The timing of the North Carolina Supreme Court’s June 5th ruling couldn’t have been more appropriate. In a week in which millions of Americans took to the streets to voice their outrage at the seemingly never-ending succession of incidents in which unarmed people of color have been killed by law enforcement officers, the ruling upholding protections conferred by a statute known as the “Racial Justice Act” shined a bright ray of light across a stormy landscape.
Of course, as with the protests themselves, it’s a tragic commentary on our society that such a court ruling was even necessary to begin with. The Racial Justice Act was a modest law passed more than decade ago which merely sought to assure that no one in North Carolina would be put to death by the state because of the color of their skin.
It was premised on mounds of compelling research and anecdotal evidence which showed that North Carolina and many other states had repeatedly done just that – sentenced people to death in trials tainted by egregious incidents of racial bias. What’s more, despite a powerful global trend toward abolition of the death penalty altogether, the new law took no such action. The Racial Justice Act left North Carolina’s death penalty intact and merely required prosecutors to apply it in a race-neutral fashion.
After the law was enacted and it started to have an effect, however, Republican legislative leaders decided that, as professor Gene Nichol puts it in his new book “Indecent Assembly: The North Carolina Legislature’s Blueprint for the War on Democracy and Equality,” they “had seen enough and repealed [it.]” Here’s Nichol:
Rather than moving to cure the injustices revealed in the early Racial Justice Act cases, the legislature decided to kill the messenger. Governor Pat McCrory signed the repeal bill, claiming it would merely remove needless ‘procedural roadblocks’ to the death penalty in North Carolina.”
Amazingly though, the repeal law sought not just to make sure that no future criminal defendant could gain protection from the law; it purported to remove protections from those who had already filed claims under it.
And so that’s what last week’s ultimately limited ruling from the Supreme Court struck down. The court did not say that North Carolina must continue to abide by the terms of the Racial Justice Act going forward; North Carolina’s death penalty law remains on the books and the Racial Justice Act does not. The court merely ruled that the General Assembly could not remove rights it had conferred on individuals who sought protection from the law while it was in effect.
And if there’s a brightest and most hopeful aspect to last week’s ruling, it might just be the reality of how limited and preliminary it suddenly feels in the nation’s current and rapidly evolving cultural and political landscape.
As has been increasingly evident in recent days, something akin to a seismic shift appears to be underway right now in North Carolina and across the nation. As the George Floyd protest movement continues to expand and mature, one gets the increasing sense that a vast number of formerly somnambulant white Americans are, at long, long last, finally waking up to the harsh reality of the racist policies and practices that have infected the nation’s laws and law enforcement for so long.
Who could have imagined – even a few weeks ago – that former President George W. Bush and former First Lady Laura Bush would be issuing a clear repudiation of President Trump and other defenders of the status quo by decrying the “shocking failure” of racism in law enforcement and widespread efforts to silence protesters?
Who could have foreseen Senator and former GOP standard-bearer Mitt Romney donning a mask to walk with protesters against police misconduct in Washington?
Who could have imagined North Carolina sporting legend Dale Earnhardt, Jr. speaking up eloquently to lament the failure of NASCAR (NASCAR!) to fight for racial inclusion and equality?
At such an extraordinary moment, it’s almost impossible to conceive that mere tinkering around the edges of a long-broken and inherently racially biased institution like our criminal justice system will suffice. This is especially true when it comes to one of the most terrible and egregious manifestations of that system: the death penalty.
Like corporal punishment in our schools and other forms of state-sponsored violence that were once taken for granted, the death penalty was already well down the path toward the dustbin of history before the present crisis.
Public opinion has turned against it as more and more Americans have become aware of its diabolical and irreparable unfairness and fewer and fewer U.S. jurisdictions – even those like North Carolina that retain it on the books – are seeing fit to use it. A similar patter held around the world. In 2019, only 20 nations conducted executions, with just five – China, Iran, Saudi Arabia, Iraq and Egypt – doing 86% of the dirty work.
Surely, given this backdrop, last week’s Racial Justice Act ruling will prove to be just another modest wave in what is fast becoming an irresistible tide toward complete and permanent abolition.