Whitewashing history

Whitewashing history

srs-831ANew Supreme Court filing shines a spotlight on the disturbing effort to erase the Racial Justice Act

If you’re a student of world history, you will recall that one of the many horrific practices of the dictatorship in the old Soviet Union was the “purge.” Periodically, members of the Communist Party would run afoul of Stalin or some other boss and find themselves not just banished from the party (or worse), but literally excised from history.

One day, a person could be a loyal and even powerful member of the Politburo and the next, presto, he or she never existed. Long before the advent of modern computers, Soviet bureaucrats made an art form of doctoring old party and government photographs to eliminate the images of officials who had fallen from favor.

Today, weirdly and disturbingly, we’re witnessing something vaguely reminiscent of the old Soviet-style purge in the criminal justice debate in North Carolina. The subject is the law that graced the state statute books from 2009 to 2013 known as the Racial Justice Act or “RJA.”

As N.C. Policy Watch reporter Sharon McCloskey reported back in 2013 in what amounted to a retrospective on the law after it was fully repealed:

The Racial Justice Act, enacted in 2009, allowed death row inmates to seek a reduction in their sentence to life without parole upon a showing — through statistical evidence and otherwise — that race was a significant factor in the imposition of their sentences.

Death penalty opponents hailed the passage of the Act as a necessary safeguard to continued racial bias in the judicial system; from day one, though, prosecutors and other proponents set out to overturn it.”

The impetus for the law was, among other things, powerful evidence from researchers that African American defendants were vastly more likely to receive death sentences than white defendants – especially if the victim was white.

Of course, supporters of the death penalty – including many conservative lawmakers, prosecutors and advocates – always hated the Racial Justice Act. They fought it tooth and nail during the years leading up to its enactment in 2009 and moved quickly to dramatically alter it after conservatives assumed power in state government in 2011. The law was officially repealed in 2013.

As if it never existed?

While few would challenge the right of state lawmakers and the Governor to act as they did in gutting and then repealing the law, there is a great deal of debate as to what should happen to the death row defendants to whom it applied during its time on the books.

Again, here’s Sharon McCloskey:

The legislature left little doubt about who the repeal of the Act covered: all death row inmates regardless of whether they’d already filed an RJA claim, except those who’ve had their sentences commuted by the court and affirmed on appeal. By default, that means only the four whose cases have been decided by [Cumberland County Senior Resident Superior Court Judge Gregory] Weeks, if they’re upheld on appeal. [Editor’s note: The Supreme Court overturned Weeks’ decision in those cases last December and ordered new hearings.]

But just because the legislature says its repeal is retroactive doesn’t necessarily make it so. Retroactive application of a statute runs into constitutional due process concerns when it affects rights that have already vested.”

In other words, the question is: Can the state of North Carolina grant such an important “life or death” right to an individual and then simply take it away before there is a chance to fully exercise it?

According to state prosecutors and conservative opponents of the law, the answer to that question is “yes.” It’s their argument that the140-plus people on Death Row who filed RJA claims but never had them heard are simply out of luck. As far as they’re concerned, the law and the rights it conferred never existed and are now officially erased, Soviet-style, from history.

Lawyers for the Death Row inmates, however, take the opposite position. Last Friday they filed a lengthy brief with the state Supreme Court in which they argued quite forcefully and convincingly on behalf of defendant Andrew Ramseur that the United States Constitution prohibits states from giving people rights and then taking them away in such a manner. A similar brief was filed in July on behalf of another RJA claimant named Rayford Burke. This from the Ramseur brief:

By passing the Racial Justice Act, the State of North Carolina gave Mr. Ramseur life, liberty, and property interests in receiving the lesser sentences of life without parole in lieu of death sentences upon a successful showing under the comprehensive adjudicatory procedures of the Act. However, after Mr. Ramseur claimed the benefit of those procedures, the State reversed course and declared that all pending motions under the original and amended Racial Justice Act were ‘void.’ When the trial court relied upon the retroactive repeal of the Racial Justice Act to dismiss Mr. Ramseur’s pending motions, it ‘arbitrarily abrogated’…his protected interests in violation of the Due Process and Law of the Land Clauses of the federal and state constitutions. The retroactive application of the repeal to Mr. Ramseur further deprived him of due process because he detrimentally relied upon the State’s assurance – acceded to by the trial court – that he would not be prejudiced in any way, shape, or form by foregoing a pretrial Racial Justice Act Claim. Mr. Ramseur must be granted ‘the opportunity to present his case and have its merits fairly judged.’”

Remarkable and disturbing facts

And lest anyone conclude that this is just a matter of lawyers who oppose the death penalty grasping at any available straws to string out Ramseur and Burke’s cases, it should be pointed out that both defendants were subjected to trials that were marred with serious racial overtones.

During Ramseur’s trial, the local sheriff (without consulting with the defense) cordoned off the rows in the court room immediately behind the defendant in yellow crime scene tape “for security purposes.” (See the image above). Later, the tape was removed but some rows were kept vacant. The practical result of this policy was to allow the family of the white victims to sit closer to the front of the courtroom (immediately behind the prosecutor’s table) while the black relatives and supporters of the defendant were forced, in a scene reminiscent of “To Kill a Mockingbird,” to sit more toward the back of the courtroom.

As advocates at the Center for Death Penalty Litigation also point out:

  • Both defendants were convicted and sentenced in Iredell County, where a study showed that qualified black jurors were 2.6 times more likely than whites to be struck from capital juries. Four of seven defendants on death row from Iredell County were sentenced by all-white juries.
  • In Burke’s case, prosecutors clearly treated black potential jurors differently from white candidates. For example, the state said it removed a black woman because she had lived in Washington D.C. and did not have strong ties to North Carolina, while accepting several white jurors who had lived in other cities and had been North Carolina residents for far shorter periods.
  • Ramseur’s trial judge refused the defense’s requests to move the trial to a different county, and Ramseur was sentenced to death by an all-white jury in a community where many residents were openly calling for his lynching.
  • The prosecutor announced he would seek the death penalty even before the criminal indictments were handed down, and the local media demanded a speedy conviction and the maximum punishment. Readers responded to the news stories with a barrage of online comments calling the 19-year-old Ramseur, among other things, a “monkey” who deserved to be “hung from the nearest tree.” By the time of the trial, more than half of potential jurors said they had already formed strong opinions about Ramseur’s guilt and punishment.
  • In Burke’s case, the prosecutor used racially charged language in her closing argument, describing Burke as a “big black bull,” an argument that might have backfired had the jury included a single non-white member.

The bottom line
Regardless of how one feels about the Racial Justice Act and the premises that undergirded it, it must be conceded that there is something remarkably unfair and just plain un-American in a criminal justice system that confers on defendants a protection against abuse and unjust treatment and then takes it away before they have a chance to make use of it.

In this sense, maybe it’s not just the imagery of the old Soviet purge that North Carolina prosecutors and conservative politicians are conjuring up with their efforts to erase the RJA from history. The substantive treatment of some North Carolina criminal defendants sounds a lot like what one might have expected behind the Iron Curtain too.

About the author

Rob Schofield, Director of Research, has three decades of experience as a lawyer, lobbyist, writer, commentator and trainer. At N.C. Policy Watch, Rob writes and edits frequent opinion pieces and blog posts, speaks to various civic groups, appears regularly on TV and radio and helps build and develop movements for change.
rob@ncpolicywatch.com
919-861-2065