Last month, the North Carolina Supreme Court heard arguments about whether it should reinstate death sentences for four inmates whose punishments were previously commuted. Under the state’s Racial Justice Act of 2009, the inmates awaiting execution had successfully challenged their sentences by illustrating that their trials had been affected by racial bias.
Last year, however, the Racial Justice Act was repealed by North Carolina's Republican-controlled state legislature, allowing the state to argue in favor of sentencing the four inmates to die for a second time. The state’s Supreme Court has not said when it will deliver an opinion on the case, and it is not clear whether its ruling will focus on the four defendants or whether it will be broad enough to apply more widely. Either way, the state’s repeal of the Racial Justice Act provides a powerful example of why we should fear the takeover of state legislatures by Republican politicians.
Back in 2010, North Carolina was one of eleven states in which Republicans gained control of both houses of the state legislature. In North Carolina, this marked the first time the GOP controlled both assembly chambers since 1870. The takeover resulted in an onslaught of legislation: sweeping voter identification laws, drastic reduction of unemployment benefits, the subsidization of homeschooling, and cuts in funding for public schools.
The repeal of the Racial Justice Act was part of that legislative push. Local Republicans justified the repeal by arguing that it was unnecessary and excessive. Governor Pat McCrory implied that it offered too many avenues of redress for guilty inmates: “Nearly every person on death row, regardless of race, has appealed their death sentence under the Racial Justice Act,” said McCrory after he signed the repeal. The repeal bill’s sponsor, State Senator Thomas Goolsby, told local news outlet WRAL the act was “bad”—i.e., unnecessary—“law” since those convicted of capital crimes already have “multiple avenues of appeal” available to them.
But a closer look at the reason that these four inmates were able to appeal their death sentences and have their sentences commuted underlines the fundamental necessity of this act. In these four cases, according to the arguments presented in a brief filed by the NAACP on behalf of three of the inmates, racial bias affected the jury-selection process.
Take the case of State v. Augustine. In 2002, Quintel Augustine pled innocent to killing a Fayetteville police officer but was convicted and sentenced to death. As the NAACP brief shows, however, jury selection for the trial was fraught with racial bias. According to the brief, the prosecutor, Assistant District Attorney Cal Colyer, identified prospective African American jurors as “blk” in his notes and described a potential black juror with a substantial criminal record as a “thug.” A prospective white juror who had been involved in “trafficking marijuana” was described as a “fine guy.” Another African American was described as a “bl[ac]k wino.” Prosecutor notes in two of the other cases—those of inmates Tilmon Golphin and Christina Walters—utilized similarly racially coded language. “Categorical assumptions were made about black prospective jurors, while white prospective jurors were assessed individually,” states the NAACP brief. There is not significant recorded evidence of racial bias during jury selection in the fourth case, but the lawyer for the inmate argued for the reduction of the inmate’s sentence through the Racial Justice Act by pointing out that over half of the qualified black jurors for his case were dismissed.
Jury selection based on race is illegal. A 1986 Supreme Court decision (Batson v. Kentucky) ruled that prosecutors cannot rely on race to dismiss jurors. In reality, though, this can be difficult to enforce, as prosecutors can eliminate jurors without expressing a reason—a prerogative known as peremptory challenge. In some states, according to the NAACP brief, “cheat sheets” have been distributed during prosecutorial conferences. These sheets instruct prosecutors on how “to hide the fact that you’re really eliminating this person because he or she happens to be black,” says Neil Vidmar, a law professor at Duke and a member of the team who prepared the brief. “The cheat sheet gives [prosecutors] a list of reasons that courts have approved as neutral explanations,” says James Coleman, also a law professor at Duke, “It gives them the answer that will give them a passing grade.”
The fate of the four inmates may hinge on more than just the repeal of this act, however. “I don’t believe these individuals can be resentenced to death,” says Jay Ferguson, the lawyer for three of the defendants. “They were sentenced to life without parole, and under North Carolina law, as well as the federal Constitution, once someone receives a life sentence, they can’t be sentenced to something greater, such as the death penalty.” The Fifth Amendment of the Constitution prevents individuals from double jeopardy; according to Ferguson, this is a straightforward instance in which the double jeopardy protection applies.
Whatever happens to these four individuals, the Republican takeover of the state legislature has resulted in a narrowing definition of justice in North Carolina that will likely affect many more people.