When lawmakers return to town at the end of the month, they could find themselves in the middle of a fight over the Racial Justice Act, a 2009 law aimed at countering racial bias in the state's death penalty system.
The Racial Justice Act gives death-row inmates the chance to have their sentences commuted to life without parole if they can prove racial bias played a part in their death sentences. But inmates aren't restricted to entering evidence from their own cases - the law also allows them to use data from studies that show bias in the judicial system statewide, from jury selection to sentencing.
When the law was passed, prosecutors warned it would be too broad, and would put the death penalty on hold for as long as it takes the courts to sort out exactly what the law entails.
At a press conference today, members of the NC Conference of District Attorneys argued they've been proven right.
All but 5 of 157 current death row inmates have filed cases under it. More than a third are white. In many cases, the inmate, the victim, and the jury were of the same race. In some cases, the inmates pleaded guilty.
Johnston County DA Susan Doyle, president of the Conference, called the law "a thinly veiled attempt to end the death penalty in North Carolina."
Wake County DA Colon Willoughby went even further.
"The process this legislation has set up is faulty. It's designed to be faulty," Willoughby said. "It wasn't by accident. It's set up as a moratorium on the death penalty, and that's what it's become."
Center for Death Penalty Litigation director Tye Hunter took issue with that. "We hadn't had an execution for three years before the Racial Justice Act was even passed. So the moratorium on the death penalty, I think, has to do with other issues."
(Hunter is correct: two lawsuits over the state's lethal injection protocol have held up executions in NC since 2006. One was recently resolved in favor of the state; the other is scheduled to be heard in Wake County next month.)
DAs also argued that the premise of the act is unjust. They're asking lawmakers to amend the Act to require an inmate to prove bias in his or her individual case. "Decisions with regard to capital punishment in North Carolina should not be based on some generalized unreliable statewide statistics," said Craven DA and former state senator Scott Thomas, "but should be case specific, based upon the facts and the law of that particular case."
The Act "allows discrimination in one district to be imposed on people in another district," argued Willoughby. "It just lacks a fundamental fairness."
When asked if he was saying some districts engaged in discriminatory practices, Willoughby didn't answer.
Missing from today's debate, said CDPL's Tye Hunter, was any mention of academic studies that have shown clear patterns of racial bias in the capital punishment system, especially regarding prosecutors' exclusion of otherwise qualified jurors who are African-American. He said statewide data from the past 20 years casts doubts on prosecutors' arguments that those exclusions aren't related to race.
"They want to divide and conquer," Hunter said. "They want to say, 'Oh, it's just about whether I excluded these one or two or three African-American jurors.' But that's what every one of them is doing all over the state. And so there's a power to these statistics. That's why they don't want them in court."
Two Racial Justice Act cases are currently underway in NC courts. One, in Forsyth County, is on hold pending the outcome of death-row inmate Marcus Robinson's case in Cumberland County. Lawyers for the state in the Robinson case have repeatedly sought continuances, and have unsuccessfully tried to have the assigned Superior Court judge, Greg Weeks, an African-American, removed from the case.
Meantime, Representatives Rick Glazier (D-Cumberland) and Larry Womble (D-Forsyth) have scheduled a press conference Thursday afternoon with NAACP president William Barber, calling on GOP leaders not to amend the Racial Justice Act. We'll have coverage of that event here.