"Today I want to give you a snapshot of the current state of North Carolina's death penalty. In 2009, a Democratic-controlled General Assembly enacted the Racial Justice Act. The law provided that no one would be subject to a death sentence or execution pursuant to any judgment sought or obtained on the basis of race.

 

Defendants filing an RJA claim would have to show race was a significant factor in the decision to pursue capital punishment or excuse potential jurors. Evidence of that finding could include statistics by district, county, and state that demonstrate a pattern of discrimination, and sworn testimony by criminal justice actors. If the defense is successful in proving that race of the defendant or victim was used in consideration of a capital sentence, or that race motivated use of a peremptory challenge during jury selection, the court could set aside the death sentence. Instead, the defendant would receive life imprisonment without the possibility of parole.

 

The RJA was intended to redress historic racism in North Carolina's application of the death penalty and prosecutorial exclusion of black citizens from capital juries. I'll not go into all of the attendant studies and data used to support the law. If you want to know more, go to NCCADP.ORG My goal is to illustrate the impact of the RJA on capital post conviction appeals. Rather than reform anything, the 2009 RJA and subsequent litigation has become a net-lengthening mechanism that substantially increases the time one spends on death row in North Carolina, adding greater uncertainty to the appellate process, and epitomizing what California appellate judge Cormac Carney framed as the new capital punishment: life imprisonment with the remote possibility of death.

 

After Republicans gained control of the NC General Assembly and governors office in 2012, they amended the RJA to restrict what statistics could be used to prove racial discrimination, mandated LWOP to exclude claims to prior sentencing guidelines, and made the hearing for a claim optional. By 2013 Republicans had a veto-proof supermajority in the general assembly and fully repealed the RJA. However, during its brief existence as a law, four death sentenced prisoners won relief and approximately 130 death sentenced prisoners filed both original and amended RJA claims. The litigatory stage had been set.

 

Let me take a moment to dispel a myth. Upon conviction and sentence, legal representation provided to death row prisoners as a matter of due process doesn't mean attorneys take direction from their clients. Communication is infrequent. And, appellate defenders seldom ask their client's opinion regarding legal strategy. The driving force behind RJA litigation is a group of attorneys who compose the Center for Death Penalty Litigation (CDPL). If 130 RJA claims were filed in NC courts, rest assured it was not because the CDPL consulted 130 death sentenced clients for their approval or feedback.

 

Maybe you're wondering why, if the CDPL works on our behalf, the distinction matters. From the last execution in August, 2006, to the 2013 RJA repeal, 21 death sentences were vacated and the prisoners re-sentenced to LWOP, life with parole,, or a numbered term. Three more people were exonerated. Once RJA litigation began, all the way up until today, only 10 prisoners have had their death sentences vacated. Two more people were exonerated, but not from the work of the CDPL. Whether this 50% decrease in capital post conviction appellate review is attributable to the intense focus on RJA litigation, or a combination of other factors is debatable.

 

What is certain about the battle over the RJA, and the state of capital punishment in general, are the "tough-on-crime" politics that obstruct equal justice and misinform the public. Take for example the cars of Henry McCollum, who was exonerated in 2014 after spending 31 years on North Carolina's death row for a from he didn't commit. Prior to his exoneration, US Supreme Court justice Antonin Scalia used Henry's alleged crime as reason for "deserving" the lethal injection. Also prior to his exoneration, in 2010 the NC Republican party used Henry's case and disinformation about the RJA in mailers sent to voters in Democratic districts. The mailer threatened the release of prisoners convicted of "heinous crimes" because of Democratic lawmakers who enacted the RJA. It didn't matter that the RJA provided only life imprisonment. It also didn't matter that Henry consistently professed his innocence to an appellate attorney who filed an RJA claim on his behalf. Fortunately, the North Carolina Innocence Inquiry Commission investigated Henry McCollum's case in connection with his equally innocent half-brother Leon Brown. Together, the brothers received $83 million in compensation for their wrongful convictions from NC taxpayers. The most in U.S. history. That is the legacy of North Carolina's death penalty politics.

 

In June 2020, the NC Supreme Court allowed previous RJA claims to move forward. Two years later, none have been processed, but that is the nature of the modern death penalty- prolonged uncertainty, injustice, and the pervasive threat of execution."