North Carolina’s more than 135 death row inmates could potentially see their sentences changed to life in prison in the wake of a landmark hearing scheduled to begin next week that will test whether racial discrimination has played a role in jury selection in capital cases.
The lead case focuses on Hasson Bacote, a Black man who was sentenced to death in 2009 by 10 white and two Black jurors for his role in a felony murder. Bacote, now 37, has been held in a Raleigh prison as death sentences in North Carolina remain on hold, in part, due to legal disputes and difficulties obtaining lethal injection drugs.
Bacote sought to challenge his trial’s outcome based on a groundbreaking state law known as the Racial Justice Act of 2009, which allowed death row inmates to seek resentences if they could show racial bias was a factor in their cases.
In 2013, then-Gov. Pat McCrory, a Republican, repealed the law, arguing that it “created a judicial loophole to avoid the death penalty and not a path to justice.”
But the state Supreme Court in 2020 ruled in favor of many of the inmates, allowing those like Bacote who had already filed challenges in their cases to move ahead.
At the time, nearly every person on death row, including both Black and white prisoners, filed for reviews under the Racial Justice Act, according to The Associated Press.
Now, Bacote’s legal team, which includes lawyers with the American Civil Liberties Union, are gearing up for a trial court hearing to begin Monday in Johnston County. It could last two weeks.
“We think the statistical evidence will be powerful and demonstrate the lasting impact of discrimination,” Henderson Hill, senior counsel with the ACLU, told reporters Wednesday.
Lawyers plan to call several historians, social scientists and others to establish a history and pattern of discrimination used in jury selection in Bacote’s trial and in Johnston County, a majority-white suburban county of Raleigh that once prominently displayed Ku Klux Klan billboards during the Jim Crow era.
In court filings, Bacote’s lawyers suggested that local prosecutors at the time of his trial were “nearly two times more likely to exclude people of color from jury service than to exclude whites,” and in Bacote’s case, prosecutors chose to strike prospective Black jurors from the jury pool at more than three times the rate of prospective white jurors.
Bacote’s legal team also said its evidence will show that in Johnston County, the death penalty was 1½ times more likely to be sought and imposed on a Black defendant and two times more likely “in cases with minority defendants.”
Notes about jurors in other capital cases in North Carolina may also help bolster the evidence, with the ACLU saying it found references made by prosecutors about Black jurors’ physical appearance, from dark skin tones to being referred to as a “thug.”
Meanwhile, the office of North Carolina Attorney General Josh Stein is attempting to delay the upcoming hearing, arguing in a court filing that the claims made by Bacote’s lawyers are based, in part, on a Michigan State University study that the North Carolina Supreme Court had already found last year to be “unreliable and fatally flawed.”
While the state attorney general’s office said in its court filing that racial bias in jury selection is “abhorrent,” according to NBC affiliate WRAL in Raleigh, the office added that a “claim of racial discrimination cannot be presumed based on the mere assertion of a defendant; it must be proved.”
Stein’s office did not immediately respond Wednesday to a request for comment.
Stein, a Democrat running for North Carolina governor in November, has taken heat from a primary challenger who questioned his office’s stance in trying to halt the upcoming hearing.
“It’s shameful that my primary opponent AG Stein is trying to keep a Convicted Black defendant from getting his long-awaited day in court before early voting begins,” Michael Morgan, a former state Supreme Court justice, wrote on X.
The anticipated hearing comes amid a politically volatile election year in the state, as the seat held by Gov. Roy Cooper, a Democrat, will be up for grabs, along with Stein’s attorney general position and a seat on the state Supreme Court, which now has a Republican majority.
The last time a prisoner was put to death in North Carolina was in 2006, prompting a de facto moratorium on death penalty cases. In light of the Racial Justice Act being repealed, Cooper has faced calls from anti-death penalty advocates to commute the sentences of the remaining death row inmates.
“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,” Cassandra Stubbs, the director of the ACLU’s Capital Punishment Project, said.
In deciding whether Bacote’s death sentence should be changed to life in prison, the judge could rule from the bench or make his decision at a later time, Stubbs said, adding that it could set a precedent.
“Is there discrimination statewide in jury selection in North Carolina?” she asked. “That’s the question at stake, that’s the question that the judge will be answering.”
