State v. Ramseur ( 2020 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 388A10
Filed 5 June 2020
STATE OF NORTH CAROLINA
v.
ANDREW DARRIN RAMSEUR
On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review an order dated
3 June 2014 entered by Judge Joseph N. Crosswhite, Senior Resident Superior Court
Judge, in Superior Court, Iredell County, dismissing defendant’s motions for
appropriate relief. Heard in the Supreme Court on 26 August 2019.
Glenn Gerding, Appellate Defender, by Daniel K. Shatz and Andrew DeSimone,
Assistant Appellate Defenders, for defendant-appellant.
Joshua H. Stein, Attorney General, by Jonathan P. Babb and Danielle Marquis
Elder, Special Deputy Attorneys General, for the State-appellee.
Cassandra Stubbs for ACLU Capital Punishment Project, Burton Craige for
North Carolina Advocates for Justice, and James Coleman and Irv Joyner for
North Carolina Conference of the NAACP, amici curiae.
EARLS, Justice.
Defendant, Andrew Darrin Ramseur, was convicted of two counts of first-
degree murder and sentenced to death in 2010. After his trial, defendant filed a
motion seeking relief pursuant to the newly enacted North Carolina Racial Justice
Act on the basis that race was a significant factor in the decision to seek or impose
the death penalty in his case. Before the trial court ruled on defendant’s motion, the
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General Assembly amended the Racial Justice Act in 2012 and then, in 2013, repealed
the Racial Justice Act in its entirety. The trial court determined that this repeal
rendered defendant’s pending motion void and therefore dismissed defendant’s Racial
Justice Act claims. Here we are asked to decide the constitutionality of the
retroactive application of the repeal of the Racial Justice Act. For the reasons stated
herein, we hold that applying the repeal retroactively violates the constitutional
prohibition on ex post facto laws, and therefore we reverse the trial court.
Background
On 31 December 2007, defendant was indicted for two counts of first-degree
murder and one count of robbery with a dangerous weapon in connection with the 16
December 2007 murders of Jennifer Lee Vincek and Jeffrey Robert Peck. On the
same day, the State filed a notice of its intent to seek the death penalty in defendant’s
case. Before trial, on 7 December 2009, defendant filed a “Motion for Change of
Venue” based upon allegations of prejudice stemming from pre-trial publicity and
racial tensions in Iredell County that were exacerbated by the fact that he was a black
defendant accused of killing two white victims. In his motion, defendant alleged that
the likelihood of a death sentence in Iredell County and the surrounding area was
greater because of, inter alia, substantial pre-trial publicity and public comments
including: the distribution to media outlets of surveillance footage of the crime,
inflammatory media coverage of the case, and the prevalence of overtly racist
comments and discussion on community internet blogs and websites. On a similar
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basis, defendant simultaneously filed a “Motion to Continue Trial to Investigate
Claim Pursuant to the Racial Justice Act” to examine whether the decision to seek
the death penalty was free from racial discrimination.
The North Carolina Racial Justice Act (the RJA, or the Original RJA) was
ratified by the General Assembly on 6 August 2009 and provided that “[n]o person
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.” North Carolina Racial
Justice Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws 1213, 1214 [hereinafter Original
RJA] (codified at N.C.G.S. § 15A-2010 (2009)) (repealed 2013). The RJA implemented
a hearing procedure authorizing a defendant to raise an RJA claim either at the Rule
24 pretrial conference or in postconviction proceedings. Id., § 1, 2009 N.C. Sess. Laws
at 1214–15. Upon the filing of an RJA claim, the RJA mandated that “[t]he court
shall schedule a hearing on the claim and shall prescribe a time for the submission
of evidence by both parties.” Id., § 1, N.C. Sess. Laws at 1214. With respect to the
evidence required to establish racial discrimination, the RJA placed the burden of
proof on the defendant and provided, in pertinent part:
(a) A finding that race was the basis of the decision
to seek or impose a death sentence may be established if
the court finds that race was a significant factor in
decisions to seek or impose the sentence of death in the
county, the prosecutorial district, the judicial division, or
the State at the time the death sentence was sought or
imposed.
(b) Evidence relevant to establish a finding that race
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was a significant factor in decisions to seek or impose the
sentence of death in the county, the prosecutorial district,
the judicial division, or the State at the time the death
sentence was sought or imposed may include statistical
evidence or other evidence, including, but not limited to,
sworn testimony of attorneys, prosecutors, law
enforcement officers, jurors, or other members of the
criminal justice system or both, that, irrespective of
statutory factors, one or more of the following applies:
(1) Death sentences were sought or imposed
significantly more frequently upon persons of
one race than upon persons of another race.
(2) Death sentences were sought or imposed
significantly more frequently as punishment
for capital offenses against persons of one race
than as punishment of capital offenses against
persons of another race.
(3) Race was a significant factor in decisions to
exercise peremptory challenges during jury
selection.
Id., § 1, 2009 N.C. Sess. Laws at 1214. When a defendant meets his evidentiary
burden, and it is not successfully rebutted by the State, the RJA prescribes a remedy
distinct to RJA claims:
If the court finds that race was a significant factor in
decisions to seek or impose the sentence of death in the
county, the prosecutorial district, the judicial division, or
the State at the time the death sentence was sought or
imposed, the court shall order that a death sentence not be
sought, or that the death sentence imposed by the
judgment shall be vacated and the defendant resentenced
to life imprisonment without the possibility of parole.
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Id., § 1, 2009 N.C. Sess. Laws at 1214. The General Assembly provided that the RJA
“applies retroactively” and that for defendants sentenced to death prior to the RJA’s
effective date, “motions under this act shall be filed within one year of the effective
date of this act.” Id., § 2, 2009 N.C. Sess. Laws at 1215.
Following hearings on 14 and 18 December 2009, the trial court denied
defendant’s motion for change of venue and defendant’s motion to continue for RJA-
related discovery. Defendant’s trial began during the 10 May 2010 criminal session
of Superior Court, Iredell County. On 11 May 2010, defendant made an oral motion
to modify the courtroom arrangement objecting to the fact that when the parties
arrived for trial, the first four rows directly behind the defense table were cordoned
off by yellow crime scene tape. After the trial court denied his oral motion, defendant
filed a written motion the following day alleging that this quarantining of the area
behind the defense table effectively segregated the courtroom by race and forced
defendant’s family to sit in the back of the courtroom behind the crime scene tape
while others, including white members of the victims’ families, were able to sit in the
front of the courtroom behind the prosecution table. The trial court ordered that the
crime scene tape be removed but required that three rows behind the defense table
remain vacant.
During jury selection, defendant twice objected to the prosecutor’s use of
peremptory challenges to exclude black jurors pursuant to Batson v. Kentucky, 476
U.S. 79 (1986). The trial court denied both of defendant’s Batson challenges.
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Defendant also renewed his motions to change venue and to continue for RJA-related
discovery, noting that all twelve jurors selected to hear the case were white, and that
all black potential jurors had been excused. The trial court denied these motions. On
28 May 2010, the jury returned verdicts finding defendant guilty of all charges. On
7 June 2010, following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-
2000, the jury recommended defendant be sentenced to death for each murder
conviction. On 8 June 2010, the trial court sentenced defendant to death for each
murder charge and to 61 to 83 months imprisonment for robbery with a dangerous
weapon. Defendant gave notice of appeal to this Court.
Following his trial, on 10 August 2010, defendant filed a post-conviction motion
for appropriate relief (MAR) under the RJA in both the trial court and in this Court.
On 7 September 2010, this Court entered an order dismissing without prejudice
defendant’s MAR filed in this Court and staying further proceedings in defendant’s
direct appeal “until after the trial court’s hearing and determination of defendant’s
Motion for Appropriate Relief Pursuant to the Racial Justice Act filed in Superior
Court, Iredell County.” State v. Ramseur, 364 N.C. 433, 702 S.E.2d 62 (2010).
On 21 June 2012, following a ruling in an RJA case in Cumberland County,
State v. Robinson, No. 91 CRS 23143, Order Granting Motion for Appropriate
Relief (Superior Court, Cumberland County, Apr. 20, 2012), vacated by 368 N.C. 596,
780 S.E.2d 151 (2015), and before the trial court ruled on defendant’s pending RJA
motion, the General Assembly passed a new law substantially amending the RJA (the
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Amended RJA). An Act to Amend Death Penalty Procedures, S.L. 2012-136, §§ 1–10,
2012 N.C. Sess. Laws 471 [hereinafter Amended RJA] (repealed 2013). Under the
Amended RJA, the trial court was not automatically required to hold an evidentiary
hearing upon the filing of an RJA claim. Compare Original RJA, § 1, 2009 N.C. Sess.
Laws at 1214 (“The court shall schedule a hearing on the claim and shall prescribe a
time for the submission of evidence by both parties.”), with Amended RJA, § 3, 2012
N.C. Sess. Laws at 472 (enacting N.C.G.S. § 15A-2011(f)(2) (Supp. 2012)) (“If the court
finds that the defendant’s motion fails to state a sufficient claim under this Article,
then the court shall dismiss the claim without an evidentiary hearing.”), and
Amended RJA, § 3, 2012 N.C. Sess. Laws at 472 (enacting N.C.G.S. § 15A-2011(f)(3)
(Supp. 2012)) (“If the court finds that the defendant’s motion states a sufficient claim
under this Article, the court shall schedule a hearing on the claim and may prescribe
a time prior to the hearing for each party to present a forecast of its proposed
evidence.”). Additionally, the Amended RJA added a waiver provision as a
prerequisite to filing an RJA claim, providing that:
It shall be a condition for the filing and consideration of a
motion under this Article that the defendant knowingly
and voluntarily waives any objection to the imposition of a
sentence to life imprisonment without parole based upon
any common law, statutory law, or the federal or State
constitutions that would otherwise require that the
defendant be eligible for parole.
Amended RJA, § 3, 2012 N.C. Sess. Laws at 471.
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Moreover, the Amended RJA altered what is necessary to establish racial
discrimination by, inter alia: limiting the geographic regions solely to the “county or
prosecutorial district” (eliminating “judicial division” and “State”); defining the
relevant time period as “the period from 10 years prior to the commission of the
offense to the date that is two years after the imposition of the death sentence”; and
mandating that “[s]tatistical evidence alone is insufficient to establish that race was
a significant factor under this Article.” Id., § 3, 2012 N.C. Sess. Laws at 472–73; see
also id., § 4, 2012 N.C. Sess. Laws at 473 (repealing N.C.G.S. § 15A-2012 (2009)). The
Amended RJA also repealed N.C.G.S. § 15A-2011(b) (2009) (as set forth above) and
provided instead, in relevant part:
Evidence relevant to establish a finding that race was a
significant factor in decisions to seek or impose the
sentence of death in the county or prosecutorial district at
the time the death sentence was sought or imposed may
include statistical evidence derived from the county or
prosecutorial district where the defendant was sentenced
to death, or other evidence, that either (i) the race of the
defendant was a significant factor or (ii) race was a
significant factor in decisions to exercise peremptory
challenges during jury selection.
Id., § 3, 2012 N.C. Sess. Laws at 472. The General Assembly provided that the
Amended RJA applies retroactively to any motions filed or hearings commenced
under the Original RJA and that a defendant who filed an MAR under the RJA “shall
have 60 days from the effective date of this act to amend or otherwise modify the
motion.” Id., § 6, 2012 N.C. Sess. Laws at 473.
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On 31 August 2012, defendant filed an amendment to his MAR filed under the
Original RJA, asserting that he was entitled to pursue claims under both the Original
RJA and the Amended RJA. On 29 November 2012, the State filed a response to
defendant’s RJA motions and requested judgment on the pleadings.
On 13 June 2013, still prior to any ruling by the trial court on defendant’s
pending RJA and Amended RJA motions, the General Assembly repealed the RJA in
its entirety (the RJA Repeal). Act of June 13, 2013, S.L. 2013-154, § 5.(a), 2013 N.C.
Sess. Laws 368, 372 [hereinafter RJA Repeal]. The General Assembly provided that
the RJA Repeal “is retroactive and applies to any” MAR filed pursuant to the RJA
“prior to the effective date of this act,” and that all such motions “are void.” Id., 5.(d),
2013 N.C. Sess. Laws at 372. In light of the RJA Repeal, the State filed a second
response on 23 August 2013 requesting that defendant’s RJA claims be dismissed on
the basis of the repeal. Defendant filed a response asserting that retroactive
application of the RJA Repeal would be unconstitutional and that ruling on the
State’s motion would be premature.
In an order entered on 3 June 2014, the trial court dismissed defendant’s RJA
and Amended RJA claims. Citing only the statute and with no further explanation,
the trial court stated that the only exception to the retroactive application of the RJA
Repeal is in cases in which a final order has been entered. Because the trial court
had not entered any final order in defendant’s case, the trial court ruled that the RJA
Repeal rendered all of his RJA and Amended RJA claims void. In addition, the trial
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court made an alternative ruling summarily stating, without further elaboration or
examination of the evidence or the parties’ legal arguments, that “[i]n the alternative,
this Court can determine that defendant’s RJA and Amended RJA claims are without
merit. An evidentiary hearing is not necessary to decide the issues raised in these
claims, and these claims are all denied on the pleadings.” The trial court also denied
defendant’s request for additional discovery.
On 9 April 2015, defendant filed a petition for writ of certiorari seeking review
of the trial court’s order and a “Motion to Maintain Stay of Direct Appeal.” This Court
allowed defendant’s petition for writ of certiorari and his motion to maintain the stay
of his direct appeal.
Standard of Review
At issue here is the constitutionality of the retroactive application of the RJA
Repeal. “We review constitutional issues de novo.” State v. Whittington, 367 N.C.
186, 190, 753 S.E.2d 320, 323 (2014) (citing State v. Ortiz-Zape, 367 N.C. 1, 10, 743
S.E.2d 156, 162 (2013), cert. denied, 572 U.S. 1134 (2014)).
Ex Post Facto Analysis of the RJA Repeal
Defendant argues that the retroactive application of the RJA Repeal violates
the prohibition against ex post facto laws under the United States and North Carolina
Constitutions.1 Following relevant precedents of this Court indistinguishable from
1Defendant also challenges the constitutionality of the retroactive application of the
RJA Repeal on other grounds, arguing that it: violates his rights under the Due Process and
Law of the Land Clauses of the Federal and State Constitutions; violates the Constitutional
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the facts of this case, we hold that the RJA Repeal is an unconstitutional ex post facto
law when applied retroactively.
As an initial matter, it is well established that “a statute is presumed to have
prospective effect only and should not be construed to have a retroactive application
unless such an intent is clearly expressed or arises by necessary implication from the
terms of the legislation.” State v. Green, 350 N.C. 400, 404, 514 S.E.2d 724, 727 (1999)
(citing In re Mitchell, 285 N.C. 77, 203 S.E.2d 48 (1974)); see also Gardner v. Gardner,
300 N.C. 715, 718, 268 S.E.2d 468, 471 (1980) (explaining that “a statute is deemed
‘retroactive’ or ‘retrospective’ when its operative effect is to alter the legal
consequences of conduct or transactions completed prior to its enactment”). Here, in
light of the plain language of the RJA Repeal, see RJA Repeal, § 5.(d), 2013 N.C. Sess.
Laws at 372 (“[T]his section is retroactive and applies to any motion for appropriate
relief filed . . . prior to the effective date of this act. All motions filed . . . prior to the
effective date of this act are void.”), it is clear that the General Assembly intended for
prohibition against Bills of Attainder under the Federal Constitution; violates his right to
equal protection of the law under the Federal and State Constitutions; violates the
prohibition against cruel and unusual punishment under the Eighth and Fourteenth
Amendments to the Federal Constitution and Article I, Section 26 of the North Carolina
Constitution; violates the guarantee of separation of powers under Article I, Section 6 and
Article IV, Section 1 of the State Constitution; and deprives him of a vested right under the
State Constitution. In addition to challenging the retroactive application of the RJA Repeal,
defendants in the RJA cases before this Court also contend that the RJA Repeal was enacted
with discriminatory intent and therefore is invalid under the Equal Protection Clauses of the
Federal and State Constitutions. In light of our holding, we do not reach these other
arguments. This opinion does not address in any way the prospective application of either
the Amended RJA or the RJA Repeal.
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the RJA Repeal to have a retroactive application. Thus, the sole question is whether
the retroactive application of the RJA Repeal violates the prohibition against ex post
facto laws.
Both our state and federal constitutions prohibit the enactment of ex post facto
laws. U.S. Const. art. I, § 10 (“No State shall . . . pass any Bill of Attainder, ex post
facto Law, or Law impairing the obligation of contracts . . . .”); N.C. Const. art. I, § 16
(“Retrospective laws, punishing acts committed before the existence of such laws and
by them only declared criminal, are oppressive, unjust, and incompatible with liberty,
and therefore no ex post facto law shall be enacted.”); see also State v. Wiley, 355 N.C.
592, 625, 565 S.E.2d 22, 45 (2002) (stating that “both the federal and state
constitutional ex post facto provisions are evaluated under the same definition”). The
purpose of this prohibition against ex post facto laws is to “restrict[ ] governmental
power by restraining arbitrary and potentially vindictive legislation” and to “assure
that legislative Acts give fair warning of their effect and permit individuals to rely on
their meaning until explicitly changed.” Weaver v. Graham, 450 U.S. 24, 28–29 (1981)
(citations omitted). Moreover, “[t]here is plainly a fundamental fairness interest,
even apart from any claim of reliance or notice, in having the government abide by
the rules of law it establishes to govern the circumstances under which it can deprive
a person of his or her liberty or life.” Carmell v. Texas, 529 U.S. 513, 533 (2000).
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The United States Supreme Court has explained that there are four categories,
first enumerated in 1798 by Justice Chase in Calder v. Bull, to which the prohibition
against ex post facto laws applies:
1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when
committed. 3d. Every law that changes the punishment,
and inflicts a greater punishment, than the law annexed to
the crime, when committed. 4th. Every law that alters the
legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the
commission of the offence, in order to convict the offender.
Collins v. Youngblood, 497 U.S. 37, 42 (1990) (emphasis omitted) (quoting Calder v.
Bull, 3 U.S. 386, 390–91 (1798) (opinion of Chase, J.)). The Court has also defined an
ex post facto law as one “which punishes as a crime an act previously committed,
which was innocent when done, which makes more burdensome the punishment for
a crime, after its commission, or which deprives one charged with crime of any defense
available according to law at the time when the act was committed.” Beazell v. Ohio,
269 U.S. 167, 169 (1925); see also Collins, 497 U.S. at 50 (stating that the term
“defense,” as used in Beazell, “was linked to the prohibition on alterations in ‘the legal
definition of the offense’ or ‘the nature or amount of the punishment imposed for its
commission’ ” (quoting Beazell, 269 U.S. at 169–70)).
At issue here is the third category of ex post facto laws, which includes not only
those laws that increase the maximum sentence attached to a crime, but also any law
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that makes the range or measure of punishments more severe. 2 See, e.g., Peugh v.
United States, 569 U.S. 530, 539 (2013) (stating that the Court has “never accepted
the proposition that a law must increase the maximum sentence for which a
defendant is eligible in order to violate the Ex Post Facto Clause” (citing Lindsey v.
Washington, 301 U.S. 397 (1937))); California Dep’t of Corr. v. Morales, 514 U.S. 499,
505 (1995) (“[T]he Ex Post Facto Clause forbids the States to enhance the measure of
punishment by altering the substantive ‘formula’ used to calculate the applicable
sentencing range.” (emphasis added)). The Supreme Court has explained that “the
ex post facto clause looks to the standard of punishment prescribed by a statute,
rather than to the sentence actually imposed” and that “an increase in the possible
penalty is ex post facto, regardless of the length of the sentence actually imposed,
since the measure of punishment prescribed by the later statute is more severe than
that of the earlier.” Lindsey, 301 U.S. 397, 401 (citations omitted). Accordingly, in
order to establish that a challenged law impermissibly falls into this third category,
a defendant “need not carry the burden of showing that he would have been sentenced
to a lesser term under the measure or range of punishments in place under the
previous statutory scheme,” but he must “establish[ ] that the measure of punishment
2 Defendant also argues that the RJA Repeal implicates the fourth category of ex post
facto laws identified in Calder because it changed the quantum and type of evidence sufficient
to sustain his death sentences. It is not necessary to reach that additional question with
regard to the RJA Repeal given our analysis below but the fourth category of ex post facto
laws is relevant to the issue whether the Amended RJA can be applied retroactively.
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itself has changed.” Morales, 514 U.S. at 510 n.6 (1995) (citing Lindsey, 301 U.S. at
401).
Here the State first contends that defendant cannot establish any change in
the measure of punishment attached to his criminal offenses because the Original
RJA was enacted after defendant’s crimes, and therefore the RJA Repeal had no effect
on the punishment “applicable at the time of the crimes committed.” The General
Assembly, however, by giving the RJA retroactive effect, has declared that the RJA
was the applicable law at the time the crimes were committed. The State does not
challenge the constitutionality of the retroactive application of the RJA here, and we
note that the Ex Post Facto Clause does not prohibit the retroactive application of
laws that—like the RJA—are ameliorative in nature. See Dobbert v. Florida, 432
U.S. 282, 294 (1977) (“It is axiomatic that for a law to be ex post facto it must be more
onerous than the prior law.”). This unusual situation is illustrated by this Court’s
decision in State v. Keith, 63 N.C. 140 (1869).
There the defendant, who had been indicted for murder stemming from events
that occurred when he was serving as a Confederate officer in the Civil War, sought
to avail himself of an “Amnesty Act” passed by the General Assembly following the
conclusion of the war. Id. at 141–42. This Act provided a “full and complete amnesty,
pardon and discharge” for all “homicides, felonies or misdemeanors” committed by
officers and soldiers of both the United States and the Confederacy, provided that
such acts were “done in the discharge of any duties imposed on him, purporting to be
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by a law . . . . or by virtue of any order emanating from any officer, commissioned or
non-commissioned.” Act of Dec. 22, 1866, ch. 3, § 1, 1866-67 N.C. Sess. Laws 6, 6–7.
By the time the defendant was brought to trial, however, the Constitutional
Convention of 1868 had enacted “An Ordinance in Relation to the Pardon of Officers
and Soldiers of the Late Confederate Service” repealing the Amnesty Act. Act of
March 13, 1868, ch. 29, § 1, 1868 N.C. Ordinances and Resolutions of the
Constitutional Convention 69, 69; see also Keith, 63 N.C. at 144 (stating that the
“Convention of 1868 . . . was assembled under the Reconstruction Acts of Congress to
form a new Constitution for the State, and as representing the people of North
Carolina, it had general legislative powers”). The trial court “refus[ed] to discharge
the prisoner entirely upon the effect of the ordinance of 1868,” and the defendant
appealed. Keith, 63 N.C. at 143.
On appeal, the Court considered whether the ordinance of 1868 violated the
prohibition against ex post facto laws. Id. at 143–45. The Court noted that the “effects
of a pardon are well settled in law: as far as the State is concerned, they destroy and
entirely efface the previous offence; it is as if it had never been committed.” Id. at
143; see also id. at 144 (“Bishop says it is ‘a remission of guilt,’ not only of the
punishment of guilt.” (citing 1 Bishop Cr. L. § 749)). Accordingly, the Court concluded
that the ordinance of 1868, which had the intended effect of “reviv[ing] the previous
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offences of the prisoner,” “was substantially an ex post facto law” because “it made
criminal what, before the ratification of the ordinance was not so.”3 Id. at 144–45.
Here, as in Keith, the legislature passed a law aiming to repeal a prior,
ameliorative law that had retroactively changed the law applicable to crimes already
committed. While the repeal in Keith involved the first Calder category, see Calder,
3 U.S. at 390 (“1st. Every law that makes an action done before the passing of the
law, and which was innocent when done, criminal; and punishes such action.”), the
RJA Repeal falls under the third category inasmuch as it alters only the punishment
and not the underlying crime. However, the Ex Post Facto Clause’s prohibition
against retroactive legislation applies with equal force to each category. See, e.g.,
Collins, 497 U.S. at 46 (stating that “the constitutional prohibition is addressed to
laws, ‘whatever their form,’ which make innocent acts criminal, alter the nature of
the offense, or increase the punishment” and that “the prohibition which may not be
evaded is the one defined by the Calder categories” (quoting Beazell, 269 U.S. at 170)).
The General Assembly, having decided with the enactment of the RJA to “alter the
legal consequences of conduct . . . completed prior to its enactment,” Gardner, 300
3The Court also concluded that the ordinance of 1868 unconstitutionally deprived the
defendant of a vested right under the Law of the Land Clause of the North Carolina
Constitution. Keith, 63 N.C. at 144–45. As noted above, defendant has also raised this issue
in support of his position, but we decline to reach this argument and limit our analysis solely
to the Ex Post Facto Clause. See, e.g., Weaver, 450 U.S. at 30 n.13 (“When a court engages in
ex post facto analysis, which is concerned solely with whether a statute assigns more
disadvantageous criminal or penal consequences to an act than did the law in place when the
act occurred, it is irrelevant whether the statutory change touches any vested rights.”).
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N.C. at 718, and to extend a new form of relief from the maximum punishment for
first degree murder, cannot now “revive” the former measure of punishment attached
to crimes already committed and make more burdensome “what, before the
ratification of” the RJA Repeal, was less severe.4 Keith, 63 N.C. at 144–45.
Nonetheless, the State contends that Keith is inapposite due to the unique
nature and greater breadth of the Amnesty Act in comparison to the RJA.
Specifically, the State asserts that the conditional, “potential” nature of the relief
provided by the RJA renders it distinguishable from the “firmly established”
immunity afforded by the Amnesty Act, which the State describes as a “blanket
pardon” or “blanket amnesty.” The State notes that the Court in Keith compared the
Amnesty Act to “a general pardon by parliament,” which need not be formally pleaded
and cannot be waived. Id. at 142. According to the State, “the Amnesty Act did not
grant conditional relief, it gave a full immunity to all Confederate and Union soldiers
for acts done during the Civil War,” whereas the RJA is merely a procedure that does
“not provide ‘amnesty’ from the death penalty.”
4 While generally “both the federal and state constitutional ex post facto provisions are
evaluated under the same definition,” Wiley, 355 N.C. at 625, 565 S.E.2d at 45, the United
States Supreme Court, unlike this Court, has not addressed a situation in which the
legislature passes a law aiming to repeal a prior, ameliorative law that had retroactively
changed the law applicable to crimes already committed. To the extent that the Supreme
Court would reach a different conclusion when analyzing the United States Constitution, we
are bound under our State Constitution’s Ex Post Facto Clause by Keith.
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Yet, this characterization of the Amnesty Act is inaccurate as the Amnesty Act
limited its potential relief to acts committed in the “discharge of duties imposed” and
required an indicted defendant to “show that he was an officer or private in either”
the United States or the Confederacy, at which point “it shall be presumed that he
acted under orders, until the contrary shall be made to appear.” Act of Dec. 22, 1866,
ch. 3, §§ 1-2, 1866-67 N.C. Sess. Laws 6, 6-7; see also Keith, 63 N.C. at 143 (“All that
could have been necessary for the prisoner to do in this case, was to show that he was
an officer or soldier, and that the felony was committed in the discharge of his duties
as such, and we are clearly of opinion that this was sufficiently alleged; indeed no
objection of that kind was taken below, and it may, therefore, admit of some doubt,
whether it could properly be taken here.”). The State concedes that, following a
defendant’s successful showing that he was an officer or private in the United States
or the Confederacy, the resulting presumption was not irrebuttable. For instance, in
State v. Cook, in addressing whether the defendant, a Confederate soldier, was
entitled to relief under the Amnesty Act, the Court stated:
The defendant craves the benefit of that act. But it cannot
be allowed him; because it does not appear that his offence
had any connection with his war duties. . . . It was not the
intention of the act to exempt persons from punishment
merely because they were soldiers; but only for acts which
they committed as soldiers.
State v. Cook, 61 N.C. 535, 536–37 (1868). Thus, even with the Amnesty Act’s more
broadly aimed remedy, its conditional relief contemplated that certain procedural and
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evidentiary steps may be required before a defendant did or did not receive the benefit
of the Act.
More importantly, however, in stressing the nature of the Amnesty Act as a
“blanket pardon” or “general pardon by parliament,” the State does not identify
anything about this characterization, apart from placing the Amnesty Act’s repeal in
a different Calder category, that changes the retroactivity analysis for the purposes
of the Ex Post Facto Clause. Indeed, in explaining why a parliamentary pardon need
not be formally pleaded, as opposed to a traditional executive pardon, the Court in
Keith stated that “[t]he reason why a Court must, ex officio, take notice of a pardon
by act of parliament, is that it is considered as a public law; having the same effect
on the case as if the general law punishing the offence had been repealed or
amended.” Keith, 63 N.C. at 143 (quoting United States v. Wilson, 32 U.S. 150, 163
(1833)). While there are procedural differences in line with the different aims of the
respective laws, both the Amnesty Act and the RJA are public laws “repeal[ing] or
amend[ing]” the substantive laws of crime and punishment with respect to crimes
already committed.
Finally, in that latter respect, the State asserts that the Original RJA did not
substantively change the rules of law governing the death penalty, and therefore the
RJA Repeal did not impermissibly increase the measure of punishment. The State
points out that a retroactive law is not rendered impermissibly ex post facto if it
results in a mere disadvantage to a defendant, and that “changes in the procedures
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by which a criminal case is adjudicated, as opposed to the changes in the substantive
law of crimes,” do not constitute ex post facto laws. Collins, 497 U.S. at 45; see also
Miller v. Florida, 482 U.S. 423, 433 (1987) (“[E]ven if a law operates to the defendant’s
detriment, the ex post facto prohibition does not restrict ‘legislative control of
remedies and modes of procedure which do not affect matters of substance.’ Hence,
no ex post facto violation occurs if the change in the law is merely procedural and does
‘not increase the punishment, nor change the ingredients of the offence or the
ultimate facts necessary to establish guilt.’ ” (citations omitted)); Morales, 514 U.S.
at 506 n.3 (stating that “the focus of the ex post facto inquiry is not on whether a
legislative change produces some ambiguous sort of ‘disadvantage,’ . . . but on
whether any such change alters the definition of criminal conduct or increases the
penalty by which a crime is punishable”). According to the State, the RJA, which did
not change the statutory aggravating circumstances that made defendant eligible for
the death penalty, is merely “a procedural opportunity to raise a statutory claim for
relief based on alleged racial discrimination,” the repeal of which left in place existing
mechanisms “to allege racial discrimination in his case by other means.” This
contention by the State misapprehends the nature and scope of the RJA.
With the enactment of the RJA, the General Assembly declared that “[n]o
person 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.” Original RJA, §
1, 2009 N.C. Sess. Laws at 1214. In order to effectuate this mandate the General
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Assembly expansively defined what is necessary to establish “that race was the basis
of the decision to seek or impose a death sentence.” Id., § 1, 2009 N.C. Sess. Laws at
1214. Specifically, such “[a] finding . . . may be established if the court finds that race
was a significant factor in decisions to seek or impose the sentence of death in the
county, the prosecutorial district, the judicial division, or the State at the time the
death sentence was sought or imposed.”5 Id., § 1, 2009 N.C. Sess. Laws at 1214.
Moreover, in setting forth the type of evidence sufficient to support such a finding,
the General Assembly provided that a defendant could rely on, inter alia, “statistical
evidence” tending to show that either “[d]eath sentences were sought or imposed
significantly more frequently upon persons of one race than upon persons of another
race,” “[d]eath sentences were sought or imposed significantly more frequently as
punishment for capital offenses against persons of one race than as punishment of
capital offenses against persons of another race,” or “[r]ace was a significant factor in
decisions to exercise peremptory challenges during jury selection.” Id., § 1, 2009 N.C.
Sess. Laws at 1214.6 This allowance of the use of statistical evidence must be seen
as deliberate, as it comes after the Supreme Court’s decision in McCleskey v. Kemp.
5Notably, while the RJA does not define the temporal parameters of the phrase “at
the time the death sentence was sought or imposed,” even in the substantially curtailed
Amended RJA this timeframe was limited to the “period from 10 years prior to the
commission of the offense to the date that is two years after the imposition of the death
sentence.” Amended RJA, § 3, 2012 N.C. Sess. Laws at 471.
6The RJA also eliminated any procedural bars that would apply to traditional motions
for appropriate relief. Original RJA, § 1, 2009 N.C. Sess. Laws at 1215 (“Notwithstanding
any other provision or time limitation contained in Article 89 of Chapter 15A of the General
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There the Court rejected the petitioner’s reliance solely on statistical evidence
of racial disparities in capital sentencing in the context of claims brought under the
Fourteenth and Eighth Amendments and indicated that the role of such evidence in
litigating racial discrimination should be prescribed by state legislatures. McCleskey
v. Kemp, 481 U.S. 279, 314–319 (1987) (“McCleskey’s arguments are best presented
to the legislative bodies. It is not the responsibility—or indeed even the right—of this
Court to determine the appropriate punishment for particular crimes.”). Following
that suggestion, the General Assembly designed the RJA as a new substantive claim
permitting the use of statistical evidence of racial disparities across different
geographic areas and periods of time to establish racial discrimination in capital
sentencing. Seth Kotch & Robert P. Mosteller, The Racial Justice Act and the Long
Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031,
2111–12 (2010) (“In enacting the [RJA], North Carolina determined that its inquiry
would not be limited by McCleskey v. Kemp and its rejection of statistical evidence
when examining constitutional claims[.] . . . The legislature understood that it was
creating a different system of proof than that prescribed by McCleskey, explicitly
accepting the Court’s invitation to legislatures to act because they, rather than the
Statutes, a defendant may seek relief from the defendant’s death sentence upon the ground
that racial considerations played a significant part in the decision to seek or impose a death
sentence by filing a motion seeking relief.”); see also Seth Kotch & Robert P. Mosteller, The
Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina,
88 N.C. L. Rev. 2031, 2114 n.370 (2010) (“[T]his provision allows defendants to litigate racial
discrimination regarding peremptory strikes even if objections were not made at trial or
might be subject to other procedural bars in Article 89.”).
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United States Supreme Court, are best able to judge how statistical studies should
be used in regulating the death penalty.” (footnotes omitted)).7 The General
Assembly’s decision to afford capital defendants this new, substantive basis for
challenging the validity of a death sentence reflects ongoing concerns with the
difficulty of proving covert racial discrimination,8 particularly in capital sentencing
7As one state senator stated during the floor debate on the day the Senate first
approved the RJA bill:
Without this legislation, previous efforts to raise this issue
would have been to no avail because of the McCleskey decision. .
. . The McCleskey decision . . . said that while statistics may show
race discrimination, it doesn’t rise to the level of being a
constitutional violation of the equal protection clause and
specifically directed that if states wanted to provide this
additional protection and making it a means by which somebody
could prove race discrimination, then they could do it. And that’s
what we’re doing here today.
Sen. Doug Berger, Senate Floor Debate on Racial Justice Act (May 14, 2009),
https://archive.org/details/NorthCarolinaSenateAudioRecordings20090514/North_Carolina_
Senate_Audio_Recordings_20090514.mp3; see also Rep. Deborah Ross, House Floor Debate
on Racial Justice Act (July 14, 2009), https://www.ncleg.gov/DocumentSites/House
Documents/2009-2010%20Session/Audio%20Archives/2009/07-14-2009.mp3 (“In a 5-4
decision, the U.S. Supreme Court said that you don’t have the constitutional right to present
statistical evidence, though at the end of his opinion for the five judge majority, Justice Lewis
Powell said ‘these arguments are best presented to legislative bodies.’ ”); Barbara O’ Brien &
Catherine M. Grosso, Confronting Race: How A Confluence of Social Movements Convinced
North Carolina to Go Where the McCleskey Court Wouldn’t, 2011 Mich. St. L. Rev. 463 (2011).
8 See Sen. Doug Berger, Senate Floor Debate on Racial Justice Act (May 14, 2009),
https://archive.org/details/NorthCarolinaSenateAudioRecordings20090514/North_Carolina_
Senate_Audio_Recordings_20090514.mp3 (“I want to step back and explain, very quickly,
where this idea of using statistics to prove race discrimination comes from and why it’s
needed. Race discrimination is very hard to prove. Rarely, particularly in today’s time, do
people just outright say, ‘I am doing this because of the color of your skin.’ Imagine if our
Civil Rights Act that was passed in ‘64 said that the only way that you could prove race
discrimination was by that sort of evidence—an admission by the person engaging in racial
discrimination. We would have had very little change in our society and culture in terms of
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decisions, see Turner v. Murray, 476 U.S. 28, 35 (1986) (“Because of the range of
discretion entrusted to a jury in a capital sentencing hearing, there is a unique
opportunity for racial prejudice to operate but remain undetected.”), as well as the
fact that the harm from racial discrimination in criminal cases is not limited to an
individual defendant, but rather it undermines the integrity of our judicial system
and extends to society as a whole, Batson, 476 U.S. at 87 (“Racial discrimination in
selection of jurors harms not only the accused whose life or liberty they are summoned
to try. . . . The harm from discriminatory jury selection extends beyond that inflicted
on the defendant and the excluded juror to touch the entire community.”).
the hiring practices.”); Rep. Rick Glazier, House Floor Debate on Racial Justice Act (July 14,
2009), https://www.ncleg.gov/DocumentSites/HouseDocuments/2009-
2010%20Session/Audio%20Archives/2009/07-14-2009.mp3 (“Well, I’m here to tell you, at
least from my perspective, that unstated motivation is extraordinarily difficult to ferret out.
That is why we use statistical evidence in employment discrimination cases, and if we are
using statistical evidence in employment cases to protect property rights, I fail to see why
credible statistical evidence ought not be a legislative reason or a legislative priority to allow
people to use to fight for their life.”); see also Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 339 n.20 (1977) (“Since the passage of the Civil Rights Act of 1964, the courts have
frequently relied upon statistical evidence to prove a violation. . . . In many cases the only
available avenue of proof is the use of racial statistics to uncover clandestine and covert
discrimination by the employer or union involved.” (alteration in original) (quoting United
States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir. 1971))); see generally Miller-El v.
Dretke, 545 U.S. 231, 238 (2005) (stating that while the “Court consistently and repeatedly
has reaffirmed that racial discrimination by the State in jury selection violates the Equal
Protection Clause,” “[t]he rub has been the practical difficulty of ferreting out discrimination
in selections discretionary by nature, and choices subject to myriad legitimate influences”
(citations omitted)).
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As this Court, in addressing Article I, Section 26 of our State Constitution (“No
person shall be excluded from jury service on account of sex, race, color, religion, or
national origin.”), stated:
Article I, section 26 does more than protect
individuals from unequal treatment. The people of North
Carolina have declared in this provision that they will not
tolerate the corruption of their juries by racism, sexism and
similar forms of irrational prejudice. They have recognized
that the judicial system of a democratic society must
operate evenhandedly if it is to command the respect and
support of those subject to its jurisdiction. It must also be
perceived to operate evenhandedly. Racial discrimination
in the selection of grand and petit jurors deprives both an
aggrieved defendant and other members of his race of the
perception that he has received equal treatment at the bar
of justice. Such discrimination thereby undermines the
judicial process.
Exclusion of a racial group from jury service,
moreover, entangles the courts in a web of prejudice and
stigmatization. To single out blacks and deny them the
opportunity to participate as jurors in the administration
of justice—even though they are fully qualified—is to put
the courts’ imprimatur on attitudes that historically have
prevented blacks from enjoying equal protection of the law.
State v. Cofield, 320 N.C. 297, 302–03, 357 S.E.2d 622, 625–26 (1987) (footnote
omitted) (citation omitted); see also Flowers v. Mississippi, 139 S. Ct. 2228, 2242
(2019) (“By taking steps to eradicate racial discrimination from the jury selection
process, Batson sought to protect the rights of defendants and jurors, and to enhance
public confidence in the fairness of the criminal justice system.”); Davis v. Ayala, 135
S. Ct. 2187, 2208 (2015) (“Discrimination in the jury selection process undermines
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our criminal justice system and poisons public confidence in the evenhanded
administration of justice.); Miller-El v. Dretke, 545 U.S. 231, 237–38 (2005)
(“Defendants are harmed, of course, when racial discrimination in jury selection
compromises the right of trial by impartial jury, but racial minorities are harmed
more generally, for prosecutors drawing racial lines in picking juries establish state-
sponsored group stereotypes rooted in, and reflective of, historical prejudice[.] Nor is
the harm confined to minorities. When the government’s choice of jurors is tainted
with racial bias, that ‘overt wrong casts doubt over the obligation of the parties, the
jury, and indeed the court to adhere to the law throughout the trial. That is, the very
integrity of the courts is jeopardized when a prosecutor’s discrimination invites
cynicism respecting the jury’s neutrality, and undermines public confidence in
adjudication[.]” (cleaned up)); Ballard v. United States, 329 U.S. 187, 195 (1946) (“The
systematic and intentional exclusion of women, like the exclusion of a racial group,
or an economic or social class, deprives the jury system of the broad base it was
designed by Congress to have in our democratic society. . . . The injury is not limited
to the defendant—there is injury to the jury system, to the law as an institution, to
the community at large, and to the democratic ideal reflected in the processes of our
courts.” (citations omitted)).
As part of its decision to make this new type of claim available to capital
defendants, the General Assembly specified that the RJA would provide a unique and
limited remedy:
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If the court finds that race was a significant factor in
decisions to seek or impose the sentence of death in the
county, the prosecutorial district, the judicial division, or
the State at the time the death sentence was sought or
imposed, the court shall order that a death sentence not be
sought, or that the death sentence imposed by the
judgment shall be vacated and the defendant resentenced
to life imprisonment without the possibility of parole.
Original RJA, § 1, 2009 N.C. Sess. Laws at 1214. Thus, in its efforts to combat racial
discrimination in our state’s application of the death penalty—the most serious and
irrevocable of our state’s criminal punishments—the General Assembly designed a
new substantive claim that fundamentally changes what is necessary to prove racial
discrimination and, in return, provides a limited grant of relief that is otherwise
unavailable.9 See generally Turner, 476 U.S. at 35 (“The risk of racial prejudice
infecting a capital sentencing proceeding is especially serious in light of the complete
finality of the death sentence.”); California v. Ramos, 463 U.S. 992, 998–99 (1983)
(“The Court . . . has recognized that the qualitative difference of death from all other
punishments requires a correspondingly greater degree of scrutiny of the capital
sentencing determination.”).
Accordingly, the RJA Repeal is not a mere procedural alteration that may
“produce[ ] some ambiguous sort of ‘disadvantage.’ ” Morales, 514 U.S. at 506 n.3.
9 As part of its contention that the RJA and its repeal amount merely to procedural
changes in the law, the State catalogues at length the existing legal doctrines and
mechanisms for addressing racial discrimination in the criminal justice system. None of
these protections, however, are as robust as the substantive guarantees provided by the RJA
to these defendants. Indeed, the unique and otherwise unavailable protection afforded by
the RJA was the reason for its enactment and, presumably, for its subsequent repeal.
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Rather, by retroactively eliminating the RJA’s substantive claim and its
accompanying relief, the RJA Repeal increases the severity of the standard of
punishment attached to the crime of first-degree murder and deprives defendant of a
defense to the “nature or amount of the punishment imposed for its commission.”
Collins, 497 U.S. at 50 (quoting Beazell, 269 U.S. at 169–70). As such, the retroactive
application of the RJA Repeal to defendant violates the prohibition against ex post
facto laws.
It is within the purview of the General Assembly to pass such ameliorative
laws granting potential relief from crimes and punishment to defendants for crimes
already committed, and, having done so, it cannot then withdraw that relief
consistent with the Ex Post Facto Clause, which “restricts governmental power by
restraining arbitrary and potentially vindictive legislation,” Weaver, 450 U.S. at 28–
29, and serves “a fundamental fairness interest, even apart from any claim of reliance
or notice, in having the government abide by the rules of law it establishes to govern
the circumstances under which it can deprive a person of his or her liberty or life,”
Carmell, 529 U.S. at 533. This interest in restricting “arbitrary and potentially
vindictive legislation” is particularly relevant here,10 given that the Amended RJA
10Here the Ex Post Facto Clause’s interest in providing notice and fair warning is
lessened, as the measure of punishment to which the RJA repeal subjected defendant was
the same pre-RJA measure of punishment of which he had notice at the time he committed
his crimes. But this was equally true in Keith, where the ordinance of 1868 returned the law
to that which existed at the time the defendant allegedly committed his crimes, at which time
he would have been deemed to have had notice not only of the potential legal consequences
of participating in armed secession, but also of the consequences of homicides that
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and the RJA Repeal followed closely on the heels of the four Cumberland County
cases, in which the trial court concluded that the RJA evidentiary hearings uncovered
significant evidence of widespread racial discrimination and disparities in our state’s
capital sentencing scheme and in which four convicted murderers had their sentences
commuted to life imprisonment without parole by that court.
The dissent gives no weight to this fundamental fairness interest, which is
apart from the concept of notice that is embodied in the constitutional prohibition on
ex post facto laws. Instead, the dissent is premised on the narrow proposition that
the only interest served by the Ex Post Facto Clause is to deter crime by providing
“actual or constructive notice to the criminal before commission of the offense of the
penalty for the transgression.” (quoting Garner v. Jones, 529 U.S. 244, 253 (2000)).
However, the U.S. Supreme Court has acknowledged repeatedly, and did again in
Garner, that preventing arbitrary and potentially vindictive legislation is also a
purpose of the Ex Post Facto Clause. Weaver, 450 U.S. at 28–29. In Garner, the Court
observed that “[t]he danger that legislatures might disfavor certain persons after the
fact is present even in the parole context, and the Court has stated that the Ex Post
Facto Clause guards against such abuse.” Id. at 253 (citing Miller, 482 U.S. at 429).
transcended the acceptable norms of war. Indeed, following the defendant’s alleged role in
the “Shelton Laurel Massacre,” including the summary execution of thirteen captives, three
of them aged 13, 14, and 17, the Confederate Governor of North Carolina, Zebulon B. Vance,
had vowed to “follow him [Keith] to the gates of hell, or hang him.” Phillip Shaw Paludan,
Victims: A True Story of the Civil War 107 (1981).
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The dissent reads the ex post facto prohibition too narrowly when concluding that it
does not apply to the repeal of the RJA.
Our decision is further premised on the North Carolina Constitution, which
this Court previously found to prohibit laws that seek to retroactively impose a
greater penalty. Referring to the North Carolina Constitution, we explained:
These great principles are inseparable from American
government and follow the American flag. No political
assemblage under American law, however it may be
summoned, or by whatever name it may be called, can
rightfully violate them, nor can any Court sitting on
American soil sanction their violation. . . . The ordinance in
question was substantially an ex post facto law; it made
criminal what, before the ratification of the ordinance was
not so; and it took away from the prisoner his vested right
to immunity.
State v. Keith, 63 N.C. at 144–45. Here the right is to challenge a sentence of death
on the grounds that it was obtained in a proceeding tainted by racial discrimination,
and, if successful, to receive a sentence of life without parole. Repealing the RJA took
away that right, and the repeal cannot be applied retroactively consistent with this
state’s constitutional prohibition on ex post facto laws.
We note that our analysis under the Ex Post Facto Clauses of the U.S. and
North Carolina Constitutions addresses a question purely of law and applies equally
to anyone in the same circumstances as defendant—specifically, any capital
defendant who filed a motion for appropriate relief under the Original RJA. With
respect to this class of individuals, the RJA Repeal cannot, consistent with
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constitutional guarantees, retroactively apply to void their pending RJA claims. We
express no opinion on the ultimate merits of defendant’s RJA claims, nor those of any
other capital defendant, and leave those issues to the trial courts to adjudicate in the
first instance.
Ex Post Facto Analysis of the Amended RJA
Our holding that the RJA Repeal cannot constitutionally apply retroactively to
pending RJA motions necessitates examining whether the trial court erred in its
alternative ruling that defendant’s RJA and Amended RJA claims were without merit
and its denial of his claims without a hearing. In order to address that issue, however,
we must first determine whether the retroactive application of the Amended RJA
violates the prohibition against ex post facto laws under the United States and North
Carolina Constitutions. Specifically, defendant argues that “[t]o the extent that the
amended RJA took away categories of claims that were available under the original
RJA or impaired Mr. Ramseur’s ability to assert any of his RJA claims, the retroactive
application of the amended RJA was unconstitutional for all the same reasons the
retroactive application of the repeal bill was unconstitutional.”
Like the RJA Repeal, the Amended RJA contains a provision explicitly stating
that it should apply retroactively:
Unless otherwise excepted, this act, including the hearing
procedure, evidentiary burden, and the description of
evidence that is relevant to a finding that race was a
significant factor in seeking or imposing a death sentence,
also applies to any postconviction motions for appropriate
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relief that were filed pursuant to S.L. 2009-464. This act
also applies to any hearing that commenced prior to the
effective date of this act.
Amended RJA, § 6, 2012 N.C. Sess. Laws at 473. The Amended RJA further specifies
that a person who filed an RJA MAR would have sixty days from the effective date of
the act, 2 July 2012, to file an amended motion. Id., § 6, 2012 N.C. Sess. Laws at 473.
On its face, the law was intended to apply retroactively and, because it allowed
defendants to amend their RJA MARs, there was an acknowledgement that the new
evidentiary standards created a substantive change in the law.
The changes implemented by the Amended RJA, as summarized above, are
both procedural and substantive. Moreover, the law also contained a severability
clause which states: “If any provision of this act or its application is held invalid, the
invalidity does not affect other provisions or applications of this act that can be given
effect without the invalid provisions or application, and to this end the provisions of
this act are severable.” Id., § 9, 2012 N.C. Sess. Laws at 473. Therefore, it is
necessary to evaluate each of the changes worked by the Amended RJA to determine
whether they fall into any of the categories of an ex post facto law when applied
retroactively.
The Amended RJA made several significant changes to the Racial Justice Act.
First, the Amended RJA altered the hearing procedure by providing that the trial
court was no longer automatically required to hold an evidentiary hearing upon the
filing of an RJA claim. Rather, under the Amended RJA, the trial court need only
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schedule a hearing if it “finds that the defendant’s motion states a sufficient claim.”
Id., § 3, 2012 N.C. Sess. Laws at 473.
Second, the Amended RJA substantially altered the evidentiary requirements
for an RJA claim. Specifically, as previously discussed, the Amended RJA altered
what is necessary to establish racial discrimination by, inter alia: limiting the
geographic regions solely to the “county or prosecutorial district” (eliminating
“judicial division” and “State”); defining the relevant time period as “the period from
10 years prior to the commission of the offense to the date that is two years after the
imposition of the death sentence”; and mandating that “[s]tatistical evidence alone is
insufficient to establish that race was a significant factor under this Article.” Id., §
3, 2012 N.C. Sess. Laws at 472–73 (amending N.C.G.S. § 15A-2011(c) (2009) and
enacting N.C.G.S. § 15A-2011(d)–(g) (Supp. 2012)); see also id., § 4, 2012 N.C. Sess.
Laws at 473 (repealing N.C.G.S. § 15A-2012 (2009)). The Amended RJA also repealed
N.C.G.S. § 15A-2011(b) (2009)11 and provided instead, in relevant part:
11 N.C.G.S. § 15A-2011(b) (2009) of the Original RJA provided:
Evidence relevant to establish a finding that race was a
significant factor in decisions to seek or impose the sentence of
death in the county, the prosecutorial district, the judicial
division, or the State at the time the death sentence was sought
or imposed may include statistical evidence or other evidence,
including, but not limited to, sworn testimony of attorneys,
prosecutors, law enforcement officers, jurors, or other members
of the criminal justice system or both, that, irrespective of
statutory factors, one or more of the following applies:
(1) Death sentences were sought or imposed significantly
more frequently upon persons of one race than upon persons of
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Evidence relevant to establish a finding that race was a
significant factor in decisions to seek or impose the
sentence of death in the county or prosecutorial district at
the time the death sentence was sought or imposed may
include statistical evidence derived from the county or
prosecutorial district where the defendant was sentenced
to death, or other evidence, that either (i) the race of the
defendant was a significant factor or (ii) race was a
significant factor in decisions to exercise peremptory
challenges during jury selection.
Id., § 3, 2012 N.C. Sess. Laws at 472.
Third, the Amended RJA added a waiver provision providing that in order to
assert an RJA claim, a defendant must knowingly and voluntarily waive any
objection to the imposition of a sentence to life imprisonment without parole. Id., §
3, 2012 N.C. Sess. Laws at 471.
We conclude that the first alteration, amending the hearing procedure, is
merely a procedural change which, while possibly working some disadvantage to a
defendant, does not implicate the prohibition against ex post facto laws. See Morales,
514 U.S. at 506 n.3. The second alterations amending the evidentiary requirements,
another race.
(2) Death sentences were sought or imposed significantly
more frequently as punishment for capital offenses against
persons of one race than as punishment of capital offenses
against persons of another race.
(3) Race was a significant factor in decisions to exercise
peremptory challenges during jury selection.
Original RJA, § 1, 2009 N.C. Sess. Laws at 1214.
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Opinion of the Court
however, do constitute changes in the criminal law that cannot be applied
retroactively. These revisions fall within the fourth Calder category by altering the
“legal rules of evidence” and require a different, more stringent, standard of proof in
showing the racially discriminatory imposition of the death penalty. See Collins, 497
U.S. at 41 (quoting Calder, 3 U.S. at 390 (opinion of Chase, J.)).
The third alteration, adding the waiver provision, may only be an ex post facto
law as applied to certain defendants. It creates a condition precedent to asserting an
RJA defense which, like the RJA Repeal, changes the punishment for any defendant
who, prior to the amendment, could assert an RJA defense and further object to a
sentence of life imprisonment without parole. It is difficult to determine whether any
defendant actually could fall into such a category. In any event, any potential issue
with the retroactive application of this waiver provision is unrelated to the trial
court’s alternative ruling in this case that defendant’s RJA claims were without
merit. Accordingly, because we need not decide this issue in order to determine
whether the trial court erred in its alternative ruling, we decline to address here
whether the retroactive application of the Amended RJA’s waiver provision violates
the prohibition against ex post facto laws.
In summary, the evidentiary changes effected by the Amended RJA are an ex
post facto law that cannot constitutionally be applied to defendants who had RJA
MARs pending at the time of the Amended RJA. For those defendants, the original
RJA evidentiary rules apply. However, the portion of the Amended RJA which grants
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Opinion of the Court
a trial judge discretion over whether to hold a hearing is a procedural change which
can be applied retroactively to pending RJA MARs.
Defendant’s RJA Claims
Next, defendant argues that the trial court erred in its alternative rulings that
defendant’s RJA and Amended RJA MARs were without merit and could be denied
without conducting an evidentiary hearing and that defendant was not entitled to
discovery with respect to his RJA claims. The evidentiary forecast produced by
defendant with his motions requires reversal of the trial courts’ alternative rulings.
Defendant’s extensive RJA and Amended RJA MARs “state with particularity
how the evidence supports a claim that race was a significant factor in decisions to
seek or impose the sentence of death in the county, the prosecutorial district, the
judicial division, or the State at the time the death sentence was sought or imposed.”
Original RJA, § 1, 2009 N.C. Sess. Laws at 1214. Specifically, in accordance with the
requirements of the RJA, defendant forecast, inter alia, statistical and non-statistical
evidence that, taken in the light most favorable to defendant, tends to show that race
was a significant factor in the prosecution’s use of peremptory challenges, in the
prosecution’s decision to proceed capitally, and in the actual imposition of death
sentences, at the time defendant’s sentence was impos with respect to all four of the
relevant geographic areas.
Defendant also alleged how in his case: he was brought to trial against a
backdrop of prejudicial pre-trial publicity and racial tensions in the community; the
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Opinion of the Court
four rows in the courtroom directly behind the defense table were cordoned off with
yellow crime scene tape at the start of the trial, suggesting that defendant was a
dangerous criminal and forcing his black family members to sit in the back of the
courtroom; six individuals who were later selected to serve as jurors were in the
courtroom and observed the police tape before it was taken down two days later; all
twelve jurors selected to hear the case were white and the trial court allowed the
prosecution to exercise peremptory challenges to excuse all potential black jurors not
removed for cause; the trial court denied defendant’s request for a change of venue;
and the trial court did not allow defense counsel to question potential jurors about
issues of racial bias nor question the jury about whether they heard media accounts
of the case or racially biased comments in the community. Both defendant’s RJA
MAR and Amended RJA MAR plainly “state[ ] a sufficient claim” under the RJA, as
required by the Amended RJA in order to trigger an evidentiary hearing. Thus, the
trial court at a minimum erred as a threshold matter in not conducting an evidentiary
hearing on defendant’s claims. Additionally, defendant’s MARs established that he
was entitled to discovery under N.C.G.S. § 15A-1415(f) (2019), which provides for
complete discovery of state files in capital post-conviction cases. Accordingly, the trial
court erred in denying defendant’s MARs on the pleadings.
Conclusion
In sum, we conclude that the RJA Repeal and the provisions of the Amended
RJA altering the evidentiary requirements for an RJA claim constitute impermissible
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Opinion of the Court
ex post facto laws and cannot be constitutionally applied retroactively to defendant’s
pending RJA claims. Further, we conclude that the trial court erred in ruling that
defendant’s claims lacked merit and denying his RJA claims without a hearing. We
remand for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
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Justice NEWBY dissenting.
The narrow issue presented by this case is whether, as applied to defendant,
legislation repealing the Racial Justice Act of 2009 (the RJA) constitutes an ex post
facto law. The majority incorrectly answers this question in the affirmative. The
repeal plainly does not qualify as an ex post facto law because it left defendant in
precisely the same legal situation as the one he occupied on 16 December 2007, when,
according to a jury, he murdered Jennifer Lee Vincek and Jeffrey Robert Peck. The
repeal did not subject defendant to more serious or additional charges for past
conduct, nor did it increase the punishment in effect on 16 December 2007. When
properly viewed, the General Assembly intended the RJA to provide a procedural
mechanism by which a defendant could collaterally attack a capital sentence. The
General Assembly did not intend to make a substantive change to the death penalty
sentencing law. As such, the General Assembly had the constitutional authority
subsequently to amend it and repeal it.
Viewed more broadly, though, this case is about who should determine the
future of the death penalty in North Carolina. Under our system of government, the
obvious answer to this question is that ultimate authority over death penalty policy
resides with the people of this State. It is for them to determine whether North
Carolina will have a death penalty and to establish, within constitutional bounds, the
circumstances in which that penalty may be imposed. Ordinarily, the people exercise
this power indirectly through their elected representatives in the General Assembly.
STATE V. RAMSEUR
Newby, J., dissenting
The majority’s interpretation of the RJA cedes significant portions of the
people’s authority over death penalty policy to the courts. In the majority’s view, the
law empowers a judge to vacate a defendant’s death sentence based on statistical
evidence that race had been a significant factor in other death penalty proceedings in
the county, prosecutorial district, judicial division, or the State as a whole, regardless
of the role of race in defendant’s own capital proceeding. This interpretation could be
viewed as granting policymaking power to the judiciary to effectively eliminate the
death penalty in North Carolina. By invalidating the RJA repeal, the majority does
more than merely misapply the constitutional prohibition on ex post facto laws. It
also intrudes upon the right of the people, in the form of their elected representatives,
to decide death penalty policy for this State. I respectfully dissent.
Defendant was indicted on 31 December 2007 for the 16 December 2007
murders of Jennifer Lee Vincek and Jeffrey Robert Peck during the commission of an
armed robbery of the Broad Street Shell Station in Iredell County for approximately
$90 to $100. At the time of the armed robbery, Ms. Vincek worked at the station as a
cashier on third shift, and Mr. Peck was a customer. At trial the jury watched a
security video from the store capturing the robbery and murders as they occurred.
The video showed the first shot striking Ms. Vincek while she lay on the ground
behind the counter in a fetal position. When Ms. Vincek attempted to crawl away on
her hands and knees, she was shot again. The video showed that her hair “popped off
her back.” The medical examiner testified that Ms. Vincek suffered from three
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Newby, J., dissenting
gunshot wounds with the first two being fairly superficial, but the third and fatal
gunshot striking her in the back. Mr. Peck died from a single gunshot wound to the
chest.
A jury convicted defendant of two counts of first-degree murder and one count
of armed robbery. In recommending the death penalty, the jury unanimously found
the following statutory aggravating factors under N.C.G.S. § 15A-2000: “(1) the
capital felony was committed while the defendant was in engaged in the commission
of robbery with a dangerous weapon, N.C.G.S. § 15A-2000(e)(5); (2) the capital felony
was committed for pecuniary gain, N.C.G.S. § 15A-2000(e)(6); (3) the capital felony
was part of a course of conduct in which the defendant engaged and which included
the commission of the defendant of other crimes of violence against another person
or persons, N.C.G.S. § 15A-2000(e)(11).” Consistent with the jury’s recommendation,
the trial court entered a death sentence for each murder and a sentence of 61 to 83
months to run consecutively for the armed robbery.
Defendant committed his crimes in 2007, before the original RJA was enacted
in 2009. After the original RJA was enacted, defendant delayed his direct appeal,
State v. Ramseur, 364 N.C. 433, 702 S.E.2d 62 (2010), and instead filed a post-
conviction motion for appropriate relief (MAR) under the RJA. Defendant filed his
first MAR seeking relief under the original RJA and later filed a MAR under the
amended RJA. Before the trial court rendered judgment, the legislature repealed the
statutory provisions upon which defendant’s motions relied. Act of June 13, 2013, S.L.
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STATE V. RAMSEUR
Newby, J., dissenting
2013-154, § 5.(a), 2013 N.C. Sess. Laws 368, 372 [hereinafter the RJA Repeal]. In an
order dated 3 June 2014, the trial court recognized that Session Law 2013-154
repealed the RJA and that the statutory language of the repeal retroactively applied
to void defendant’s RJA motions.
The trial court concluded that, because no final order had been entered on
defendant’s RJA claims or his claims under the amended RJA, those claims were
controlled by the repeal of the RJA, and his RJA claims were voided as a matter of
law. The trial court concluded that the unconditional repeal of the RJA warranted
the dismissal of defendant’s RJA claims, citing Spooners Creek Land Corp. v. Styron,
276 N.C. 494, 496, 172 S.E.2d 54, 55 (1970), and In re Incorporation of Indian Hills,
280 N.C. 659, 663, 186 S.E.2d 909, 911 (1972).
I.
Our system of government is founded on a principle that all people are created
equal, possessing equal rights. The Declaration of Independence para. 2 (U.S. 1776)
(“We hold these truths to be self-evident, that all men are created equal, that they
are endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness.”); see also N.C. Const. art. I, § 1 (“We hold
it to be self-evident that all persons are created equal; that they are endowed by their
Creator with certain inalienable rights; that among these are life, liberty, the
enjoyment of the fruits of their own labor, and the pursuit of happiness.”). It is
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Newby, J., dissenting
imperative that all are treated equally under the law in every case that comes before
the courts, particularly in criminal trials when life and liberty are at stake. Our state
and federal constitutions recognize this sacred responsibility and safeguard against
invidious discrimination. See, e.g., N.C. Const. art. I, § 19 (protecting life, liberty, and
due process rights with the Law of the Land Clause); id. art. I, § 26 (prohibiting
exclusion “from jury service on account of sex, race, color, religion, or national origin”);
see also Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) (holding that the
Equal Protection Clause forbids a prosecutor from challenging potential jurors solely
on account of their race and setting the factual threshold for a defendant to establish
a prima facie case of purposeful discrimination in jury selection); Oyler v. Boles, 368
U.S. 448, 82 S. Ct. 501 (1962) (A defendant cannot be selected for prosecution based
on race, religion, or other arbitrary classification.); State v. Bowman, 349 N.C. 459,
509 S.E.2d 428 (1998) (discussing the constitutional right to a jury of one’s peers and
the protections to prevent arbitrary exclusion from the jury pool); State v. Mitchell,
321 N.C. 650, 653, 365 S.E.2d 554, 556 (1988) (A jury foreman cannot be excluded
based on race.).
“[O]ne of society’s most basic tasks is that of protecting the lives of its citizens
and one of the most basic ways in which it achieves the task is through criminal laws
against murder.” Gregg v. Georgia, 428 U.S. 153, 226, 96 S. Ct. 2909, 2949 (1976)
(White, J., concurring). The imposition of the death penalty “has a long history of
acceptance both in the United States and in England.” Id. at 176, 96 S. Ct. at 2927
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Newby, J., dissenting
(Stewart, J., opinion expressing the judgment of the Court). In Furman v. Georgia,
408 U.S. 238, 92 S. Ct. 2726 (1972), the Supreme Court of the United States held that
imposing and carrying out the death penalty under statutes that provide no basis for
determining whether the penalty was proportionate to the crime would constitute
cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments. “The most marked indication of society’s endorsement of the death
penalty for murder is the legislative response to Furman. The legislatures of at least
35 States have enacted new statutes that provide for the death penalty for at least
some crimes that result in the death of another person.” Gregg, 428 U.S. at 179–80,
96 S. Ct. at 2928 (footnote omitted); see McCleskey v. Kemp, 481 U.S. 279, 302, 107 S.
Ct. 1756, 1772–73 (1987) (reviewing and approving of new statutory measures to,
inter alia, ensure individualized assessments for each defendant’s punishment based
on definite statutory criteria such as the finding and weighing of aggravating factors
by a jury). The weightiest of criminal punishment certainly requires the necessary
legal justification. Gregg, 428 U.S. at 189, 96 S. Ct. at 2932. The Court in Gregg
reviewed the legislative backlash from Furman and concluded:
Considerations of federalism, as well as respect for the
ability of a legislature to evaluate, in terms of its particular
State, the moral consensus concerning the death penalty
and its social utility as a sanction, require us to conclude,
in the absence of more convincing evidence, that the
infliction of death as a punishment for murder is not
without justification and thus is not unconstitutionally
severe.
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Newby, J., dissenting
Id. at 186–87, 96 S. Ct. at 2931 (recognizing that ascertaining contemporary
standards for purposes of the death penalty’s viability under the Eighth Amendment
is best left to legislative judgment).
While there is “ ‘no perfect procedure,’ ” “our consistent rule has been that
constitutional guarantees are met when ‘the mode [for determining guilt or
punishment] itself has been surrounded with safeguards to make it as fair as
possible.’ ” McCleskey, 481 U.S. at 313, 107 S. Ct. at 1778 (alteration in original) (first
quoting Zant v. Stephens, 462 U.S. 862, 884, 103 S. Ct. 2733, 2746 (1983); then
quoting Singer v. United States, 380 U.S. 24, 35, 85 S. Ct. 783, 790 (1965)). These
safeguards are “designed to minimize racial bias in the process” and protect “the
fundamental value of jury trial in our criminal justice system, and the benefits that
discretion provides to criminal defendants,” on a case-by-case basis. Id. at 313, 107 S.
Ct. at 1778. Case-by-case assessments by the courts have narrowed the scope of when
the death penalty can be imposed based on the specific facts and the particular
defendant.1
1 See, e.g., Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005) (precluding the
death penalty due to offender’s age); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002)
(precluding the death penalty due to offender’s mental retardation); Ford v. Wainwright, 477
U.S. 399, 106 S. Ct. 2595 (1986) (precluding the death penalty due to offender’s mental
insanity); Batson, 476 U.S. at 84, 106 S. Ct. at 1716 (curtailing improper consideration of the
race of potential jurors); Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368 (1982) (requiring
offender’s intent to kill); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954 (1978) (allowing
offender’s individualized mitigating circumstances); Coker v. Georgia, 433 U.S. 584, 97 S. Ct.
2861 (1977) (reviewing the proportionality of the crime to the penalty); Woodson v. North
Carolina, 428 U.S. 280, 96 S. Ct. 2978 (1976) (requiring an individualized assessment of the
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STATE V. RAMSEUR
Newby, J., dissenting
II.
In North Carolina, a prosecutor has discretion to pursue the death penalty
given the facts of a case, see N.C.G.S. § 15A-2004 (2019), but that prosecutorial
discretion is limited by the constitutional principles of equal protection and due
process, see Oyler, 368 U.S. at 456, 82 S. Ct. at 506. Recognizing the gravity of capital
punishment, the General Assembly has created by statute other significant
safeguards for capitally tried defendants. A defendant in a capital trial is given two
attorneys. N.C.G.S. § 7A-450(b1) (2019). A capitally tried defendant may move to
transfer venue to avoid local prejudice against him and secure a fair and impartial
trial. Id. § 15A-958. Following a guilty verdict of first-degree murder, in a separate
trial phase the jury considers aggravating factors from a comprehensive list, id.
§ 15A-2000(e), presented pursuant to the Rules of Evidence, see id. § 8C-1 (2019), and
weighs any mitigating factors in defendant’s favor, id. § 15A-2000(f). The jury must
find the existence of an aggravating factor beyond a reasonable doubt and that that
factor outweighs any mitigating factors before recommending the death penalty. Id.
§ 15A-2000(c)(1)–(3). This Court automatically reviews cases where a death sentence
is imposed, id. § 7A-27(a)(1), to ensure the defendant received a fair trial, free from
offender and circumstances with objective standards to guide the process for imposing a
sentence of death).
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Newby, J., dissenting
prejudicial error, and that the death sentence was proportional to the facts of the
defendant’s individual case.
In addition to a direct appeal, the General Assembly by statute provides an
avenue for post-conviction review and lists grounds for post-conviction relief. See
N.C.G.S. § 15A-1411 through N.C.G.S. § 15A-1422. A defendant may collaterally
attack his conviction and sentence through a MAR filed with the trial court, id. § 15A-
1420(b1)(1), or directly with this Court, N.C. R. App. P. 21(f) (2019). A capitally tried
defendant may file a MAR on the grounds listed in N.C.G.S. § 15A-1415(b). See, e.g.,
N.C.G.S. § 15A-1415(b)(7) (“There has been a significant change in law, either
substantive or procedural, applied in the proceedings leading to the defendant’s
conviction or sentence, and retroactive application of the changed legal standard is
required.”); id. § 15A-1415(b)(8) (The sentence imposed was “unauthorized at the
time imposed . . . or is otherwise invalid as a matter of law.”).
Any trial court decision on a MAR is subject to appellate review. See State v.
Stubbs, 368 N.C. 40, 42–43, 770 S.E.2d 74, 76 (2015); see also District Attorney’s Office
for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69, 129 S. Ct. 2308, 2320 (2009)
(“Federal courts may upset a State’s postconviction relief procedures only if they are
fundamentally inadequate to vindicate the substantive rights provided.”). The
capitally tried defendant may raise issues of racial discrimination on direct appeal
and through post-conviction MARs. See N.C.G.S. § 15A-2000(d)(2) (On appeal a death
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STATE V. RAMSEUR
Newby, J., dissenting
sentence may be overturned, inter alia, “upon a finding that the sentence of death
was imposed under the influence of passion, prejudice, or any other arbitrary factor.”).
The RJA was signed into law on 11 August 2009. North Carolina Racial Justice
Act, S.L. 2009-464, § 1, 2009 N.C. Sess. Laws 1213, 1214 [hereinafter original RJA]
(codified at N.C.G.S. § 15A-2010 (2009)) (repealed 2013). This legislation, echoing our
existing constitutional safeguards, provided that “[n]o person 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.” Id., § 1, 2009 N.C. Sess. Laws at 1214.
Under the RJA, a defendant who had been sentenced to death had the
opportunity to file a post-conviction MAR using statistical or other evidence. It
provides in part:
(a) A finding that race was the basis of the decision to seek
or impose a death sentence may be established if the court
finds that race was a significant factor in decisions to seek
or impose the sentence of death in the county, the
prosecutorial district, the judicial division, or the State at
the time the death sentence was sought or imposed.
Id. It allowed relief if a defendant proved that death sentences in the specified
geographic areas were sought more frequently upon persons of one race or upon
persons when victims were of another race, or when race was a “significant factor” in
peremptory challenges during jury selection. Id. If the court found that the defendant
had met his burden of proof then his death sentence was converted to a sentence of
life without the possibility of parole. Id.
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STATE V. RAMSEUR
Newby, J., dissenting
While the RJA became effective immediately and applied retroactively, id., § 2,
2009 N.C. Sess. Laws at 1215, its retroactive application provided different relief and
different filing requirements, depending on the status of a particular defendant’s
case. For those defendants who had previously been sentenced to death, the RJA
required them to file a MAR within one year of the RJA’s enactment. Id. The one-
year requirement did not apply to those with pending cases. See id., § 1, 2009 N.C.
Sess. Laws at 1214. Though generally adhering to the requirements for filing MARs,
the RJA also gave a specific mechanism in pending cases to those who claimed race
was a significant factor in seeking the death penalty. Id. In those cases, defendants
were allowed to raise their claims at the pretrial conferences. Id. If a defendant were
successful in presenting the pretrial claim, then the State was prevented from
seeking the death penalty in that case. Id.
In its original form, the RJA did not expressly address whether, in addition to
producing statistical evidence that race had been a significant factor in other death
penalty cases, a defendant had to show that race played a substantial role in the
outcome of his own case. The majority interprets the RJA not to require such a
showing. As explained in section V below, this erroneous interpretation of the RJA
overlooks the RJA’s stated purpose and raises serious separation-of-powers issues.
The General Assembly amended the RJA on 2 July 2012. An Act to Amend
Death Penalty Procedures, S.L. 2012-136, §§ 1–10, 2012 N.C. Sess. Laws 471, 471
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STATE V. RAMSEUR
Newby, J., dissenting
[hereinafter amended RJA]. The amending legislation made it clear that a defendant
had to show particularized racial bias in his case to prevail:
A finding that race was the basis of the decision to seek or
impose a death sentence may be established if the court
finds that race was a significant factor in decisions to seek
or impose the death penalty in the defendant’s case “at the
time the death sentence was sought or imposed.”
Id., § 3, 2012 N.C. Sess. Laws at 471 (emphasis added). The amendment limited the
relevant time frame for any statistical evidence presented by defining “at the time
the death sentence was sought or imposed” “as the period from 10 years prior to the
commission of the offense to the date that is two years after the imposition of the
death sentence.” Id. The amendment also limited the geographic area of relevant
statistical evidence to the county or prosecutorial district and made other procedural
changes. Id. The trial court was authorized to dismiss claims it determined to be
insufficient without a hearing. Id., § 3, 2012 N.C. Sess. Laws at 471–72. The
amendment applied retrospectively to any case that had not received a final order
affirmed on appeal under the original RJA. Id., § 8, 2012 N.C. Sess. Laws at 472.
Though the amended statute provided no additional post-conviction statutory
procedural remedies to defendants alleging discrimination, a defendant retained the
same right to bring claims based on constitutional violations as he possessed before
and during the tenure of the RJA.
On 19 June 2013, the RJA was repealed in its entirety. RJA Repeal, §§ 5.(a), 6,
2013 N.C. Sess. Laws at 372. The repeal legislation applies retroactively, though it
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STATE V. RAMSEUR
Newby, J., dissenting
exempts any judgments granting relief under the RJA that were affirmed on appeal
and became final orders before the repeal legislation’s effective date. Id., § 5.(d), 2013
N.C. Sess. Laws at 372. Furthermore, the repeal legislation expressly acknowledges
the continued existence of other procedural mechanisms by which capitally sentenced
defendants may seek relief from death sentences on the ground that racial
discrimination played a significant role in their convictions or sentences:
Upon repeal of Article 101 of Chapter 15A of the General
Statutes, a capital defendant retains all of the rights which
the State and federal constitutions provide to ensure that
the prosecutors who selected a jury and who sought a
capital conviction did not do so on the basis of race, that the
jury that hears his or her case is impartial, and that the
trial was free from prejudicial error of any kind. These
rights are protected through multiple avenues of appeal,
including direct appeal to the North Carolina Supreme
Court, and discretionary review to the United States
Supreme Court; a postconviction right to file a motion for
appropriate relief at the trial court level where claims of
racial discrimination may be heard; and again at the
federal level through a petition of habeas corpus.
Id., § 5.(b), 2013 N.C. Sess. Laws at 372. In short, in repealing the RJA, the General
Assembly merely eliminated one procedural mechanism by which defendants
sentenced to death could seek relief for alleged racial discrimination; it left intact
other procedural mechanisms by which defendants could seek relief on the same
basis.
On 18 December 2015, following the wholesale repeal of the RJA, this Court
reviewed and ultimately vacated trial court orders dated 20 April 2012 and 13
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Newby, J., dissenting
December 2012 that had granted certain defendants relief under the RJA. State v.
Robinson, 368 N.C. 596, 597, 780 S.E.2d 151, 152 (2015); see also State v. Augustine,
Golphin and Walters, 368 N.C. 594, 780 S.E.2d 552 (2015). The cases were remanded
to the trial court. Robinson, 368 N.C. at 597, 780 S.E.2d at 152; Augustine, 368 N.C.
at 594, 780 S.E.2d at 552.2
In our orders, vacating the trial court’s orders, we determined that the trial
court should have allowed the State’s motion to continue, citing section 15A-952(g)(2)
that “requires a trial court ruling on a motion to continue in a criminal proceeding to
consider whether a case is ‘so unusual and so complex’ that the movant needs more
time to adequately prepare.” Robinson, 368 N.C. at 596, 780 S.E.2d at 151 (quoting
N.C.G.S. § 15A-952(g)(2) (2013)); see id. (“The breadth of respondent’s study placed
petitioner in the position of defending the peremptory challenges that the State of
North Carolina had exercised in capital prosecutions over a twenty-year period.
Petitioner had very limited time, however, between the delivery of respondent’s study
and the hearing date.”). This Court “express[ed] no opinion on the merits of
respondent’s motion for appropriate relief,” but vacated the trial court’s order and
remanded to the trial court to “address petitioner’s constitutional and statutory
2 The majority’s analysis relies, in part, on some of the substance of these vacated trial
court orders. A vacated order is treated as if the order were never entered. See Alford v. Shaw,
327 N.C. 526, 544 n.6, 398 S.E.2d 445, 455 n.6 (1990) (defining “vacate” as “ ‘[t]o annul; to set
aside; to cancel or rescind. To render an act void; as, to vacate an entry of record, or a
judgment’ ” (citing Black’s Law Dictionary 1388 (rev. 5th ed. 1979))).
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STATE V. RAMSEUR
Newby, J., dissenting
challenges pertaining to the Act.” Id. Thus, no defendant had received statutory relief
under the original or amended RJA before its repeal because no trial court judgment
granting relief had been affirmed upon appellate review; therefore, no one has an
established or “vested” right in the RJA procedure.
There is no dispute that the General Assembly intended to repeal retroactively
the RJA. The question presented is whether the repeal violated the constitutional
prohibition against ex post facto laws. Generally, a law is considered ex post facto if
it criminalizes conduct after it occurred or increases the penalty of a crime already
committed. The majority claims the RJA is “[a] public law[ ] ‘repeal[ing] or
amend[ing]’ the substantive laws of crime and punishment with respect to crimes
already committed.” (Third and fourth alterations in original.) However, neither the
crime of first-degree murder nor its potential punishment has been altered by the
RJA or its repeal. The General Assembly intended the RJA to provide a new
procedure through which a capitally sentenced defendant could collaterally challenge
a death sentence. Consequently, the General Assembly acted within the scope of its
authority when it amended and later repealed the RJA. The General Assembly has
the authority to pass legislation directed at pending litigation and has the authority
to direct statutory post-conviction criminal procedures and remedies, including
procedural measures that do not alter the substance of the underlying crime and its
punishment.
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Newby, J., dissenting
III.
“The legislative power of the State shall be vested in the General Assembly.”
N.C. Const. art. II, § 1. As the agent of the people’s sovereign power, State ex rel.
Ewart v. Jones, 116 N.C. 570, 570, 21 S.E. 787, 787 (1895), the General Assembly has
the presumptive power to act, State ex rel. Martin v. Preston, 325 N.C. 438, 448, 385
S.E.2d 473, 478 (1989). “All power which is not expressly limited by the people in our
State Constitution remains with the people, and an act of the people through their
representatives in the legislature is valid unless prohibited by that Constitution.”
Preston, 325 N.C. at 448–49, 385 S.E.2d at 478 (citations omitted). “We review
constitutional questions de novo. In exercising de novo review, we presume that laws
enacted by the General Assembly are constitutional, and we will not declare a law
invalid unless we determine that it is unconstitutional beyond reasonable doubt.”
State ex. rel. McCrory v. Berger, 368 N.C. 633, 639, 781 S.E.2d 248, 252 (2016)
(citation omitted).3
“The principal goal of statutory construction is to accomplish the legislative
intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citing
Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998)). “The best
indicia of that intent are the language of the statute[,] . . . the spirit of the act[,] and
3 The majority ignores this historic presumption of constitutionality of laws enacted
by the legislature.
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what the act seeks to accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs
of Town of Nags Head, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citation
omitted).
As the policymaking branch, one legislature generally cannot bind a future
legislature. See Kornegay v. City of Goldsboro, 180 N.C. 441, 451, 105 S.E. 187, 192
(1920). Thus, the General Assembly has the authority to enact new statutes, to amend
or repeal current statutes, and to enact statutes directed at pending claims. “The
Legislature may alter a provision of law at any time before the rights of parties are
settled.” Blue Ridge Interurban R. Co. v. Oates, 164 N.C. 167, 171, 80 S.E. 398, 399
(1913). A mere expectation that a law or a favorable statutory provision will continue
does not amount to a vested property right or prevent the General Assembly from
revisiting its policy decisions. Armstrong v. Armstrong, 322 N.C. 396, 402, 368 S.E.2d
595, 598 (1988); Pinkham v. Unborn Children of Jather Pinkham, 227 N.C. 72, 79, 40
S.E.2d 690, 696 (1946). When statutes providing a particular remedy are
unconditionally repealed, the remedy is gone, and “there can be no further
proceedings under the remedy.” Spooners Creek Land Corp., 276 N.C. at 495–96, 172
S.E.2d at 55; see also In re Incorporation of Indian Hills, 280 N.C. at 663, 186 S.E.2d
at 912.
Specifically, regarding criminal cases, “[r]emedies must always be under the
control of the legislature,” “and it may prescribe altogether different modes of
procedure in its discretion” that do not “dispense with any of those substantial
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protections” that the law at the time provided the accused. Thompson v. State of
Missouri, 171 U.S. 380, 386, 18 S. Ct. 922, 924 (1898); see also In re Kivett, 309 N.C.
635, 672, 309 S.E.2d 442, 464 (1983) (“Procedural changes of the law in criminal cases
are not violations of the ex post facto doctrine.” (citing Dobbert v. State of Florida, 432
U.S. 282, 97 S. Ct. 2290 (1977)). “There is no vested right in procedure and statutes
affecting procedural matters may be given retroactive effect or applied to pending
litigation.” State v. Morehead, 46 N.C. App. 39, 43, 264 S.E.2d 400, 402 (1980) (citing
Spencer v. Motor Co., 236 N.C. 239, 72 S.E.2d 598 (1952)). Even if a certain criminal
procedure implicates a constitutional right, it does not transform it into a substantive
provision. See id. at 42–43, 264 S.E.2d at 402 (allowing an amendment to the North
Carolina Speedy Trial Act to apply to the defendant’s pending case because, “[a]t that
time, defendant had no vested or substantial rights under the statute” even though
the Sixth Amendment protects the right to a speedy trial). Modes of procedure do not
operate substantive changes, “leav[ing] untouched the nature of the crime and the
amount or degree of proof essential to conviction,” Hopt v. People of the Territory of
Utah, 110 U.S. 574, 590, 4 S. Ct. 202, 210 (1884); their alteration cannot constitute
an ex post facto violation.
IV.
Since our earliest history, ex post facto laws have been prohibited. Ex post facto
laws criminalize past actions or increase a punishment from what a defendant could
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have received at the time of the crime’s commission. Recognizing that one of the
purposes of criminalizing conduct is deterrence,
[a] law made after the fact (ex post facto) could not logically
have deterred the crime; to punish a person for an act not
contrary to the law when committed was therefore unjust.
More than individual injustice was involved; the whole
social basis of republican government was jeopardized if
the people did not know exactly what was prohibited.
John V. Orth & Paul Martin Newby, The North Carolina State Constitution 63 (2d
ed. 2013). The first constitution of North Carolina adopted in 1776 provided “[t]hat
retrospective laws, punishing facts committed before the existence of such laws, and
by them only declared criminal, are oppressive, unjust, and incompatible with liberty;
wherefore no ex post facto law ought to be made.” N.C. Const. of 1776, Declaration of
Rights, § 24. Early in our nation’s history, the Supreme Court of the United States
discussed the idea of ex post facto laws in Calder v. Bull, 3 U.S. 386 (1798). Relying
in part on the North Carolina Constitution’s explicit prohibition on criminal ex post
facto laws, the Supreme Court in Calder confined the definition of ex post facto laws
to retrospective criminal laws that punish acts committed before they became crimes
and laws that exact a more severe punishment than they would have incurred at the
time they were committed. The North Carolina State Constitution 63–64.
As recently as 2010, “[t]his Court has articulated that ‘both the federal and
state constitutional ex post facto provisions are evaluated under the same
definition.’ ” State v. Whitaker, 364 N.C. 404, 406, 700 S.E.2d 215, 217 (2010) (quoting
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State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002), cert. denied, 537 U.S. 1117,
123 S. Ct. 882 (2003)). The term ex post facto generally should be limited to only those
retroactive laws “that create, or aggravate, the crime; or [i]ncrease the punishment,
or change the rules of evidence, for the purpose of conviction.” Calder, 3 U.S. at 391(opinion of Chase, J.). “[A]ny statute . . . which makes more burdensome the
punishment for a crime, after its commission, . . . is prohibited as ex post facto,”
Beazell v. Ohio, 269 U.S. 167, 169–70, 46 S. Ct. 68, 68 (1925), because “legislatures
may not retroactively . . . increase the punishment for criminal acts.” Collins v.
Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715, 2719 (1990).
To be an ex post facto law, the legislative change must “alter[ ] the definition
of criminal conduct or increase[ ] the penalty by which a crime is punishable.”
California Dep’t of Correction v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597, 1602
n.3 (1995). “[M]ore burdensome” does not equate to “some ambiguous sort of
‘disadvantage’ ” for defendant, id.; it relates to the quantum of punishment assigned
to the offense at the time of its commission, see, e.g., State v. Bowditch, 364 N.C. 335,
341, 700 S.E.2d 1, 5 (2010) (“An ex post facto law may be defined . . . as a law that
‘allows imposition of a different or greater punishment than was permitted when the
crime was committed.’ ” (quoting State v. Barnes, 345 N.C. 184, 233–34, 481 S.E.2d
44, 71 (1997))); State v. Vance, 328 N.C. 613, 620, 403 S.E.2d 495, 500 (1991), cert.
denied, 522 U.S. 876, 118 S. Ct. 196 (1997); State v. Wright, 302 N.C. 122, 128, 273
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S.E.2d 699, 704 (1981); State v. Detter, 298 N.C. 604, 637, 260 S.E.2d 567, 589–90
(1979).
Even if a legislative amendment creates a disadvantage, that circumstance “is
an insufficient basis to establish an ex post facto violation unless the change in the
law actually increased the quantum of punishment for the offense,” Hameen v. State
of Delaware, 212 F.3d 226, 245–46 (3rd Cir. 2000), in other words, the range of
punishment assigned to the offense at the time of its commission.
The central concern of the Ex Post Facto Clause is “the lack of fair notice and
governmental restraint when the legislature increases punishment beyond what was
prescribed when the crime was consummated.” Lynce v. Mathis, 519 U.S. 433, 441,
117 S. Ct. 891, 895–96 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 30, 101 S. Ct.
960, 965 (1981)); see also Dobbert, 432 U.S. at 297, 97 S. Ct. at 2300 (“The statute was
intended to provide maximum deterrence, and its existence on the statute books
provided fair warning as to the degree of culpability which the State ascribed to the
act of murder.”); Garner v. Jones, 529 U.S. 244, 253, 120 S. Ct. 1362, 1369 (2000) (The
ex post facto doctrine carries “some idea of actual or constructive notice to the
criminal before commission of the offense of the penalty for the transgression . . . .”).
The majority focuses its analysis of the original RJA on the third Calder
category, which prohibits “[e]very law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed” as an ex
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Newby, J., dissenting
post facto law. Calder, 3 U.S. at 390 (opinion of Chase, J.). The majority concludes
the RJA repeal fits into the third Calder category because it “ ‘revive[s]’ the former
measure of punishment attached to crimes already committed and make[s] more
burdensome” the punishment that the original RJA made “less severe.” According to
the majority’s rationale, the original RJA’s retroactivity changed the quantum of
punishment annexed to every capital conviction by offering the possible sentence of
life without the possibility of parole. In its view, the RJA repeal then “revive[d]” the
“more severe” punishment of death when it in actuality only altered a post-conviction
procedure.
The majority wrongly concludes that the original RJA retroactively and
substantively changed the quantum of punishment the law annexed to the crime of
first-degree murder and that the RJA repeal increases its punishment. The
punishment for first-degree murder before, during, and after the RJA has been the
same and remains the same. The General Assembly intended the RJA to be a
procedure to collaterally attack a capital sentence. By its nature, a collateral attack
does not address the substance of the crime itself or its penalty.
The foundation of the majority’s approach is that, “[t]he General Assembly, . . .
by giving the RJA retroactive effect, has declared that the RJA was the applicable
law at the time the crimes were committed.” It makes this claim without analysis.
However, it begs the question of whether the General Assembly, by using the term
“retroactive,” intended simply to give all those subject to the death penalty an
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Newby, J., dissenting
additional procedural tool to attack their sentences or, more expansively, to
substantively change the punishment for first-degree murder. Courts should
interpret statutes as the legislature intended. If the General Assembly had wanted
to change the statutory punishment for first-degree murder to incorporate the
provisions of the RJA, it could have done so; but, it chose not to change the statutory
punishment. Likewise, the General Assembly could have specified that the provisions
of the RJA are retroactive to the dates of each offense. Again, it did not do so. The
General Assembly simply provided that the RJA’s provisions were “retroactive.”
Certainly, whether the provisions of the RJA apply to a particular defendant is
unknown at the time of the offense. They only apply if a defendant receives a death
sentence.
The best reading of this provision in context of the entire RJA is that the
General Assembly intended the RJA procedure to be available to all those who had
been sentenced to death already or those facing capital trials who are ultimately
sentenced to death. The text of the statute supports this interpretation. As previously
discussed, the RJA provides for different remedies and filing requirements,
depending on each defendant’s status. The RJA is not a substantive change in the
penalty for first-degree murder. This interpretation of the RJA is consistent with the
position taken in a publication by the University of North Carolina School of
Government, the institute tasked with educating legal practitioners and judges. See
The Racial Justice Act, N.C. Capital Case Law Handbook ch. 7, at 273 (School of
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Newby, J., dissenting
Gov’t, Chapel Hill, N.C., 3d ed. 2013) (“In analyzing the possible ex post facto
constraints on the application of the amended RJA, it is helpful to divide capital
defendants into three classes based on the date of the charged offense: Offense dates
prior to August 11, 2009. These defendants allegedly committed murder prior to the
enactment of the original RJA. The protections offered by the amended RJA, although
less substantial than the protections offered by the original RJA, are no less than
what was available to these defendants at the time of their alleged crimes. Therefore,
there is no ex post facto problem for these defendants.” (emphasis omitted)). No doubt,
as considered by the author of this publication, ex post facto case law does not support
the majority’s analysis.
In Dobbert v. State of Florida, 432 U.S. 282, 97 S. Ct. 2290 (1977), a new statute
in effect at the time of the petitioner’s trial made the jury’s recommendation of a life
or death sentence advisory and not binding on a judge. Id. at 289–91, 97 S. Ct. at
2296–97. It altered the method used to determine whether a criminal defendant
would receive the death penalty because the judge could still impose the death
penalty against the jury’s recommendation. Id. at 294–95, 97 S. Ct. at 2299. In the
petitioner’s case, “the trial judge, pursuant to his authority under the amended
Florida statute, overruled the jury’s recommendation and sentenced petitioner to
death.” Id. at 287, 97 S. Ct. at 2295. The petitioner argued, inter alia, that “the change
in the role of the judge and jury in the imposition of the death sentence in Florida
between the time of the first-degree murder and the time of the trial constitutes an
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Newby, J., dissenting
ex post facto violation.” Id. at 292, 97 S. Ct. at 2297. The Supreme Court, however,
described the change as “clearly procedural. The new statute simply altered the
methods employed in determining whether the death penalty was to be imposed;
there was no change in the quantum of punishment attached to the crime.” Id. at
293–94, 97 S. Ct. at 2298.4
The Supreme Court considered the statutory change to be procedural, and not
a matter of substance, even when the change occurred during the initial trial itself,
when the sentence was first imposed. “[A] procedural change is not ex post facto,”
even if it works “to the disadvantage of a defendant.” Id. at 293, 97 S. Ct. at 2298.
Moreover, the petitioner could not show he was entitled to a lesser sentence; his
argument amounted to mere speculation because “it certainly cannot be said with
assurance that, had his trial been conducted under the old statute, the jury would
have returned a verdict of life.” Id. at 294, 97 S. Ct. at 2299.
4 Retroactive, substantive rule changes interfere with the jury’s fact-finding process
by altering the burden of proof for the underlying offense or the quantum of punishment.
Compare State v. Correll, 715 P.2d 721 (1986) (retroactively applying an aggravating
circumstance that did not exist at the time the offense was committed, makes defendant
guilty of a greater crime), with Hameen, 212 F.3d at 244 (allowing a judge to impose the death
penalty under a modified sentencing scheme when the jury had already unanimously found
the aggravating factors outweighed the mitigating circumstances and classifying the
modification as procedural); accord Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002)
(requiring a jury to adjudicate a defendant’s guilt and the presence or absence of the
aggravating factors to the death penalty for first-degree murder, in keeping with Sixth
Amendment right to a jury trial in capital prosecutions).
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In California Department of Correction v. Morales, 514 U.S. 499, 115 S. Ct.
1597 (1995), a California statute amended post-conviction parole procedures to allow
the Board of Prison Terms to decrease the frequency of parole suitability hearings
under certain circumstances. Respondent Morales broadly argued that “the Ex Post
Facto Clause forbids any legislative change that has any conceivable risk of affecting
a prisoner’s punishment.” Id. at 508, 115 S. Ct. at 1602. The Court first determined
that the legislation did not alter the definition of the crime, id. at 505, 115 S. Ct. at
1601, and further rejected respondent’s expansive argument, holding instead that the
amendment did not increase the “punishment” attached to respondent’s crime of
second-degree murder. Id. at 507–08, 115 S. Ct. at 1602. Even if it altered the method
for fixing a parole release date, it did not change respondent’s indeterminate sentence
of fifteen years to life for the murder of his wife. Id. at 508–09, 115 S. Ct. at 1603.
Compare id. (recognizing a “speculative and attenuated possibility” of parole for
respondent who, while parole-eligible, had committed more than one murder, one
while paroled for another offense), and Jones v. Keller, 364 N.C. 249, 259, 698 S.E.2d
49, 57 (2010) (affirming the trial court in finding no ex post facto violation when the
defendant “d[id] not allege that any legislation or regulation has altered the award of
sentence reduction credits” or that there had been an administrative change in the
interpretation of applicable regulations), cert. denied, 563 U.S. 960, 131 S. Ct. 2150(2011), with Lynce, 519 U.S. at 439–47, 117 S. Ct. at 895–99 (retroactively cancelling
provisional early release credits awarded to a state prisoner to alleviate prison
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Newby, J., dissenting
overcrowding, thereby resulting in rearrest and reincarceration of that prisoner,
violated Ex Post Facto Clause).
In Hopt v. People of the Territory of Utah, 110 U.S. 574, 4 S. Ct. 202 (1884), a
change in the rules of evidence, occurring after the commission of the crime but before
the defendant’s retrial, enlarged the class of competent witnesses to testify in
criminal trials to include convicted felons. Id. at 587–88, 4 S. Ct. at 209. The State
presented a convicted felon as a new witness who testified against the defendant. Id.Despite the new law’s effect of expanding the range of admissible evidence in the guilt
or innocence phase, the Supreme Court of the United States held the change was not
ex post facto because it “relate[d] to modes of procedure only in which no one can be
said to have a vested right, and which the state, upon grounds of public policy, may
regulate at pleasure.” Id. at 590, 4 S. Ct. at 210. It did not meet the definition of an
ex post facto law because the change did not alter the underlying crime, the burden
of proof for proving its elements, or the punishment prescribed for it:
[T]hey do not attach criminality to any act previously done,
and which was innocent when done, nor aggravate any
crime theretofore committed, nor provide a greater
punishment therefor than was prescribed at the time of its
commission, nor do they alter the degree, or lessen the
amount or measure, of the proof which was made necessary
to conviction when the crime was committed. The crime for
which the present defendant was indicted, the punishment
prescribed therefor, and the quantity or the degree of proof
necessary to establish his guilt, all remained unaffected by
the subsequent statute.
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Id. at 589–90, 4 S. Ct. at 210 (emphasis added); see also Thompson, 171 U.S. at 386–
87, 18 S. Ct. at 924–25 (finding no ex post facto violation in the seemingly pointed
change in the law to allow admissibility of handwriting comparisons upon retrial
because it “did not enlarge the punishment to which the accused was liable when his
crime was committed” or change the quality of degree of proof required to prove the
offense at the time of its commission).
Applying ex post facto jurisprudence, it is clear that both the original RJA and
its amendment were procedural in nature. The original and amended RJA statutes
provided a procedural tool for seeking post-conviction relief for claims of racial
discrimination. Neither altered the elements of first-degree murder, the necessary
proof for conviction, or its potential penalties. There has always been and remains
the possibility of amelioration of a defendant’s capital sentence on direct appeal, see
N.C.G.S. § 15A-2000(d)(2), and through post-conviction relief, N.C.G.S. § 15A-1417.
The repeal of the RJA left defendants in capital cases other means of raising claims
of discrimination. As a procedural statute, it is not an ex post facto violation to amend
the RJA or repeal it.5
5 The interpretation of the Ex Post Facto Clause has included the concept of “vested
rights” with the implication that an ex post facto law impairs a vested right. “The true
construction and meaning of the prohibition is, that the states pass no law to deprive a citizen
of any right vested in him by existing laws.” Calder, 3 U.S. at 394 (opinion of Chase, J.)
(emphasis added) (discussing a just application of retroactive rules, including pardons and a
taking justly compensated). “Alterations which leav[e] untouched the nature of the crime and
the amount or degree of proof essential to conviction . . . relate to modes of procedure only, in
which no one can be said to have a vested right, and which the state, upon grounds of public
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Newby, J., dissenting
The majority heavily relies on State v. Keith, 63 N.C. 140 (1869), to support its
classification of the RJA repeal as an ex post facto law; however, that case is
inapposite.
In the aftermath of the Civil War, the General Assembly passed the Amnesty
Act of 1866, which “contain[ed] a full and unequivocal pardon for all ‘homicides and
felonies’ committed by officers or soldiers of the late Confederate States, or by officers
or soldiers of the United States, ‘done in the discharge of any duties imposed on him,
purporting to be by a law of the State or late Confederate States Governor, or by
virtue of any order emanating from any officer.’ ” Id. at 142 (quoting Act of Dec. 22,
1866, ch. 3 § 1, 1866-67 N.C. Sess. Laws 6, 6–7). The Act was later repealed by
legislative action at the Constitutional Convention of 1868. Id. at 144. The central
issue in Keith was whether the repeal of the Act was valid. Id.
The language of the Act expressly provided that, “if the defendant can show
that he was an officer or a private in either of the above named organizations at the
time, it shall be presumed that he acted under orders, until the contrary shall be
made to appear.” Id. at 142 (quoting Act of Dec. 22, 1866, ch. 3 § 2, 1866-67 N.C. Sess.
Laws 6, 6–7). If he could show he was a soldier at the time, then it was presumed he
was acting under orders for otherwise criminal acts and would be entitled to full
policy, may regulate at pleasure.” Hopt, 110 U.S. at 590, 4 S. Ct. at 210 (emphasis added));
see also Thompson, 171 U.S. at 388, 18 S. Ct. at 925 (“We cannot adjudge that the accused
had any vested right in the rule of evidence . . . .” (emphasis added)).
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Newby, J., dissenting
amnesty for those acts. Id. In Keith the defendant alleged, and the solicitor agreed,
“that his case came within the provisions of that act.” Id. Thus, Keith properly
claimed the Act’s benefit and, if the repeal of the Act did not affect the defendant’s
claim, he was undisputedly entitled to it.
To determine whether the legislature could repeal its grant of legislative
amnesty, the Court defined this legislative act as “destroy[ing] and entirely effac[ing]
the previous offen[s]e; it is as if it had never been committed.” Id. at 143. Referencing
English common law, the Court determined that, if the legislature issued a general
legislative pardon, the Court was bound to take notice of it and “cannot proceed
against any person whatsoever” who is entitled to the pardon “as to any of the
offen[s]es pardoned” even if he neglects to raise it or waives it. Id. at 142. Simply put,
the pardon remitted guilt entirely by treating the offense as if it had never occurred.
Id. at 144.
Even if the soldier did nothing but belong to the historically unique class of
Civil War soldiers on duty, he was entitled to relief under it. As a legislative pardon,
the Act in effect removed a historically unique class of individuals from the reach of
criminal laws, making it as if “the offen[s]e had been repealed or amended” to exclude
that class of individuals. Id. (A legislative pardon “is considered as a public law;
having the same effect on the case as if the general law punishing the offen[s]e had
been repealed . . . .” (emphasis added) (quoting United States v. Wilson, 32 U.S. 150,
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Newby, J., dissenting
163 (1833))).6 In making its determination, the Court in Keith analogized that the
revocation of amnesty “was substantially an ex post facto law; it made criminal what,
before the ratification of the ordinance was not so; and it took away from the prisoner
his vested right to immunity.” Id. at 145.
The majority relies on the reasoning in Keith to argue that the RJA repeal is
an unconstitutional ex post facto law that affected defendant’s substantive rights.
The RJA repeal, however, does not fit the definition of ex post facto as discussed in
Keith.
In Keith the General Assembly granted a blanket legislative pardon to all Civil
War soldiers for their crimes, making what had been criminal no longer criminal; it
were as if the criminal acts never happened. The Amnesty Act applied to all soldiers,
presuming they were acting under orders. The enactment created a vested right to
the pardon. The Amnesty Act became part of the substantive criminal trial. Courts
were required to apply the legislative pardon even if not raised by the defendant. In
Illustratively, in State v. Blalock, 61 N.C. 242, 244 (1867), defendants similarly
6
situated to Keith had already been convicted of murder. On appeal the Court in Blalock took
judicial notice of the Act, “and seeing from the record that the case of the prisoners came
within it, ordered their discharge.” Keith, 63 N.C. at 143 (citing Blalock, 61 N.C. at 247–48).
The Court did not remand to the trial court to hold a hearing. On the contrary, the prisoners
were automatically entitled to relief once the Court concluded that they fit squarely within
the Act’s purview. On the other hand, defendant Cook in State v. Cook, 61 N.C. 535 (1868),
was not entitled to amnesty in the first place because his murder did not occur while he was
“on duty.” The purview of the Act only included acts done while performing wartime duties.
The Act did not speak to the consequences for “off-duty” conduct.
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Newby, J., dissenting
short, soldiers did not have to follow any procedure to be entitled to its benefits. There
was no deadline or expiration.
The RJA is clearly not analogous to legislative amnesty. The RJA did not grant
amnesty or remit guilt; it is not a pardon. It is not a blanket change in the penalty
for first-degree murder. This distinction between the RJA and legislative amnesty is
underscored by the fact that the RJA provides a different procedure for defendants
already convicted than for those with capital trials pending. Original RJA, § 2, 2009
N.C. Sess. Laws at 1215. It does not provide relief to all those with capital sentences,
but rather any potential relief is conditioned on multiple factors. In order to pursue
relief, each defendant must meet a filing deadline. RJA claims are not part of a
defendant’s trial, but must be pursued through a collateral motion for relief. Each
defendant has the burden of proof and must provide sufficient evidence in support of
the claim. Under the RJA, a defendant’s relief becomes vested only upon a final order
affirmed on appeal. Even if a defendant theoretically received RJA relief, that relief
would not speak to his actual innocence or afford him the opportunity to retry his
guilt or innocence through a new trial. Thus, the provisions of the RJA cannot be
analogized to a legislative grant of immunity or “a full and unequivocal pardon.”
Keith, 63 N.C. at 142. The RJA simply provided a statutory avenue by which to pursue
possible post-conviction relief.
Far from resembling the defendant’s situation in Keith, defendant’s position in
this case is more akin to that of the petitioner in United States ex rel. Forino v.
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Newby, J., dissenting
Garfinkel, 166 F.2d 887 (3rd Cir. 1948), an Italian national who was serving a
sentence for second-degree murder. At the time of the petitioner’s offense and trial,
state law “pardoned” certain offenders once they had served their sentences. Id. at
888–89. The legislature repealed the pardon law before the petitioner completed his
sentence. Id. at 889. Without a pardon, the petitioner faced deportation. Id. at 888.
In an effort to avoid that outcome, the petitioner argued that
in effect that he ha[d] achieved the benefit of a legislative
pardon, or at least should be deemed to have acquired the
status of a person who has been pardoned by the
Pennsylvania Legislature, since otherwise the repealing
statute would be given retroactive effect and he would lose
his civil right to a legislative pardon, a right which he says
was acquired by him prior to the passage of the repealing
statute.
Id. at 889. The petitioner further maintained that, to “treat the repealing statute as
effective when he had served part of his sentence at the time it was enacted [would
have been] to impose upon him the burden of [a constitutionally prohibited] ex post
facto law.” Id.
The United States Court of Appeals for the Third Circuit disagreed. “The flaw
in Forino’s reasoning lies in the fact that the access to legislative grace was
withdrawn by an act of the Pennsylvania Legislature before he had endured his
punishment.” Id. at 889–90. The court noted that “[n]o one has or can acquire a vested
right to a pardon,” id. at 889, and that,
[t]o sustain Forino’s point one would have to take the
position that any sentence of imprisonment imposed prior
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to the effective date of the repealing act carried with it a
right to a legislative pardon. This would constitute judicial
legislation and would change the terms of the Legislative
Pardons Act making the issuance of the pardon dependent
on the imposition of the sentence on the criminal and not
on the criminal having endured his punishment.
Id. at 890. The court concluded that Forino, in making an ex post facto argument,
“confuse[d] the nature of punishment and the nature of a pardon. He [took] the broad
position that any law which alters his position to his disadvantage is necessarily ex
post facto. . . . But the repeal of the Legislative Pardons Act did not change the
punishment or inflict a greater punishment on Forino.” Id. (citing Calder, 3 U.S. at390–91). By the time Forino had served his sentence, “the grace previously afforded
by the Legislative Pardons Act had been withdrawn.” Id.In other words, the Pennsylvania legislature’s repeal of the pardon statute in
Forino did not amount to an ex post facto law in the petitioner’s case because the
petitioner never obtained a pardon under the statute. Similarly, the RJA repeal is
not an ex post facto law as applied to defendant because defendant was not granted
relief under the RJA prior to the repeal. In contrast, the 1868 repealing ordinance at
issue in Keith deprived the defendant of a benefit he had already obtained.
To reach its desired outcome, the majority here expands the interpretation of
ex post facto laws far beyond that described in Keith and beyond the interpretation
of the Ex Post Facto Clause in federal cases. The majority embeds that expansive
interpretation in our state constitution. Notably, as the majority itself concedes, this
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Court has repeatedly held that the protection provided by our state constitution
against ex post facto laws mirrors the interpretation of its federal counterpart. The
majority now seems to overrule our case law and reject this notion.
The offense of first-degree murder and its punishment have not changed. See
Dobbert, 432 U.S. at 300, 97 S. Ct. at 2302 (suggesting ex post facto comes into play
only when, “under the new law a defendant must receive a sentence which was under
the old law only the maximum in a discretionary spectrum of length,” but “has had
no effect on the defendant” when he already received the maximum punishment).
Defendant here received fair warning of the range of punishment imposed for first-
degree murder, particularly considering the RJA postdates defendant’s offenses.
Thus, the legislature acted within its constitutional prerogative in repealing the RJA.
Its repeal does not constitute an ex post facto law.
The majority continues its misapplication of the correct legal standard for ex
post facto laws in its analysis of the amended RJA. In the amended RJA, the General
Assembly clarified the original RJA by explicitly stating that a defendant must show
the allegations of improper racial influence affected his own proceeding.
The majority characterizes the amendment’s changes as both procedural and
substantive and therefore subverting “fundamental fairness.” It holds the
“alterations amending the evidentiary requirements . . . constitute changes in the
criminal law that cannot be applied retroactively.” It maintains “[t]hese revisions fall
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within the fourth Calder category by altering the ‘legal rules of evidence’ and require
a different, more stringent, standard of proof in showing the racially discriminatory
imposition of the death penalty.” The case relied upon by the majority for this
proposition, Carmell v. Texas, 529 U.S. 513, 120 S. Ct. 1620 (2000), clearly frames the
fourth Calder category in terms of prohibiting laws that retroactively lower the
burden of proof required for proving the commission of the offense or increasing its
punishment “to facilitate an easier conviction,” thereby “making it easier to meet the
threshold for overcoming the presumption” of innocence, id. at 532, 120 S. Ct. at 1633.
When viewed in its proper context, it is protecting against those types of retroactive
laws that preserves “fundamental fairness.”
Calder’s fourth category addresses this concern precisely.
A law reducing the quantum of evidence required to convict
an offender is as grossly unfair as, say, retrospectively
eliminating an element of the offense, increasing the
punishment for an existing offense, or lowering the burden
of proof. In each of these instances, the government
subverts the presumption of innocence by reducing the
number of elements it must prove to overcome that
presumption; by threatening such severe punishment so as
to induce a plea to a lesser offense or a lower sentence; or
by making it easier to meet the threshold for overcoming the
presumption. Reducing the quantum of evidence necessary
to meet the burden of proof is simply another way of
achieving the same end. All of these legislative changes, in
a sense, are mirror images of one another. In each instance,
the government refuses, after the fact, to play by its own
rules, altering them in a way that is advantageous only to
the State, to facilitate an easier conviction. There is plainly
a fundamental fairness interest, even apart from any claim
of reliance or notice, in having the government abide by the
rules of law it establishes to govern the circumstances
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Newby, J., dissenting
under which it can deprive a person of his or her liberty or
life.
Id. at 532–33, 120 S. Ct. at 1632–33 (emphases added) (internal citation and footnotes
omitted).
The quantum of proof required to convict for the offense of first-degree murder
or to recommend the death penalty has not been changed. For the same reasons
previously discussed, the RJA in its original form or as amended did not change the
nature of the crime of first-degree murder, the elements to prove that crime, or the
range of its punishment. Neither its amendment, nor its later repeal, violated the
prohibition against ex post facto laws. However, the majority’s broad reading of the
original RJA creates significant constitutional separation-of-powers issues, granting
the judiciary the power to make capital punishment policy.
V.
If broadly interpreted and applied, as the majority does, the original RJA is
unconstitutional because, through it, the General Assembly delegated its legislative
policymaking authority to the judiciary. Since 1776 our state constitution has
provided that each branch of government has a distinct function. N.C. Const. of 1776,
Declaration of Rights, § IV; see N.C. Const. art. I, § 6; N.C. Const. of 1868, art. I, § 8.
Among those functions, the General Assembly is the policymaking body; the judiciary
adjudicates cases. Article I, Section 18 of the state constitution provides that the
courts are open to address wrongs done to a person. N.C. Const. art. I, § 18. Thus,
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courts determine specific controversies based on the evidence relevant to the
particular case. See McCleskey, 481 U.S. at 302, 107 S. Ct. at 1772–73 (reviewing and
approving of new statutory measures to, inter alia, ensure individualized
assessments for each defendant’s punishment).
Accountable to and representative of the people, N.C. Const. art. II, §§ 2–
5, “[t]he legislative branch of government is without question ‘the policy-making
agency of our government’ ” and is “a far more appropriate forum than the courts for
implementing policy-based changes to our laws,” Rhyne v. K-Mart Corp., 358 N.C.
160, 169, 594 S.E.2d 1, 8 (2004) (quoting McMichael v. Proctor, 243 N.C. 479, 483, 91
S.E.2d 231, 234 (1956)). The legislative branch conducts its business through the
passing of statutes reflecting the policymaking decisions of the currently sitting
General Assembly. “[I]dentified as [the legislature’s] members are, with the other
citizens of the community, and faithfully representing their feelings and interests, we
can never allow ourselves to think that the acts proceeding from them can be designed
for any other purpose than the promotion of the general welfare; or can result from
other than the purest and most patriotic motives.” Jones v. Crittendon, 4 N.C. 55, 55
(1814). It is “[t]he diversity within the [legislative] branch [that] ensures healthy
review and significant debate of each proposed statute, the enactment of which
frequently reaches final form through compromise.” Berger, 368 N.C. at 653, 781
S.E.2d at 261 (Newby, J., concurring in part and dissenting in part). Under our
sentencing structure, the extent of punishment is a legislative policy decision. The
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legislature provides procedure for capital cases and guidance to juries through
aggravating factors by statute.7 See N.C.G.S. § 15A-2000. It also provides for appeals,
see N.C.G.S. §§ 7A-25 through -32, and post-conviction relief and remedies by statute,
see N.C.G.S. §§ 15A-1411 through -1422.
Applying the majority’s sweeping interpretation of the RJA, if a court finds
evidence that race was a significant factor in the imposition of a capital sentence “in
the county, the prosecutorial district, the judicial division, or the State,” Original
RJA, § 1, 2009 N.C. Sess. Laws at 1214, a defendant’s capital sentence is changed to
life without the possibility of parole, even if the misuse of race was completely
unrelated to the defendant or his case. If affirmed on appeal, then that ruling could
control all other challenges under the RJA. In other words, all death sentences
imposed before the RJA repeal could be changed to life without the possibility of
parole. It would not matter that the particular defendant’s proceeding was completely
untainted by racial considerations. Whether courts should use statewide statistical
studies to determine capital punishment policy is precisely the question answered by
7 See McCleskey, 481 U.S. at 305–06, 107 S. Ct. at 1774 (summarizing the case law
consensus for the “constitutionally permissible range of discretion in imposing the death
penalty” that state legislatures may allow decisionmakers at trial, including the use of
aggravating factors); Zant, 462 U.S. at 878–79, 103 S. Ct. at 2743–44 (The legislature defines
the aggravating factors and the factors circumscribe the class of persons eligible for the death
penalty; the jury “makes an individualized determination on the basis of the character of the
individual and the circumstances of the crime.”); see also Osborne, 557 U.S. at 72–73, 129 S.
Ct. at 2322 (The state legislature primarily bears the task of harnessing DNA’s power to
prove actual innocence by creating workable post-conviction measures within the established
criminal justice system.).
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Newby, J., dissenting
the Supreme Court of the United States in McCleskey v. Kemp, 481 U.S. 279, 107 S.
Ct. 1756 (1987).
There the Supreme Court considered whether a court is the proper venue to
utilize a statistical study, which purported to show a disparity in those defendants
receiving a death sentence based on the race of the victim and, to a lesser extent, the
race of the defendant. McClesky claimed that the study proved Georgia’s capital
sentencing process was administered in a racially discriminatory manner in violation
of the Eighth and Fourteenth Amendments of the United States Constitution.
McClesky argued that the statistical study “compel[led] an inference that his
sentence rests on purposeful discrimination” without regard to the facts of his
particular case. Id. at 293, 107 S. Ct. at 1767. Like defendant’s claim here, McClesky’s
argument could extend to all capital cases in his state and, “[i]n its broadest form, . . .
extends to every actor in the Georgia capital sentencing process, from the prosecutor
who sought the death penalty and the jury that imposed the sentence, to the State
itself that enacted the capital punishment statute and allows it to remain in effect
despite its allegedly discriminatory application.” Id. at 292, 107 S. Ct. at 1767. Such
broad accusations cannot be effectively rebutted, not because they are necessarily
true, but because it is practically impossible to show they are not true. See id. at 296,
107 S. Ct. at 1769.
The Supreme Court declined “to accept the likelihood allegedly shown by the
[statistical] study as the constitutional measure of an unacceptable risk of racial
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Newby, J., dissenting
prejudice influencing capital sentencing decisions.” Id. at 309, 107 S. Ct. at 1776. It
then classified the role of making such an assessment based on a statistical study as
a legislative function:
McCleskey’s arguments are best presented to the
legislative bodies. It is not the responsibility—or indeed
even the right—of this Court to determine the appropriate
punishment for particular crimes. It is the legislatures, the
elected representatives of the people, that are “constituted
to respond to the will and consequently the moral values of
the people.” Legislatures also are better qualified to weigh
and “evaluate the results of statistical studies in terms of
their own local conditions and with a flexibility of approach
that is not available to the courts.”
Id. at 319, 107 S. Ct. at 1781–82 (first quoting Furman, 408 U.S. at 383, 92 S. Ct. at
2800 (Burger, C.J., dissenting); then quoting Gregg, 428 U.S. at 186, 96 S. Ct. at
2931). “It is the ultimate duty of courts to determine on a case-by-case basis whether
these laws are applied consistently with the Constitution.” Id. at 319, 107 S. Ct. at
1782. Through its lawmaking and policymaking power, the legislature has the
prerogative to criminalize conduct and outline the extent of its punishment; that
statutory guidance then directs the judiciary, and the judiciary follows these rules.
“[L]egislatures necessarily have wide discretion in the choice of criminal laws and
penalties.” Id. at 298, 107 S. Ct. at 1770. Thus, the reasoning of McCleskey did not
invite legislatures to authorize courts to utilize statistical studies and make statewide
capital punishment policy. To the contrary, the Supreme Court emphasized that the
judiciary should confine itself to making individual assessments on a case-by-case
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basis. The potential scope and the breadth given the RJA by the majority is derived
from a fundamental misunderstanding of the holding in McCleskey.
The majority’s interpretation of the RJA ignores the plain language of
McCleskey that legislatures, not courts, are equipped to evaluate statistical
information and enact policies based on that information. Courts are designed to
determine specific controversies, not formulate policies. The majority’s broad reading
of the RJA seems to ask the question: Should North Carolina have capital
punishment if there exists evidence that race may have been a significant factor in
the process anywhere in the State? Answering this question is a quintessential
legislative act. A judicial function is to ask whether race was a significant factor in a
particular defendant’s case. Courts are not the vehicle for policy decisions. Whether
there should be a death penalty in North Carolina is a decision for the people, through
their elected representatives, or directly by them through a constitutional
amendment. Thus, it is improper for the majority to interpret the RJA as delegating
legislative responsibility to the judiciary.
Courts are required to interpret statutes in a constitutional manner whenever
possible. See, e.g., State v. Barber, 180 N.C. 711, 712, 104 S.E. 760, 761 (1920) (“It is
among the accepted rules of statutory construction that the courts are inclined
against an interpretation that will render a law of doubtful validity.”); State v. Pool,
74 N.C. 402, 405 (1876) (“Whenever an act of the Legislature can be so construed and
applied, as to avoid conflict with the constitution, and give it the force of law, such
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construction will be adopted by the courts.”). Thus, to comply with separation of
powers and avoid placing the judiciary in a legislative role, the RJA should be
interpreted in such a manner that any relief arising from a finding that race played
an improper role must be related to the particular defendant who raises the claim.
The stated purpose of the RJA is that “[n]o person 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.” Original RJA, § 1, 2009 N.C. Sess. Laws at 1214. This
provision illustrates the General Assembly’s intent that a showing that any misuse
of race must have been relevant to the particular defendant’s case. This is precisely
what the amended RJA attempted to clarify.
The Racial Justice Act did not change the punishment for first-degree murder.
It is a procedural, not a substantive, law. Its repeal did not violate the prohibition
against ex post facto laws. The repeal should be upheld. I respectfully dissent.
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