This week’s newsletter discusses the “crossover deadline,” the smoking ban in restaurants that is now law, and the Racial Justice Act and its potential effect on the death penalty in North Carolina.
CROSSOVER SUMMARY
Thursday was the “crossover deadline” at the General Assembly. The rules require that all bills introduced, except for fiscal bills (the budget for example), must pass the chamber in which they originated by the “crossover deadline” or they will not be considered further in this session of the General Assembly. The rationale for the rule is very practical. The thousands of bills that cannot garner majority support of one legislative chamber by the deadline do not merit further consideration in favor of focusing on those bills that have received majority approval in one chamber.
The Senate has passed 303 bills, and the House has passed 424 bills so far this session. You can review the bills passed by the Senate here and the bills passed by the House here.
In the remaining weeks of the General Assembly, the Senate will consider bills passed by the House and the House will consider bills passed by the Senate. House bills will dominate Senate committee meetings until the General Assembly adjourns later this summer. Disposition of bills not completed by the summer adjournment can be considered in the “short session” of the General Assembly in 2010.
I always welcome and appreciate your views on any legislation under consideration. Please feel free to contact me about any bills on which you feel strongly.
SMOKING BAN BILL
This past Wednesday the House passed the Senate’s version of the Smoking Ban Bill. Governor Perdue has signed the bill and it is now law.
Smoking in restaurants and bars is restricted, but the law does not restrict smoking in other workplaces, private clubs or private residences. Violation of the law imposes a $50 fine.
All bars and restaurants that currently permit smoking will be required to post signs notifying customers of the smoking ban and remove all ash trays from the premises.
REINSTATING THE DEATH PENALTY IN NC
The Senate has passed the North Carolina Racial Justice Act. You can view the bill here. The Senate version of the legislation will now be considered by the House. If the House passes the Senate’s version of the Racial Justice Act and Governor Perdue signs the bill into law, it would end the suspension of the death penalty in North Carolina that has been in effect, allowing the State to begin executing the 163 inmates currently on death row.
I am a strong supporter of the death penalty because I believe that it is an appropriate punishment for first degree murder. I also believe that, unjustifiably, race has and continues to play a factor in who receives the death penalty and who does not. The death penalty does not serve justice if it is not enforced fairly and justly.
These views of the death penalty were forged from my years of experience in the criminal justice system, serving both as an Assistant District Attorney and serving in a Public Defender’s Office while completing my third year of law school. I have done legal work on both the prosecution of a death penalty case as well as legal work for the defense in a death penalty case. I also provided legal assistance to an organization co-chaired by Reggie Holley, a former assistant to Senator Elizabeth Dole, and Reverend William Barber, the current president of the NAACP, that advocated for a defendant who was wrongly convicted and subsequently released from prison.
In 2003, an attempt was made to legislatively mandate a legal moratorium of the death penalty. The Senate passed a measure (which can be found here) that would have created a two year moratorium to study what reforms would be necessary to insure that the death penalty was imposed fairly. That legislation died in the House, but while this direct attempt failed, two separate issues arose in late 2006 that created an implied ban on the death penalty.
First, the NC Medical Board ruled in 2006 that physicians could not oversee lethal injection procedures used in state executions. Any physician attending to an execution would be subject to revocation of their medical license. As a result of the Medical Board’s ruling, no doctor would oversee a lethal injection. The presence of a licensed medical doctor is a requirement of the execution protocol developed by the NC Department of Corrections and approved by the NC Council of State in 2007. This created an indirect block on the state performing lethal injections.
The Department of Corrections sued the Medical Board to overturn the rule and to allow licensed physicians to attend executions. On May 1, 2009, the NC Supreme Court ruled in favor of the Department. Physicians cannot be sanctioned for attending an execution. For a more detailed explanation of the events leading to the Supreme Court’s decision, please visit here.
The second issue preventing the resumption of the death penalty, and the more important one at this point, is the conflict over the protocol for executions. A separate legal challenge was raised to mandate that the Council of State reconsider its approval of the protocols used in death penalty cases because the protocols were approved behind closed doors, arguably in violation of state law. The Council of State refused to reconsider the protocols and a legal action was initiated. The first State Court to hear the case found the procedure leading to the protocols was not flawed. This decision could be appealed and require further, perhaps protracted, legal action in the appeals courts. You can read about that case in more detail here.
The Racial Justice Act removes the requirement that the Council of State approve execution protocols. This would make the current legal action moot.
The Racial Justice Act addresses both the issue as to the fairness with which the death penalty is administered and the issue of the role of the Council of State in the administering of the death penalty. Race simply cannot be a factor in imposing the death penalty, yet defendants have not had a clear legal avenue to offer proof that their prosecution was influenced by race. The Racial Justice Act passed by the Senate on Thursday squarely addresses the issue of race. It allows court to consider statistics that potentially demonstrate racial bias in a current prosecution, or those who have been sentenced to death. For more detail on the act please see this video and news article.
North Carolina must also guard against any individual innocent of a crime being punished, particularly when receiving the death sentence. The General Assembly created the Innocence Commission, which is unique in the United States. It was established to review a prisoner’s claim of innocence. The Commission prioritizes and screens the cases that are presented, and then determines those deemed worthy of court review. This Commission is another protection that ensures the death penalty is correctly applied in every case. The legislation creating the Commission can be found here and this Duke Law Review Article provides a more detailed analysis of the Commission and its national legal impact.
The implied moratorium that has been in effect since 2006 brought about both the Innocence Commission and the Racial Justice Act.
I voted for the Racial Justice Act as means to resume executions for those who truly deserve the ultimate punishment while still providing reasonable safeguards against racial bias in death penalty prosecutions and ensuring that the innocent are not punished.
As always I welcome your comments on this newsletter or anything else that concerns you. My office is here to help in whatever manner we can. It is an honor to serve as your Senator and I will do everything in my power to live up to that honor.
Sincerely,
Doug Berger