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.”