Rewriting the Racial Justice Act

YES! Weekly | December 7, 2011
Darryl Hunt approached the podium inside the chambers of the Legislative Building of the NC General Assembly complex on Nov. 28. As Hunt read his prepared remarks, his hands shook visibly and his voice quavered.

“I spent 19 years of my life in prison for a crime I didn’t commit and I was one vote away from the death penalty — one,” Hunt said, emotion rising in his voice. “I had 11 whites and one black on my jury and if you think that race did not play a factor in my case, in me being arrested, charged and convicted, then you’re not living here in North Carolina.”

Hunt spoke during a public hearing of the Senate Judiciary I Committee as the 12 Republicans and six Democrats on the committee considered Senate Bill 9, also known as the No Discriminatory Purpose in Death Penalty Act.

Supporters of Senate Bill 9 call it a rewriting of the Racial Justice Act. Passed by the NC General Assembly in 2009, the Racial Justice Act sought to ensure that “no person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.”

Rep. Larry Womble (D-Forsyth), one of the sponsors of the Racial Justice Act, also spoke during the public hearing. He said Senate Bill 9 amounts to a “gutting” of the Racial Justice Act.

Senate Bill 9 strikes a considerable amount of language from the Racial Justice Act, known for short as RJA, including a portion that grants a death-row inmate the ability to appeal their sentence if they can produce evidence to show race was a significant factor in decisions to seek or impose the death sentence in the county, the prosecutorial district or the state at the time their sentence was imposed. Under the Racial Justice Act, defendants appealing their death sentences have to show that race was a factor in their sentencing in one of three ways: Death sentences were sought or imposed more frequently against people of one race than people of another race; death sentences were sought or imposed significantly more frequently as punishment for capital offenses against people than people of another race; or race was a significant factor in prosecutors’ decisions to remove qualified non-white jurors during the jury selection process. The Racial Justice Act states that defendants may use “statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system,” to make their case for relief.

Senate Bill 9 also deletes all the language in the Racial Justice Act regarding hearing procedures for defendants seeking relief under the law. The RJA states that if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, prosecutorial district, or state at the time the death sentence was sought or imposed, the court shall order that a death sentence not be sought and the defendant shall be re-sentenced to life imprisonment without the possibility of parole.

Rep. Paul Stam (R-Wake) opened the hearing by offering his interpretation of how Senate Bill 9 revises the Racial Justice Act.

“Justice properly conceived should be about what should happen to John Doe as a result of John Doe’s action,” Stam said. “The Racial Justice Act, which was passed two years ago, did something completely different. It said that what should happen to John Doe is not going to depend on what the prosecutors in John Doe’s case tried to do or what the jurors in John Doe’s case tried to do, or what the judge did or did not do. Instead, it’s going to be determined what other prosecutors, other judges, other defendants, other victims did or did not do in that same county, prosecutorial district or state as a whole.”

Stam characterized the Racial Justice Act as a “fishing expedition” and said the arguments of its proponents are “crazy.” Stam also said the act amounts to a 6 to 8-year moratorium on the death penalty.

The Rev. William Barber II, president of the North Carolina NAACP, took exception to Stam’s comments, stating that any attempt to repeal or amend the Racial Justice Act is nothing more than “an attempt at legislative racism and engaging in racebaiting politics.”

Barber went on to say the efforts of district attorneys across the state to have the Racial Justice Act declared unconstitutional in court “are rooted in lies, distortion and political trickery.”

One of the claims of North Carolina district attorneys arguing against the Racial Justice Act is that it could have unintended consequences, such as death-row inmates being released from prison. Susan Doyle heads the NC Conference of District Attorneys. During the Nov. 28 hearing, Doyle stated that 119 current death row inmates could be immediately eligible for parole if a death sentence is vacated under the Racial Justice Act.

“We fear that the Racial Justice Act as it currently stands would vacate some if not all of our death sentences imposed that have been by North Carolina juries and reviewed upon appeal,” Doyle said. “Despite the fact that the creators of the Racial Justice Act inserted the language that the remedy for any defendant under this act would automatically get life without parole, that is actually not something the legislature can mandate. That is going to be left up to the courts, and we are fearful that based on the case law…these death row inmates will ultimately be potentially released.”

Barber flatly rejected the notion that the Racial Justice Act could lead to the release of death row inmates during his remarks to the committee.

“We know the Racial Justice Act does not allow anyone guilty out of jail, and anyone who says that is telling a lie,” Barber said. “We know that all the Racial Justice Act says is if you can prove that race was used in the application of the death penalty, then that is what is seen as wrong and should be dealt with. We know our application of the death penalty in this state, in this country is flawed by race and by class. The research and the evidence is clear.”

A number of district attorneys spoke during the Nov. 28 hearing including Forsyth County Assistant District Attorney Mike Silver, who stated he is litigating two of the 13 pending Racial Justice Act claims filed against the Forsyth County DA’s office. Silver, who is black, said discovery hearings in RJA proceedings could last until 2014, and defending past prosecutions is a time-consuming and expensive process for the state’s district attorneys.

“The real issue with the Racial Justice Act that you haven’t heard is how the state cannot comply with the statute,” Silver said. “A defendant can walk into court and they can say, ‘I’m not alleging racism in my case, I’m not alleging that the prosecutor was racist, I’m not alleging that the judge was racist, I’m not alleging any racism in my case, instead, I’m alleging a broad racism just abound somewhere in North Carolina.’” Forsyth County District Attorney Jim O’Neill was the first DA to challenge the Racial Justice Act on constitutional grounds. In February, Errol Duke Moses, a Forsyth County man on death row, filed an RJA claim. In response, O’Neill petitioned the court to dismiss Moses’ claim. On Feb. 24, Superior Court Judge William Z. Wood denied the state’s motion to dismiss Moses’ appeal on the grounds that the Racial Justice Act is unconstitutional.

The Forsyth County DA’s Office argued that the Racial Justice Act violated due process on grounds of “vagueness and over-breadth.” O’Neill also argued that the Racial Justice Act violates

equal protection and the Eighth Amendment because it provides for “relief from a capital sentence on the basis of statewide statistics without regard to the individual facts and circumstances of the particular case,” according to Judge Wood’s ruling.

The Racial Justice Act appeals of two other Forsyth County men on death row, Timothy Hartford Jr. and Jeremy Murrell, offer insight into how defendants may use statistical evidence to bolster their claims that race was a factor in their receiving the death sentence.

Hartford, who was convicted on two counts of first-degree murder last year, cited a study regarding capital charging, sentencing and jury selection in North Carolina conducted by Michigan State University professors Catherine Grosso and Barbara O’Brien in 2009 and 2010. The Michigan State study reveals that for the past two decades, state prosecutors have successfully removedqualified black and racial minority potential jurors at more than twice the rate of white jurors. The Michigan State study also revealed that cases in the state that involved white victims were far more likely to result in death sentences than cases that involved no white victims.

In Prosecutorial District 21, which includes Forsyth County, prosecutors successfully removed qualified black jurors at a rate of 54.2 percent, and removed non-black jurors at an average rate of only 24.4 percent. Therefore, prosecutors were 2.2 times more likely to remove qualified black jurors than qualified non-black jurors.

The Rev. Carlton Eversley, a member of the Ministers Conference of Winston-Salem & Vicinity, said the Racial Justice Act creates an important safeguard in the criminal justice system because it forces prosecutors to consider how they select a jury.

“Otherwise, in [Forsyth County] that’s about [25 percent] African American, you have this continuing stream of all-white juries, particularly in these interracial cases,” Eversley said. “You would think legal officials would want to have a jury of peers, that they would want to have a situation where people weren’t wondering after a conviction, ‘Was it racially biased?’ Sadly, that’s not the case.”

Imam Khalid Griggs of the Community Mosque of Winston- Salem pointed out that more than 280 people have been released from prison nationwide in the past decade when newly discovered evidence proved they were wrongfully convicted.

“It’s disingenuous for district attorneys to talk about releasing convicted killers when these district attorneys have the opportunity to get fair sentences and to actually convict guilty people,” Griggs said. “If as much attention was paid at the front of this process in terms of arrests and selective prosecutions, we wouldn’t have a need for this act.”

Willard Bass, associate pastor of Green Street Methodist Church and director of the Institute for Dismantling Racism, said the Racial Justice Act represents a good first step to address the state’s history of racism.

“The act was actually the beginning of an ongoing process that not only helps the justice system but other institutions to begin to look at how they handle discrimination,” Bass said. “Now, it’s being turned back and it’s a travesty.”

Senate Bill 9 passed the NC Senate on Nov. 28 by a vote of 27-17. The vote fell along party lines with the Republican majority supporting the measure and the Democrats opposing it. On Nov. 29, Senate Bill 9 went to Gov. Beverly Perdue for her signature. Perdue has 30 days to veto the bill or sign it into law.

Hunt expressed hope that Gov. Perdue will use her veto stamp and the Democrats in the NC House will remain united and withstand any attempts by Republicans to override Perdue’s veto. Hunt agreed that the Racial Justice Act is a good first step, but the state’s criminal justice needs significant reform.

“There’s been all kinds of laws on the books that keep people from being falsely accused, but the laws do not work,” he said. “I spent 19 years in prison and my case got all the way to the US Supreme Court under those laws.”

“We’re still dealing with the same mentality — we can have all the laws in the world but it’s the mentality of the people who control the system,” he continued. “We still have a majority of judges who are white and the majority of people locked up are African American. We still have a problem.”

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