North Carolina Supreme Court Restores Racial Justice Act Ruling Taking Marcus Robinson Off Death Row

In a rul­ing imbued with his­toric sig­nif­i­cance, the North Carolina Supreme Court has for the first time acknowl­edged per­va­sive dis­crim­i­na­tion in the state’s use of cap­i­tal pun­ish­ment and vacat­ed a death-row prisoner’s death sen­tence under the since-repealed Racial Justice Act (RJA).

By a vote of 4 – 3, it held that Cumberland County Superior Court Judge Gregory Weeks ’ April 2012 find­ing that race was a sub­stan­tial fac­tor in sen­tenc­ing Marcus Robinson to death was tan­ta­mount to an acquit­tal of the death penal­ty, and that the reim­po­si­tion of his death sen­tence after con­trol of the leg­is­la­ture changed hands and leg­is­la­tors retroac­tive­ly repealed the RJA vio­lat­ed his rights under the North Carolina state constitution.

“Today, we are not asked to pass on the wis­dom of repeal­ing a statu­to­ry mech­a­nism for root­ing out the insid­i­ous ves­tiges of racism in the imple­men­ta­tion of our state’s most extreme pun­ish­ment. That deci­sion is for the General Assembly,” Chief Justice Cheri Beasley wrote for the major­i­ty. ​“Instead, this Court must decide whether the North Carolina Constitution allows for that repeal to be retroac­tive. We hold that it does not. … Once the tri­al court found that Robinson had proven all of the essen­tial ele­ments under the RJA to bar the impo­si­tion of the death penal­ty,” she wrote, “[he] was legal­ly enti­tled to the impo­si­tion of a life sentence.”

Lawyers for Robinson and the more than 140 death-row pris­on­ers who have filed Racial Justice Act claims in the state, hailed the rul­ing. ​“This is one of the most impor­tant deci­sions I’ve ever seen from our state Supreme Court,” said Gretchen Engel, Executive Director of North Carolina’s Center for Death Penalty Litigation. ​“It seems that Justice Beasley and her col­leagues intend to make good on the promise that no per­son should be exe­cut­ed if race was a fac­tor in their death sentence.”

The History of the Racial Justice Act Litigation

In address­ing Robinson’s case, the North Carolina Supreme Court not­ed that it was rul­ing on the appli­ca­tion of ​“his­toric” leg­is­la­tion. The leg­is­la­ture, the court said, had rec­og­nized ​“the egre­gious lega­cy of the racial­ly dis­crim­i­na­to­ry appli­ca­tion of the death penal­ty in this state” and had act­ed with the goal ​“to ensure that no per­son in this state is put to death because of the col­or of their skin.” 

The court drew a direct link between lynch­ing, seg­re­ga­tion, and North Carolina’s dis­crim­i­na­to­ry use of the death penal­ty. ​“The same racial­ly oppres­sive beliefs that fueled seg­re­ga­tion man­i­fest­ed them­selves through pub­lic lynch­ings, the dis­pro­por­tion­ate appli­ca­tion of the death penal­ty against African-American defen­dants, and the exclu­sion of African Americans from juries,” Chief Justice Beasley wrote. ​“Given the racial­ly oppres­sive prac­tices and beliefs that per­me­at­ed every lev­el of American soci­ety dur­ing the Jim Crow era, the con­sti­tu­tion­al­ly pro­tect­ed right of African-American defen­dants to be tried by a jury of their peers became increasingly important.” 

“[E]qual pro­tec­tion to all must be giv­en,” the court said, ​“not mere­ly promised.” After a thir­teen-day RJA hear­ing in the tri­al court, Robinson per­suad­ed Judge Weeks that the promise had been illusory. 

With two decades of data show­ing sus­tained sys­temic racial dis­crim­i­na­tion in jury selec­tion in Cumberland County and across North Carolina in cap­i­tal cas­es, Robinson per­suad­ed Judge Weeks that race had played an imper­mis­si­ble role in his cap­i­tal tri­al. His evi­dence showed that pros­e­cu­tors were 2.26 times more like­ly to strike Black jurors than all oth­er jurors, and after con­trol­ling for dozens of non-race fac­tors that could poten­tial­ly have caused the juror to be struck, pros­e­cu­tors were still more than twice as like­ly to strike Black jurors as oth­er jurors. He also pre­sent­ed evi­dence that the state’s appel­late courts had refused to redress the issue, nev­er in more than 100 cas­es find­ing that pros­e­cu­tors had man­u­fac­tured pre­tex­tu­al rea­sons for strik­ing Black jurors, but rul­ing for the pros­e­cu­tion the two times the state had argued defense lawyers had imper­mis­si­bly removed white jurors. 

The court wrote that, “[o]nce imple­ment­ed, the RJA worked as intend­ed. Immediately, pro­ceed­ings ini­ti­at­ed pur­suant to the Act revealed per­va­sive racial bias in cap­i­tal sen­tenc­ing in North Carolina. For defen­dant Marcus Reymond Robinson, the first con­demned inmate to have a hear­ing pur­suant to the RJA, the tri­al court found that he suc­cess­ful­ly proved that racial dis­crim­i­na­tion infect­ed his tri­al and sentencing.”

In response, the General Assembly amend­ed the RJA to make it more dif­fi­cult for death-row pris­on­ers to prove racial bias. Even then, Chief Justice Beasley not­ed, ​“the tri­al court held that the next three claimants [Christina Walters, Quintel Augustine, and Tilmon Golphin] met the high­er stan­dard and demon­strat­ed that racial bias had infect­ed their cap­i­tal pro­ceed­ings as well. With 100% of claimants suc­cess­ful­ly prov­ing their enti­tle­ment to relief and with more than 100 addi­tion­al RJA claims filed, the vast major­i­ty of death row inmates were on the precipice of an oppor­tu­ni­ty to indi­vid­u­al­ly demon­strate that the pro­ceed­ings in which they were sen­tenced to death were fun­da­men­tal­ly flawed by racial animus.”

Once again, the leg­is­la­ture inter­vened to pre­vent the RJA claims from going for­ward, this time by repeal­ing the RJA and des­ig­nat­ing the repeal as retroac­tive. The four pris­on­ers who had won their RJA claims were resen­tenced to death and the remain­ing pris­on­ers were denied hear­ings on their claims. They appealed to the state supreme court.

On June 5, 2020, the court issued its rul­ings in the cas­es of death-row pris­on­ers Andrew Ramseur and Rayford Burke, hold­ing that ​“the retroac­tive appli­ca­tion of the RJA Repeal vio­lates the pro­hi­bi­tion against ex post fac­to laws under the United States and North Carolina Constitutions.” It remand­ed their cas­es to the tri­al court to con­duct hear­ings to deter­mine whether their death sen­tences vio­lat­ed the Racial Justice Act. If the pris­on­ers win those chal­lenges, they will be resen­tenced to life without parole.

The court also inval­i­dat­ed the legislature’s retroac­tive appli­ca­tion of ear­li­er leg­isla­tive amend­ments that had lim­it­ed the types of evi­dence death-row pris­on­ers could use to prove that race had been a sub­stan­tial fac­tor in their death sen­tences. Robinson’s appeal and the appeals of the oth­er three suc­cess­ful RJA peti­tion­ers remained pend­ing when Ramseur and Burke were decided.

The North Carolina Supreme Court’s Ruling in Marcus Robinson’s Case

The court based its deci­sion in Robinson’s case on its inter­pre­ta­tion of the Law of the Land Clause of the North Carolina con­sti­tu­tion — a ver­sion of the British com­mon-law pro­tec­tion against Double Jeopardy that pre­dates the fed­er­al con­sti­tu­tion. Under that doc­trine, the court said, a defen­dant who has been acquit­ted of a charge, whether by a jury or by the court at tri­al or on appeal, can­not face future crim­i­nal lia­bil­i­ty on the same charge. 

The major­i­ty likened the Racial Justice Act to an affir­ma­tive defense against the death penal­ty, say­ing that, while the pros­e­cu­tion had proven Robinson’s eli­gi­bil­i­ty for exe­cu­tion, ​“the Act allowed Robinson to be acquit­ted of the death penal­ty by pre­sent­ing evi­dence that racial dis­crim­i­na­tion infect­ed his tri­al and cap­i­tal sen­tenc­ing pro­ceed­ings.” It rea­soned that, “[o]nce the tri­al court found that Robinson had proven all of the essen­tial ele­ments under the RJA to bar the impo­si­tion of the death penal­ty, … [he] was legal­ly enti­tled to the impo­si­tion of a life sen­tence.” Judge Weeks’ rul­ing grant­i­ng Robinson relief on his Racial Justice Act claim in 2012, the court said, ​“acquit­ted [him] of that cap­i­tal sen­tence, jeop­ardy ter­mi­nat­ed, and any attempt by the State to reim­pose the death penal­ty would be a vio­la­tion of our state’s constitution.”

The court not­ed that, like Robinson, Walters, Augustine, and Golphin also had met their bur­dens of prov­ing that race was a sig­nif­i­cant fac­tor in their cas­es and had received judg­ments in their favor under the Racial Justice Act. The major­i­ty said that the leg­is­la­ture, by retroac­tive­ly repeal­ing the RJA after the four pris­on­ers had won their claims, ​“is not only seek­ing anoth­er attempt at impos­ing a death sen­tence, it is seek­ing anoth­er attempt after hav­ing cre­at­ed a process which pro­vid­ed relief upon a show­ing of racial dis­crim­i­na­tion. If our con­sti­tu­tion does not per­mit the State to use its pow­er and resources over and over to obtain a con­vic­tion or impose the death penal­ty, it cer­tain­ly does not allow the state to use that same pow­er and resources to elim­i­nate the rem­e­dy after a defen­dant has suc­cess­ful­ly proven his enti­tle­ment to that relief.”

Justice Sam Ervin, IV, joined by Justice Mark Davis, dis­sent­ed, but made clear their vote on the case should not ​“be under­stood as express­ing any doubt about the fun­da­men­tal impor­tance of the goals sought to be achieved by the Racial Justice Act or the press­ing need to com­plete­ly erad­i­cate racial and all oth­er forms of odi­ous dis­crim­i­na­tion from our sys­tem of jus­tice.” Nevertheless, Ervin wrote, ​“it seems clear to me that a tri­al court order grant­i­ng relief pur­suant to the Racial Justice Act and the entry of a relat­ed judg­ment of life impris­on­ment is not an unre­view­able deci­sion enti­tled to dou­ble jeop­ardy pro­tec­tion” and the appli­ca­tion of dou­ble jeop­ardy pro­tec­tions on those grounds was fore­closed by the court’s orig­i­nal RJA deci­sion in the case, return­ing it to the tri­al court for fur­ther evi­den­tiary devel­op­ment. Had dou­ble jeop­ardy pro­tec­tions applied, Ervin said, the court would have had to enforce those rights in its prior decision.

Justice Paul Newby, who is run­ning against Beasley in the November 2020 gen­er­al elec­tion for Chief Justice, also dis­sent­ed. While agree­ing with Justice Ervin that a remand was nec­es­sary, he accused the major­i­ty of ​“judi­cial activism,” say­ing “[a]pparently, in their view, the law is what­ev­er they say it is.” Citing the cir­cum­stances of the mur­ders for which Walters, Augustine, and Golphin were con­vict­ed, but none of the evi­dence of racial dis­crim­i­na­tion in their cas­es, Newby wrote: ​“This Court’s deci­sion today would seem to con­trol the out­come of these cas­es as well.”

“It’s unthink­able that we could amass a moun­tain of evi­dence show­ing that race plays a role in the North Carolina death penal­ty and then just ignore it and return to exe­cut­ing peo­ple,” said vet­er­an North Carolina cap­i­tal defense lawyer Henderson Hill, who rep­re­sents a num­ber of RJA peti­tion­ers. ​“Today, the high court declared that it’s unac­cept­able for North Carolina to keep its head in the sand, and we are grate­ful. It is time for every­one in North Carolina to ask them­selves, after decades of racial­ly-biased pros­e­cu­tions, whether the state should still have the right to car­ry out executions.”