PW exclusive: Inside the state Supreme Court’s landmark Racial Justice Act ruling

When Andrew Darrin Ramseur, a Black man, walked into court in Iredell County on May 10, 2010, to face charges related to the murder of two white victims, there was a noticeable difference about his side of the room: The first four rows behind the defense table were cordoned off by yellow crime scene tape.

When his attorney asked the court to remove the tape, the judge said the bailiffs would handle security and let the tape remain. Ramseur’s Black family members were forced to sit in the back of the courtroom, what seemed to they and other observers to be the proverbial “back of the bus,” while white family members of the victims sat in the first row behind the prosecution’s table.

The next day, Ramseur’s attorney filed another motion and said the yellow tape segregated the courtroom and could create a substantial risk that race would be a factor in the proceedings.

The judge ordered the tape to be removed but only allowed Ramseur’s family to move up one row.

Six members of the all-white jury that convicted Ramseur of two counts of murder and sentenced him to death were in the courtroom on the first day of his trial and witnessed the crime scene tape.

The Racial Justice Act (RJA) was a law that, for a brief time, allowed individuals on death row to seek sentences of life without parole if they could prove racial bias or discrimination was a significant factor in the decision to seek or impose the death penalty in their case.

The law wasn’t about the crimes those people on death row committed, it was about whether they didn’t receive a fair trial for those crimes because of the color of their skin. The relief offered by the measure wasn’t a “get out of jail free” card. Those who could prove racial taint would still ultimately be sentenced to life in prison without parole; they just wouldn’t be executed.

Ramseur sought that relief, and his case was pending in 2013 when North Carolina’s Republican-dominated legislature, along with then-Gov. Pat McCrory, repealed it and and made it retroactive. His case and more than 100 others pending at that time ended without hearings about their claims of discrimination.

On Friday, the North Carolina Supreme Court ruled that the retroactive application of the repeal was unconstitutional and that Ramseur and all the others with pending motions for relief could proceed in the lower courts.

It was a 6-1 opinion written by Justice Anita Earls with a dissent written by lone Republican Justice Paul Newby. Earls also authored a similar opinion Friday in another pending RJA case, State v. Rayford Lewis Burke. That was a 5-1 opinion, with Justice Sam Ervin recusing himself  and Newby dissenting.

Both opinions were released during the backdrop of nationwide protests calling for equal justice for Black communities after the police killing of George Floyd, a Black man. The opinions inflamed Republicans who made repealing the law a top priority in the 2010 election, but they heartened advocates opposed to the death penalty and attorneys who frequently work capital cases.

“We’re a nation of laws, and when people have trials, they have to be fair trials, and part of a fair trial is that you don’t get a harsher punishment or a whiter jury because of the color of your skin,” said Gretchen Engel, Executive Director of the Center for Death Penalty Litigation (CDPL) and one of Burke’s attorneys.

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When race plays a factor in sentencing a defendant to death, the most severe punishment of all, it’s not a legitimate verdict, Engel said.

She said the court rightly acknowledged in a footnote on page 28 of the Ramseur opinion that other remedies available to capital defendants were failing to adequately address racial discrimination in the judicial process.

“As part of its contention that the RJA and its repeal amount merely to procedural changes in the law, the State catalogues at length the existing legal doctrines and mechanisms for addressing racial discrimination in the criminal justice system,” the opinion states. “None of these protections, however, are as robust as the substantive guarantees provided by the RJA to these defendants. Indeed, the unique and otherwise unavailable protection afforded by the RJA was the reason for its enactment and, presumably, for its subsequent repeal.”

Engel said Friday afternoon she hadn’t yet been able to reach Burke to tell him the news. She called the decision momentous and said it sends a clear message that the high court will not allow North Carolina to ignore evidence that racism infected the death penalty

“This was also an urgently needed decision as our state and our nation confront a long history of racism,” she said. “The death penalty is the apex of a criminal legal system that has failed people of color.”

Just days before the opinion was released, Chief Justice Cheri Beasley responded to the protests against police violence with a candid admission that the state’s courts have helped perpetuate racial disparities.

“The data also overwhelmingly bears out the truth of those lived experiences,” Beasley said earlier this week. “In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty.”

It’s those type of statistics that led to the passage of the RJA in the first place, which at the time marked the first instance a death penalty state allowed for a systematic review of racial bias in capital cases.

Rep. Pricey Harrison (D-Guilford), one of the primary sponsors of the original RJA law, said it stemmed from a committee on capital punishment in 2005 or 2006 that studied issues around how the death penalty was applied in North Carolina. The two biggest findings were about racial discrimination and mental health, the latter of which was not addressed in any substantive way.

“It was clear that we had documented racial discrimination,” Harrison said. “There was just a real need to provide some equity here and fairness.”

It wasn’t an easy sell, though. She remembers that it was a lot of work to push the legislature’s then-Democratic leadership to pass the measure and that the Black caucus fought hard for it.

Once the law passed, it became a top target for Republicans. Harrison said they sent out “a nasty mail piece” about its passage that included false information and that initially resonated with even some of her more progressive constituents.

“People had just received it and were like slamming doors in my face,” she said in a phone interview Friday. “It was misleading and ugly – it made it sound like these people are going to get out, move into your neighborhood and just start murdering you.”

The mailer says “Meet your new neighbors… You’re not going to like them very much” on the front with a photo of a masked man breaking into a house. On the back, it has mug shots of two people on death row – including Henry McCollum, who has since been exonerated by DNA evidence – and states, “Thanks to Pricey Harrison, death row inmates could leave prison early and move in next door. Keep death row inmates where they belong and get rid of criminal coddler Pricey Harrison.”

The mailer refers in a footnote to the RJA and states that Harrison voted “to allow activist judges to weaken the sentence of death row inmates … making some eligible for parole immediately,” which wasn’t true.

Republicans took control of the House and Senate in 2011, but they had to wait for McCrory to take office before they could repeal the law without a veto, which they did in 2013, Harrison recalled.

She applauded the court Friday for its ruling. She also talked about how the courts have been an important check on the legislative branch, which has been prone to overreach since Republicans took over.

“It’s been a really important backstop to have a fair and balanced judicial system to protect us from the heavy handedness,” Harrison said.

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Some of the state’s leading Republicans were dismayed about the decision.

“Guys, it was a way for Democrats to end executing vicious cold-blooded child killers, cop killers and the worst murders [sic] known to man, without telling the voters and hiding behind race,” tweeted Dallas Woodhouse, the former executive director of the state Republican Party. “This had little to do with race and nothing about justice. Dems won. Killers won. Victims lost.”

Newby’s 42-page dissent didn’t employ such extreme language, but his arguments did have a flair for the political.

“When properly viewed, the General Assembly intended the RJA to provide a procedural mechanism by which a defendant could collaterally attack a capital sentence,” his Ramseur dissent states. “The General Assembly did not intend to make a substantive change to the death penalty sentencing law. As such, the General Assembly had the constitutional authority subsequently to amend it and repeal it.”

He also argued that by otherwise interpreting the RJA, the majority was intruding on the people’s rights by granting policymaking power to the judiciary to effectively eliminate the death penalty in North Carolina.

A statistical study commissioned as a result of the RJA found overwhelming evidence that in scores of North Carolina capital cases over two decades, prosecutors illegally struck Black people from juries because of their race. And death row prisoners across the state unearthed disturbing evidence of racism in their trials that had never before been examined by the courts, according to the CDPL.

Burke was convicted in Iredell County of one count of first-degree murder and sentenced to death by an all-white jury in 1993. During closing arguments in his case, the prosecutor referred to Burke as “a big, Black bull.”

In the Ramseur decision, the high court held that applying the RJA repeal retroactively violates the constitutional prohibition on ex post facto laws, or laws that change the legal consequences of actions that were committed before the enactment of the law.

Earls wrote that she and concurring justices express no opinion on the ultimate merits of Ramseur’s RJA claims, nor those of any other

capital defendant, and leaves those issues to the trial courts to adjudicate. They acknowledged in the opinion though that racial discrimination is a mar upon the entire criminal justice system.

“The harm from racial discrimination in criminal cases is not limited to an individual defendant, but rather it undermines the integrity of our judicial system and extends to society as a whole,” the document states.

Friday’s rulings were also based on the precedent of State v. Keith, an 1869 case in which the state Supreme Court held that a Confederate soldier charged with war crimes was protected by a post-Civil War amnesty law and could not be prosecuted, even though the amnesty law had since been repealed.

The death row prisoners argued that if the Constitution protects Confederate war criminals, it must also protect their right to present evidence of race discrimination against Black jurors even after the repeal of the RJA.

“In light of decades, if not centuries, of mistreatment and brutalization of Black citizens at the hands of America’s criminal system, today’s decision to take the death penalty off the table when there is evidence of racial bias is just one small but important step toward achieving the broad-based reform needed in North Carolina, and across the country,” said Henderson Hill, a prominent ACLU attorney who represents RJA defendants. “It’s something to celebrate, but also a reminder that we must keep working for justice.”

Andrew DeSimone, one of Ramseur’s appellate defenders, said Friday that it “felt fantastic” to get news of the court’s opinion.

“It has huge implications for fairness and equity within the criminal justice system,” he said, adding that it also shows lawmakers they can’t identify a problem in capital cases, adopt a remedy and then just take it away.

DeSimone was able to visit Ramseur on Friday to deliver the news. He was excited and happy, but also tired, he said.

“It’s been a long road,” DeSimone said.

There are four cases still pending at the high court that involve individuals who received relief under the RJA. They were granted life without parole but then sent back to death row after the repeal of the law.

Disclosure: Rick Glazier, executive director of the North Carolina Justice Center, the parent organization of NC Policy Watch, was involved in legislative efforts to resist the repeal of the RJA while a member of the state House and the successful litigation described in this story.