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The Racial Justice Act: GOP could repeal or amend landmark legislation

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It was a crisp morning in January. The sky, choked with heavy gray clouds, would soon dump wet snowflakes onto North Raleigh roads. Still, more than 100 congregants lined the benches of the Beth Meyer Synagogue for the usual Saturday service, and for something even more extraordinary—to meet a former death row prisoner exonerated after 15 years.

With surprising poise for a man who insists he's quite shy, Ed Chapman, 43, stood before an audience of strangers. Smiling, and even joking at times, Chapman recounted the lies and negligence that wrongfully sent him to prison for the deaths of two Catawba County women. The moment of his conviction, Chapman said, "was an out-of-body experience."

A judge later found investigators withheld evidence in Chapman's case. One of the women he allegedly murdered may actually have died of a drug overdose. A police officer lied on the witness stand. And, Chapman said, one of the white men on his jury admitted openly to being racist.

"He didn't hide it," said Chapman, who is black. "And to this day, I respect him for being up front about it."

Chapman has repeated these details dozens of times. He was one of three black death-row inmates cleared between 2007 and 2008 because of incomplete investigations or insufficient evidence. After they were released, the former prisoners became part of a campaign for criminal justice reform, specifically the N.C. Racial Justice Act.

The Racial Justice Act passed in August 2009, propelled through the Legislature by death penalty opponents, civil rights advocates and a coalition of dogged Democrats. The law allows death row defendants to appeal their sentences on grounds of racial discrimination. If defendants can show statistics proving that race played a role in their sentencing or in a prosecutor's decision to seek the death penalty, they would avoid being put to death. The defendants would instead be allowed to serve life sentences without parole.

The legislation has been heralded nationally as a leap for civil rights, notable especially for the South and a state with a history haunted by racial inequity. But erasing part or all of the statute is on the agenda for the new Republican majority when it takes hold of this legislative session on Wednesday. Although other priorities—balancing the budget and easing unemployment—are expected to take precedence, incoming House Majority Leader Paul "Skip" Stam, R-Wake, has said he's pushing to repeal the Racial Justice Act.

In many districts, criticism of the Racial Justice Act helped lift Republicans into power. Days before the 2010 elections, the state Republican Party even distributed flyers falsely contending the law would free convicted murderers and rapists.

Opponents also claim the law is clogging courts with new litigation, at taxpayers' expense. "The intent may have been fine, but the actual operation of this act is one that is essentially... a re-litigation of almost everybody on death row in North Carolina," said Rep. Nelson Dollar, R-Wake. "And we simply don't have the resources to give somebody a sixth, seventh, eighth bite at the apple."

But there's no logjam to speak of, supporters say. Hearings on the 149 claims filed by death row inmates won't begin until next week. Only a few cases have cleared the initial filing, but most of the appeals are still awaiting responses from prosecutors, said representatives with the Center for Death Penalty Litigation, whose attorneys are representing 40 of the prisoners. Judges will decide which cases will be heard. Lawyers handling the appeals wanted to consolidate many of the cases, but prosecutors have so far refused.

"That would save a lot of time and resources and a lot of confusion and chaos," said Gerda Stein, spokeswoman for the Center for Death Penalty Litigation. "Many of those issues could be resolved in a simpler and cheaper way."

During the 2009 debate over the law, the N.C. Administrative Office of the Courts estimated court proceedings stemming from the first year of the Racial Justice Act—when defendants already on death row would file their claims—would cost between $2.4 million and $6.2 million. But those who championed the bill, including Sen. Floyd McKissick, D-Durham, say the statute could also save the state money because defendants in new capital cases may address claims of racial bias in the early stages of their cases. Capital cases are expensive not only in their prosecution but also the subsequent appeals. And in many cases, taxpayers foot the bill for the lawyers who defend suspects facing the death penalty. Between the 2002 and 2006 budget years, the state paid an average of $104,000 in defense fees for capital trials in which prosecutors sought the death penalty and took the case before a jury. The figure is from a 2008 report from N.C. Indigent Defense Services, a publicly funded agency that provides lawyers for defendants who can't afford one.

Supporters of the Racial Justice Act say opponents have long relied on the same arguments.

"They totally disregard the studies that have been very painstakingly produced since the passage of the act," said Ken Rose, senior attorney for the Center for Death Penalty Litigation. Those studies found patterns in jury selection based on race, and that the application of the death penalty was tied to the race of the victim. The findings were entered in several appeals cases in Wake County last fall.

Researchers at Michigan State University conducted the most comprehensive review, examining cases from 1990 to 2010. They found that in 173 death penalty proceedings, prosecutors were more than twice as likely to exclude black members of a jury pool than nonblack members during jury selection. According to a figure in the report, it's nearly impossible that a racial disparity of this magnitude would occur in a jury selection process free of racial bias.

The researchers also reported that from 1990 to 2009, defendants in North Carolina were more than two and a half times as likely to be sentenced to death if one or more of the crime victims was white. A study co-authored by researchers at the University of Colorado and Northeastern University found similar results.

Both reports found that even after using statistical controls to consider other aggravating factors, defendants were still more likely to be sentenced to death if the victim of the crime was white. In one of the studies, aggravating factors included whether a defendant committed multiple felonies at once, or whether there was more than one victim.

The Michigan State report also showed that among the 173 capital cases, 33 were decided by all-white juries. Last June, an all-white jury in Iredell County sentenced Andrew Ramseur, who is black, to death for the murders of two white convenience store workers.

The release of the findings garnered little response from critics, Rose said.

Tangled up in the death penalty legislation is the ongoing national debate on the constitutionality of executions by lethal injection. North Carolina enacted a moratorium on the death penalty in 2006. Republicans in 2009 tried to reinstate the death penalty through a failed amendment to the Racial Justice Act that could have bypassed pending litigation on the issue.

Republicans have long argued that the Racial Justice Act is merely a ploy by death penalty opponents to prolong the moratorium on executions. But McKissick and Rose both say the strength of the movement is in the fact that both death penalty opponents and supporters pushed for the Racial Justice Act, agreeing that if it was going to be used, it should be applied fairly.

Just as those groups, including the N.C. Coalition for a Moratorium and the NAACP, mobilized in 2008 to drive the Racial Justice Act to the Legislature, they are expected to lead a vocal campaign to oppose a possible repeal.

"We're appalled that a Legislature that voted two years ago to apologize for slavery is now trying to repeal a bill that's trying to purge the justice system of racial bias," said Rob Stephens, associate director of the Anti-Death Penalty Project of the N.C. NAACP.

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