On the General Assembly floor, the debate among legislators was fierce over the law allowing defendants to challenge their death sentences on the basis that their race helped propel them to death row and a lethal injection.
Prosecutors across the state called the law a backroom attempt to end the death penalty and railed against the use of statistics, saying that the law would open the door for white and black defendants to equally claim racial discrimination.
But supporters pointed to studies finding that the majority of the people on death row were there for killing white people and that prosecutors were more likely to seek the death penalty when the victim was white.
The year was 1998, and the state was Kentucky, when that state became the first in the country to adopt a Racial Justice Act.
Thirteen years later, North Carolina is going through nearly the same debate, and an equal measure — if not more — of hot debate. Gov. Bev Perdue recently vetoed a bill that would have effectively repealed the law that she signed in August 2009. She is calling state legislators back to Raleigh on Jan. 4 to consider overriding her veto.
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The North Carolina and Kentucky laws, although they are known with the same name, couldn't be more different. The law in Kentucky isn't retroactive for defendants sentenced to death before 1998, and they can only raise a claim before a trial. They also have to prove by clear and convincing evidence that racial bias played a role in their individual case, which limits the use of statewide statistics. The law also prohibits defendants from claiming racial discrimination in a jury's decision to impose the death penalty.
Both laws in Kentucky and North Carolina have drawn detractors.
The American Bar Association released a report this month calling Kentucky's Racial Justice Act ineffective. The state hasn't collected any data to see if the law works, and it doesn't appear that any defendant has successfully challenged a decision to pursue the death penalty using the law, according to the study and officials at the Kentucky Department of Public Advocacy.
"Shortcomings of the Kentucky Racial Justice Act must be corrected to ensure that the act serves as an effective remedy for racial discrimination in death penalty cases," the association said about the report.
The report called for a temporary moratorium on Kentucky's death penalty. Among its findings was that of the last 78 people sentenced to death in Kentucky, 50 have had their sentences overturned on appeal by state or federal courts.
North Carolina's law goes much further than Kentucky's law. For one thing, the law here is retroactive. More than 95 percent of North Carolina's 158 death-row inmates have filed claims under the Racial Justice Act.
Defendants in North Carolina can more easily use statistics because the law doesn't require them to prove racial discrimination in their individual case. The law says defendants can present evidence to show that racial bias played a significant role in their death sentence in their county, prosecutorial district, judicial district or the state.
In other words, defendants have to show a historical pattern of racial discrimination.
Kentucky's law sets up a higher standard for defendants to prove racial discrimination, said Allison Connelly, a professor at the University of Kentucky College of Law and a member of the American Bar Association's assessment team that produced the report.
"It's darn near impossible," she said.
The state has no numbers for how many people in Kentucky have filed under the Racial Justice Act, said Tim Arnold, the director of the post-trial division at the Kentucky Department of Public Advocacy, whose attorneys represent poor defendants.
Arnold said he knows a couple of cases where defendants used the law to ask potential jurors about possible racial bias during jury selection. But he said he hasn't heard of any case where a defendant successfully challenged a decision to pursue the death penalty using the law.
The opposition was so heated that supporters had to compromise to get the law passed, said Gerald Neal, the Kentucky state senator who introduced the legislation.
"It took a long time to get it to where we got it," he said.
He said prosecutors were opposed to anything that would weaken their discretion about using the death penalty.
Neal said he has no idea how the law that he lobbied for is working 13 years later. There's no data, he said.
The recent report from the American Bar Association agrees.
"The lack of data collection and reporting on the overall use of capital punishment in Kentucky makes it impossible for the commonwealth to determine whether such a system is operating effectively, efficiently and without bias," the report said.
McClesky v. Kemp
The push for Kentucky and North Carolina to pass these laws came from a 1987 U.S. Supreme Court case called McClesky v. Kemp.
In that case, Warren McClesky, a black man on Georgia's death row for killing a white man during an armed robbery, said his death sentence should be thrown out because of racial discrimination. As evidence, he used a study that found that defendants in Georgia charged with killing white people were more likely to get the death penalty.
The study also showed that prosecutors sought the death penalty in 70 percent of the cases in which the defendant was black and the victim was white.
The Supreme Court rejected McClesky's arguments, saying the study didn't prove that racial discrimination happened in McClesky's case.
The decision, however, opened the door for the federal government and then state legislatures to pass legislation to address the issue of race and the death penalty. Congress tried unsuccessfully in the late 1980s and early 1990s.
Then in 1992, a group of Kentucky residents began lobbying for a state version of the Racial Justice Act after a study found that blacks accused of killing whites had a higher chance of facing and getting the death penalty, according to a 2005 article in the Washington and Lee University's Race and Ethnic Ancestry Law Journal.
At the time, blacks were 7 percent of the state's population but represented 26 percent of those on death row, according to a 1998 article about the legislation in the Lexington Herald-Leader.
In North Carolina, the case of Darryl Hunt, a black man from Winston-Salem wrongfully convicted of killing a white woman, helped spark the effort to get the Racial Justice Act into law. Hunt was exonerated in 2004 after new DNA evidence led to another suspect, Williard Brown, who confessed.
Hunt had spent more than 18 years in prison for the crime and had nearly gotten the death penalty in the first of two trials.
Two of the chief sponsors for the legislation were Winston-Salem Democrats: Rep. Earline Parmon and Rep. Larry Womble, and the two filed the bill several times before it passed in 2009.
The first evidentiary hearing under the Racial Justice Act is scheduled for next month in Cumberland County in the case of Marcus Robinson, who is on death row.
Forsyth County had the first hearing on claims under the Racial Justice Act this year when prosecutors challenged the constitutionality of the law in two cases — Carl Stephen Moseley and Errol Duke Moses. Judge William Z. Wood of Forsyth Superior Court declared the law constitutional.
Impossible standard
Prosecutors in North Carolina have argued that they have no problem with the idea behind the Racial Justice Act, but that they do have problems with its practical implications.
No prosecutor should have to be judged on the basis of what another prosecutor in another county did, they said.
That's why the use of statewide statistics is wrong, said Forsyth County District Attorney Jim O'Neill.
"Ultimately, the decision about whether a criminal should die for his crime is not left up to the prosecutor, law enforcement or a judge," he said. "It's left up to 12 members of our community."
He said the law should comply with the federal precedent that was set in the McClesky decision. The proposed legislation to repeal the Racial Justice Act does that, prosecutors say.
The law requires defendants facing the death penalty and death-row inmates to prove "discriminatory purpose" in either the decision to seek or impose the death penalty. They have to prove that racial discrimination happened in their particular case, which would essentially prohibit the use of statistics.
But the problem with McClesky and the Kentucky law is they set up a standard too difficult to meet, others say.
"There's no one since McClesky who has succeeded in a claim of race discrimination," said Ken Rose, a lawyer with the Center for Death Penalty Litigation in Durham. "Almost literally no one in the country. The bar is impossible to meet."
Prosecutors would have to acknowledge racial bias in pursuing the death penalty for a defendant to prove racial discrimination happened in their case, Rose said.
The Rev. Pat Delahanty, the chairman of the Kentucky Coalition to Abolish the Death Penalty, said Kentucky's law was never meant to imply that all prosecutors were racist. It was an attempt to acknowledge that racial bias plays a role in how the death penalty is meted out, he said.
"What they don't want to come to grips with is no one is accusing them of being consciously racist," he said about prosecutors' opposition to the law. "They're like the rest of us. We have 300 years of slavery, and there's bias in this country and it's difficult to get rid of it."
