By Hunter Hines
Christian Action League
June 12, 2020
Friday, June 5, the decidedly left-leaning North Carolina Supreme Court revived the Racial Justice Act in limited cases. Six out of seven justices said in a decision involving two cases that any prisoners on death row who applied for an appeal under the RJA before it was repealed, may now continue their cases.
The RJA, which passed the North Carolina General Assembly in 2009, purportedly was to prohibit the imposition of the death penalty based on race. Those championing the RJA argued that defendants in capital crimes ought to be able to use statistics regarding past North Carolina cases to show racism might have played a role in their sentence to death. More than 150 of the inmates on death row in the Tar Heel state filed for reviews under the 2009 law, and more than a third of them were white. In response, district attorneys across the State bitterly complained, saying that the law was clogging up the court system.
In 2011, the North Carolina General Assembly passed a law that would have effectively repealed the RJA, but then-Governor Beverly Perdue vetoed it. Lawmakers passed a major revision of the RJA in 2012, which said statistics from other places and times were not sufficient to prove racial bias in specific cases. Perdue vetoed that bill too, but lawmakers overrode her veto.
The revision of the RJA was authored by former House Majority Leader, Rep. Paul Stam (D-Wake). During debate on the House floor, Stam said, “Justice is personal; it’s not collective. We don’t punish people because they’re members of a group; we don’t exonerate them because they’re members of a group.” Stam rightly described the RJA as having the potential to allow “Mr. A to get off because Mr. B was discriminated against 100 miles away, 30 years ago.” The original RJA law allowed death row inmates to manipulate statistics to avoid justice.
In 2013, the General Assembly repealed the RJA in its entirety.
The State’s Supreme Court, however, now says that any of the inmates who applied for relief while the 2009 law was in place, cannot be retroactively stripped of the right to use it after their cases had proceeded. The decision has the effect of potentially reviving more than 100 capital cases under the first RJA law.
Associate Justice, Anita Earl, who wrote the majority opinion, said that repeal “cannot be applied retroactively consistent with this state’s constitutional prohibition on ex post facto laws.”
The “ex post facto law” the court’s majority relied on is a law dating back to a blanket amnesty offered to Confederate soldiers in 1866. At that time, the State said it should be assumed that acts committed during the Civil War were done under lawful orders unless the State could prove otherwise. In 1868 that law was repealed. After repeal, Confederate Lt. Col. James A. Keith was tried for leading in what was then described as a massacre. Keith argued that he was covered under the Amnesty Act. The court denied his claim, but later the North Carolina Supreme Court overturned the lower court’s decision, ruling the repeal was an invalid ex post facto law which denied Keith his right of due process under the original act. The case has remained precedent for more than a century and a half.
Dissenting Justice Paul Newby, the only Republican member of the court, argued the majority opinion misapplied the constitutional prohibition on ex post facto laws. Newby said the Amnesty Act was mainly a pardon and not analogous.
“The provisions of the RJA cannot be analogized to a legislative grant of immunity or ‘a full and unequivocal pardon.’ The RJA simply provided a statutory avenue by which to pursue possible post-conviction relief,” said Justice Newby.
Newby also said the broader question was the way, “[t]he majority’s interpretation of the RJA cedes significant portions of the people’s authority over death penalty policy to the courts.”
Newby wrote, “In the majority’s view, the law empowers a judge to vacate a defendant’s death sentence based on statistical evidence that race had been a significant factor in other death penalty proceedings in the county, prosecutorial district, judicial division, or the State as a whole, regardless of the role of race in defendant’s own capital proceeding. This interpretation could be viewed as granting policymaking power to the judiciary to effectively eliminate the death penalty in North Carolina. By invalidating the RJA repeal, the majority does more than merely misapply the constitutional prohibition on ex post facto laws. It also intrudes upon the right of the people, in the form of their elected representatives, to decide death penalty policy for this State.”
Rev. Mark Creech, executive director of the Christian Action League, said that he believed that no person should ever be sentenced to death based on racial bias. Still, laws that say a judge can commute a death sentence on the perception of racial prejudice and not proof of it in the defendant’s case is a miscarriage of justice.
“The Bible tells us that murder pollutes the land, and the way to cleanse the land is capital punishment. The Bible instructs us that nations that fail to enforce capital punishment will be harshly judged. By the enforcement of the death penalty, the nation is cleansed of innocent blood. If the nation refuses to obey God in this matter, then it will share in the guilt of the murderer,” said Rev. Creech. “I have always believed and openly argued the RJA was a Trojan horse to render the death penalty inoperable. Its supporters were mostly anti-death penalty proponents. Some at that time claimed that it was better for a guilty man to go free than for an innocent man to die. But an ethic of that nature assumes that the failure to apply justice is always better than the misapplication of justice. We don’t need to be faced with an equal evil over against an equal injustice. The RJA provided us with that kind of scenario, and that’s one of the reasons it was repealed. It is a gross injustice to the family members of the victims, as well as society in general, that the North Carolina Supreme Court has now revived the RJA for almost every person currently sitting on death row. How dare they!”