North Carolina’s “Racial Justice Act”

This article was written by Jeff Hunt, District Attorney for Prosecutorial District 29B. He has been a DA since 1995. This article originally appeared in the October issue of Civitas Review.

District Attorneys in North Carolina unanimously embrace and support four important principles as a means to keep “justice blind” in criminal cases. Historically, research and evidence have been used to support facts that are presented on a case-by-case basis to prevent any malfeasance potentially created by man.

Passed by the North Carolina General Assembly in 2009, the “Racial Justice Act” inserted language into the law that removed the proverbial blindfold from the eyes of Lady Justice, and was only the second state in the union to do so.

North Carolina now allows the use of statistical evidence – such as reviewing trends in 16,000 first-degree murder cases prosecuted in the state over the past 20 years – rather than testimony and fact.

The four principles District Attorneys adhere to are anchored in documents and statutes defined by state and national leaders that emphasize the persuasion to end racism. They include:

• North Carolina General Statute §15A-2010 “Racial Justice Act” enacted by North Carolina Legislature in 2009 – “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.”
• Aug. 28, 1964 Dr. Martin Luther King, Jr. speech at Lincoln Memorial, Washington, D.C. – “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
• N. C. Constitution, Article I, “Declaration of Rights,” Section 1.  “The Equality and Rights of Persons” 1868 and 1970 – “All persons are created equal, that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”
• N.C. Constitution Article I, “Declaration of Rights” Section 19, “Law of the Land; Equal Protection of the Laws” 1868 and 1970 – “No person shall be denied the equal protection of the laws; nor shall any person be subject to discrimination by the state because of race, color, religion or national origin.”

Blindfolded Lady Justice

Lady Justice has been portrayed largely with the familiar blindfold to symbolize the concept of Blind Justice since the Renaissance Period in Europe (the middle 1500s). It was the manifestation of one of the most important of all legal principles, which became a cornerstone of American jurisprudence.

Blind Justice amounts to merely another way of guaranteeing Equal Justice under the law. I believe that “due process” referred to in the 5th Amendment of the U.S. Constitution includes the necessary concept of equal protection under the law. However, shortly after the War Between the States, equal protection became specifically articulated in the 14th Amendment requiring equal protection under the law. Even more specific is the equal protection requirement set forth in the North Carolina State Constitution quoted at the beginning of this article.

North Carolina District Attorneys strive to guarantee equal protection under the law. Their goal is that justice relative to the prosecutorial function be entirely blind in North Carolina, as basically provided in our U.S. and N.C. Constitutions. North Carolina District Attorneys and Assistant District Attorneys have taken an oath to uphold and support the Constitutions of North Carolina and the United States.

North Carolina’s Death Penalty Considers Facts, Not Race

North Carolina’s Death Penalty revolves around evaluating the facts of each individual first-degree murder case. Race, per the equal protection clauses, until 2009, was simply not considered in either the District Attorney’s determination to seek the death penalty; or in the jury’s determination whether or not to impose the death penalty.

The statute sets out a list of things, at least one of which must be present to justify the District Attorney in seeking the death penalty. The list is straightforward and includes such things as:

• Was the killing committed by a defendant previously convicted of another capital felony?
• Was the killing committed by a defendant for the purpose of avoiding or preventing arrest or escaping?
• Was the killing especially heinous, atrocious, or cruel?
• Was the killing committed for monetary gain?
• Was the killing committed in a manner which created great risk to more than one person?

There are several other things listed in the statute and one or more of them must be present before the District Attorney may seek the death penalty. These are considered the “aggravating factors” under our system. However, North Carolina law grants discretion to the District Attorneys not to seek the death penalty in spite of the presence of one or more of these factors.

In addressing the imposition of the death penalty, the North Carolina Death Penalty Statute provides that the jury will decide whether the defendant is guilty or innocent in a primary trial. Then if a verdict of “guilty” is rendered by the jury, in a second trial the jury decides if the death penalty is appropriate in the case involved.

The jury is told at this second trial on the question of the appropriateness of the death penalty, to conduct a balancing of the relevant aggravating factors listed in the statute, and any “mitigating” factors listed in the statute, or if not listed, factors which a juror may consider as being mitigating whatever those factors may be. The race of the jurors, the victims or the defendants is not a part of the consideration at any level. That is, not until the 2009 enactment of the “Racial Justice Act.”

Proof of Racial Discrimination

Prior to the Racial Justice Act, simple statistical racial percentages were generally thought by North Carolina Courts to be of little probative value to show racial motive in criminal cases wherein it is the individual facts of each case upon which the District Attorneys, and respective juries in North Carolina must base their decisions. 

Without fully defining “statistical evidence,” it may now be used as evidence that race was a “significant factor” in seeking, or imposition of the death penalty in any particular case. “Proof of racial discrimination,” the newly added language, prohibits anyone from being subject to or given the death penalty “on the basis of race.” North Carolina District Attorneys work daily to assure that race is never considered in their decisions as prosecutors across our State.

State statute prohibits race from being “the basis” of seeking or imposing the death penalty. It is now worded to include “proof of racial discrimination” equates to establishing that race was a significant factor, with establishing that race was “the basis.” Neither the “Racial Justice Act,” nor the new language defines the terms “the basis” or “significant factor.”

Interestingly, “Proof of Racial Discrimination” grants the defendant the use of the entire State in which to fish for the necessary statistical evidence to argue that race was a significant factor. If the statistics don’t work out on a state-wide basis; then the defendant may examine instead, the smaller “Judicial Division” (there are eight Judicial Divisions in North Carolina). If that doesn’t work, then the defendant may consider the smaller prosecutorial district in which his case arose and was tried (there are 43 prosecutorial districts in North Carolina). Finally, if that still doesn’t work out to show the right statistics, the defendant may consider the smaller area of the specific county in which the case arose and was tried. (There are 100 counties in our State).

“Proof of Racial Discrimination” assumes apparently that race was a significant factor in the seeking and, or imposition, of the death penalty in every case in which statistics can be made to show either: 

1. death was sought or imposed “significantly more frequently” upon defendants “of one race” than upon defendants “of another race.”

or

2. death was sought or imposed “significantly more frequently” in cases with victims “of one race” than victims “of another race.”

or

3. “race was a significant factor in decisions to exercise peremptory challenges during jury selection.”

The enactment of “Proof of Racial Discrimination” represents an extreme departure regarding the examination of race in the context of death penalty cases in North Carolina; or indeed, in the context of any criminal cases in North Carolina. This new statute creates a new genre of “statistical evidence” now acceptable to show race was a significant factor.

Kemp v. McCleskey, 481 U.S. 279 (1987)

Prior to the 2009, North Carolina generally followed the rules set out by the U.S. Supreme Court in the case of Kemp v. McCleskey, (supra). This holding discussed the requisites necessary to prevail on a claim of racial bias in death penalty cases based on alleged violation of the U.S. Constitution. It requires that the defendant establish that the decision makers in his particular case acted with a discriminatory purpose in deciding that the death penalty is appropriate.

This seems only logical in that under the North Carolina death penalty laws the decisions to seek, or impose the death penalty in each particular instance depends entirely and exclusively on the facts of each particular individual case; general racial statistics being irrelevant to the examination of those facts; unless they show evidence of racial bias in that particular case in question.

Under the new state statute language, apparently, non-specific statistical racial percentages are substituted as “evidence” to establish that race was a significant factor. Statistical racial percentages take the place of the former long accepted requirement that only the particular facts of the defendant’s individual case were relevant in defendants establishing racial discrimination in the seeking or imposition of the death penalty.

Before and after the enactment of NCGS §15A-2011, the defendant has the “burden of proof” to establish that race was a significant factor in seeking and, or, imposing the death penalty. The statute is silent as to what level of “burden” a defendant must carry. This new statute appears to make it dramatically easier to establish that race was a significant factor in North Carolina death penalty cases. 

If a defendant successfully carries his “burden” in the opinion of the judge under NCGS §15A-2011, his death penalty jury verdict, (if post conviction), or the District Attorney’s decision to seek the death penalty under NCGS §15A-2000, (if prior to trial) will automatically be vacated, and a sentence of life without parole will be substituted therefore.

Kentucky’s RJA, Much Different

The only other State of which I am aware that has enacted a “Racial Justice Act,” did so in 1998.  It is similar to ours in several regards, and has functioned apparently without upheaval of their capital punishment provisions. While the “Racial Justice Act” of North Carolina is similar to Kentucky’s “RJA,” the North Carolina Legislature went considerably further by passing NCGS §15A-2011, “Proof of Discrimination.” While Kentucky’s “RJA” allows statistics as “evidence,” it apparently leaves things at that, without defining that term, and without setting out the examples North Carolina set out in NCGS §15A-2011, “Proof of Racial Discrimination.”

Kentucky, like North Carolina (before 2009) apparently follows the holding in Kemp v. McCleskey, (supra) in its application of “statistical evidence.” In that case, the U.S. Supreme Court virtually invalidated the “Baldus” study upon which the Georgia defendant relied in that case. The McCleskey decision essentially held that “statistics indicating risk that bias affects Georgia’s capital sentencing [is] held insufficient to prove that imposition of the death penalty on a black man for murdering a white man violated the 8th or 14th Amendment.”  In other words, generalizing through non-specific statistics was insufficient to show racial bias. Instead a defendant had to show specific racial bias in his particular case on the part of the particular District Attorney in his particular case.

Further, the Kentucky “RJA” doesn’t contain one of the most problematic phrases found in NCGS §15A-2011, “Proof of Racial Discrimination:

“b) Evidence relevant to establish a finding that race was a significant factor…may include statistical evidence or other evidence…that, “irrespective of statutory factors,” one or more of the following applies:”

Unlike the Kentucky version, North Carolina’s RJA goes on to list the three examples already discussed involving 1) the race of the defendant; 2) the race of the victim; or, 3) the race of a juror excused peremptorily.

The importance of the phrase: “irrespective of statutory factors” is difficult to overstate. What it is saying that apparently the Kentucky RJA doesn’t say, is that under NCGS §15A-2011, “Proof of Racial Discrimination,” in its analysis, the Court is prohibited by specific statutory language from examining the specific and particular facts of each individual case.

Instead, “proof” that “race was a significant factor” in the District Attorney’s seeking, and, or, the jury’s imposing by verdict, the death penalty under these new and radical provisions in NCGS §15A-2011, must be established without the ability to examine the facts (i.e. “irrespective of statutory factors” of mitigation, or more importantly aggravation) of each individual case.  Apparently it will be enough to show racial percentages (i.e. “statistical evidence”) in order to establish “racial discrimination” in death penalty cases under NCGS §15A-2011, “Proof of Racial Discrimination” in North Carolina; and thereby vacate either the District Attorney’s decision under NCGS §15A-2000(e.), in cases not yet tried to the jury; or to vacate the jury’s verdict imposing the death penalty under the same NCGS §15A-2000.

One purpose of North Carolina’s RJA is, thus, to circumvent Kemp v. McCleskey, (supra) specifically. Indeed, RJA motions filed by defendants rely partly on the “Baldus” study discredited in McCleskey (supra) as too general and non-specific to be probative of specific racial discrimination.

Current defendants’ RJA motions include such language as follows:

“From 1910…until 1961 when the last execution took place under the former…statute, the overwhelming majority…executed were black.” [Pg. 7 of defendant’s RJA pretrial motion filed in a current 29B first degree murder case.]

A second purpose of the RJA may well be to force some sort of “atonement” upon today’s North Carolinians for the way things were decades ago in our State.

Did NCGS §15A-2011, De Facto Repeal North Carolina’s Death Penalty?

Approximately 70 percent of North Carolina residents have consistently supported the death penalty in appropriate circumstances. Some of these supporters have argued that the Legislative sponsors of NCGS §15A-2011, realizing they would never succeed in repealing our death penalty statute outright, succeeded in passing NCGS §15A-2011, “Proof of Racial Discrimination” with the unstated third purpose of de facto repealing the North Carolina death penalty.

Even those less cynical believe this will most likely be the resulting outcome if NCGS §15A-2011, is upheld as constitutional. With the creation of the new “statistical evidence” in NCGS §15A-2011, even racial non-minority defendants will apparently be able to establish that the race of the defendant; victim; or a juror was “a significant factor” in death penalty cases; and therefore that race was “the basis” for seeking or imposing the death penalty.