Let's see, institutionalizing bias as a means of preventing bias. That doesn't seem right to me. "The burden is on the defendant to prove that race was an underlying factor": Wonder how much that will cost taxpayers.
By a 7-6 vote, the House Judiciary I Committee approved a "clean" version of the Racial Justice Act (SB 461), which would prevent the execution of defendants who can prove race was an underlying factor in the decision to seek, or impose, the death penalty at the time of their trial. Meanwhile, a rough cost estimate has been published, with prosecutors and defense attorneys disagreeing over whether the bill would cost, or save, the state money.
The bill the House J1 Committee approved today does not include controversial clauses that would ensure the resumption of the death penalty in North Carolina, which were added on the Senate floor but later removed in the House Ways and Means Committee. It also contained several technical amendments to the version Ways and Means had passed. The bill now heads to the House Appropriations Committee, before coming up for a vote on the House floor. If House members succeed in keeping the bill free of the execution amendments, a compromise will likely need to be struck in conference committee.
After a discussion by committee members, Committee Chair Deborah Ross asked if anyone in the audience wished to speak against the bill. Nobody raised his hand.
Rep. John Blust (R-Guilford) offered an explanation: "People might not like the idea of coming forward and being against something that's titled 'the Racial Justice Act.'" He added:
"If we really want to talk about racial justice we need to think about the people out there right now, in the various communities in this state, some of whom live in very rough communities and face a survival question day-to-day, at the hands of people who often prey on them. And it's those African-American citizens, out in the community, that I have more concern about their racial justice, to be able to live their lives. That's going to be impacted with the DA's having to look over their shoulders in prosecuting capital cases from now on."
The Rev. William Barber II, president of the NAACP state chapter, walked to the podium to debunk the concern: "African-Americans want to see this passed."
In an interview after the vote, he cited better schools, jobs and economic development—not the death penalty—as "the deterrents that we need in regards to the issues [Blust] was talking about."
"The African-American community is somewhat conservative, when it comes to crime," he said. "We believe, if you do the crime, you ought to do the time. What we fight for is there not being one system of sentencing for black folk, and then another system for others."
He added: "No prosecutor that's really interested in justice is worried about anyone reviewing what they have done."
Simultaneously, a fiscal note (PDF, 96 KB) has been added to the Racial Justice Act's ncleg.net page, including broad estimates on the cost of implementing the bill. N.C. Indigent Defense Services estimated "there will likely be a net savings associated with implementing the bill," due to the removal of trial and post-conviction appeal costs when defendants successfully make a Racial Justice Act claim, meaning they would instead be sentenced to life without parole, or, if their trial has not yet begun, tried for life without parole.
The N.C. Administrative Office of the Courts (AOC) estimated that the extra court fees for Racial Justice claims in the first year to be between $2.4 million and $6.2 million, consisting mostly of defendants already on death row, who have one year to file a claim. However, the agency also noted that "to the extent a pretrial hearing resulted in a ruling that causes a case to proceed non-capitally, where it might otherwise have proceeded capitally, the subsequent costs for that case would be considerably less." AOC did not provide estimates of these long-term savings.
The N.C. Department of Justice estimated the additional costs of current death-row inmates making Racial Justice Act appeals to be $4 million, and did not factor in any potential savings from cases that would instead proceed non-capitally. (According to an Indy analysis of figures provided by the IDS, the state would have saved an estimated $36 million in defense costs alone, between the years 2001 and 2008, if it had sought life without parole, instead of the death penalty, in 733 capital cases.)
Both the AOC and Department of Justice arrived at their cost estimates by relying on a single capital murder trial in Durham, in which expert fees to investigate a claim of racial bias cost at least $25,000. (The defendant's motion wasn't heard; the charges have been reduced to noncapital murder, due to other circumstances.)
"Under the RJA, each case will have different data that defense and prosecution experts will have to consider and evaluate," the Department of Justice figures. "Thus, it is assumed that similar expense will be required for each of the 163 inmates currently on death row."
However, District Attorney Tracey Cline, the opposing attorney in the murder trial, told the Indy those costs should not factor into the Legislature's decision to approve or disapprove the Racial Justice Act. "Statistics in Durham County were applied in the wrong way. But in other, rural areas, it may be exactly what's needed," Cline said. "I don't want people to think that because of what happens in Durham, we should not support the Racial Justice Act, because I think that would be a travesty."
One way to keep such costs down is to launch a "coordinated statewide statistical study," which is what the IDS suggests in the fiscal note. Such a study, for which IDS suggests not-for-profit foundation funding, could produce "a baseline of data that may be disaggregated for purposes of analyzing racial discrimination claims by county, district and division."
In other words, each case would not have to re-invent the wheel, as the Department of Justice suggests.
Other than the one-year window for the 163 inmates presently on death row in North Carolina, the Racial Justice Act would allow defendants facing the death penalty to raise the claim either in pretrial hearings or after their conviction. (The one-year deadline would then expire, and the bill would then no longer apply to death-row inmates.)
Committee Counsel Hal Pell acknowledged there is "some overlap" with constitutional protections, but added that the bill "provides some specific guidance, and allows statistical evidence to be used, and provides a procedure for this claim."
The burden is on the defendant to prove that race was an underlying factor; meanwhile, the bill would also allow the prosecution to rebut a Racial Justice Act claim with statistical evidence, or by pointing to programs that seek to eliminate the consideration of race in sentencing decisions.