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Death penalty on trial as Racial Justice Act hearing begins

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Death penalty on trial as Racial Justice Act hearing begins

Feb 26, 2024 | 6:00 pm ET
By Kelan Lyons
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Death penalty on trial as Racial Justice Act hearing begins
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Hasson Bacote in a recent picture taken at Central Prison in Raleigh, where North Carolina's death row for men is located. Photo courtesy of the Center for Death Penalty Litigation.

In 1968, days after the Ku Klux Klan marched through Black neighborhoods in Benson following the assassination of Martin Luther King, Jr., five young Black adolescents tried to burn down the Klan’s meeting hall in the Johnston County town. The fire did not travel past the doorway. The boys, all of whom were between the ages of 16 and 20 and did not have criminal records, were each given 12 years of imprisonment and hard labor, harsher than the sentences meted out to white defendants who were found guilty of similar crimes in the county.

On Monday, more than half a century removed from the “Benson Five,” a lawyer for a man on North Carolina’s death row argued in a Johnston County courtroom that that history was inseparable from the use of capital punishment — not only in that eastern North Carolina county, but all across the Old North State.

Underpinning the case is the Racial Justice Act, a landmark law passed by Democrats in 2009, repealed by Republicans in 2013, and preserved by the Democratic-controlled state Supreme Court in 2020. The law gives people on North Carolina’s death row an opportunity to be resentenced to life in prison without parole if they can prove racial discrimination played a role in their death sentence.

“The RJA was intended to look at the capital punishment system as a whole, to address this concern that there had been patterns of racial disparities in jury selection and the imposition of the death penalty,” said Henderson Hill, senior counsel for the ACLU. “We hope to do what the RJA was intended to do: break this connection, break this link, between racism and the death penalty.”

For at least the next week, Hill will make that argument in an evidentiary hearing before Superior Court Judge Wayland J. Sermons Jr., a Democrat, in a case that will have serious implications for those on North Carolina’s death row.

Hill is a lawyer for Hasson Bacote, a Black man sentenced to death in Johnston County in 2009 after ten white and two Black jurors convicted him of killing Anthony Surles during a robbery.

Over the past few years, the state has turned over 680,000 pages of discovery to Hill and the rest of Bacote’s legal team, documents that include prosecutors’ hand-written notes on jury selection in 176 capital cases between 1985 and 2011.

According to court filings, data from those documents show:

  • In 176 capital cases across North Carolina between 1985 and 2011, Black people were two and a half times more likely to be struck from jury pools than other jurors.
  • Similarly, in seven Johnston County capital cases over that same timeframe, Black people were four times more likely to be struck from the jury pool than other jurors.
  • In four capital cases in that timeframe tried by Gregory Butler, an assistant district attorney, Black people were 10 times more likely to be struck from a jury pool than other jurors. Butler also prosecuted Bacote, the defendant in the underlying case.

Hill said those hundreds of thousands of pages of documents will allow Bacote’s team to make the case that “this pattern of racial disparities, of racial terror, even, continues.

“One of the questions that this evidence presents is, when a Black man is charged with a capital case, when a Black citizen presents himself or herself for services as a juror, as a decision maker, to sit in that box, what the history suggests is that the past informs the present.”

The Racial Justice Act, and the sheer volume of information turned over to Bacote’s lawyers in discovery, allows Hill and the legal team to argue not just on behalf of Bacote, but for the roughly 120 people on death row who have a pending RJA claim. (There are 136 people on North Carolina’s death row — more than half of whom are Black — but not all of them have a pending RJA claim.)

“This is an evidentiary basis that no court has seen before,” Hill said. “This is a tremendous amount of material that had to be provided, that had to be analyzed, had to be distilled, and it’s a sort of remarkable proceeding that we’re about to engage in.”

If Hill used his opening statement to argue that North Carolina’s death penalty was going to be put on trial in Johnston County, Jonathan P. Babb, special deputy attorney general with the North Carolina Department of Justice, shrunk the scope of the case and proceedings, arguing it is Bacote’s burden to prove race impacted his death sentence in his particular case.

“Otherwise, a defendant with no trace of unfairness in his or her trial, could obtain relief just as much as the defendant who was convicted and sentenced in an unfair proceeding,” Babb said. “As the court will see from the evidence presented at this hearing, defendant’s sentence of death for this serious crime was not sought or obtained on the basis of race.”

Quoting a recent state Supreme Court ruling, Babb called racial discrimination “a pervasive evil that deprives citizens of every race of their constitutional right to equal protection of the laws.” But that claim, Babb said, must be proven.