When Gov. Bev Perdue signed the Racial Justice Act in August, North Carolina became the second state in the country to have a law that tries to make sure that race is not a factor in the application of the death penalty.
Even three months later, it is way too early to say how the Racial Justice Act will play out in courtrooms across North Carolina, said Mark Rabil, a capital-defense attorney in Winston-Salem.
"It's a new law, and this is the first year, and whatever we're seeing right now is not indicative of what will happen," he said. "Everybody is still trying to figure it out."
Use of the law is available to those already on death row as well as in pending and future capital murder cases. But many believe that it will be years before anyone knows its effects.
The Racial Justice Act law allows defendants to use statistics and other evidence to prove racial bias in the application of the death penalty. Supporters said that it is needed to address a legacy of racial disparity when it comes to the death penalty.
The legislation was strongly opposed by prosecutors, who said that it falsely implies that prosecutors are racist, and is simply a way to end the death penalty in North Carolina.
Prosecutors are preparing for the legal challenges to come.
Garry Frank, the district attorney who represents Davie and Davidson counties, said he objects to defendants being able to cite statistical evidence from other cases in the state or in their local jurisdiction.
"In the history of our jurisprudence, statistical evidence has not been relevant to particular cases," he said.
Forsyth District Attorney Tom Keith, who played a prominent role in lobbying against the Racial Justice Act, could not be reached for comment.
People who are already on death row have until next August to file any appeals based on the Racial Justice Act. Next month, Rabil said, defense attorneys in Forsyth County are expected to begin filing motions in pending first-degree murder cases in which either prosecutors have already sought the death penalty or are considering it.
Those motions could be to ask for discovery information from prosecutors on what criteria they use before seeking the death penalty or to continue a murder trial until a major study on death penalty and race is finished next August, Rabil said.
The state hasn't had any executions since August 2006 because of several legal challenges that have mostly been resolved by recent court rulings. Currently, there are 161 people on death row, the majority of whom are black.
In Forsyth County, there are 52 pending first-degree murder cases, 17 in which prosecutors have said they will seek the death penalty, according to statistics from the N.C. Office of Indigent Defense Services. North Carolina has 1,194 first-degree murder cases that are pending. Prosecutors are seeking or have indicated that they will seek the death penalty in more than 230 of those cases.
Barbara O'Brien, a law professor at Michigan State University, said that she and her colleague, Catherine Grosso, are examining about 1,500 murder cases from 1990 to the present, both capital and noncapital.
Their $500,000 study will look at the many nonracial factors that prosecutors used to determine whether to pursue the death penalty, O'Brien said. Then, controlling for those factors, they will try to determine if race played a role in those decisions, she said.
Ken Rose, a staff attorney and former executive director for the Center for Death Penalty Litigation in Durham, said the study is critical.
"This is a way to find out if there's been racial discrimination," he said. "We won't know until we've done the investigation."
Other studies have shown a clear link between race and the death penalty. A major 2001 study by two UNC professors showed that people convicted of murdering white victims are 3.5 times more likely to be given a death sentence than for those convicted of murdering black victims.
Rabil said it will take some time to see how effective the Racial Justice Act will be.
"To make any criticism of the law is premature," he said. "It'll be a couple of years before we have any definitive court rulings on it."
mhewlett@wsjournal.com | 727-7326
Journal Graphic by Richard Boyd II and Nicholas Weir - Click to enlarge
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