New Podcast: Henderson Hill and North Carolina’s Historic Racial Justice Act Rulings

In the June 2020 episode of Discussions with DPIC, Henderson Hill (pic­tured), Senior Counsel at the American Civil Liberties Union Capital Punishment Project, speaks with Death Penalty Information Center Executive Director Robert Dunham about North Carolina​’s Racial Justice Act. Hill, who has spent decades as a pub­lic defend­er, cap­i­tal defense attor­ney, and civ­il rights advo­cate, is cur­rent­ly rep­re­sent­ing North Carolina death-row pris­on­ers in the Racial Justice Act lit­i­ga­tion chal­leng­ing their death sentences.

Hill and Dunham dis­cuss the recent North Carolina Supreme Court rul­ings in two Racial Justice Act cas­es that have the poten­tial to change the entire land­scape of North Carolina’s death penal­ty. Hill says North Carolina has a ​“shame­ful his­to­ry” of bla­tant race dis­crim­i­na­tion in cap­i­tal cas­es, in which pros­e­cu­tors have repeat­ed­ly exclud­ed Black jurors and employed racial­ly inflam­ma­to­ry argu­ments to sen­tence to death Black defen­dants before all- or near­ly all-white juries. He describes how the same types of racial bias that have been found in the North Carolina cas­es are present in death penal­ty cas­es across the coun­try and dis­cuss­es the broad­er mean­ing the North Carolina Racial Justice Act deci­sions have at this trans­for­ma­tive moment in America’s response to racial injustice.

North Carolina’s Racial Justice Act was an ​“his­toric leg­isla­tive achieve­ment,” Hill said. The act ​“made it pos­si­ble for sta­tis­ti­cal evi­dence of race dis­crim­i­na­tion to be intro­duced in court and, togeth­er with oth­er evi­dence, made it pos­si­ble for pris­on­ers to con­vince a judge that race played an undue part in the return of a death sen­tence.” The law was adopt­ed in 2009, but con­trol of the leg­is­la­ture changed par­ties, and the new Republican major­i­ty restrict­ed the types of evi­dence pris­on­ers could present, mak­ing it more dif­fi­cult for pris­on­ers to win relief under the act. 

Hill says that efforts to restrict and even­tu­al­ly repeal the law were dri­ven by the rever­sals of death sen­tences in the first four cas­es heard under the Racial Justice Act. ​“When you look at the leg­isla­tive his­to­ry and when you lis­ten to some of the floor debate, … it was so clear that the leg­is­la­ture was seek­ing to undo the four deci­sions in Cumberland County,” Hill explains. ​“I mean, if ever there was proof of ex post fac­to leg­is­lat­ing, it is right there in black and white in the leg­isla­tive his­to­ry of the repeal effort.” 

Two recent deci­sions by the North Carolina Supreme Court, in the cas­es of Andrew Ramseur and Rayford Burke, agree that the retroac­tive repeal did, in fact, amount to ex post fac­to law­mak­ing in vio­la­tion of the U.S. and North Carolina con­sti­tu­tions. In an iron­ic twist, one of the prece­dents that the court relied on in those deci­sions was the case of a Confederate sol­dier who was grant­ed amnesty for his actions dur­ing the Civil War. The state leg­is­la­ture lat­er tried to revoke his amnesty and pros­e­cute him, but the court found that he was pro­tect­ed by the ban on ex post fac­to leg­is­la­tion. ​“You real­ly can’t make this stuff up,” Hill said. ​“Relying on this Civil War prece­dent to begin the process of undo­ing hun­dreds of years of racial dis­crim­i­na­tion and racial ter­ror­ism vis­it­ed upon the African-American cit­i­zens of North Carolina could not have been more powerful.”

Hill went on to describe the spe­cif­ic evi­dence pre­sent­ed in Ramseur and Burke’s cas­es, includ­ing the fact that the two men, both Black, were tried by all-white juries. He char­ac­ter­ized the ​“demo­niza­tion” of the defen­dants pri­or to their tri­als, say­ing that the pub­lic dis­course ​“lit­er­al­ly used the lan­guage of lynch­ing, and that ​‘this n‑word does­n’t deserve a tri­al, we need to just sort of string ​’im up.’”

Asked about the impli­ca­tions for the future of North Carolina’s death penal­ty, Hill looked to the changes in pros­e­cu­tors in the state, point­ing to a gen­er­a­tional shift in view­point. ​“These younger pros­e­cu­tors have a dif­fer­ent, more nuanced, more informed view of racial equi­ty and crim­i­nal jus­tice. So I think there’s a very good chance that indi­vid­ual mem­bers of the [District Attorneys] con­fer­ence and the DA con­fer­ence itself will reassess the mer­its of the death penal­ty and whether it’s wor­thy of the tremen­dous resource suck that the penal­ty has been for decades in North Carolina. And it’s time to turn the page.” 

“We need to be look­ing for trans­for­ma­tion in how the crim­i­nal jus­tice sys­tem oper­ates, and most espe­cial­ly how it oper­ates with­in the African-American com­mu­ni­ty and in com­mu­ni­ties of col­or,” Hill says. ​“And I think this death penal­ty con­ver­sa­tion, which I believe the RJA will renew, is a very high-pro­file way in which the state can demon­strate that it’s mov­ing beyond some of the racist lega­cies of old North Carolina.”