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While North Carolina's groundbreaking law targeting racial discrimination in death penalty cases has been repealed, the courts are a likely barrier to quick resumption of executions.

What now for North Carolina's Racial Justice Act?

By Sharon McCloskey, NC Policy Watch

It didn't take long for Gov. Pat McCrory to put pen to paper and sign off on the repeal of the state's landmark Racial Justice Act, making good on his campaign promise to rid North Carolina of legislation he once called a joke.

But to the governor and to state Republican lawmakers who fervently hoped that the repeal would pave the way for a speedy return of executions in North Carolina comes an unfortunate rejoinder: Not any time soon. 

And perhaps an irritating reminder:  The courts will let you know if and when that might happen.

That’s because questions about the propriety of that repeal and its impact on death row inmates as well as ongoing challenges to the state's execution process may take years to wind their way through the judicial system.

Chief among those questions is whether the state can take away a right it extended to death-row inmates just four short years ago -- a right that most are in the process of exercising.

"This will certainly be a decision to be made by judges on individual filings across the state," said Peg Dorer, director of the N.C. Conference of District Attorneys.

Jeff Welty, an attorney and professor at the University of North Carolina School of Government involved with prosecutor training across the state, agrees. "Although it appears that the intent of this bill was to get executions started again in North Carolina, it's fairly clear to me that the repeal may untangle one or two of the threads to the knot that's blocking executions, but there are plenty of other strands to that knot," said Welty. 

In addition to the question of whether the repeal of the RJA can be applied retroactively, those threads  include the constitutionality of lethal injection protocol -- an issue currently pending in the Court of Appeals -- and continued questions about physicians' roles in executions.  

"There's no likelihood that I can see that executions are to begin any time soon," Welty added.

Numbers don't lie

The Racial Justice Act, enacted in 2009, allowed death row inmates to seek a reduction in their sentence to life without parole upon a showing -- through statistical evidence and otherwise -- that race was a significant factor in the imposition of their sentences.

Death penalty opponents hailed the passage of the Act as a necessary safeguard to continued racial bias in the judicial system; from day one, though, prosecutors and other proponents set out to overturn it. In 2011, the state senate garnered enough votes for repeal but could not override Gov. Bev Perdue's veto. 

By 2012, the legislature managed by amendment to rein in significant provisions of the RJA, limiting the scope of statistical evidence upon which inmates could rely to prove their claims.

Most of the state's 152 death row inmates have filed motions for appropriate relief, seeking to have their sentences commuted. And all but a handful of those motions have just sat, said Ken Rose, an attorney with the Center for Death Penalty Litigation. Four inmates have been successful, and three have been denied relief.

Marcus Robinson became the first to have his sentence reduced in April 2012, when Cumberland County Senior Resident Superior Court Judge Gregory Weeks, in a 167-page order, found that race was a significant factor in the imposition of the death penalty statewide and in Robinson's case.

On the heels of Robinson, death row inmates Tilmon Golphin, Christina Walters and Quintel Augustine asked Weeks to reduce their respective sentences. But shortly before hearings scheduled to begin in July 2012 in those cases, the legislature amended the RJA to require more than just statistical evidence to prove a claim of racial bias.

The inmates sought to do that in the hearings that followed, and in an opinion sharply critical of the prosecution not only for its conduct during the underlying murder cases but also for continuing to delay RJA proceedings while lobbying for a repeal of the Act in the legislature, Weeks commuted each of their sentences to life without parole.

In his 210-page order, Weeks wrote:

"This conclusion is based primarily on the words and deeds of the prosecutors involved in Defendants' cases. In the writings of prosecutors long buried in case files and brought to light for the first time in this hearing, the Court finds powerful evidence of race consciousness and race-based decision making. A Cumberland County prosecutor met with law enforcement officers and took notes about the jury pool in Augustine's case. These notes described the relative merits of North Carolina citizens and prospective jurors in racially-charged terms, and constitute unmistakable evidence of the prominent role race played in the State's jury selection strategy.

Another Cumberland County prosecutor, involved in all three Defendants' cases, had previously been found by a trial court to have violated the constitutional prohibition against discrimination in jury selection . . . .  by giving a pretextual explanation and incredible reason for her strike of an African-American venire member. Despite her testimony to the contrary, the evidence was overwhelming that this prosecutor relied upon a 'cheat sheet' of pat explanations to defeat challenges in numerous cases when her disproportionate and discriminatory strikes against African-American venire members were called into question. Her testimony overall -- rife with inconsistencies, frequently contradicted by other evidence, and often facially unbelievable -- constituted additional evidence that Cumberland County prosecutors relied upon race in its jury selection practices."

The state Supreme Court agreed in April to review the Robinson decision, with argument likely in the fall. It has not yet ruled on the state's request in March to review the Golphin decision.

Can the legislature take away rights it previously granted?

The legislature left little doubt about who the repeal of the Act covered: all death row inmates regardless of whether they'd already filed an RJA claim, except those who've had their sentences commuted by the court and affirmed on appeal. By default, that means only the four whose cases have been decided by Weeks, if they're upheld on appeal.

But just because the legislature says its repeal is retroactive doesn't necessarily make it so. Retroactive application of a statute runs into constitutional due process concerns when it affects rights that have already vested.

In the RJA context, when a death row inmate's right to seek a review of his sentence vested may be pivotal to that inmate's ability to move forward with a hearing.

That's a question already considered by Judge Weeks in Golphin, albeit under slightly different circumstances. There, the inmates sought a review under the original RJA, claiming that the statistical evidence of racial bias used to support Marcus Robinson's claim likewise applied in their case. 

But because the legislature amended the RJA just weeks before their scheduled hearings, limiting their use of statistical evidence, the inmates faced differing elements of proof. The state argued that the amended RJA applied retroactively -- although the amendment, unlike the repeal, didn't expressly say that -- and governed their claims. 

Judge Weeks disagreed. "Defendants established their right to a hearing under the original RJA at the time that they filed their original RJA motions," he wrote.

The judge went further, attributing the inmates' failure to reduce their claims to judgment to the state's own delay tactics.

And he found that applying the amended RJA retroactively introduced an element of arbitrariness with constitutional implications:

“In enacting the original RJA, the legislature recognized that statewide, system-wide discrimination against African-American venire members in capital cases is intolerable. In Robinson, this Court found precisely this insidious form of discrimination in cases throughout North Carolina between 1990 and 2010. Instead of confronting these findings with concern however, in July 2012, the legislature attempted to ignore them by enacting the amended RJA, which extinguishes at least some capital defendants’ ability to pursue statewide claims.

 Thus, having provided an opportunity for defendants to present evidence of the systemic use of race in capital jury selection, and having been presented with just such a determination by this Court, the legislature turned away. The Court is concerned that this action introduces an element of arbitrariness into the administration of the death penalty. If read retroactively, the amended RJA would allow Robinson relief from the death penalty on the basis of a statewide claim while denying that same relief to all other similarly-situated death row inmates, including Defendants. Even if the amended RJA is read prospectively, the Court finds that there is still some arbitrariness to the extent that future death row inmates whose juries are selected in a discriminatory system could be executed, while pre-amendment, similarly-situated inmates could not be executed.”

The issue of retroactivity as it relates to the amended RJA will likely be decided by the Supreme Court in Golphin, assuming it agrees to hear the state's appeal. 

But the question of whether a complete repeal of the Act can be applied retroactively has not yet been raised at even the trial court level, and it will take time for that question to wind its way to the Supreme Court.

In its request for review in Golphin, the state contends that death row inmates did not acquire a vested right to challenge their sentences at the time they filed their claims; that happened, at the earliest, when such claims were reduced to a final judgment by the court. Until then, the legislature was free to change the law with impunity. 

Presumably prosecutors will make a similar argument once the issue of the retroactivity of the repeal lands in court.

"That's going to be litigated for the next two or three years," Ken Rose said. "And we think we have a good argument. Judge Weeks agreed with us."

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While North Carolina's groundbreaking law targeting racial discrimination in death penalty cases has been repealed, the courts are a likely barrier to quick resumption of executions.
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