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 In 2013, the General Assembly repealed the RJA, with then-Governor Pat.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.