Racial Justice Act passes, now goes to Perdue
By James Romoser
JOURNAL RALEIGH BUREAU
Published: August 6, 2009
RALEIGH - The General Assembly has approved a landmark bill that will allow death-row inmates to challenge the death penalty by arguing that there is systemic racial bias in the way that capital punishment has been applied.
Under the bill, which is expected to be signed into law by Gov. Bev Perdue, an inmate will be able to present statistical evidence showing racial disparities in how the death penalty has been used. If a judge finds the evidence convincing, the judge can overturn that inmate's death sentence and convert it to a sentence of life in prison.
Similarly, in future murder trials in North Carolina, judges will be able to block prosecutors from pursuing the death penalty if they find a historical pattern of racial bias in the use of the death penalty.
The bill is seen by its supporters as a long-overdue solution to a history of discrimination that they say permeates the criminal-justice system and the system of capital punishment.
Opponents, including prosecutors and victims' groups, say that the bill substitutes statistical data and historical trends for the particular facts of a case. It will, they say, set up an enormous roadblock for capital punishment and reopen old wounds for the families of murder victims.
The bill, which supporters named the N.C. Racial Justice Act, has been the subject of intense debate and legislative wrangling for months. Last night, the N.C. Senate voted 25-18 to adopt a version of the bill that had been approved by the N.C. House last month. In both chambers, Republicans opposed the bill, and most Democrats supported it.
The Senate's vote sends the bill to Perdue, a Democrat. A spokesman for Perdue said that she will closely review the bill but is likely to sign it.
If she does, North Carolina will become just the second state -- after Kentucky -- to enact a law allowing challenges to the death penalty on the basis of statistical disparities from previous cases.
"The need for this bill is self-evident," said Sen. Floyd McKissick, D-Durham, the chief sponsor of the bill in the Senate. "It is critically needed to correct any type of conduct that might be impermissible when it comes to the imposition of the death penalty."
The bill's passage is a victory for two Winston-Salem Democrats, Reps. Larry Womble and Earline Parmon, who have been pushing it for more than two years.
Its fate was uncertain until the very end. Some Senate Democrats, including the majority leader, Sen. Tony Rand, were skeptical of the bill, and legislators had postponed voting on it several times in recent weeks.
Last night, it was the last bill of the day for the Senate to take up. Just before the vote, Democrats called for a recess and met privately for nearly an hour. When they emerged, they passed it with little debate.
Sen. Phil Berger, R-Rockingham, the Senate minority leader, said that broad statistics are not relevant to decisions about whether to impose the death penalty in specific cases.
"What this does is it places the determination of a significant part of first-degree murder cases into the hands of statisticians, regardless of what the facts are," Berger said.
Tom Keith, the district attorney in Forsyth County, has warned that he and other prosecutors will have to stop pursuing the death penalty because they do not have the resources to constantly defend statistics-based claims of racial bias.
Capital punishment has been under a de facto moratorium in North Carolina since 2006 because of several legal challenges. Recent court rulings have tried to resolve those challenges and have moved the state closer to a resumption of executions.
The act allows defendants and death-row inmates to use statistics or other evidence to argue that race was a factor in decisions to request or impose the death penalty. The statistics can come from other death-penalty cases in the state as a whole, or in the local jurisdiction of the person making the challenge.
In 1987, in an influential case known as McCleskey v. Kemp, the U.S. Supreme Court rejected the sort of statistical evidence that the bill allows. But the court's decision permits state legislatures to pass laws that allow statistics to count as evidence of bias.
Supporters of the bill point to numerous studies, both nationally and in North Carolina, that have shown racial disparities in capital punishment. Statistically, cases involving black defendants, or white victims, or both, are more likely to end with a death sentence.
In 2001, two UNC professors found that defendants whose victims were white were 3.5 times more likely to be sentenced to death than defendants whose victims were black.
Opponents of the bill dispute the methodology and the conclusions of that study and others. They say that statistical racial disparities can be explained by factors other than racial bias.
Supporters said that no one will go free because of the bill -- if a challenge is successful, the only thing that will happen is that a sentence of life in prison will be substituted for a death sentence.
There are 163 people on North Carolina's death row.
■ James Romoser can be reached at 919-210-6794 or at email@example.com