North Carolina Supreme Court Hears Argument on Retroactive Repeal of State’s Racial Justice Act

The North Carolina Supreme Court (mem­bers pic­tured) heard argu­ments on August 26 and 27, 2019 on whether the state may retroac­tive­ly apply the leg­isla­tive repeal of its Racial Justice Act to death-row pris­on­ers who had over­turned their death sen­tences or filed claims under the act before it was repealed.

Four pris­on­ers had won reduced sen­tences under the state’s 2009 Racial Justice Act, which had allowed death-row pris­on­ers to over­turn their sen­tences if race had been a ​“sig­nif­i­cant fac­tor” in jury selec­tion, pros­e­cu­tors’ deci­sions to seek a death sen­tence, or juries’ deci­sions to impose one. When par­ti­san con­trol of the state leg­is­la­ture changed in 2013, the law was repealed. In 2015, the North Carolina Supreme Court vacat­ed low­er court deci­sions find­ing that race had played an imper­mis­si­ble role in the four cas­es and remand­ed the cas­es to the low­er courts to per­mit pros­e­cu­tors to present addi­tion­al evi­dence chal­leng­ing those rul­ings. When the cas­es returned to the low­er court, how­ev­er, the judge ruled that the Racial Justice Act no longer applied, dis­missed the cas­es with­out a hear­ing, and rein­stat­ed the pris­on­ers’ death sen­tences. The lat­est appeals involve those four pris­on­ers, as well as two of the more than 130 peo­ple who had filed claims under the Racial Justice Act but did not receive hear­ings before the law was repealed. 

The pris­on­ers’ cas­es involve dra­mat­ic evi­dence of sys­temic and case-spe­cif­ic racial bias. A Michigan State study of 173 North Carolina death-penal­ty cas­es tried over the course of more than a decade found that pros­e­cu­tors struck qual­i­fied black jurors at more than twice the rate at which they struck white jurors. Striking even a sin­gle juror on the basis of race was banned by the U.S. Supreme Court case Batson v. Kentucky, so state pros­e­cu­tors cir­cu­lat­ed a train­ing doc­u­ment titled ​“Batson Justifications: Articulating Juror Negatives.” That doc­u­ment pro­vid­ed poten­tial race-neu­tral expla­na­tions for pros­e­cu­tors to offer in court if their juror strikes were ques­tioned. These includ­ed ​“inap­pro­pri­ate dress,” ​“body lan­guage,” and ​“atti­tude.” Though pros­e­cu­tors told the court that these were their rea­sons for strik­ing black jurors, their notes — obtained lat­er by the defen­dants — revealed racial bias. In one case, the prosecutor’s jury selec­tion notes called a black juror who drank a ​“blk wino” while refer­ring to a white juror who drank as ​“ok, country boy.”

As a result of dis­crim­i­na­to­ry jury selec­tion prac­tices, near­ly half of North Carolina’s death-row pris­on­ers were tried by all-white juries or juries with only one per­son of col­or. Bias was also present in oth­er por­tions of African-American defen­dants’ tri­als. In Andrew Ramseur​’s tri­al, his fam­i­ly was forced to sit in the rear of the court­room. Bailiffs blocked off the front rows near the defense table with police tape, pur­port­ed­ly for Ramseur’s pro­tec­tion, but with the effect of mak­ing him appear dan­ger­ous. At anoth­er death penal­ty tri­al, the pros­e­cu­tor told the jury the defen­dant was a ​“big black bull.” 

Defense attor­neys pre­sent­ed mul­ti­ple argu­ments for bar­ring the state from apply­ing the leg­isla­tive repeal retroac­tive­ly to their cas­es, includ­ing that rein­stat­ing their death sen­tences with­out a hear­ing vio­lates the con­sti­tu­tion­al ban on dou­ble jeop­ardy and that giv­ing the Racial Justice Act repeal retroac­tive effect vio­lat­ed the ex post fac­to clause of the U.S. Constitution. The lat­ter argu­ment relied on North Carolina case prece­dent that grant­ed Confederate sol­diers amnesty from crim­i­nal pros­e­cu­tion. The North Carolina Amnesty Act, passed in 1866, insu­lat­ed Confederate sol­diers from pros­e­cu­tion for crimes they com­mit­ted dur­ing the Civil War. After the law was repealed in 1868, a solid­er was con­vict­ed of the mas­sacre of 13 pris­on­ers. The North Carolina Supreme Court over­turned his con­vic­tion, say­ing the statute con­sti­tut­ed an invalid ex post fac­to law. 

Cassandra Stubbs, direc­tor of the ACLU’s Capital Punishment Project, sum­ma­rized the argu­ment, say­ing, ​“Either the North Carolina Supreme Court’s going to have to say … that [the] con­sti­tu­tion­al doc­trine that pro­tect­ed Confederate sol­diers will not pro­tect these death row pris­on­ers who’ve proven racial bias in their case, or they’re going to say it does apply, and they’ll win.” 

Commentary on the case under­scored its impor­tance and placed the issue in his­tor­i­cal con­text. Civil rights leader and for­mer pres­i­dent of the NAACP of North Carolina, Rev. Dr. William Barber, wrote that “[t]he link between slav­ery, Jim Crow, lynch­ing and the death penal­ty is as con­nect­ed as the inter­twined ropes of the lynch-man’s noose. … As our state and the nation look on, North Carolina’s jus­tices must decide: Will they leave the lega­cy of lynch­ing firm­ly in place? Or will they have the moral courage to enforce the con­sti­tu­tion so that the sin of racism no longer infects the death penal­ty?” State Senator Floyd McKissick Jr., who spon­sored the Racial Justice Act in 2009, said “[n]o one should be on death row because race or prej­u­dice was a con­sid­er­a­tion in the prosecutor’s deci­sion to seek the death penal­ty or the jury’s deci­sion to impose it. … It’s about a fair crim­i­nal jus­tice sys­tem free of prej­u­dice, free of bias, free of dis­crim­i­na­tion.” A New York Times edi­to­r­i­al said, ​“This sit­u­a­tion is a trav­es­ty not only for the pris­on­ers involved, but for every­one in North Carolina, which had tak­en an impor­tant step toward address­ing per­sis­tent racial dis­crim­i­na­tion in its jus­tice sys­tem, only to turn back the clock once Republicans took power.” 

Bryan Stevenson, exec­u­tive direc­tor of the Equal Justice Initiative and author of Just Mercy, wrote in an op-ed, “[t]he grav­i­ty of this deci­sion can­not be under­es­ti­mat­ed. If the sev­en jus­tices rule in favor of the defen­dants, they will allow a much-need­ed sys­tem­at­ic review of race dis­crim­i­na­tion in cap­i­tal pun­ish­ment. If they decide against the defen­dants, the jus­tices will send a mes­sage that a moun­tain of evi­dence demon­strat­ing racial injus­tice can be tossed aside and ignored. Eradicating racial bias in our court­rooms requires a break from the past. It will take courage and sus­tained effort. And, yes, it will be dif­fi­cult. But noth­ing less than the integri­ty of our courts and our com­mit­ment to true jus­tice is at stake. At a time of much divi­sion and con­flict, we should all be unit­ed in our sup­port of the propo­si­tion that racial bias in jury selec­tion is unac­cept­able in North Carolina.”