Landmark Racial Justice Act hearing could affect more than 100 people on NC’s death row

Hasson Bacote was sentenced to death in a Johnston County courtroom in April 2009. As a Black man in a deeply segregated county with a history of racial terror, Bacote’s fate was all but sealed well before the jury issued his death sentence. Under our current death penalty statute, every one of the eight Black capital defendants who have faced Johnston County juries has received a death sentence. Bacote was no exception. Now, his case is moving forward under North Carolina’s Racial Justice Act (RJA), which allows capital defendants to challenge their death sentences on the basis that race was a significant factor in decisions to seek or impose the death penalty. A hearing will begin Feb. 26 in Johnston County Superior Court and force those watching to grapple with the stark reality that race plays an outsized role in the administration of the death penalty.

Bacote’s will be the first RJA case heard since 2020, when the N.C. Supreme Court ruled that, despite the Act’s 2013 repeal, all claims brought under the RJA remain valid. His case will decide key questions about the scope and application of the Act and pave the way for others on North Carolina’s death row. Bacote will be the first defendant to present a trove of social science and historical evidence linking the death sentences of Black men to a pattern of racial terror and intimidation.  Bacote will also present powerful statistical evidence of discrimination in the death penalty.

Bacote was just 21 when he was charged with the crime that led to his death sentence, the shooting of 18-year-old Anthony Surles during a robbery. The crime was the culmination of a childhood marked by poverty, trauma, and neglect. After surviving a traumatic birth and prolonged hospital stay as a newborn, Bacote was abandoned by his parents at an early age. At seven years old, after witnessing his maternal aunt die, Bacote entered foster care where he was subjected to physical and sexual abuse. Later, he was separated from his older brother, the only stable figure in his life. All of these are reasons why juries often choose life over death. But in the rural eastern North Carolina courtroom where the judge and every lawyer was white — and where the prosecutor struck qualified Black jurors at three times the rate of whites, creating a heavily white jury from a diverse jury pool – Bacote received no mercy.

Nor did it matter that—as even the prosecution conceded—there was no evidence that the murder of Surles was premeditated or deliberate. The prosecution charged Bacote and a codefendant, Jeff Evans, with attempting to rob five young adults, including Surles, in a trailer. Witnesses testified that Anthony Surles fled the trailer during the robbery and Bacote fired a single shot in his direction. None of the witnesses nor Bacote realized Surles had been shot until they went outside and found him collapsed on the ground. Ten white and two Black jurors convicted Bacote of felony murder and sentenced him to death. Felony murder is a legal doctrine that holds defendants responsible for deaths that occur during the course of committing other violent felonies. In some states, felony murders are not eligible for the death penalty. Bacote is one of just 11 people sentenced to death in North Carolina for a crime that involved no planning or forethought. All 11 are men of color and one was Henry McCollum, who was exonerated after spending more than 30 years on death row. Bacote is the only person for whom the prosecution did not at least seek a conviction for something other than felony murder in a capital case. 

In February 2024, Bacote will present statistical evidence of racial disparities in the prosecutor’s use of peremptory strikes in capital cases in North Carolina and in Johnston County, as well as racial disparities in capital sentencing in Johnston County.  This type of proof – while key to rooting out racism in the criminal punishment system – is not typically considered in criminal cases. However, the 2009 RJA allowed people on death row to present evidence of systemic bias that infected their sentences. North Carolina’s RJA was the first statute of its kind to allow a person’s death sentence to be vacated without requiring proof of intentional discrimination. As a result of the law, studies uncovered statewide patterns of enormous racial disparities in jury selection and sentencing. Two prior RJA hearings were held under the statute in 2012, resulting in life sentences for four defendants based on the trial court’s finding of statewide discrimination. Those prior decisions were ultimately vacated, meaning that Bacote’s case could be the first RJA case with precedential effect.

Among those who will provide expert witness testimony is attorney Bryan Stevenson, the founder of the Legacy Museum and the National Memorial for Peace and Justice in Montgomery, AL, who will attest to the history of racial discrimination in jury selection, as well as evidence of racial bias in Johnston County courtrooms and Bacote’s own case. Social psychologist Dr. Samuel Sommers will explain how implicit racial biases are measurable and affect everything from jury selection to jury deliberations.

Historical experts Dr. Crystal Sanders, a historian born and raised in Johnston County, and Dr. Seth Kotch will detail the racist history of Johnston County and North Carolina as a whole. Johnston County was the site of at least six lynchings between the end of Reconstruction and the beginning of World War I. Through the 1970s, KKK billboards greeted drivers with messages like, “Welcome to Klan country. Love it or leave it.” In the 1980s, Smithfield police officers shot and killed a Black man after he called to report the theft of his family’s television. The officer who fired the shot went on to become a state capitol police officer and a Johnston County magistrate. Today, the county remains deeply segregated. Though Black residents make up 19 percent of the population, the county has never elected a Black sheriff, district attorney, or county commissioner. The current sheriff has publicly voiced anti-immigrant slurs and remained in office with no challengers. Recently, county commissioners withheld millions in funding from the public schools until they adopted a policy that teachers can be fired if they teach about systemic racism.

The ACLU’s Capital Punishment Project, the Center for Death Penalty Litigation, and the NAACP’s Legal Defense Fund represents Bacote. Attorneys expect the hearing to last two to three weeks.

Originally posted on Revaluing Care

I recently attended a conference where a presenter asked us to imagine a place where we feel safe. People began to call out visions of cozy beds, fireplaces, and family dinners. She asked us to think more broadly, and people talked about access to healthcare, clean water, and good schools. Not a single person envisioned a prison, a police officer, or an execution chamber — even though most Americans are taught to believe they are the keys to our safety.

Every human being wants and deserves safety. But the question is: What makes us safe? In the United States, we’ve mostly chosen to spend our public safety budgets on arresting, incarcerating and executing people we deem criminals. We have the second largest prison population in the world behind China, with nearly 2 million people behind bars — including almost 50,000 children. We are one of only a handful of developed countries that continue to use the death penalty.

How different might our society look if public safety could be reimagined as caring for people and communities? 

I work at the Center for Death Penalty Litigation, which represents people facing the death penalty in North Carolina. Let me tell you about one of the 138 people on North Carolina’s death row. Nathan, like most people on death row, grew up in crushing poverty in a neighborhood where violence and trauma were everyday occurrences. His mother struggled with addiction, and he barely knew his father. He often went hungry. He entered foster care at 12 and spent most of his teen years in a boy’s home where children were physically and sexually abused. At 20, he committed a shooting fueled by family loyalty and the kind of street justice that was the norm in his world. He has spent the past 30 years on death row. 

Now imagine a world where Nathan, his family, and his community received the care they needed. Imagine if violence in Nathan’s neighborhood had been treated as a public health issue. Imagine if leaders had sought data-driven solutions to gun violence and child poverty, rather than pursuing punishment-based policies rooted in a desire for revenge. Imagine neighborhood task forces dedicated to peaceful resolution of conflicts, treatment of at-risk people, and the mobilization of communities to solve their own problems. Imagine job training and youth programs. Imagine neighborhoods with equal access to high quality schools, healthcare, housing, and food. 

Instead of investing in Nathan as a child, our country has invested untold sums in prosecuting, incarcerating, and litigating his appeals. If he is eventually strapped down and executed, what will have been gained? Who will be safer?

We can probably all agree that violence prevention is preferable to punishing crime after it happens. But even an ideal society, violence will still exist. It’s a fact of human existence. You may be wondering, how do we deal with crime once it happens? Do we let criminals off scot-free?

Again, I ask you to shift your perspective from punishment to care, because if we could punish our way out of violence, the United States would be the safest place on the planet. Restorative justice is a process that can bring all parties together to understand why the crime happened and how best to facilitate healing. Survivors decide what they need to heal, and those who have caused harm take accountability and learn the impact of their actions. Some of the most effective restorative justice programs have been built in communities facing the most violence, and in Durham, the process was recently used to resolve a homicide case. 

I’ve visited Nathan on death row many times, and the person I’ve met is kind, bright and funny. He has thought deeply and taken responsibility for his actions. He has spent decades wishing he could offer something to the families of the victims, but in our carceral system, there is no way for the two sides to communicate. 

As a country, we need to start asking not just how to punish violence, but how to prevent it and how to heal it. The answers all start with taking care of people.

Take Action: Do you live in North Carolina? On Dec. 2 in Raleigh, we will gather to ask Gov. Cooper to commute North Carolina’s death sentences to prison terms. Please join us and help spread the word. Learn more and register here.

Read More: A beautiful essay from death row prisoner Paul Brown about an example of caring on death row.