Racial Justice Act passes now goes to Perdue

Racial Justice Act passes, now goes to Perdue
By James Romoser

JOURNAL RALEIGH BUREAU

Published: August 6, 2009

RALEIGH - The General Assembly has approved a landmark bill that will
allow death-row inmates to challenge the death penalty by arguing
that there is systemic racial bias in the way that capital punishment
has been applied.

Under the bill, which is expected to be signed into law by Gov. Bev
Perdue, an inmate will be able to present statistical evidence
showing racial disparities in how the death penalty has been used. If
a judge finds the evidence convincing, the judge can overturn that
inmate's death sentence and convert it to a sentence of life in prison.

Similarly, in future murder trials in North Carolina, judges will be
able to block prosecutors from pursuing the death penalty if they
find a historical pattern of racial bias in the use of the death
penalty.

The bill is seen by its supporters as a long-overdue solution to a
history of discrimination that they say permeates the criminal-
justice system and the system of capital punishment.

Opponents, including prosecutors and victims' groups, say that the
bill substitutes statistical data and historical trends for the
particular facts of a case. It will, they say, set up an enormous
roadblock for capital punishment and reopen old wounds for the
families of murder victims.

The bill, which supporters named the N.C. Racial Justice Act, has
been the subject of intense debate and legislative wrangling for
months. Last night, the N.C. Senate voted 25-18 to adopt a version of
the bill that had been approved by the N.C. House last month. In both
chambers, Republicans opposed the bill, and most Democrats supported it.

The Senate's vote sends the bill to Perdue, a Democrat. A spokesman
for Perdue said that she will closely review the bill but is likely
to sign it.

If she does, North Carolina will become just the second state --
after Kentucky -- to enact a law allowing challenges to the death
penalty on the basis of statistical disparities from previous cases.

"The need for this bill is self-evident, " said Sen. Floyd McKissick,
D-Durham, the chief sponsor of the bill in the Senate. "It is
critically needed to correct any type of conduct that might be
impermissible when it comes to the imposition of the death penalty."

The bill's passage is a victory for two Winston-Salem Democrats,
Reps. Larry Womble and Earline Parmon, who have been pushing it for
more than two years.

Its fate was uncertain until the very end. Some Senate Democrats,
including the majority leader, Sen. Tony Rand, were skeptical of the
bill, and legislators had postponed voting on it several times in
recent weeks.

Last night, it was the last bill of the day for the Senate to take
up. Just before the vote, Democrats called for a recess and met
privately for nearly an hour. When they emerged, they passed it with
little debate.

Sen. Phil Berger, R-Rockingham, the Senate minority leader, said that
broad statistics are not relevant to decisions about whether to
impose the death penalty in specific cases.

"What this does is it places the determination of a significant part
of first-degree murder cases into the hands of statisticians,
regardless of what the facts are," Berger said.

Tom Keith, the district attorney in Forsyth County, has warned that
he and other prosecutors will have to stop pursuing the death penalty
because they do not have the resources to constantly defend
statistics-based claims of racial bias.

Capital punishment has been under a de facto moratorium in North
Carolina since 2006 because of several legal challenges. Recent court
rulings have tried to resolve those challenges and have moved the
state closer to a resumption of executions.

The act allows defendants and death-row inmates to use statistics or
other evidence to argue that race was a factor in decisions to
request or impose the death penalty. The statistics can come from
other death-penalty cases in the state as a whole, or in the local
jurisdiction of the person making the challenge.

In 1987, in an influential case known as McCleskey v. Kemp, the U.S.
Supreme Court rejected the sort of statistical evidence that the bill
allows. But the court's decision permits state legislatures to pass
laws that allow statistics to count as evidence of bias.

Supporters of the bill point to numerous studies, both nationally and
in North Carolina, that have shown racial disparities in capital
punishment. Statistically, cases involving black defendants, or white
victims, or both, are more likely to end with a death sentence.

In 2001, two UNC professors found that defendants whose victims were
white were 3.5 times more likely to be sentenced to death than
defendants whose victims were black.

Opponents of the bill dispute the methodology and the conclusions of
that study and others. They say that statistical racial disparities
can be explained by factors other than racial bias.

Supporters said that no one will go free because of the bill -- if a
challenge is successful, the only thing that will happen is that a
sentence of life in prison will be substituted for a death sentence.

There are 163 people on North Carolina's death row.

■ James Romoser can be reached at 919-210-6794 or at
jromoser@wsjournal. com.

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passes-now-goes- to-perdue/