By Burley Mitchell and Press Millen
Reasonable people differ on the subject of whether North Carolina’s Racial Justice Act is good public policy. The 2009 act, which allows North Carolina death row inmates to challenge their death sentences on the grounds of racial bias, was repealed by the General Assembly, but that repeal was vetoed by the governor. Now the act is hanging in the balance awaiting a possible veto override.
The public policy debate about whether the act ought to survive should only proceed if the public understands the facts and law surrounding it. Sadly, misinformation is rampant.
The greatest misapprehension concerning the act is that death row inmates who successfully challenge their sentences could go free. This is simply not true. The act only undoes the death penalty, stating that no person shall be executed based on a “judgment that was sought or obtained on the basis of race.” Under the act’s hearing procedure, if a defendant establishes that race was a significant factor in the imposition of his death sentence, the court is directed to vacate that death sentence and resentence the death row inmate to life imprisonment without the possibility of parole.
In other words, if a death row inmate successfully carries his burden under the act, he will move from death row and serve a sentence of life without parole. The sole remedy for a successful death row inmate is life in prison without parole.
Opponents of the act, however, have another more nuanced legal argument which is equally wrong. They claim that some death row inmates may ultimately obtain their freedom by contending that the act’s remedy as applied to them constitutes an unconstitutional ex post facto law.
To understand why this is wrong requires some background. The U.S. Constitution prohibits both federal and state governments from passing any “ex post facto Law.” The Constitution, though, provides no definition of what constitutes an ex post facto law (or even a translation from the Latin).
Ex post facto means “from after the action.” At its simplest, an ex post facto law retroactively makes some act criminal only after the fact. Fundamental fairness requires that persons should not be punished for acts that they were not on notice were illegal. The English Parliament had an unfortunate penchant for such punishments and the framers of our Constitution were determined to put an end to them. As Alexander Hamilton put it in the Federalist Papers, the “creation of crimes after the commission of the fact” was one of the “favourite and most formidable instruments of tyranny.”
Court interpretations of the ex post facto prohibition, however, have gone beyond that simple concept to include broader categories. The Supreme Court has found laws to be ex post facto if they deprive a defendant of a defense that would have been available at the time the crime was committed or if they increase the punishment for a crime after its commission. It is here that opponents of the act manufacture their parole scenario.
Until 1994, North Carolina had only two options in capital crimes: death sentences and life sentences with the possibility of parole. That year, the General Assembly created the new sentence of life without parole. Opponents of the act claim that death row inmates who committed crimes prior to 1994 — i.e., before the existence of the sentence of life without parole existed — could use an ex post facto claim to seek an alternative punishment of life with parole.
This argument is without legal merit for at least two reasons. First, it overlooks the entirely ameliorative effect of the act which gives those sentenced to death the chance at a less onerous sentence, namely life without parole. As the U.S. Supreme Court has put it, the death penalty is “is qualitatively different from a sentence of imprisonment, however long” and “unique in its total irrevocability.” Under the act, then, the only alternative punishment the inmate can suffer is a punishment less than execution.
Second, any inmate who raises a claim under the law necessarily waives any ex post facto claim. No inmate can claim the benefits of the act by electing to participate in the process while at the same time challenging the sole relief provided in the act. Tellingly, no inmate who has brought a claim under the act has claimed entitlement to a life sentence with parole.
Like most controversial laws, the act generates arguments pro and con. It’s important that those arguments be conducted on the basis of facts, rather than fanciful conjectures.
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Burley Mitchell is the former chief justice of the N.C. Supreme Court and now a partner in the Raleigh office of Womble Carlyle Sandridge & Rice, LLP. Press Millen is a trial lawyer in that firm. This essay first appeared in The News & Observer of Raleigh.