By a 36-10 vote, the N.C. Senate has passed the Racial Justice Act (SB 461). The landmark bill 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. (For background on the bill, see “De facto death penalty moratorium may end,” Independent Weekly, May 13, 2009.) The bill will now move to the House, which is considering a similar version today.

“Let’s not be naïve. [Race] has been a factor, at times, in the past, and we need to recognize that,” Sen. Floyd McKissick Jr. (D-Durham), the Senate bill sponsor, said on the Senate floor. “I’d much rather see a person end up in life in prison, without parole, because it may be fair and appropriate for the offense he committed.”

The vote came shortly after the Senate rejected an amendment, by Senate Minority Leader Phil Berger (R-Guilford), that would have prevented death-row inmates, who had previously argued for racial discrimination in their trials, from “relying on the statistical advantages that this bill would allow you to have.”

‘Review after review, appellate courts determined that race was not a factor in particular cases,” Berger said.

However, that was the point of the billas de jure racism in the courtroom has been difficult to prove. Under the Racial Justice Act, defendants would be allowed to present evidence that race was an underlying factor in decisions to seek, or impose, the death penalty in the county, prosecutorial district or judicial division where they were tried. (This language differs from the House version, which would also consider statewide statistics; an earlier version of the Senate bill would have included contiguous prosecutorial districts.) If defendants can prove race was a factor, their sentences would be reduced to life in prison without parole.

“We’re not allowed to present a pattern of prosecution based on race, in the courtroom,” Mark Kleinschmidt, executive director of Fair Trial Initiative, said in an interview. “If you have a prosecutor selecting people for the death penalty, based on race, they’re shielded, unless there is direct evidence.”

He added: “You’re allowed to talk about [de facto racism] with access to housing. You don’t have to have direct evidence that a landlord is using the n-word to deny you a place to live. You can show a pattern and practice of discrimination.”

The bill passes with an earlier amendment, also by Sen. Berger, that would exempt the Council of State from approving the execution protocolwhich is currently holding up executions in the state, due to an Office of Administrative Hearings ruling that the Council of State’s approval violated state administrative code. The amendment would also prevent doctors from being punished for participating in executions, an issue that landed in the N.C. Supreme Court but was resolved by a 4-3 vote, allowing the doctors to participate without punishment. (Again, see “De facto death penalty moratorium may end”.)

The House version of the bill is also on the House calendar today. Check back for updates to see who voted for, and against, the Senate bill.