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Excerpted From: Laura G. Jensen, Deadly Bias: Why North Carolina's Legacy of Systemic Racism Within Capital Sentencing Necessitates the Reinstatement of the Racial Justice Act, 30 Boston University Public Interest Law Journal 251 (Summer, 2021) (258 Footnotes) (Full Document)


LauraGJensenIn June 2020, the Supreme Court of North Carolina held that the retroactive repeal of the North Carolina Racial Justice Act (“the Act”) of 2009 was an unconstitutional violation of the prohibition on ex post facto laws. Originally, the purpose of the Act was to reduce discriminatory capital sentencing on the basis of race. After the North Carolina Legislature ratified the Act in 2009, four defendants successfully proved that race was a “substantial factor” in their capital trials and had their sentences mitigated to life imprisonment without the possibility of parole. The North Carolina Legislature repealed the Act in 2013 and the North Carolina Supreme Court reinstated the defendants' capital sentences, despite the court's previous finding that race was a substantial factor in their sentencing. The trial court also decided that two other outstanding petitions for relief under the Act, filed and awaiting a decision while the Act was still in effect, were void. After a lengthy appeal and hearing oral arguments in August 2019, the North Carolina Supreme Court held in summer 2020 the retroactive repeal was unconstitutional for these two defendants, among over one hundred other petitioners whose claims were outstanding before the repeal. However, the 2020 court decision did not consider whether the repeal was unconstitutional for the four defendants placed back on death row and this appeal is still pending.

This Note argues that every state, including North Carolina, has a constitutional obligation to review evidence of racial bias in criminal trials even if such bias does not violate the Equal Protection Clause's requirement of a “discriminatory purpose.” Furthermore, this Note argues that the repeal of the North Carolina Racial Justice Act in 2013 eliminated the safeguards intended to protect criminal defendants from racial bias in capital punishment. Without these safeguards, it is imperative for North Carolina to either reinstate the Racial Justice Act or draft amended legislation that includes the necessary safeguards for criminal defendants, like those described below.

Section I.A of this Note details the history of racial inequalities within the United States criminal legal system and, prior to the enactment of the Racial Justice Act, the Equal Protection Clause's requirement of “Purposeful Discrimination.” In Section LB, this Note will explain the Equal Protection Clause's standard within the specific history of North Carolina's death penalty system and litigation. Section I.C analyzes the North Carolina Racial Justice Act, cases that the North Carolina courts heard under the Act, and the consequences of the repeal of the Act. Section II.A argues that the Equal Protection Clause does not fulfill its purpose of eliminating racial discrimination due to its extremely high threshold. Section II.B details the policy rationale for North Carolina's need to take action to reduce racial bias in capital punishment due to the weight of the state's legacy of racial prejudice. Finally, in Section ILC, this Note argues that the North Carolina legislature has no justification for refusing to enact more legislation, as they have done just that in another context: to combat lenient federal precedent in the realm of reproductive rights to further the state's interest.

[. . .]

As the Supreme Court stated in Rose v. Mitchell: “Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.” Yet, despite all the evidence proving that prosecutorial decisionmaking enables racial discrimination within capital sentencing in North Carolina, the legislature has discarded the Act's attempt to stop this injustice. The criminal system within North Carolina-- and the United States as a whole--is a creature whose backbone is made of racial inequalities and cruelty. Furthermore, because Black Americans did not have a role in forming the U.S. criminal system as it was created during a time when Black Americans were largely enslaved, racial inequities were baked into the system and continue to wreak havoc today. Conversely, Black Americans, such as Reverend William Barber (the President of the North Carolina NAACP) and Charmaine Fuller Cooper (the Executive Director of The North Carolina Justice Policy Center), played a major role in the North Carolina Racial Justice Act's enactment. The professional and lived experiences of these Black Americans contributed to a systemic effort to remove racial bias from capital punishment.

The Fourteenth Amendment cannot be satisfied where there is such abundant proof that the race of defendants influenced the State's decisions to kill them. Further, especially given the longstanding and racist legacy of the criminal system in North Carolina, the North Carolina legislature has an obligation to accept the McCleskey Court's invitation to enact laws creating more safeguards for their citizens against unequal treatment within the context of capital punishment.

North Carolina has no justification for relying on the excuses of Republican legislators, who claimed that the Act was excessive or unnecessary, when the same legislators enact other laws to heighten protections for state interests without blinking in the context of abortion restrictions. Is protecting the State's Black citizens from racially motivated state killings not included among the state interests that justify enacting further legislation? Time will tell. However, in the meantime, multiple defendants sit on death row in North Carolina who have previously proven that race played a role in their being there. The State's obligation to Marcus Robinson, Quintel Augustine, Tilmon Golphin, Christina Walters, and any future person affected by the systemic racism that controls the criminal legal system, remains pertinent to the administration of justice and the fight against the unlawful, discriminatory, and state-sanctioned murders of people of color in the United States. The refusal of the actors within North Carolina's criminal system to protect Black Americans against white supremacy in capital punishment feeds into the impact of the long-lasting legacies of slavery and Jim Crow in modern society. When the criminal system and its actors fail to safeguard citizens against a capital system infected with racially biased discretion, the outcome is deadly.

J.D. Candidate, 2021, Boston University School of Law.

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