UPDATE, noon, June 2: Senate Bill 9 has been pulled from today's House calendar
UPDATE, 10:30 p.m., June 1- Senate Bill 9, a bill that would reverse the 2009 Racial Justice Act, is now scheduled for second reading Thursday at the N.C. House of Representatives. This blog post describes Wednesday's action, which moved the bill from a House subcommittee to the House at large.
The N.C. House of Representatives could vote on a bill to reverse the N.C. Racial Justice Act as soon as this week after the bill received a favorable vote in a House subcommittee Wednesday morning. The 9-6 vote was a clean partisan divide.
The proposed law, titled "No Discriminatory Purpose in the Death Penalty," would take the state's law books back to where they were before the progressive 2009 law took effect. It would also nullify the more than 150 appeals death-row inmates and criminal suspects have made in the past two years, as well as the rulings that have thus far been made—including a Forsyth County judge's February finding that the law is constitutional.
The Racial Justice Act allows inmates or suspects facing the death penalty to appeal capital punishment if they can prove racial bias was a factor in their case, such as in the way a jury was selected, or in a prosecutor's decision to seek the death penalty. If a defendant could prove such bias—no case has yet proceeded to that point—the defendant's only relief under the law is the defendant's life would be spared and he or she would instead continue to serve life in prison with no chance for parole.
One way a defendant may prove bias is through the use of statistics—a point that conservative members of the House committee have called insufficient both in the proposed bill and in their discussion Wednesday.
"My big opposition to this is the use of statistics," said Rep. Sarah Stevens, a Republican from Mt. Airy and co-chair of the committee. "I'm all in favor of trying to get at racial justice. I love solving the problem. But to me the only problem created here was the use of statistics that we don't even know the underlying data for."
Stevens said she wanted to see data associated with the results of a study by two professors at Michigan State University, who have testified that in their examination of 20 years of capital cases in North Carolina—173 cases all together—prosecutors were more than twice as likely to exclude black members of a jury pool than nonblack members during jury selection. According to a figure in the report, it's nearly impossible that a racial disparity of this magnitude would occur in a jury selection process free of racial bias. However, although some results of the study have been entered into court records, the study itself hasn't yet been released.
Among those who opposed the repeal bill were Rep. Rick Glazier (D-Cumberland), who stood behind the use of data and statistics to illustrate that racial bias is indeed a factor, and must be corrected, he said.
"We are human beings, and we are fallible, and we have prejudice, and we have bias," Glazier said. "And we use statistics to point that out in every other aspect of our lives—including employment discrimination cases—every day. But here we sit, with a bill that says you may use that data to prove that your employer discriminated against you so you can get damages, but you cannot use that data to save your life. How profoundly absurd."
The Racial Justice Act has been a dichotomous issue since its passage two years ago. It has also riled district attorneys who say it questions their ethics and commitment to pursue justice. Several prominent district attorneys have also protested in court and at the Capitol that the dozens of new appeals under the law are squeezing dollars from the state budget that aren't there—an assertion that offends many supporters of the Racial Justice Act.
"Last week, the D.A. from Forsyth County was here and showed pictures and also claimed an exorbitant amount of money would be used. And I resent the fact that when we talk about someone's life, we attach a dollar amount on it," said Rep. Earline Parmon (D-Forsyth), who spoke before the committee Wednesday. "The D.A.s are the people's lawyers, and they should want to ensure that justice is done."
Reversing the Racial Justice Act have been at the top of the Republican to-do list since 2009, with some failed attempts last year during the short session of the Legislature, when Democrats still held the reins. But the rhetoric surged again during election for state office last fall, when many Republican candidates capitalized on the issue with misleading mailers implying Racial Justice Act would free murderers, sending them back to prowl North Carolina neighborhoods. (One such mailer, PDF)
House Majority Leader Paul "Skip" Stam (R-Wake) was one of the legislators who made good on that promise to strip the Racial Justice Act from state law, filing a House version of "No Discriminatory Purpose in the Death Penalty" in February. The bill was assigned for further review to House Judiciary Subcommittee B, the committee he co-chairs with Stevens. But when the 15-member committee began its discussions May 18, Stam brought in the Senate version of the bill (SB9). That Senate bill—the one the committee passed Wednesday—started out as a draft law to criminalize synthetic marijuana and had already passed three readings in the Senate and one in the House. On May 13, any language referring to "synthetic cannabinoids" was stripped clean from the bill and replaced entirely with language to reverse the Racial Justice Act.
The move garnered an official complaint from Rep. H.M. "Mickey" Michaux, a Democrat from Durham who was one of the sponsors of the Racial Justice Act, but he predicted his objection would gain no ground with Republican leaders to whom he directed his concerns. Now, if the House passes Senate Bill 9, it would only need to send the bill back to the Senate for concurrence instead of a full-on discussion.
Both times Senate Bill 9 has come before Stam's House subcommittee, the room has been crowded with families of murder victims and members of the N.C. Black Legislative Caucus—many of the same who worked tirelessly to get the bill passed in 2009, and who vow to challenge the bill's repeal. But in the current legislative climate—and with so many Republican candidates having promised in their campaigns to undo the Democrats' reform—the repeal of the Racial Justice Act could be an inevitable end when this session adjourns.
Supporters of the Racial Justice Act say that if that happens, they'll count on Gov. Bev Perdue's veto power to keep the law intact.