In two decisions on Friday with broad implications for the future of capital punishment in North Carolina, the state Supreme Court ruled that the General Assembly’s repeal of the Racial Justice Act in 2013 cannot be applied retroactively. 

Now, a majority of those on Death Row can seek to have their sentences overturned, further unraveling a system that has not executed anyone since 2006. 

Passed in 2009, the Racial Justice Act said that no one “shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.”

It gave defendants the opportunity to demonstrate that “race was a significant factor in decisions to seek or impose the sentence of death” by showing evidence that the state sought the death penalty more often for one race than another, the state sought the death penalty for offenses convicted against victims of one race more than another, or that prosecutors had used peremptory strikes during jury selection on the basis of race. 

As The Appeal and INDY Week previously reported, North Carolina prosecutors were taught for decades how to exclude Black jurors without specifically doing so on the basis of race.   

Of the current 143 Death Row inmates, 78—or 55 percent—are Black, according to the Department of Public Safety. Another 11 are classified as nonwhite. Only six Death Row occupants were sentenced in 2013 or later. 

The court ruled 6-1 in two separate cases, with Justice Paul Newby the dissenting vote.

Writing the majority opinion, Justice Anita Earls based her argument on the ex post facto clause of both the U.S. Constitution and the state Constitution—in other words, that you can’t increase a sentence after the fact. Once the General Assembly passed the RJA, those who were eligible for it were eligible for it, she wrote.

The legislature could revoke that for future Death Row inmates, but not for current beneficiaries.  

By the time the Racial Justice Act was repealed in 2013, about 90 percent of death row inmates had filed for relief. Four of them—Tilmon Golphin, Christina Walters, Marcus Robinson, and Quintel Augustine—had their sentences reduced to life without parole. After the RJA was repealed, however, they were resentenced to death. Their cases have yet to be heard. (The RJA does not make inmates eligible for parole.)

“The death penalty is the apex of a criminal legal system that has failed people of color,” says Gretchen Engel, the executive director for the Center for Death Penalty Litigation in Durham and the attorney for defendant Rayford Burkes, said in a statement.  

UPDATE: A previous version of this story misidentified Anita Earls as chief justice. 

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