- Sen. Floyd McKissick
After approving versions of roughly three dozen bills, hammering out a state budget and deliberating for more than three hours, the N.C. Senate had one item left on its agenda the night of Aug. 5: the Racial Justice Act. The Senate had passed a version of the landmark bill, which would prevent the execution of defendants on the basis of race. Yet it did so only after tacking on a controversial amendment—introduced by Senate Minority Leader Phil Berger (R-Rockingham)—that would simultaneously ensure the resumption of capital punishment in North Carolina.
When it came time for the Senate to concur with a "clean" House version that purged the controversial clauses, Sen. Floyd McKissick Jr. (D-Durham), the bill's sponsor, stood up, pointed his finger to the Senate chamber's door and left in a hurry. Later, the Senate recessed for nearly an hour while the Democrats held a private caucus on the bill.
At roughly 7:45 p.m., the Democrats emerged, and McKissick, who had delayed the vote twice in the past week to garner enough supporters, said, "I would simply ask my colleagues to concur."
Senate Majority Leader Tony Rand (D-Cumberland) and two other senators "paired" their votes with legislators who were absent, which means they cast offsetting votes but essentially dodged the issue. The final tally was 25-18, ensuring the bill's passage and ratification. On Aug. 11, Gov. Beverly Perdue signed the bill into law.
Sen. Charles Albertson (D-Duplin, Lenior and Sampson), who voted for a previous version of the bill, was the only Democrat to vote against it that evening.
"I don't think we'll know the full consequences of this bill, as far as cost," Albertson said in an interview.
Following the Senate's original approval, the N.C. Administrative Office of the Courts and the N.C. Department of Justice estimated the Racial Justice Act would cost North Carolina between $2.4 million and $6.2 million in the first year, the window of time for current death-row inmates to file a claim under the bill. However, AOC also acknowledged that state trial costs would be "considerably less" in instances in which a Racial Justice Act claim results in a noncapital trial that would have proceeded capitally. Meanwhile, the N.C. Office of Indigent Defense Services estimated the bill would ultimately save the state money.
Albertson also suggested that some defendants previously on death row could be paroled as a result of the Racial Justice Act. However, the bill specifies that defendants who can prove race was an underlying factor in the decision to seek or impose their death sentence will instead be sentenced to or tried for life in prison without the possibility of parole.
On the senate floor after the vote, McKissick greeted supporters of the measure, including Rep. Larry Womble (D-Forsyth), a House sponsor who offered McKissick a handshake. "It ain't easy standing up to the majority leader," McKissick said. "But it worked out. And we did all right."
In an interview, McKissick was mum about what transpired in the Democratic caucus, other than to say, "We did a lot of talking, and we also did some soul-searching, and I'll leave it at that."
Rand, the Senate majority leader, also declined comment on the caucus' discussion but said he had reservations about its result. "I thought taking away the amendments made the bill subject to political attack," he told the Indy.
Sen. Doug Berger, a Democrat representing Franklin, Granville, Vance and Warren counties, told the Indy Democrats did not have the votes to pass the bill at the start of the day. "(McKissick) relentlessly worked it, and by the time we got into the private room, the tidal wave went the other way. For the most part, the Democrats came out right on this issue."
Doug Berger, who said he supports the death penalty, added: "I think most people in the state want to know, when the death penalty is administered, that race didn't have anything to do with it—and that's what this law is going to do."
Before the vote, Phil Berger, the Republican leader, repeated the charge that Democrats who voted for the bill were essentially voting against capital punishment, an argument Rand later said contained "some truth."
"It will make it so the imposition of the death penalty in North Carolina will probably not occur any longer," Phil Berger said. "And it will make it so that every case on death row in North Carolina will be reopened, not because of a question of the innocence or the guilt of the person on death row, not because there's even a procedural question of what occurred in their trial, but simply because of a statistical argument that could be made."
Womble rejected that argument.
"My family believes in the death penalty," he said in a later interview. "Hugh Holliman, the (House) Majority Leader, believes in the death penalty. But he believes in this bill to make sure the death penalty is fair and equitable and objective." Womble added: "It's the tough bills that test our character, and this was the right thing to do. Regardless of politics, regardless of what's sociable or acceptable, right is simply right."