DAs seek repeal of death penalty law
Posted November 15, 2011
Updated November 16, 2011
RALEIGH, N.C. — The legislature should act quickly to repeal a new law that gives death row inmates another way to challenge their sentences on the grounds of racial bias, North Carolina's district attorneys argue in a letter to state senators.
“No district attorney supports race as a factor in either death penalty cases or in the criminal justice system in general,” Johnston County District Attorney Susan Doyle, president of the North Carolina Conference of District Attorneys, said in a statement. “While the name of the act sounds well-intentioned, the actual application is a threat to justice, truth and public safety,”
Doyle said in a letter addressed to Senate President Pro Tem Phil Berger that the Racial Justice Act could "crush an already under-funded and overburdened (court) system." Durham County District Attorney Tracey Cline was the only one of North Carolina's 44 elected district attorneys who didn't sign the resolution.
The Racial Justice Act allows death row inmates and defendants facing the death penalty to use statistics and other evidence to show that racial bias played a significant role in either their sentence or in the prosecutors' decision to pursue the death penalty. The law says an inmate's sentence is reduced to life in prison without the possibility of parole if the claim is successful.
A study by two law professors at Michigan State University found a defendant in North Carolina is 2.6 times more likely to be sentenced to death if at least one of the victims was white. The study also showed that of the 159 people on death row in the state at the time of the study, 31 had all-white juries and 38 had only one person of color on the jury.
All but seven of North Carolina's death row inmates have filed appeals under the law.
Prosecutors say the law should be changed so inmates would have to prove bias in their specific cases.
"Decisions with regard to capital punishment in North Carolina should not be based on some generalized unreliable statewide statistics but should be case-specific – based upon the facts and the law of that particular case," Craven County District Attorney Scott Thomas said in a Wednesday news conference.
The law's supporters say prosecutors don't want to admit that studies have turned up clear patterns of racial bias in the capital punishment system.
"They want to say, 'Oh, it's just about whether I excluded these one or two or three African-American jurors," said Tye Hunter, director of the Center for Death Penalty Litigation. "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."
The General Assembly is scheduled to reconvene Nov. 27 to work up to three days on several possible items. The legislature's adjournment motion allows lawmakers to consider bills during that period that are awaiting a concurrence vote, which means senators could vote on the repeal of the Racial Justice Act. Kentucky is the only other state with such a law.
Doyle's letter cites four reasons that the law should be repealed: white inmates are taking advantage of the law; the cost is prohibitive; it created a quagmire in the courts; and contrary to what the law says, some inmates could be released if sentenced to life without parole.
"I challenge you (to) see RJA for what it really is, not a search to eliminate bias, but a backdoor deal to end the death penalty in North Carolina," Doyle said.
North Carolina hasn't executed anyone since 2006.
Sen. Floyd McKissick, D-Durham, and Hunter said the final reason is wrong because the law says an inmate must be sentenced to life in prison without parole if he uses the act to get released from the death sentence. As far as white prisoners using the law, Hunter says a judge can decide if those cases have merit. In addition, not that many cases have gotten to court, he said.
"I think they're very unhappy with what's going to come out," Hunter said. He's also an attorney for Marcus Robinson, whose Racial Justice Act appeal was supposed to be heard this week in Cumberland County but was delayed until January 2012.
"In Cumberland County, there's a long, 20-year period of discrimination against African-Americans in jury selection," Hunter said.
The state chapter of the NAACP and the North Carolina Advocates of Justice sent a letter to Berger Wednesday, disputing prosecutors' arguments and asking the Senate not to repeal the Racial Justice Act.
"The courts of North Carolina have been doing an exemplary job of managing litigation under the RJA, both in terms of avoiding unnecessary costs and in terms of expediting review of serious claims of racial discrimination," the letter states. "Now is not the time for the General Assembly to tinker with the statute and create potentially new avenues of appeal.”
The repeal, known as Senate Bill 9, went to the state House as a bill to create penalties for synthetic marijuana. House Republicans stripped that language and changed the bill's language to repeal the two-year-old Racial Justice Act. That means state senators have never discussed the proposed repeal, either in committee or on the floor.
That angers McKissick, one of the architects of the Racial Justice Act.
"The House is attempting a procedural maneuver to eliminate public debate," McKissick said Tuesday. "I think it's extremely unfortunate for a very significant piece of legislation."
Berger, R-Rockingham, said he doesn't know if the Senate will consider the repeal this month. Legislators previously have said the debate would continue in January, when the General Assembly begins a new session.
"It's certainly on the radar screen," Berger said, adding that a committee or the full Senate would discuss the bill before a vote. The repeal technically needs just one more Senate vote for full legislative approval. No Senate Republicans voted for the 2009 bill.
Gov. Beverly Perdue, who signed the Racial Justice Act into law, would have to decide whether to veto the bill if it received final legislative approval. District attorneys will hold a news conference Wednesday to elaborate on their support of the repeal.