Time for a Return to an Effective Death Penalty

On Monday evening, the North Carolina Senate sent a bill that would reverse prior legislation making capital punishment virtually impossible to Gov. Bev Perdue’s desk.  Perdue’s office has not yet commented on whether or not she will veto the bill.

Senate Bill 9, “No Discriminatory Purpose in Death Penalty”, would eliminate the use of statistical trends as a means of appealing death sentences for death row inmates – the key provision of the 2009 Racial Justice Act (RJA).

While large majorities of North Carolina voters across the political spectrum are in favor of the death penalty, RJA has placed so many obstacles in prosecutors’ paths that capital punishment has been effectively repealed.  Indeed, all but three of the state’s 157 death row inmates, including non-minority defendants, are awaiting the opportunity to use the law’s new tools to thwart executions.

In short, the Racial Justice Act allows death row inmates to appeal their sentence by attempting to show racial prejudice in sentencing based on statistical evidence. If successful, the inmates can commute their sentence to life in prison.

In 2009, North Carolina became the second state in the union, after Kentucky, to enact such a measure. However, Kentucky’s law was much less onerous to prosecutors, as it did not include the statistical provisions that have bedeviled the state in death penalty prosecutions.

As a result of this law, North Carolina has extended its unofficial moratorium on the death penalty. Forsyth County Assistant District Attorney Mike Silver noted at a November 28 hearing that the law allowed defendants to evade justice. Under the RJA, defendants do not have to prove that they experienced discrimination on the part of the judge, jury, or prosecutors, only that there is a general pattern of racism in death penalty decisions. Silver noted that an RJA appeal he is working on has been delayed by several years, and seemed frustrated over the delaying tactics the law enables.

“It is impossible for the state to comply with this law,” said Silver.

The 44 elected district attorneys in North Carolina agreed, and issued a statement in early November asking for repeal of the RJA.  The statement, written by Johnston County DA Susan Doyle, asked legislators to amend or repeal the law to allow for an effective death penalty.

“The Racial Justice Act (RJA), passed in 2009, purports to protect murderers from racial bias. Let me assure you, it does not,” wrote Doyle.”This act simply allows complex statistical maneuvering to over-rule a jury’s decision, ignore the heinous acts of a murderer and ultimately put an end to the death penalty in our state.”

Doyle estimated the costs of each RJA discovery motion to cost the state at least $30,000 at a time when court budgets are already being cut.

The U.S. Supreme Court ruled in the 1986 case McClesky v. Kemp against requiring general statistical analysis before imposing the death penalty. The case considered whether Georgia’s death penalty violated the 8th and 14th Amendments in the light of a study purporting to show that application of capital punishment was largely tied to race. In his majority opinion, Justice Lewis Powell noted that requiring statistical evidence could undermine the ability of juries and prosecutors to make decisions.

“Implementation of these laws necessarily requires discretionary judgments,” wrote Powell.” Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. “

While the verdict in McClesky struck a blow to anti-death penalty advocates, the statistical case would nevertheless remain  one of the core arguments behind North Carolina’s Racial Justice Act.  The state now requires this extra-constitutional test, despite the Supreme Court’s and all other state’s rejection of this new standard.

Senate Bill 9, as approved by the state’s General Assembly and awaiting Perdue’s signature or veto, would make North Carolina consistent with the McClesky decision and eliminate any race-based statistics and instead allow for appeal based on specific cases of discrimination among jurors or during jury selection.

As citizens, North Carolinians overwhelmingly support the death penalty. Civitas polling shows 64 percent of independents and 70 percent of all likely North Carolina voters in favor of capital punishment for violent offenders. The Racial Justice Act, through its onerous requirements on prosecutors, effectively subverts the will of the people and the decision of the jury by making the death penalty impossible to impose.

It is now up to Gov. Perdue to decide the fate of the Racial Justice Act, and in so doing have a major impact on the future of the death penalty in North Carolina.