The injustice of repealing the Racial Justice Act | North Carolina | Indy Week
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The injustice of repealing the Racial Justice Act 

The fate of the landmark Racial Justice Act, the 2009 law to stop executions in capital cases in which the death sentence resulted from racial bias, is in the hands of Gov. Bev Perdue. Perdue's office was noncommittal Monday night after the Senate, on a party line vote with Republicans in favor and Democrats opposed, gave final legislative approval to a bill to repeal the act.

State Sen. Floyd McKissick, D-Durham, one of the RJA's chief proponents, said he believes Perdue, who signed the act into law with great fanfare two years ago, will veto the repeal measure.

Perdue's decision may depend on whether Democrats in the House are prepared to sustain her veto, McKissick said. From the voting so far, it would appear that they are. In June, the repeal bill passed the House 64-52, with all of the 52 Democratic members voting no. (Four Republicans didn't vote.) If the 52 hold together, that's enough to thwart an override, which requires a three-fifths vote, or 72 of the 120 House members. (The 52 Dems would leave just 68 Republicans voting for the override, four short of the number needed to override.)

In the Senate, the 31-19 Republican majority can override a Perdue veto without any Democratic votes. But both houses must vote to override or a Perdue veto would be sustained.

Repealing the RJA turned out to be the only important objective of a brief legislative session rushed into action on the Monday after Thanksgiving without any announced agenda. The Senate adjourned shortly after voting on the bill.

Republican leaders were responding to pressure from the N.C. Conference of District Attorneys. The group fought the RJA when it was enacted and wanted it repealed before the start of the first death row inmate's court case based on the two-year-old law. The case of convicted murderer Marcus Robinson is scheduled to begin in January in Cumberland County. It was slated to start two weeks ago until prosecutors asked that it be postponed.

Of the 156 men and women on death row in North Carolina, 153 have filed appeals under the RJA. Robinson's is the first to reach the hearing stage.

Some 15 district attorneys came to the General Assembly Monday for an emotional press conference, bringing family members of murder victims who pleaded for the murderers to be put to death.

Angie West was one of the family members. Her brother Paul West, a Johnston County sheriff's deputy, was shot and killed by Angel Guevara, who was sentenced to die in 1996. "Don't let him off death row just because there's a statistic in another part of the state," West asked.

Two issues dominate the debate over the RJA. One, raised at the press conference by Johnston County D.A. Susan Doyle, who heads the district attorneys conference, and Wake County D.A. Colin Willoughby, is that some convicted murderers, should their RJA appeals succeed, could be eligible for parole and possible release thereafter.

That fear, though, seemed to be unfounded, according to testimony later in the day before the Senate Judiciary Committee. Under the RJA, if a court finds a death sentence to be racially tainted, the sentence is reduced to life in prison with no possibility of parole.

As explained by Willoughby, a problem could arise for murderers convicted prior to 1994, when the state's death penalty law was changed, and perhaps for those convicted between 1994 and 1998, when it was changed again. Before 1994, murderers not sentenced to death were eligible to apply for parole after 25 years in prison.

Resentencing them now to life in prison with no possibility of parole, Willoughby said, might violate constitutional guarantees against the imposition of ex post facto laws—the idea that you can't convict people of a crime (or toughen the penalties against it) if it wasn't a crime when they did it.

RJA supporters, though, said judicial precedents are clear that reducing a death sentence to anything less could not be considered "toughening" it. Moreover, said Sen. Josh Stein, D-Wake, if RJA opponents really think there's a problem, the remedy would be an amendment to require that anyone raising an RJA appeal waives his or her right to raise an ex post facto objection later.

The parole issue also begged the question whether any parole board would release a convicted murderer, regardless of his or her eligibility for it.

The second, more serious issue is how a finding that racial bias infects death penalty cases in general should be applied to a specific murder case.

Under the RJA, if a death row inmate can show that race was a "significant" factor in death penalty cases either in his county or throughout North Carolina at the time of his conviction—meaning that bias affected prosecutors' decisions to seek a death sentence or the willingness of juries to vote for one—then the murderer's sentence is commuted from death to life without parole. The question is, what constitutes "significant"?

Stein pointed to provisions in the statute that put the burden of proof on the defense to show that a specific death sentence may have resulted from generalized bias; if that burden is met, then the prosecution has a chance to rebut with evidence that, while other cases may be tainted, this one wasn't. Rebuttal evidence can include whether the district attorney has an equitable program—a fair vetting process—for deciding which murder cases to try for a death sentence and which for a lesser sentence.

Evidence in an RJA appeal can include statistics. For example, RJA proponents point to a finding last year by two Michigan State University law professors that murder defendants in North Carolina were 2.6 times more likely to be sentenced to death if at least one of their victims was white. They also found that our death sentence juries tend to be exclusively or predominantly white, with prospective black jurors excused at more than twice the rate of whites.

House Majority Leader Paul Stam, R-Wake, who's led the effort to repeal the RJA, argued Monday that evidence of bias in general is irrelevant to individual cases, and the death sentence should be taken off the table only if the defendant can show bias in his or her case.

That's the standard in the rest of the country, according to Ken Rose, who represents death row inmates as a lawyer with the state's Center for Death Penalty Litigation. A U.S. Supreme Court ruling in the 1987 case of McCleskey v. Kemp upheld the constitutionality of a Georgia death sentence because the defendant could not demonstrate that his conviction was the result of conscious, deliberate bias in his case.

Yet despite numerous studies showing that prosecutors and juries treat blacks and whites differently, Rose said, no defendant anywhere in the U.S. since the McCleskey ruling has been able to demonstrate that his own death sentence resulted from deliberate bias.

Rose represents Robinson in the Cumberland County case. However it comes out at the trial level, Rose said, he expects the case to be taken up by the N.C. Supreme Court, which will use it to establish an appropriate standard for applying general evidence of bias to specific situations.

That's what courts do, said Sen. Martin Nesbitt, D-Buncombe, an RJA supporter. Nesbitt said he hopes the evidence will show that no sentences were the result of racial bias. But he added, "If we have somebody on death row because they're black, wouldn't we want to find that out?"

The long debate over the RJA has shown clearly, Nesbitt said, that whites and minorities are treated differently in capital cases in North Carolina. If lawmakers "throw up our hands" and say there's nothing that can be done about it, people will lose faith in the system. "Repealing this law sends the wrong message," Nesbitt said.

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