American could argue he was a victim of racism if blacks were on the jury.”

Colon Willoughby, the district attorney in Wake County, which surrounds Raleigh, the state capital, said death row prisoners can already petition to reduce their sentences on the basis of racial bias under a U.S. Supreme Court ruling. He said the Racial Justice Act “came about and set up new artificial obstacles and barriers that were designed simply to put a moratorium on the death penalty and not to promote justice for anyone.” As a result, he argued, the Act did nothing but clog North Carolina’s courts.

“The premise of it is that somehow, because juries were white, that they discriminated against people, both white and black,” he said. “The whole underlying concept of it is ridiculous.”

“It’s incredibly sad,” countered Democratic state Rep. Rick Glazier, a long-time supporter of the Act. “If you can’t face up to your history and make sure it’s not repeated, it lends itself to being repeated.”

Four prisoners have had their death sentences reduced to life without parole under the Act, all in 2012. In Cumberland County, the court cited a study that strongly suggested racial bias in jury selection. Researchers from Michigan State University who studied North Carolina cases between 1990 and 2010 found that prosecutors removed black citizens from juries in murder trials at more than twice the rate of other races.

“We think that essentially this legislature is sweeping evidence of racial bias under the rug, and it’s really disappointing,” said Sarah Preston, policy director for the ACLU of North Carolina. “Instead of looking at the cases that have passed as evidence of the necessity for the law, they have decided that it’s evidence that the law should be repealed.”

Preston and other legal experts said the question now is whether appeals still pending under the now-repealed Act will go forward or be dismissed. “Everyone who has made a claim under the Racial Justice Act is probably going to have to litigate over whether or not they continue to have a claim,” Preston said.

The North Carolina legislature had been chipping away at the law ever since Republican control in the state government grew stronger. In 2012, the state House and Senate overrode then-Democratic Governor Bev Perdue’s veto of legislation gutting the Act, replacing it with an amended law that made it more difficult for prisoners to challenge their death sentences. Instead of using race-related statistics from the entire state or region, appeals under the Act were limited to statistical data from the judicial district where the crime occurred. The amended law also specified that statistics alone were not enough to prove racial bias and that the race of the victim could not be considered.

The amended Act was written by Republican House Majority Leader Paul “Skip” Stam, who touted the measure as a means of ending the lengthy halt to executions in North Carolina.

“With [the] override of the governor’s veto, the end of the moratorium is in sight,” Stam said following the July 2, 2012 vote to amend the Racial Justice Act. “The basic principle of justice is restored: individual responsibility.”

In the debate leading up to the vote, local district attorneys and other supporters of the death penalty said changes to the Act would allow defendants to rely less on statistics that could mislead judges into finding that racism played a role in convictions and death sentences.

“I don’t trust statisticians or people who came in after the fact to find some way to get cold-blooded killers off of death row,” said state Senator Thom Goolsby, who is also a defense attorney.

“We should not allow racism to come into our courtrooms,” countered state Senator Floyd McKissick during the veto debate. “Race still impacts the minds and the hearts and the consciences of many people who serve on our juries.”

The Senate easily overrode then-Governor Perdue’s veto, but in the House, the vote was 72-48 – exactly the 60% majority needed. After using her veto power, Perdue said she supported the death penalty. “But it has to be carried out fairly – free of prejudice,” she added.

In December 2012, following the legislative amendment to the Act, then-Superior Court Judge Gregory A. Weeks reduced the death sentences of three prisoners – two black and one Native American – to life without parole.

According to the American Bar Association, “Judge Weeks found that the prisoners met their burdens of proof … through the use of statewide and county-specific statistical evidence, as well as non-statistical evidence. This ‘powerful evidence of race consciousness and race-based decision making’ included hand-written notes from the Cumberland County prosecutor that noted the race of potential jurors who were black, sometimes associating them with drug or alcohol abuse. The prosecutor also repeatedly noted which potential jurors lived in predominantly black neighborhoods… The prosecutor’s notes did not indicate which potential jurors were white or lived in predominately white neighborhoods. Judge Weeks’ ruling also noted that prosecutors had a ‘cheat sheet’ that instructed prosecutors how to deflect charges of racial bias in jury strikes. In one case, the prosecution struck black jurors at twice the rate of white jurors; in the other two cases, the rate was four times as high.”

The court’s ruling was “based primarily on the words and deeds of the prosecutors involved in these cases,” Judge Weeks said. “Despite protestations to the contrary, their words, their deeds, speak volumes. During the presentation of evidence, the court finds powerful and persuasive evidence of racial consciousness, race-based decision making in the writings of prosecutors long buried in the case files and brought to light for the first time during this hearing.”

Now that the Racial Justice Act has been repealed, however, whether death penalty cases in North Carolina will be “free of prejudice” – the phrase used by former Governor Perdue – is again a matter of debate.

On April 14, 2014, the North Carolina Supreme Court agreed to hear appeals in the cases of the four prisoners whose death sentences were reduced to life without parole under the Act – Marcus Robinson, Tilmon Golphin, Christina Walters, and Quintel Augustine. Prosecutors are seeking to have their death sentences reinstated. The state Supreme Court is composed of seven justices; one is black and the other six are white. Not that race matters, of course.

Sources: www.journalnow.com, Raleigh News & Observer, www.cnn.com, The New York Times, www.wral.com, www.americanbar.org, Associated Press, www.ncapd.org

(Reprinted with Permission from Prison Legal News)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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