Emily Coward and I are glad to share a new resource with you: a reference manual entitled Raising Issues of Race in North Carolina Criminal Cases. If you are a person who likes to have a hard copy on the shelf, you can buy it here. Like our other manuals, it is available for free online at http://defendermanuals.sog.unc.edu. (The electronic platform has been retooled, and I think you will find that it has a nice look and is user-friendly.) Continue reading
Tag Archives: race
Jeff previously posted news items about North Carolina’s Racial Justice Act (RJA), including one here updating readers on the bill’s path to law, and one here about actual RJA filings. I was recently told by the N.C. Administrative Office of the Courts that there now are at least 204 filed RJA motions. Although most of those motions have been filed as post-conviction motions for appropriate relief (MARs) by death row inmates, a number have been filed in pending capital cases (the RJA allows for filing at the Rule 24 hearing or post-conviction as a MAR). Given the number of filings and the novelty of the act itself, I am fielding a fair number of questions about RJA procedure (discovery, nature of the hearings, etc.), and questions of statutory interpretation. In this post I’ll focus on the act’s core provisions and highlight three significant interpretation issues relating to those provisions.
The RJA provides that “[n]o person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.” G.S. 15A-2010. It further provides:
“[a] finding that race was the basis of the decision to seek or impose a death sentence may be established if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.”
G.S. 15A-2011(a). Thus, to prevail on a RJA claim, a defendant need not prove that race was the basis of the decision to seek or impose a death sentence in his or her particular case. By the express terms of the statute, a RJA claim may be established by showing that race was a significant factor in decisions to seek or impose the death sentence in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed. Other sections of the RJA provide that statistical evidence may be used to prove a RJA claim. Specifically, the RJA provides that evidence relevant to establish a RJA claim may include statistical or other evidence that, irrespective of statutory factors, one or more of the following applies:
(1) Death sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of another race.
(2) Death sentences were sought or imposed significantly more frequently as punishment for capital offenses against persons of one race than as punishment of capital offenses against persons of another race.
(3) Race was a significant factor in decisions to exercise peremptory challenges during jury selection.
G.S. 15A-2011(b). Factor (1) focuses on the defendant’s race. Factor (2) focuses on the victim’s race. And factor (3) focuses on the race of the venire members.
These core provisions present a number of interpretation issues. Among them are the following:
- What is the meaning of the term “race”? The RJA speaks of race generally, and does not limit its application to any particular race. However, the RJA does not define the core term race or incorporate by reference any commonly used racial classifications. Because all RJA claims are likely to present statistical evidence, the question of “who is in” and “who is out” of the statistical groupings can make a lot of difference on what the statistics show.
- What is a “significant factor”? While the statute provides that a defendant may establish a RJA claim by showing that race was a significant factor in decisions to seek or impose the sentence of death, it does not provide guidance on that statutory term. Clearly race has to be more than a factor; by the statute’s express terms it must be a significant factor. Does the term significant factor mean that the factor has to be statistically significant? Legally significant? We don’t know.
- What is the meaning of the phrase, “at the time the death sentence was sought or imposed”? While the statute provides that a claim may be established if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, it does not specify the relevant period of time. Because the RJA authorizes proof by statistical evidence, questions inevitably will arise about the appropriate time period to be used in the statistical analysis. And as noted above with regard to racial groupings, the strength of the statistical case may vary dramatically depending on the period used in the analysis.
These are just three issues that judges and litigants will struggle with as the current glut of RJA motions work their way through the system. I welcome your thoughts on these questions and identification of others that warrant a closer look.
There has been an endless parade of relevant news over the past week or so.
First, Justice Sonia Sotomayor was confirmed by the Senate and sworn in. This New York Times story about her confirmation gives you the basics if you’ve been living under a rock.
Second, I’ve just come back from a week of vacation in Canada. The locals were complaining about the brutal temperatures, which regularly pushed into the — gasp! — high 70s. Anyhow, reading the Toronto papers was an eye-opener, especially this article about an infamous white-collar criminal who fleeced innocent investors through a multi-million dollar accounting fraud. Sound like someone else who’s been in the news recently? Well, in Canada, such shenanigans will earn you a hefty sentence of . . . seven years. But you don’t start serving it until after your appeals are exhausted. And because of generous parole rules, you may be released in 14 months. And you may serve your time at a prison with an “executive golf course.” Sounds pretty brutal.
Third, a number of interesting items have cropped up in connection with sex offenders, including two articles (here and here) from The Economist, generally arguing that America’s sex offender registration regimes are too extensive, and a remarkable comment by a federal circuit court about a long sentence for a first offender in a child pornography case. A few tidbits on the lighter side of a serious subject include this story about an iPhone app for tracking sex offenders and, perhaps my favorite, this story about a man who claimed that his cat downloaded child pornography behind his back.
Fourth, another cluster of stories has come out, this one about prisons. There was a massive race riot at a California prison, which some have suggested may be due to a Supreme Court decision rejecting California’s previous practice of racial segregation in prison, and others have suggested may be connected to the state’s prison overcrowding. But no matter how bad the situation in California may be, it pales in comparison to the situation in Mexico, where complete corruption is the rule. The New York Times reports that “[w]hen life inside, with its pizza deliveries, prostitutes and binges on drugs and alcohol, becomes too confining, prisoners sometimes pay off the guards for a furlough or an outright jailbreak.”
Finally, the General Assembly is supposed to be winding down, but it is still cranking out bills, from the Racial Justice Act, which allows statistical evidence of racial discrimination to be introduced in capital cases (and which Governor Perdue reportedly will sign today), to a bill prohibiting “cyberbullying,” to bills that change the structured sentencing grid to the net modest benefit of defendants. I’ll try to do a more systematic analysis of the legislative session once it is complete.
North Carolina has been all over the web recently. The News and Observer’s habitual felon article, which I discussed in a previous post, has made a splash on several of the most-read criminal law blogs — here and here (both links involve some scrolling) — with some of the reaction being positive, and some less so.
Getting similar coverage is S 461, the Racial Justice Act. As reported here, one version of the bill has passed the Senate and another is progressing in the House. The bill would allow a defendant to argue, before trial or after conviction, that he was prosecuted capitally or sentenced to death based on his race. He would be permitted to present evidence that “race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.” Such evidence could include “statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system.” If a court were to agree that a particular jurisdiction made death penalty decisions based on race, it would be permitted, but apparently not required, to infer that the particular defendant’s case was likewise tainted by racial considerations. Anyone have thoughts about the practical impact of the bill, if passed? What does it add to the existing law of equal protection and selective prosecution?
Finally, the New York Times has an interesting story about Supreme Court nominee Sonia Sotomayor’s ruling affirming the denial of habeas relief to a wrongfully convicted defendant. The article doesn’t suggest anything improper, or even unusual, about Judge Sotomayor’s ruling, but the defendant in question is understandably unhappy that a judge who, in his view, let him linger in prison is now poised to ascend to the nation’s highest court.