North Carolina Trial Court Will Hear New Evidence of Racial Bias in Death Row Prisoner’s Racial Justice Act Claim

Beginning February 28, 2024, a Johnston County, North Carolina, trial court will hear death row prisoner Hasson Bacote’s claims that racial discrimination in jury selection played a role in his capital sentencing. In 2009, North Carolina passed the Racial Justice Act (RJA), which allowed death-sentenced prisoners to challenge their sentences if they could demonstrate that race played a role in their sentencing and jury selection. Sentenced to death in 2009 by a nearly all-white jury, Mr. Bacote, and nearly all other death row prisoners in the state, filed a claim under the RJA in 2010, seeking a commutation to life in prison without the possibility of parole. In 2013, the General Assembly repealed the RJA, with then-Governor Pat. McCrory claiming that it “created a judicial loophole to avoid the death penalty and not a path to justice.” However, in 2020, the North Carolina Supreme Court ruled that all prisoners who had already filed claims under the RJA were entitled to evidentiary hearings, holding that “the goal of this historic legislation was simple: to abolish racial discrimination from capital sentencing. That is, to ensure that no person in this state is put to death because of the color of their skin.”

In 2021, Superior Court Judge Wayland Sermons Jr., the judge presiding over Mr. Bacote’s case, ordered state prosecutors to provide defense counsel with statewide data on the use of capital punishment dating back to 1980, including jury selection notes. With this new data, Mr. Bacote’s attorneys will argue that racism infiltrated his case and every other capital murder case in North Carolina. Henderson Hill, senior counsel with the ACLU and one of Mr. Bacote’s attorneys, says “the statistical evidence will be powerful and demonstrate the lasting impact of discrimination.” In addition to presenting statistical evidence, Mr. Bacote’s attorneys intend to call historians, social scientists, and other experts to lay out North Carolina’s history and practice of purposeful discrimination in jury selection.

Mr. Bacote’s attorneys allege that the prosecutors in his case struck Black jurors at three times the rate they removed white jurors from his jury pool. Across North Carolina, the data show that prosecutors struck Black jurors at more than twice the rate they struck all other potential jurors. A study from two Michigan State University law professors outlined statewide and county-specific statistics showing that prosecutors in North Carolina historically struck potential Black jurors at higher rates than potential white jurors. The prosecutor in Mr. Bacote’s case, Gregory Butler, struck potential Black jurors at 10 times the rate of non-Black individuals across four trials. In closing arguments in a 2001 murder trial, Mr. Butler told jurors that the three Black defendants “stalked their prey, caught, and dragged it away” like “predators of the African plain.” In response, North Carolina Attorney General Josh Stein is attempting to delay Mr. Bacote’s upcoming hearing, claiming that the state Supreme Court previously found the Michigan State University study to be “unreliable and fatally flawed.” While acknowledging that racial bias is “abhorrent” in jury selection, AG Stein says that “a claim of racial discrimination cannot be presumed based on the mere assertion of a defendant; it must be proved.”

Mr. Bacote’s hearing comes during an important election year in North Carolina. Incumbent Governor Roy Cooper cannot run for reelection and anti-death penalty activists are calling on him to commute the death sentences of all 136 people on the state’s death row “as an act of racial justice” before he leaves office. “There’s no question that our evidence in Hasson Bacote’s case goes to this broader conversation that’s happening in North Carolina over whether we should keep the death penalty or if the governor should commute the row,” said Cassandra Stubbs, Director of the ACLU’s Capital Punishment Project.

North Carolina has not carried out any executions since 2006, when lawsuits regarding lethal injection drugs paused further executions. The ongoing litigation regarding the application of the RJA currently prevents Gov. Cooper from scheduling any executions.