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August 30, 2009

Will NC's new Racial Justice Act effectively kill the state's death penalty?

This interesting local article from North Carolina, which is headlined "New death penalty law concerns Pitt attorney," prompts the question of this post.  The piece provides one local prosecutor's perspective on the likely impact of North Carolina's new Racial Justice Act, and here are excerpts from the start and end of the article:

Pitt County's chief prosecutor said an adopted law is an attempt to stop death penalty prosecutions without doing away with the punishment. The Racial Justice Act, signed into law Aug. 11 by Gov. Beverly Perdue, seeks to prevent death sentences “sought or obtained on the basis of race.” It allows defendants to introduce statistical evidence that shows race was a significant factor in the decision to seek or impose a death sentence.

Pitt County District Attorney Clark Everett lobbied against the legislation earlier this year. The state already has sufficient safeguards in place to prevent or remedy racially motivated death penalty prosecutions, he said.

While proving racial bias is placed on the defendant, Everett said prosecutors will have to develop evidence to refute the claim. It will become a battle of statisticians, one claiming bias and another saying none exists. “This should be titled the Statisticians Relief Act of 2009 because it is going to make a lot of them a lot of money,” Everett said. “It's going to be a battle of statisticians, and it's going to cost the state millions.”

The decision to pursue a death penalty prosecution isn't made lightly, Everett said. Prosecutors must have evidence to support claims that aggravating circumstances were present when a murder occurred. These circumstances and evidence are unique to each case and can't be made to fit statistical models. “The goal should be the punishment fits the crime, not some statistical predictions,” Everett said. “Murders aren't committed following a statistical model.”

The Racial Justice Act is an attempt to end the death penalty without voting to end the punishment, Everett said.  “They are killing it with a thousand cuts,” Everett said.  The General Assembly should hold a simple yes or no vote on whether the death penalty should be abolished in the state, he said....

Everett said the Racial Justice Act won't prevent him from pursuing a death penalty case if the evidence supports seeking that punishment but it adds another layer of bureaucracy to the decision-making process.  “It makes it difficult to explain to survivors the process and what punishment they can expect in the near future,” he said. “It adds another layer of litigation and costs, and that's something I have to consider.  It doesn't appear at this time we have a workable death penalty in this state,” Everett said....

No executions have been carried out in North Carolina since August 2006 when the N.C. Medical Board barred doctors from being present for lethal injections.  The state sued the medical board and in May the state Supreme Court ruled in the state's favor.  However, executions won't resume until North Carolina's Council of State reviews the state's protocols for execution.  The council's review is currently facing a legal challenge.  

As this excerpt reveals, this article is rich with insight and irony.  First, it appears that lethal injection challenges more than this new Racial Justice Act has the North Carolina death penalty struggling to stay legally relevant.  Thus, whatever the NC Racial Justice Act might mean practically, the efficacy of lethal injection litigation blocking executions right now explains why the 167 persons on the state's death row seem unlikely to face their imposed punishment anytime soon.

Second, this local article highlights all the interesting practical dynamics that surround a capital Racial Justice Act.  As the prosecutor notes, the Act is not going to prevent him from seeking a death sentence in a specific case, though he is going to "have to consider" how the Act presents "another layer of litigation and costs."  This may be the real virtue (or vice?) of this sort of Act: local prosecutors will be thinking twice about racial issues concerning offenders and victims impacting decisions to pursue the punishment of death.

Finally, as is true for all capital punishment reforms, this new Racial Justice Act is likely to result in lots of (unpredictable?) litigation.  In the end, how state courts interpret and apply the new Act will determine if it has a major or minor impact on the operation of the death penalty in North Carolina.

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August 30, 2009 at 11:24 AM | Permalink


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This act is pretextual, and wrongheaded. It it the black murder victim that is subject to discriminatory under valuation. There should be guidelines forcing the death penalty in cases with black victims, to increase the rate to that with white victims. The legislation shows low intelligence and illogic.

But this comment is about cruelty. LWOP may be crueler than the death penalty. The best people to judge have endured it. Why not give prisoners a choice? Allow them to choose between LWOP and immediate death.

Posted by: Supremacy Claus | Aug 30, 2009 2:44:24 PM

What does anyone expect from the Democratic party?

Posted by: federalist | Aug 30, 2009 10:57:16 PM

What does anyone expect from the Republican Party? What part of 'Thou Shalt Not Kill' does Thou not get?

Posted by: mpb | Aug 31, 2009 7:58:11 PM

Did the ancient Hebrews have capital punishment? Yes. So was "Thou shalt not kill" literal?

Posted by: federalist | Sep 1, 2009 1:20:44 PM

Actually, I've always understood the orginal Hebrew to be "thou shalt not murder." Somewhere between Hebrew and King James English "murder" became "kill."

Posted by: Jay Hurst | Sep 4, 2009 3:19:29 PM

1. Do away with the death penalty. 2. Nobody should be jailed for using
or buying street drugs. The only crime is the law itself. To have a
crime--you have to have a direct victim. 3.All sentencings are way to
long. 4. Do away with life sentences--everybody should have a realistic
exit date to look forward to. 5. Have good conduct points for early exit-
say 2,3,4, days a month. 6. Do away with the word prison and have words
with rehab in it. 7. Have numbers 1 to 12 steps. As people progress in
good behavior, give them a higher step and more priviliges. 8. Treat them
with respect-not like trash. My message is to give them incentive and hope.

Posted by: roger guderson | Feb 10, 2011 4:04:54 PM

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