AN ACT to reenact the racial justice act and to prohibit the state from seeking a criminal conviction or sentence on the basis of race, ethnicity, or national origin.

The General Assembly of North Carolina enacts:

SECTION 1.  Article 101 of Chapter 15A of the General Statutes is reenacted as it was originally enacted under S.L. 2009‑464.

SECTION 2.  Article 101 of Chapter 15A of the General Statutes, as reenacted by Section 1 of this act, is amended by adding a new section to read:

§ 15A‑2013.  Prohibition on prosecution based on race, ethnicity, or national origin.

(a)        Definitions. – The following definitions apply in this section:

(1)        More frequently sought or obtained or more frequently imposed. – Statistical evidence or aggregate data demonstrate a significant difference in seeking or obtaining convictions or in imposing sentences comparing individuals who have committed similar offenses and are similarly situated, and the prosecution cannot establish race‑neutral reasons for the disparity.

(2)        Prima facie showing. – The defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of subsection (b) of this section occurred. For purposes of this subdivision, a substantial likelihood requires more than a mere possibility, but less than a standard of more likely than not.

(3)        Racially discriminatory language. – Language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal, or language that references the defendant's physical appearance, culture, ethnicity, or national origin. Evidence that particular words or images are used exclusively or disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin is relevant to determining whether language is discriminatory.

(b)        Prohibition. – The State shall not seek or obtain a criminal conviction, or seek, obtain, or impose a sentence, on the basis of race, ethnicity, or national origin. A violation of this subsection is established if the defendant proves, by a preponderance of the evidence, any of the following:

(1)        The judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin.

(2)        During the defendant's trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror used racially discriminatory language about the defendant's race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin, whether or not purposeful. This subdivision does not apply if the person speaking is describing language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect.

(3)        Race, ethnicity, or national origin was a factor in the exercise of peremptory challenges. The defendant need not show that purposeful discrimination occurred in the exercise of peremptory challenges to demonstrate a violation of this subsection.

(4)        The defendant was charged or convicted of a more serious offense than defendants of other races, ethnicities, or national origins who commit similar offenses and are similarly situated, and the evidence establishes that the prosecution more frequently sought or obtained convictions for more serious offenses against people who share the defendant's race, ethnicity, or national origin in the county where the convictions were sought or obtained.

(5)        A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for that offense on people that share the defendant's race, ethnicity, or national origin than on defendants of other races, ethnicities, or national origins in the county where the sentence was imposed.

(6)        A longer or more severe sentence was imposed on the defendant than was imposed on other similarly situated individuals convicted of the same offense, and longer or more severe sentences were more frequently imposed for the same offense on defendants in cases with victims of one race, ethnicity, or national origin than in cases with victims of other races, ethnicities, or national origins in the county where the sentence was imposed.

(c)        Motion. – A defendant may file a motion in the trial court or, if judgment has been imposed, may file a petition for writ of habeas corpus or a motion under Article 89 of this Chapter in a court of competent jurisdiction, alleging a violation of subsection (b) of this section.

(d)       Hearing. – If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subsection (b) of this section, the trial court shall hold a hearing.

(e)        Hearing Requirements. – All of the following requirements apply to a hearing held under subsection (d) of this section:

(1)        Evidence may be presented by either party, including, but not limited to, statistical evidence, aggregate data, expert testimony, and the sworn testimony of witnesses. The court may also appoint an independent expert.

(2)        The defendant shall have the burden of proving a violation of subsection (b) of this section by a preponderance of the evidence.

(3)        At the conclusion of the hearing, the court shall make findings on the record.

(f)        Remedies. – If the court finds, by a preponderance of evidence, a violation of subsection (b) of this section, the court shall impose any of the following remedies:

(1)        Before a judgment has been entered, the court may impose any of the following remedies:

a.         Reseat a juror removed by use of a peremptory challenge.

b.         Declare a mistrial, if requested by the defendant.

c.         Discharge the jury panel and empanel a new jury.

d.         If the court determines that it would be in the interest of justice, dismiss enhancements, special circumstances, or reduce one or more charges.

(2)        When a judgment has been entered, if the court finds that a conviction was sought or obtained in violation of subsection (b) of this section, the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with subsection (b) of this section. If the court finds that the only violation of subsection (b) of this section that occurred is based on subdivision (4) of subsection (b) of this section and the court has the ability to rectify the violation by modifying the judgment, the court shall vacate the conviction and sentence, find that the conviction is legally invalid, and modify the judgment to impose an appropriate remedy for the violation that occurred. On resentencing, the court shall not impose a new sentence greater than that previously imposed.

(3)        When a judgment has been entered, if the court finds that only the sentence was sought, obtained, or imposed in violation of subsection (b) of this section, the court shall vacate the sentence, find that it is legally invalid, and impose a new sentence. On resentencing, the court shall not impose a new sentence greater than that previously imposed.

(4)        Any other remedies available under the United States Constitution, the North Carolina Constitution, or any other law.

(g)        Capital Punishment. – When the court finds there has been a violation of subsection (b) of this section, the defendant shall not be eligible for the death penalty.

(h)        Juveniles. – This section also applies to adjudications and dispositions under Chapter 7B of the General Statutes.

(i)         Aggregation of Data. – A defendant may share a race, ethnicity, or national origin with more than one group. A defendant may aggregate data among groups to demonstrate a violation of subsection (b) of this section.

(j)         Controlling Authority. – To the extent this section conflicts with any other section of the General Statutes, this section controls.

SECTION 3.  This act is effective when it becomes law and applies retroactively. For persons under a death sentence imposed before the effective date of this act, motions under this act shall be filed within one year of the effective date of this act; for persons whose death sentence is imposed on or after the effective date of this act, motions shall be filed as provided in Article 101 of Chapter 15A of the General Statutes, as reenacted and amended by this act.