In 2009, the General Assembly passed the so-called Racial Justice Act. Its stated purpose was to allow a convicted murderer to avoid capital punishment if it could be shown that prior judgments were sought or obtained on the basis of race.
Under the RJA, lawyers were able to make their case in one of three ways: 1) if they could show that death sentences were sought more frequently on defendants of a particular race, 2) more frequently on behalf of victims of a particular race, or 3) if race was ever a factor in jury selection. Proof of racial bias in any one of these three categories was sufficient to establish an RJA violation and would get the death sentence of a convicted murderer commuted to life imprisonment.
But isn’t that a good thing?
No one condones racial bias in sentencing. But the RJA inserted broad language into the law which allowed a judge to commute a death sentence if the use of general statistical trends could show that race was a significant factor in prior cases in any jurisdiction across the state — despite the fact that the convicted murderer could not show that racial bias played a role in his own individual case.
Statistical percentages and historical trends took the place of the well-established requirement that only the particular facts of the defendant’s individual case were relevant to establishing racial bias in the seeking or imposing the death penalty.1
I’m confused. A convicted murder didn’t have to show that there was racial bias involved in his particular case?
No. Courts have held that because the version of the law originally passed by the General Assembly in 2009 didn’t specifically include such a provision, a convicted murderer didn’t have to show that any racial bias existed in his particular case in order to prevail.
Evidence of intentional discrimination was not required either. In 2012, former Superior Court Judge Gregory A. Weeks reduced the life sentence of convicted murderer Marcus Robinson (the first defendant to receive such a hearing under the RJA), issuing a ruling which said that “to hold that a defendant cannot prevail under the RJA unless he proves intentional discrimination would read a requirement into the statute that the General Assembly clearly did not place there.” Judge Weeks commuted Robinson’s death sentence after he determined that the existence of racial bias had tainted jury selection processes throughout the state over a 20-year period.
So why was the RJA repealed?
Well-intentioned as it may have been, the RJA was seriously flawed and widely abused. The RJA created judicial loopholes that lawyers were quick to take advantage of, clogging up the court system with frivolous, fraudulent and costly claims that allowed convicted murderers to escape justice. Nearly every single one of North Carolina’s approximately 150 death-row inmates, regardless of their race, has appealed their death sentence under the Racial Justice Act— including white inmates convicted of murdering white victims — in order to get their sentences reduced.
The RJA set up a thicket of legal barriers which have effectively instituted a moratorium on capital punishment in North Carolina. The result, ironically, has not been greater justice — but less.
But haven’t general statistics always been used to show racial bias?
Not in criminal trials. Prior to enactment of the RJA in North Carolina, simple statistical racial percentages were considered to have little probative value in showing racial motive in criminal cases. No other state has allowed the use of generally-applied statistical data to commute death sentences in a particular case.
But I heard that Kentucky passed a Racial Justice Act too.
That’s true — but Kentucky’s RJA couldn’t be more different than North Carolina’s. In Kentucky, the use of statewide statistics is very limited and a defendant must clearly prove that racial bias played a role in his own individual case. Until the RJA was repealed here, North Carolina was the only state in the union that allowed general statistical data — that was sometimes out of date or even unconnected — to commute a death sentence.
Another important distinction is that unlike Kentucky’s Racial Justice Act, North Carolina’s RJA was entirely retroactive — meaning that anyone on death row, regardless of how long ago they were convicted of murder, became eligible to activate yet another appeal. And nearly every single one of North Carolina’s death-row inmates, regardless of race, has done just that. (In Kentucky, only convicted murderers who were sentenced to death after 1998, the year its law was passed, were able to appeal a death sentence.)
“It’s the retroactive feature of this bill, of course, that creates the huge financial cost and train wreck costs,” said Representative (now Speaker Pro-Tem) Paul Stam during the 2009 floor debate in the House of Representatives. “And this allows every person of the 163 currently on death row to make this claim.”
What do district attorneys think of this?
The General Assembly repealed the RJA after careful consultation with the state’s district attorneys, and they were near unanimous in their bipartisan conclusion that the RJA has resulted in nothing more than an over-burdened court system. “What has played out so far (in North Carolina) has been thousands of hours of prosecutors’ time going back through 20 years of murder cases to try to respond to outrageous discovery demands by defendants, instead of prosecuting the cases that the citizens need prosecuted,” remarked Peg Dorer, Director of the North Carolina Conference of District Attorneys. “This is not a good use of taxpayer money or state employee time.”
And our district attorneys don’t believe they should have to be judged on the basis of what other prosecutors in other counties may have done in the past. “Ultimately, the decision about whether a criminal should die for his crime is not left up to the prosecutor, law enforcement or a judge,” he said. “It’s left up to 12 members of our community,” said Forsyth County District Attorney Jim O’Neill.
Wake County District Attorney Colon Willoughby called the RJA a “Trojan Horse,” and has said “it was, in reality, a permanent moratorium on the death penalty in North Carolina.”
But shouldn’t we keep the RJA — just in case?
Bad law is bad law. And it’s important to note that the repeal of the RJA does not eliminate the extensive federal and state protections that defendants have against racial discrimination during criminal trials. And courts have already ruled that death-row inmates are entitled to relief if they can show that they were indeed the victims of real discrimination.
Both the United States Constitution (in Article V and Article XIV) and the North Carolina Constitution (in Article I) underscore these equal protection rights. District Attorneys and Assistant District Attorneys have taken an oath to uphold and support the Constitutions of North Carolina and the United States.2
Has there ever been any attempt to repeal the RJA before?
Yes. In 2011, the General Assembly passed legislation that would have basically repealed the RJA, but it was vetoed by former Governor Beverly Perdue. In 2012, a law was passed that restricted the use of statistics to where the crime occurred and established that statistics alone were insufficient to prove bias.
Has anyone ever had their death sentences commuted using the RJA?
Yes. In addition to Marcus Robinson, three other convicted murderers have had their death sentences commuted to life without parole under North Carolina’s RJA: Tilmon Golphin, Quintel Augustine, and Christina Walters.
Can the repeal of the RJA be used to cancel appeals already made by death row murderers?
No. The State Constitution specifically guarantees that the state cannot create laws that are applied “ex post facto,” or after the fact. The only death row inmates who would be able to claim an ex post facto exception with the RJA’s repeal would be those who committed murder after 2009 — and no murderers currently on death row fall into that category.
(For a detailed discussion of the retroactive applicability of the RJA’s repeal and potential violations of the Ex post facto clauses of the State and federal Constitutions, please read this Memorandum of Law.)
What crimes in North Carolina carry the death sentence?
Only first-degree murder (as defined by North Carolina General Statutes Sections 14-17) and with the finding of at least 1 of 11 aggravating circumstances (as listed in NCGS Section 15A-2000(e)). North Carolina law grants wide discretion not to seek the death penalty in spite of the presence of one or more of these factors.
How many people are on death row in North Carolina?
According to the state Department of Public Safety, there are currently 151 inmates on death row: 53% are black and 40% are white. Since 1977, when North Carolina reinstated the death penalty, there have been a total of 43 murderers executed in our state — 65% of those have been white. “That’s a new light on the claim of disproportionality,” concluded Representative Stam.
There have been no executions in North Carolina since 2006.
1. Civitas Institute: “North Carolina’s ‘Racial Justice Act”