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 Carolinas 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.”

Citation Guide
Sources

Henderson Hill and the North Carolina Racial Justice Act, Discussions with DPIC, June 262020.