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Last rites for the Racial Justice Act?

//March 22, 2013

Last rites for the Racial Justice Act?

//March 22, 2013

The Racial Justice Act has hardly been a crowd-pleaser since its enactment in 2009. It barely survived a repeal attempt two years ago, only to be virtually gutted by legislators in the following session. Now it appears that the controversial law’s time may be up.

Republican Sen. Thom Goolsby, a Wilmington lawyer, has filed a bill that would overturn the RJA as part of a proposal to lift the quasi-moratorium on executions in North Carolina. He has backing from the state’s district attorneys and much of the GOP, which controls the General Assembly.

“With Republican majorities in both chambers, it’s pretty much assured that this bill or some version of it will be passed,” said Democratic Sen. Floyd B. McKissick Jr., a civil litigator in Durham and chief sponsor of the RJA. “It’s very disheartening.”

If Goolsby’s bill becomes law, it is expected to trigger a statewide legal battle over whether the repeal applies to the roughly 150 death row inmates who have already filed motions to get their sentences commuted to life based on racial discrimination during jury selection.

The bill is meant to be retroactive, as was the 2012 legislative amendment to the RJA, which prevented petitioners from relying solely on statistics of racial bias to prove their cases and limited the scope of the statistics they could use.

However, Superior Court Judge Gregory A. Weeks, who has undone four death sentences under the RJA, two of which involved convicted cop killers, determined that the amendment was not, in fact, retroactive. He also found that the defendants would have qualified for relief under the overhauled RJA anyway.

“Assuming this [repeal] passes, there will be a lot of debate” over retroactivity, said Malcolm “Tye” Hunter Jr., executive director of the Center for Death Penalty Litigation in Durham. “We’re just putting another layer of litigation on top of the litigation we already have.”

Democratic state Rep. Richard B. Glazier, a Fayetteville defense lawyer who supports the RJA, called the retroactivity portion of Goolsby’s bill “patently unconstitutional,” because it’s trying to take away rights that have been preserved under existing law.

Goolsby did not respond to interview requests. House Speaker Pro Tem Paul “Skip” Stam Jr., a partner at the Apex law firm of Stam & Danchi, also did not return messages.

Stam, a Republican, pushed the RJA amendment last year and stated at the time that he would not attempt to tinker with the law again, but he now backs its abolishment, according to Gerda Stein, a spokeswoman for the Center for Death Penalty Litigation.

She added that Republican Gov. Pat McCrory also has publicly expressed support for the repeal.

His Democratic predecessor Bev Perdue vetoed the first bill that would have overturned the law in 2011.

Like others calling for the end of the RJA, Benjamin R. David, president of the N.C. Conference of District Attorneys, argues that the statute is unnecessary since the law already provides for post-conviction relief through the appeals process.

“The protections are in place and have been for decades,” he said. “People are playing politics with race in a highly charged death penalty context. … We welcome scrutiny in 100 percent of these cases. We’re saying let’s remove it from that context and have a serious discussion about it.”

Last week, more than 70 college professors across the state signed a letter against the repeal, which they and other opponents have characterized as an attempt to hide a history of racial bias in the state’s courtrooms.

“They want to pretend like it never happened and sweep it under the rug,” Stein said.

Goolsby’s bill also would establish deadlines for capital punishment after a defendant has exhausted all appeals; codify a N.C. Supreme Court ruling that the state’s medical board could no longer punish doctors who participated in executions; and require prisons to keep trained teams on staff to carry out death sentences.

While 152 inmates sit on the state’s death row, none have been executed since 2006 because the cases are tied up in litigation. Over the past decade, fewer than five defendants per year on average have been sentenced to death. Last year, no one received a death sentence.

In light of the historically small number of death sentences and the legislature’s limited role in managing the judicial branch, some have accused Goolsby of using the issue for political grandstanding, including Hunter of the death penalty center.

“Some politicians still think this is a valuable political issue,” he said. “The death penalty is used so seldom that it’s really reduced to almost insignificance as a criminal justice policy, but yet we spend millions of dollars on it. It’s crazy.”

Follow Phillip Bantz on Twitter @NCLWBantz

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