RALEIGH — The North Carolina Senate voted Nov. 28 to approve Senate Bill 9, a measure nullifying the Racial Justice Act. District attorneys across the state support the move, saying more than 100 of the state’s most dangerous criminals potentially could be released from prison if the law is not repealed.
The Racial Justice Act allows death row inmates to appeal their sentences on the basis of statistical data that some say demonstrate rampant racial discrimination in North Carolina courtrooms. Opponents of the law say it is a backdoor attempt to get rid of the death penalty altogether.
Two years after Gov. Bev Perdue signed the act into law, 154 of the state’s 157 prisoners on death row have used it to appeal their sentences. Because Racial Justice Act cases involve two years of discovery, the first claims are about to be heard. If successful, 119 of convicts potentially would be eligible for immediate parole.
That’s because the majority of the people on death row committed their offenses prior to Oct. 1, 1994, and were sentenced under the Fair Sentencing Act, said Johnston County District Attorney Susan Doyle.
“Under Fair Sentencing, we had no life without parole in North Carolina,” Doyle said. “We had death and we had life. Back then, [a] life [sentence] basically meant 20 years.”
Many of the convicts already have served 20 years, she explained.
The Racial Justice Act states if a defendant is successful in his discrimination claim, his sentence is converted to life without parole. But Doyle says the General Assembly cannot mandate the new sentences, as doing so could be considered enacting an ex post facto law — a violation of the federal and state constitutions.
“You cannot give [convicted criminals] a punishment that was not in existence at the time they were sentenced,” she said. “We checked with the attorney general’s office and they’re in agreement with this.”
Doyle said a defendant who’s been sitting on death row for 20 years has had several chances to appeal and that it is “fundamentally unfair for him to be allowed to use something completely unrelated to his case to get his death sentence overturned.”
All a defendant has to do is show there was discriminatory intent somewhere in North Carolina, she said. “There is no requirement that the defendant show discriminatory purpose in his or her case.”
For example, Doyle said, “a defendant in Cumberland County can use statistics that show there was a problem in a capital case 20 years ago in Haywood County. Even though he had a trial free of error, completely clean, upheld by all the courts in our exhaustive appellate process, we’re going to allow his death sentence to be overturned.
“That is fundamentally unfair to the victims who’ve sat through trials for weeks, seeing a case tried cleanly, seeing a judge make decisions that are proper, and seeing juries, after they’ve carefully deliberated based on all the facts and the law, come to a decision that the only appropriate punishment is death.”
Tom Bennet, executive director of North Carolina Victim Assistance Network, also worries about the impact on victims.
“Whatever the intention was for the Racial Justice Act, the fact is that people who are not victims of any sort of racism are misusing the law,” Bennet said.
He noted that nearly half of the 154 inmates filing Racial Justice suits are white.
“If people are interested in repealing the death penalty, they should put forward a bill that repeals the death penalty,” he said. “They should be straightforward about it, and not wrap their effort in some other cause.”
Stephen Dear, executive director of People of Faith Against the Death Penalty, is clear that repeal is his intent.
“We oppose the death penalty, period,” he said. “We are working to repeal it. But if you’re going to have a death penalty, you need to make it as fair and error free as possible.”
Dear cited statistics that he says demonstrate the system is not fair.
“A defendant is three times more likely to receive a death penalty if the victim is white. Seventy six percent of the people executed by North Carolina are black. Sixty percent of death row right now is minority,” he said.
“To deny the influence of racial bias is to deny reality,” he added. “Statistics matter. They’re used all the time in every kind of court case and it’s essential that they be allowed to be used in cases about the use of racial bias.”
Sen. Dan Soucek, R-Watauga, who co-sponsored S.B. 9, repealing the heart of The Racial Justice Act, disagrees.
“In our justice system, a person’s guilt or innocence depends on that case, not on unrelated cases. To use information not involved in the case at hand is a very dangerous and improper way apply justice in the court system.”
The bill passed the House in June, but it did not receive a veto-proof majority. The Senate vote was 27-17, but if members who were absent Nov. 28 voted along party lines, S.B. 9 would have secured a veto-proof margin.
It went to the governor’s desk last Tuesday. Perdue will have to decide whether to let the legislature undo a law she supported and approved two years ago.
“I’m a real strong supporter of the death penalty,” Perdue said at an event in Charlotte, according to The News and Observer. “We should not allow discrimination based on race, poverty, or any other factor to infect the criminal justice system. I’m thinking about it hard.”
Sara Burrows is an associate editor of Carolina Journal.