The elections that allowed the Republican Party to gain the governorship along with control of the state's legislature resulted less than a year later in the repeal of the state's widely hailed Racial Justice Act. That law, enacted in 2009 and signed by the Democratic governor Beverly Perdue, gave death row inmates a new path to overturn their death sentences by proving racial discrimination in the verdicts or sentences that condemned them to execution.
Four inmates succeeded in reducing their death sentences to life imprisonment under the law before the Republicans repealed the law. Perdue had vetoed a GOP-backed repeal in 2012, but the new Republican governor, Pat McCrory, signed a repeal after the Republicans voted again in 2013 to kill the law.
The repeal included a provision eliminating any relief for inmates not yet final when the repeal took effect. Now, the North Carolina Supreme Court is considering whether the legislature violated constitutional rules in sending those four inmates back to death row and in blocking hearings for two other death row inmates pending at the time of repeal.
The state high court, with a 6-1 majority of Democratic appointees, heard nearly four hours of arguments in the six cases over two days late last month (Aug. 26 and 27). The arguments from the inmates' attorneys made clear that the racial bias in the four reversed cases might have been strong enough to warrant relief under strict federal constitutional rules even without the easier path under the repealed state law, which required proof only that race was "a significant factor" in verdict or sentence.
The four reversed cases all came from Cumberland County, which includes the state's sixth largest city Fayetteville. The county's overall population is around 55 percent white and 35 percent black. But the juries in all four cases were all white, thanks to tactics that state prosecutors are instructed to use to justify excluding black jurors.
In Marcus Robinson's trial, for example, prosecutors rejected half of the qualified black jurors, but only 14 percent of the others. One black juror was disqualified after acknowledging that he had not graduated from high school and that he had difficulty reading — questions not asked of white jurors.
In Christina Walters' trial, prosecutors excluded 10 of the 14 qualified black jurors, but only four of the 27 qualified white jurors. Tellingly, Walters' two white attorneys failed to preserve objections under the Supreme Court precedent, Batson v. Kentucky (1986), that bars the use of race in exercising peremptory challenges to exclude potential jurors.
The trials of the two other inmates who won temporary reprieves from their death sentences, Quintel Augustine and Tillman Golphin, followed that pattern. In the arguments last month, one of the North Carolina justices openly acknowledged that the state has done very little to put Batson into effect. The non-profit Center for Death Penalty Litigation has reported that more than half of the state's death row inmates were sentenced by juries with no or little minority representation.
For Andrew Ramseur and Rayford Burke, the repeal of the Racial Justice Act came as their cases were pending and not yet ruled on. Ramseur's trial in 2010 came against the backdrop of racial sentiment akin to the kind of public hysteria associated with the lynching era. One commenter on the local newspaper's website remarked, "He should be hanging from the nearest traffic light as a warning to the others." At trial, four rows for courtroom spectators were cordoned off by crime scene tape, ostensibly to protect Ramseur.
In the oral arguments last month, attorneys for the inmates fashioned several arguments to challenge the legislature's authority to strip the inmates of the relief they had won before the Racial Justice Act was repealed or to deny hearings for the other two. The exact issue was unprecedented, as Cassandra Stubbs, the director of the American Civil Liberties Union's death penalty project, wrote in her brief for Robinson. “Never before has any legislature enacted a statute designed to remedy suspected systemic racial bias in capital sentencing,” Stubbs wrote, “only to repeal such a statute when the racial bias was found.”
The closest precedent in North Carolina law is a 19th century decision that blocked the legislature from superseding a post-Civil War amnesty granted to former Confederate soldiers for crimes committed under orders during the war. Lt. Col. James Keith was accused of massacring 13 civilian prisoners, but the state supreme court ruled that he was entitled to the benefit of the legislative amnesty even though later repealed.
The inmates' other arguments centered on traditional constitutional principles against ex post facto laws or double jeopardy. They also argued that the provision specifically nullifying any relief that the inmates had already won amounted to an unconstitutional bill of attainder — the term for legislative imposition of punishment.
The state's lawyers responded, somewhat weakly, that the inmates still had avenues to seek new trials or new sentences even without the repealed state law. In four hours of arguments, the justices seemed to be inquisitive more than argumentative, but the political tinct to the cases suggests that the state is arguing uphill before the Democratic-majority court.
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