The North Carolina Racial Justice Act allows those on death row or facing the death penalty to challenge the decision to seek or impose the death penalty.

To win this challenge, the defendant or death row inmate must demonstrate that race was a significant factor in the decision.  Here’s what the law says:

If the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, the court shall order that a death sentence not be sought, or that the death sentence imposed by the judgment shall be vacated and the defendant resentenced to life imprisonment without the possibility of parole.

I. Moratorium

A major problem with the law is it doesn’t require bias to be shown in the individual case, but only that racial bias played a significant factor in as few as one other case, somewhere in the state at the time the death penalty was sought or imposed.

Such an overbroad provision serves to block the use of the death penalty and acts as a moratorium on the death penalty.  It will be easy to make the case.  According to the law, “evidence relevant to establish a finding that race was a significant factor” includes looking at whether “[d]eath sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of another race.”  When wouldn’t this be the case?  Other factors also are just as easy to demonstrate.

There are other issues that make it even less likely the death sentence will be sought or imposed.

If one defendant isn’t subjected to the death penalty but another defendant in the same or different jursidiction is subject to the death penalty based on the same evidence, this would create headaches and potential legal problems (e.g. equal protection).

Once defendants start winning cases, which they will, district attorneys aren’t going to want to waste time and resources to seek the death penalty when it would likely be a fruitless exercise.

It also is unfortunate when the Governor and others try to make this entire issue about race.  Racial bias in one case doesn’t provide any insight as to whether racial bias played a role in another case.

The Racial Justice Act doesn’t put the use of race in a specific case on trial but the use of the death penalty in North Carolina on trial.

II. Unintended Consequences

As the Carolina Journal reported, there is a concern that death row inmates prior to October 1, 1994 could be eligible for immediate parole.

The Racial Justice Act states that an inmate that wins a case must be resentenced to life without the possibility of parole.

This would seem clear that these individuals wouldn’t be eligible for parole.  The problem is defendants sentenced prior to October 1, 1994 could only be subject to the death penalty or life sentences (which generally meant 20 years). There was no life without parole.

If an inmate won their challenge and death was improperly sought and imposed, then they should only be subject to penalties that existed at the time, not some more extreme penalty that didn’t exist.  To do otherwise would be to impose an unconstitutional ex post facto law.

This is an argument already being made by attorneys on behalf of inmates.  Apparently, the Attorney General’s office agrees with the argument.

In the News and Observer, there was an interesting op-ed that argues the Racial Justice Act won’t make any of the inmates eligible for parole.  The primary argument is “any inmate who raises a claim under the law necessarily waives any ex post facto claim.”

I can’t say that without a doubt this isn’t a possible conclusion a court would make.  However, the authors (former North Carolina Chief Justice Burley Mitchell and Press Millen) also can’t claim that a court would definitely buy their argument.

They conclude their op-ed by stating, “Like most controversial laws, the act generates arguments pro and con. It’s important that those arguments be conducted on the basis of facts, rather than fanciful conjectures.”  I agree.  They shouldn’t engage in fanciful conjectures by making absolute statements as to whether the law would allow the release of inmates.  Legal arguments are just that—they are arguments and not facts.

Just because an inmate decides to bring a claim under the law doesn’t mean the legislature can provide a remedy that is ex post facto in nature.  Their argument presumes that individuals can “voluntarily” waive their claim against the ex post facto nature of the penalty by receiving the benefit of not being on death row.  It presumes this waiver is enough for a court to ignore whether the “bargain” erases the unconstitutional nature of the law as applied.

There really isn’t much of a voluntary bargain in the first place.  After all, they were wronged, are on death row, and seeking justice.  If they had not been wronged in the first place, they would have served 20 years, not life without parole.  A court would likely be swayed that since the law is rectifying a wrong, the inmate shouldn’t have to sacrifice rights to right this wrong.  And, the legislature shouldn’t get a free pass to enact laws that, as applied to these individuals, would be unconstitutional.