North Carolina’s Continuing Fight Against Racial Justice

By GENE NICHOL

Tar Heels and the rest of the country have learned, of late, that it’s complicated to get police body-cam footage released here. National news outlets have echoed that, under North Carolina law, a judge’s approval must be secured before such video can be seen and distributed.

But this is not a legal marker fixed from the days of yore. In 2016, after Black Lives Matter protests had for years roiled the nation, often triggered by stunning video records of brutality, our General Assembly chose to impose new and singular hurdles on body-cam disclosure. The statute is recent work. We can worry, though, that it reflects an agenda that has, by now, become familiar.

The N.C. General Assembly became famous, over the last decade, for efforts to limit black political participation. Judges have repeatedly invalidated what they determined to be racialized rules limiting ballot access, imposing IDs and gerrymandering electoral districts. We’re even responsible for launching a pioneering term in election law discourse – having disenfranchised black citizens with “surgical precision.”

But our lawmakers haven’t limited their anti-racial equality moves to electoral politics.

In 2009, before Republicans took over, North Carolina passed a groundbreaking Racial Justice Act. It required courts to vacate a death sentence “sought or obtained on the basis of race.” By 2012, a number of courts had ruled that prosecutors intentionally discriminated against black defendants in capital cases. Thus their sentences, but not the convictions, were invalidated.

In June 2013, Republican lawmakers decided they’d seen enough. Rather than working to fix the demonstrated bias, they decided to shoot the messenger. The Racial Justice Act was repealed outright. The late Democratic Sen. Martin Nesbitt objected, asking: “if we have somebody on death row because they’re black, wouldn’t we want to find that out?” Apparently not.

Also notably, in 2015, legislators enacted a Confederate memorials law – preventing markers from being removed or relocated without permission of the state historical commission. The proposal had passed initially, and unanimously, in the Senate – when the focus was apparently on UNC’s Silent Sam.

But by the time it was debated in the House, white supremacist Dylann Roof had murdered nine black worshippers at Mother Emanuel and the Confederate flag had been removed from the South Carolina statehouse. So the bill became hotly contested. Even stalwart Republican strategist Carter Wrenn said “running that bill right now (is) like pouring gas on a fire.” But Republican sponsor Rep. Michael Speciale claimed “it was necessary to keep the flames of passion from overriding common sense.”  No passionate calls for reform in N.C. Not on our watch.

And the next year, of course, the General Assembly passed the police body-cam law. Under the statute, only a judge can release body camera video to the public. My careful colleagues at the School of Government report North Carolina seems to be the only state where a court must decide on release of the footage. The statute also allows very broad discretion for a judge to delay or block disclosure. Elizabeth City presently reels under such a decision.

The body-cam law’s sponsor, Sen. Danny Britt, says the goal of the bill was to take politics out of the decision-making process. Maybe so. And there was a good deal of now embarrassed Democratic support for the measure.

Still, I’m inclined to think a larger politics might have been in play. If a massive Black Lives Matter movement sweeps the country, often triggered by brutal photography, make it hard as you can to get the pictures. There will be no racial reckoning here. This is North Carolina.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, June 1, 2021

Populist.com