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For first time in state history, NC’s high court strikes down a conviction because of discrimination against a Black juror

February 11, 2022 By Kristin Collins

For Immediate Release: February 11, 2022
For More Information Contact: Elizabeth Hambourger, CDPL Senior Attorney, 919-412-2542

Raleigh, NC — On Friday, the North Carolina Supreme Court made history by invalidating a criminal conviction because the Wake County prosecutor illegally excluded a qualified Black citizen from the jury. It marks the first time that North Carolina’s appellate courts have ever overturned a case because of discrimination against a juror of color.

Until today, North Carolina was the only southern state whose appellate courts had never enforced the law on behalf of a Black citizen who was denied the right to serve on a jury.

“Discrimination against Black jurors has been rampant in North Carolina, but until now, our courts have refused to deal with the problem,” said Elizabeth Hambourger, a senior attorney at the Center for Death Penalty Litigation, who argued the case in the lower court and assisted with the appeal. “We are so relieved to see our state’s highest court finally acknowledge this important violation of civil rights.”

The court overturned the case of Christopher Clegg, who was convicted of armed robbery in Wake County in 2016, but the facts of the crime played no role in the ruling. Instead, the case hinged on the prosecutor’s decision to illegally remove a Black woman from the jury because of her race.

During the trial, when the prosecutor was questioned about his reasons for striking the woman, he told the judge that he did not like the juror’s “body language” and that she said she “supposed” she could be fair, indicating that she was unsure. The trial judge accepted the prosecutor’s reasons and allowed the prosecutor to dismiss the woman from the jury.

However, neither of the prosecutor’s reasons held up to scrutiny. There was no support for the vague claim about the juror’s body language or failure to make eye contact, which is a frequent excuse that prosecutors make for their removal of Black jurors. And he was simply incorrect about the juror being unsure about her own fairness. In truth, she said she “supposed” she could set aside her other responsibilities and serve on the jury. Meanwhile, a white juror who was questioned at the same time as the Black juror said that he would be distracted by his busy job, yet the prosecutor accepted him.

“Until today, it seems North Carolina’s courts have been waiting for a prosecutor to openly say: ‘I don’t want Black people on this jury,’ before enforcing the law,” said James Williams, a member of the National Consortium On Racial And Ethnic Fairness In The Courts and the retired public defender for Orange and Chatham Counties. “But that’s not how racism operates anymore. It’s rarely spoken aloud, yet it has devastating effects. It’s absolutely shameful how many Black people in North Carolina have been convicted by all-white juries.”

The opinion was authored by Justice Robin Hudson, who was joined by the Court’s three other Democratic justices. Justice Anita Earls wrote a concurring opinion, arguing the prosecutor discriminated against not just one, but two Black women jurors. Justice Phillip Berger, Jr., dissented, joined by the two other Republicans on the court.

Mr.Clegg has already served his time and been released.

Jury service is, along with voting, one of the few ways that citizens participate directly in democracy. It gives ordinary people a voice in the criminal punishment system and is an established civil right. Studies show that diverse juries deliberate more thoroughly and are less likely to convict innocent people.

Yet, courts across the country have been trying and failing to stamp out jury discrimination since 1965, when the Civil Rights Movement made it possible for Black people to finally begin serving on juries in the South. Even a 1987 U.S. Supreme Court ruling that explicitly outlawed the race-based exclusion of jurors has had little effect.

“North Carolina has a particularly atrocious record of enforcement, but discrimination against Black jurors is a problem nationwide, including in the most serious death penalty cases,” Hambourger said. “If we are ever to have a fair system, our courts must continue to say, over and over, that they will not allow convictions in cases where jurors of color have been excluded. I hope today’s decision is just the beginning for North Carolina.”

In the fight to end the NC death penalty, we’re no longer the underdogs

February 1, 2022 By Kristin Collins

Gretchen Engel, right, with Asheville advocate Jean Parks

There are so many reasons to end the death penalty. We could talk about it for days and never come to the end of its injustices. But in this interview, CDPL’s Executive Director Gretchen M. Engel condenses it to thirty minutes.

In that short time, she explains how most of the people on North Carolina’s death row were sentenced under outdated laws, the “barbaric” lack of protections for people with mental illness, the ways that exonerations have woken people up to the injustice of the death penalty, the nonsensical way we decide who to try capitally in North Carolina, the scourge of prosecutorial misconduct, and Wake County’s strange insistence on frequent capital trials, despite the fact that juries keep saying no to the racist, unjust death penalty. And that’s not even a complete list!

After thirty years as a capital defense lawyer, Gretchen has seen North Carolina transform from a state where prosecutors almost always won and people were regularly executed, to one where death sentences are rare and executions haven’t been carried out in fifteen years. She’s never wavered in her conviction that she’s fighting for the right side, but it used to feel like the losing side. Now, she says prosecutors are most often the losers as they fight for death sentences in a state that has outgrown executions. “I’d much rather be in my lane than that one.”

Listen to the full interview here.

A tribute to Gerda Stein: On the hard days and the joyful ones, she was there

January 18, 2022 By Kristin Collins

On January 21, one of North Carolina’s most dedicated advocates, Gerda Stein, will leave her long-time post as Director of Public Information at CDPL. Here, Executive Director Gretchen M. Engel pays tribute to a colleague and friend who has left an indelible mark on our movement — and whose kindness has touched many people who faced execution.

Gerda Stein with Henry McCollum, a longtime CDPL client who was exonerated in 2014 after 30 years on death row

By Gretchen M. Engel

This is not a eulogy.

That said, it is with deep sadness that I mourn, after 30 incredible years of service, Gerda Stein’s departure from CDPL later this month.

I met Gerda in the fall of 1991, when I was law student interning at Ferguson Stein. Gerda had just been hired as a mitigation investigator at the NC Resource Center. I had no idea then that Gerda would become one of my dearest friends and colleagues.

In the early 1990s, many men and women received the death penalty from juries who knew little about their lives. Gerda changed that. She worked with the UNC school for social work, organized trainings, consulted with capital defense teams and, through perseverance and patience, institutionalized the practice of mitigation investigation in capital cases in our state. (Gerda would be the first to point out that she was not the only one involved in these efforts. Of course she was integral to these efforts. And, besides, this piece is about Gerda.)

Gerda was also a practicing model for new recruits. She comforted Henry McCollum through years of depression before he was exonerated in 2014. Her empathy for Norris Taylor, a desperately abused and mentally ill man, was legendary. When he died of natural causes in 2006, the prison didn’t know any family members to call. So they called Gerda. Gerda was the mitigation investigator and later a member of the successful clemency delegation for Robert Bacon and, when Robert was dying, his sister likewise contacted Gerda.

The work was demanding and emotionally exhausting. Our clients’ childhoods are so often horrifying and the daily exposure to stories of degradation and violence is corrosive. Eliciting those stories and then helping to present them to jurors is hard even when you win. And in the 1990s, we often lost.

Gretchen and Gerda in the old days

Gerda took a brief hiatus from CDPL sometime in the late 1990s. It’s hard to remember now, because it feels to me like she was always there: She was there the nights my clients Harvey Green and Quentin Jones were executed. Along with his attorneys and daughter, Gerda was with Dawud Abdullah Muhammad the night he was executed. Between 1992 and 2006, nearly 40 times, at two o’clock in the morning, Gerda was there.

In 2000, Gerda came back to CDPL to take on a new challenge, telling the stories she knew so well to the public at large. This was shortly after the national backlash to Benetton’s “We, on Death Row” ad campaign, and becoming CDPL’s public education director was no small challenge. Back then, lawyers for people facing the death penalty were loath to speak to the press because their stories invariably and exclusively focused on the gory crime facts and suffering of people who’d lost a loved one to murder. And the execution machine was burning at full throttle: in just over four months in the fall of 2003, North Carolina executed seven men.

Gerda brought her compassion, work ethic, fearlessness, and vision to the task and, over the years, media coverage of capital cases has dramatically changed. First there was the series in the Charlotte Observer exposing the under-resourced state of capital defense and the endemic racism in our cases. Later the News & Observer ran a series on prosecutorial misconduct and wrongful convictions in death penalty cases.

In clemency campaign after clemency campaign, Gerda worked with defense teams to expose injustices in individual cases. Among many hard losses, Gerda was there to see the Colosseum in Rome lit up after Governor Hunt granted clemency to Wendell Flowers, to see Tim Allen and Pat Jennings sentenced to life after they’d each spent two decades on death row, and she was there to see Alan Gell and Henry McCollum walk free after years of wrongful incarceration. And she’s been here to see 15 years with no executions, 15 more years of life for Blanche and Dan and Phil and Priscilla, and so many others.

Because our names both start with a hard “G,” I’ve often been called Gerda over the years – although never “Girla,” Norris Taylor’s pet name for Ms. Stein. For years after we made a trip to Washington D.C. to investigate Tim Allen’s case, I would explain on the phone to Tim’s family members, “I’m Gretchen. No, the pregnant woman was Gerda. I’m the other one.” How flattering it’s been to be confused with the most dedicated and powerful advocate and kindest human being I know.

As 2021 ends, the NC death penalty is in retreat but remains a threat

December 17, 2021 By Kristin Collins

The death penalty continued its inevitable decline in 2021.

North Carolina marked its second year in a row without a single capital trial. The size of death row shrank slightly, as two more people had their flawed and unjust death sentences overturned by the courts. And the state began its sixteenth year without an execution.

Meanwhile, a jury awarded death row exonerees Henry McCollum and Leon Brown a historic $75 million settlement for their 30-plus years of wrongful imprisonment, arising from false confessions that law enforcement coerced from them when they were teenagers. And many on death row continued to pursue litigation under the state’s Racial Justice Act, which has revealed an epidemic of discrimination in death penalty cases. [Read CDPL’s comprehensive project on the origins of NC’s death penalty, Racist Roots.]

Nationwide, 26 states have now banned capital punishment or imposed an official moratorium on its use. Most notably, in 2021, Virginia became the first southern state to abolish the death penalty. Even among those states with the death penalty on the books, few are actively using it. Death sentences were imposed in just seven states this year, and only five states carried out an execution.

According to the Death Penalty Information Center’s new report, the handful of death sentences and executions this year were mostly concentrated in a few former slave states. And they continued the tradition of targeting the most vulnerable. Ten of the 11 people executed in 2021 had severe mental illness, intellectual disabilities, or experienced childhood trauma.

Two more innocent people were exonerated from America’s death rows this year, bringing the total to 186 since 1973. Unsurprisingly, a new Gallup poll showed that Americans’ support for the death penalty remains at historic lows.

However, the spree of federal executions that concluded in January reminds us that we cannot sit back and wait for the death penalty to quietly fade away. After a 17-year hiatus, the federal government executed 13 people in just a few months. The same could happen in North Carolina, where more than 130 people remain on death row and pending litigation is the only thing stopping their executions.

It’s time for North Carolina to stop holding on to the death penalty, a remnant of slavery that embarrasses our state and undermines efforts to address the roots of injustice or the epidemic of mass incarceration and police violence. It is a punishment that feeds off people’s instincts for violence and retribution, rather than building a safer and more just society. It creates trauma rather than healing.

As Durham capital defense attorney Jay Ferguson writes:

For much of my career, I dreaded the holiday season.

Early October brought numerous cert denials by the US Supreme Court, and the State of North Carolina wasted no time lining up our clients for execution. We spent the holidays standing in the darkness outside Central Prison, protesting this macabre practice of state-sanctioned killing and supporting our exhausted colleagues, who fought valiantly until they got the call that clemency was denied.

Having to tell your client that he is going to be executed is heart-wrenching. We attorneys were escorted to the cramped viewing room, shoulder-to-shoulder with law enforcement, reporters and victims’ family members, so our client could have a small bit of comfort, knowing at least one person present cared for him as he died.

The last 15 years have been markedly different. We can never go back to the way things used to be. I’m too old and tired to stand outside Central Prison at 2 a.m. with candle wax dripping on my shoes.

In 2022, we promise to work every day to place North Carolina among the growing list of states that have formally ended the racist and barbaric death penalty — and ensure that we never again sit by powerlessly while the state commits premeditated murder.

N.C.’s highest court faces key test: Will it finally enforce the law against race discrimination on juries?

October 5, 2021 By Kristin Collins

For Immediate Release: October 4, 2021
For More Information Contact: Gretchen Engel, CDPL Executive Director, 919-682-3983

Raleigh, NC — North Carolina is the only southern state whose appellate courts have never once enforced the law prohibiting race discrimination against jurors of color. But that could be about to change. On Oct. 6, the N.C. Supreme Court will hear arguments in State v. Clegg, a case that offers the opportunity to address the unfair exclusion of Black citizens from jury service.

The case involves Christopher Clegg, who was convicted of armed robbery in 2016, but it’s not the facts of the crime that are at issue. Clegg has already finished serving his sentence. Instead, the case hinges on whether the prosecutor illegally removed a Black woman from the jury because of her race.

“This case is a key test for our Supreme Court,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation, which works to end jury discrimination. “It’s a constitutional right to serve on a jury and to have a voice in the criminal justice system. Yet, people of color are still being systematically excluded from juries. Given what we know today about the corrosive effects of racism on the criminal justice system, we should be welcoming rather than excluding the voices of jurors of color.”

The U.S. Supreme Court ruled in 1987, in Batson v. Kentucky, that it is illegal to exclude qualified citizens from juries based on race. Yet, studies show that in North Carolina, prosecutors continue to strike qualified Black jurors at more than twice the rate of whites. And the state’s high court has yet to enforce the simple rule laid out in Batson.

“Courts across the South, in states like Mississippi and Alabama, have found discrimination against jurors of color on multiple occasions,” said Jin Hee Lee, the senior deputy director of litigation at the NAACP Legal Defense & Educational Fund, Inc., and a member of CDPL’s board of directors. “There is simply no excuse for North Carolina to remain an outlier in its complete failure to protect jurors of color against discriminatory strikes. It is imperative for the North Carolina Supreme Court to take this opportunity to turn the tide and send a strong message that discrimination will no longer be tolerated.”

In Clegg, the prosecutor moved to strike a qualified Black juror. When the defense objected, saying there was no reason for the strike other than the juror’s race, the prosecutor had a chance to give “race-neutral” reasons for his strike. The prosecutor said he did not like the juror’s “body language” and that she said she “supposed” she could be fair, indicating that she was unsure.

The trial judge accepted the prosecutor’s reasons and allowed the prosecutor to dismiss the woman from the jury. However, neither of the prosecutor’s reasons held up to scrutiny. There was no support for the vague claim about the juror’s body language or failure to make eye contact, which is a frequent excuse that prosecutors make for their strikes of Black jurors.

The prosecutor was simply incorrect about the juror being unsure about her own fairness. In truth, she said she “supposed” she could set aside her other responsibilities and serve on the jury. Meanwhile, a white juror who was questioned at the same time as the Black juror said that he would be distracted by his busy job, yet the prosecutor accepted him.

“Often, it seems like our courts are waiting for prosecutors to make openly racist statements in court before enforcing the law,” Engel said. “But this kind of discrimination operates much more subtly. If the courts accept flimsy excuses for excluding Black jurors, they’re allowing discrimination. In this case, the prosecutor didn’t provide a single valid reason for his strike. That’s unacceptable.”

Oral arguments will be held in the N.C. Supreme Court at 10:45 a.m. on Wednesday, October 6. Watch here.

CDPL’s 2022 Osborn Awards: Honoring Steve Freedman & Gerda Stein

July 20, 2021 By Kristin Collins

CDPL is happy to honor Steve Freedman as the winner of the J. Kirk Osborn Award for outstanding leadership in capital defense. Last fall, because of the steep rise in Covid cases, we made the difficult decision to postpone the ceremony honoring Steve. It is now scheduled for April 2022. The rescheduled event will honor Steve. We will also celebrate longtime CDPL staff member Gerda Stein, with the Messenger of Hope Award for her extraordinary work as a mitigation investigator and communications specialist.

The in-person celebration will be April 14 from 6 to 8:30 p.m. in the outdoor courtyard at Parizade in Durham. Please register for the event here. Everyone who purchased tickets in the fall will be automatically signed up for our spring event. For those who are unable to come in person, we plan to record the awards portion and post it on our website. If you’d like to make a donation in honor of Steve or Gerda, you can do that here.

About Steve Freedman

Steve Freedman

Steve recently retired from the N.C. Office of the Capital Defender. All told, he spent 30 years as a public defender and worked several years as a staff attorney at CDPL. Steve has taken on the most difficult capital cases and persuaded juries to spare his clients’ lives. To cite just one example, in 2007, Steve represented Sam Cooper, who was accused in a Wake County crime spree that left five people dead. After a month-long trial in which Steve and his team presented compelling evidence of post-traumatic stress disorder that resulted from horrendous childhood abuse, the jury voted for five life sentences instead of death. And Steve’s career is far from over. Despite his retirement, he recently agreed to take a Richmond County capital case, and he continues to assist on the case of a former client facing the death penalty in Pasquotank County.

To understand why we chose Steve for this honor, read this nomination letter from fellow capital defender Robert Singagliese:

The epitome of leading by example

Over the course of his career, Steve has done more for poor people charged with capital murder than most any attorney in the state.

Steve has been an excellent advocate at the trial level for his entire career for poor people charged with serious felonies. He has been a public defender in Columbus, OH; Cumberland County, NC; Orange County, NC; and the Eastern District of NC in the federal system. He also spent a number of years at CDPL. Finally, he has spent about 15 years at the Office of the Capital Defender in Durham, where we worked together. He has tried eight capital trials, only one of which resulted in a death sentence. While not a very vocal member of the bar, I believe Steve is the epitome of leading by example.

In my four and a half years at OCD, I have had the incredible opportunity to work with Steve on three capital cases. (We also tried a non-capital case together that thrillingly resulted in an acquittal.) His care for his clients is obvious. In his earliest meetings with his clients, he lets them know that our job is going to be to learn everything we can about them, so that by the time a case has reached its conclusion we know more about our clients than they do. That is a fine explanation of mitigation work. That introduction also lets our clients know from the beginning that the case is not about the lawyers, and it’s not about the crime. Our work is about them.

The last of the three capital cases I mentioned ended just recently. In that case, our client cared less about his life than we did. (Indeed, he told the judge at his sentencing hearing that he was dissatisfied with his lawyers because we delayed the case and prevented him from getting the death penalty.) While capital trial work is always demanding and frustrating, it was even harder with a client who refused to cooperate with his defense team. Yet, Steve didn’t give up, and with some creative litigation and a lot of patience, we were able to maneuver the case into a posture that allowed it to be resolved without a capital trial.

As for teamwork, it’s obvious that Steve is the “first chair” in essentially any setting in which he finds himself. Yet he doesn’t make the other members of his team feel that way. He encourages participation from fellow attorneys, investigators, and experts. I’ve also seen him switch his own gears and focus based on the input of others, a sign that he’s not just being polite about a team approach. He sincerely appreciates that every member of the team has something to contribute.

I have also watched Steve work with several junior members of the capital defense community, including myself. I owe much of what I have learned since joining this office to Steve. I have no doubt that other lawyers have had a similar experience.

Finally, a short anecdote. Two years ago, Steve tried a non-capital murder case in Durham. The State never made a plea offer, and the facts were not good for Steve’s client. Steve’s defense brought forward evidence of legitimate mental health issues, including intellectual disability, Bipolar disorder, and intoxication. Before sitting down at the end of his closing argument, knowing that the State would have last argument, Steve choked up a bit and asked the members of the jury for someone to be his client’s advocate in the jury room. He asked for someone to stand up for D’Marlo, because Steve wasn’t going to be allowed to stand up again. It was clear how much Steve cared about his client. What more could a client ask for?

About Gerda Stein

In January 2022, one of North Carolina’s most dedicated advocates, Gerda Stein, left her long-time post as Director of Public Information at CDPL. Here, Executive Director Gretchen M. Engel pays tribute to a colleague and friend who left an indelible mark on our movement — and whose kindness touched many people who faced execution:

On the hard days and the joyful ones, Gerda was there

This is not a eulogy.

That said, it is with deep sadness that I mourn, after 30 incredible years of service, Gerda Stein’s departure from CDPL later this month.

The J. Kirk Osborn Award

J. Kirk Osborn

J. Kirk Osborn was one of the giants of the capital defense community. Kirk defended more than a dozen capital cases and never had a client sentenced to death. His advocacy and deep compassion for his clients saved many lives, and inspired other attorneys to follow in his footsteps. Each year, the Center for Death Penalty Litigation honors Kirk’s legacy by presenting the J. Kirk Osborn Award for lifelong zealous advocacy, compassion for indigent men and women facing the death penalty, and leadership among capital defense attorneys.

New wave of Racial Justice Act litigation begins in North Carolina

May 19, 2021 By Kristin Collins

For Immediate Release: May 19, 2021
For More Information Contact: Gretchen Engel, Executive Director, 919-682-3983

Raleigh, NC — On Thursday, May 20, North Carolina will hold the first hearing under the Racial Justice Act since the state Supreme Court decided in June that people on North Carolina’s death row are entitled to present evidence of racism in their trials despite the legislature’s repeal of the RJA.

Hassan Bacote, one of 137 death row prisoners in North Carolina, will have a hearing in Wake County Superior Court at 10 a.m. Thursday. His case is from Johnston County. The hearing will center around his requests for the state’s jury selection notes, training records and other documents. The state has also requested information about the statistical analyses Bacote relied on.

In other cases, these records have shown that prosecutors wrote disparaging notes about jurors of color like “blk wino” or “blk, high drug” and that they attended training sessions designed to help them evade laws prohibiting race discrimination in jury selection. At these sessions, prosecutors were taught to give vague excuses for their exclusion of Black jurors, including body language or failure to make eye contact.

Bacote has already submitted evidence that Johnston County prosecutors at his 2010 trial excluded qualified Black jurors at more than three times the rate of white jurors. Statewide, a study found that Black jurors are struck at twice the rate of whites, meaning the discrimination in Bacote’s case was even more pronounced than the state average.

“Hassan Bacote is a Black man who was sentenced to death for a crime he committed as a teenager in a county known for Ku Klux Klan activity,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation. “We already know that the state made a great effort to keep Black people off his jury. We look forward to digging even deeper into the evidence to see how racism affected this case.”

Bacote’s case could set a precedent for how Racial Justice Act cases are handled going forward. The 2009 law allowed death-sentenced people to present evidence of race discrimination and, if they proved that race affected their sentences, be resentenced to life without parole. However, the RJA was repealed in 2013 after the first four death row prisoners won their cases. In the years since, all claims were on hold while the courts determined whether they were still valid after the repeal.

In June, the N.C. Supreme Court forcefully affirmed that all existing Racial Justice Act claims should be heard in court. Justice Anita Earls wrote that racial discrimination in criminal cases “undermines the integrity of our judicial system and extends to society as a whole.”

“We are thrilled that this litigation is beginning to move forward,” Engel said. “It’s critical that our courts examine the striking evidence of discrimination in death penalty trials, and that no one is executed based on a judgment tainted by racism.”

The hearing will be held at 10:00 am at the Wake County Courthouse, Courtroom 704, the Honorable Wayland J. Sermons Jr. presiding.

In 2020, the North Carolina death penalty’s racist origins came into sharp focus

December 16, 2020 By Kristin Collins

For Immediate Release: December 15, 2020
For More Information Contact: Gretchen Engel, CDPL – gretchen@cdpl.org 919-682-3983

Durham — As 2020 ends, the North Carolina death penalty occupies a precarious position in a state coming to terms with systemic racism and sweeping injustice in its criminal punishment system.

There were no new death sentences in 2020, which marks three of the past four years with no death verdicts. Even as federal executions resumed at a stunning pace, North Carolina passed its fourteenth year without an execution. Meanwhile, dozens of the state’s 138 death row prisoners are poised to bring forward claims of racism in their trials and sentences under the Racial Justice Act.

Also, on Monday, Governor Cooper’s Task Force for Racial Equity in Criminal Justice released a report acknowledging that the death penalty has a close “relationship to white supremacy” and lynching. The task force recommended a Truth and Reconciliation Commission that would, among other things, study racial disparities in death sentencing, review commutations of death sentences imposed before 2001, and consider replacing the death penalty with a maximum sentence of life without parole. The task force also recommended that the death penalty be prohibited for people with serious mental illness and those under 21, and said juvenile offenses should no longer be used as aggravating factors in death penalty trials.

“Any honest attempt at truth and reconciliation must begin with the acknowledgment that the modern death penalty is rooted in racism,” said CDPL Executive Director Gretchen M. Engel. “North Carolina’s death penalty was used first as a tool for enforcing slavery and then to police segregation. It’s no wonder that today we have a death penalty riddled with inequity. From the disproportionate numbers of people of color on death row to the death sentencing of innocent Black men, from the exclusion of African-American jurors to the favoring of white victims. If we want to move forward as a society, we must reckon with that.”

In October, CDPL released Racist Roots: Origins of North Carolina’s Death Penalty, a sweeping project that puts the modern death penalty in the context of its history. Dozens of scholars, artists, advocates, and people directly affected by the death penalty contributed to the project, which reveals how racism has shaped and perpetuated the modern death penalty.

Also this year, the N.C. Supreme Court recognized in a series of rulings that race discrimination is a serious and ongoing problem in death row cases.

The court ruled in June that all death-sentenced people who had filed claims under the N.C. Racial Justice Act are entitled to hearings where they can present evidence that prosecutors excluded African-American citizens from their juries and that racism tainted their trials. In two subsequent decisions, the court ruled that four people who had already proven discrimination under the Racial Justice Act had to be removed from death row and resentenced to life without parole, ensuring that death sentences infected by racism will never be carried out. One of those decisions noted North Carolina’s “egregious legacy of the racially discriminatory application” of the death penalty.

“This year, our state’s highest court said very clearly that it’s time to stop ignoring racism in the death penalty,” Engel said. “It’s time to confront the clear and undeniable evidence that race still determines who is sentenced to death.”

Engel continued, “Ending the death penalty is just one small part of what’s needed to finally begin erasing the stain of racism from our criminal punishment system, but it’s an important first step. As long as the state is still trying to execute people in our names, we cannot say we are serious about rooting out the legacy of slavery and racial terror.”

If we value racial equity, we must end the death penalty

November 12, 2020 By Kristin Collins

The N.C. Task Force for Racial Equity in the Criminal Justice System was established in June in the wake of widespread protests against police brutality and racism. It was established by Gov. Cooper and is made up of 24 people from a wide range of backgrounds. The task force will recommend policy changes and reforms of North Carolina’s criminal punishment system.

On September 15, CDPL’s Executive Director Gretchen M. Engel addressed a working group of the task force. These are her remarks.

Good morning and thank you for the opportunity to speak to all of you who have donated your time to work on these important issues. My name is Gretchen Engel and I’m the executive director of the Center for Death Penalty Litigation in Durham. I came to North Carolina in 1992, fresh out of law school, when Henderson Hill gave me a job in capital defense. Over the years, I had the good fortune to work with Mary Pollard as well.

One of my first death row clients was Quentin Jones. Quentin was 18 years old at the time of the robbery and murder that landed him on death row.

Seventeen years ago this August, I watched the State of N.C. execute Quentin. He was then 34 years old.

Quentin Jones

After his execution, I learned that one of the jurors in his case had been interviewed by researchers at Northeastern University in Boston, my alma mater. This is what the juror said about Quentin: He was a typical n—-r. You know, if he’d been white, I would’ve had a different attitude.

Another client of mine, Robert Bacon, was tried by an all-white jury for the murder of a white man named Glennie Clark. Robert’s codefendant, Bonnie Clark was white. Bonnie was married to Glennie Clark and she was having an affair with Robert. It was Bonnie’s idea to kill Glennie and she lured him to the site of his death.

This is what a juror told me about the sentencing deliberations in Robert’s case: Blacks commit more crime. It’s typical of Blacks to be involved in crime. He shouldn’t have been dating that white woman. He was wrong to do that. And he deserves the death penalty. Thankfully, the Governor commuted Robert’s death sentence to life.

Robert Bacon

After doing this work for nearly 30 years, and seeing countless examples like these, the racism of the death penalty is very real and very personal.

I was asked to talk about the cost of the death penalty. There are a couple of ways to think about cost. One is just to count up the money. Another is to think about what we get for the money. Dollars. Value.

We know the death penalty costs a lot of money. Dr. Phil Cook at Duke University did a study showing how much — $11 million a year. Note that Dr. Cook focused on defense costs. His estimate does not include resources the Office of the Appellate Defender and the North Carolina Supreme Court could devote to other things, the extra time spent by prosecutors in capital cases, or the costs to taxpayers for federal appeals.

So what are we getting for our money? Not a lot. North Carolina has nearly 140 people on death row. Almost 90 of them have been there for 10, 20, 30, or more years. In the past decade, we’ve sentenced only 11 people to death. Looking at the past decade, you’ll see that most years we’ve spent at least $11 million dollars to obtain one or zero death sentences. Meanwhile, our last execution was in 2006, 14 years ago.

Some would say justice is priceless. There is no price on justice. One question then is, how well does this system operate? I suggest to you that if the death penalty system were the airlines, no one would fly. We’d all be too terrified.

A national study of capital sentencing between1973-1995 looked at error rates in capital sentencing. Researchers at Columbia University analyzed nearly a quarter century of data, looked at appellate reversals for serious constitutional error. Nationally, the error rate was 68%, nearly seven out of ten. North Carolina’s error rate was 71%. Truly, the death penalty is the Ford Pinto in our criminal justice tool box.

Most disturbing is how wrong we get it. Henry McCollum spent more than 30 years on death row for a crime he did not commit. He and his brother Leon Brown were exonerated by DNA evidence in 2014. Because of Henry’s wrongful conviction, and the years it took to figure that out – thank goodness we didn’t execute him in the meantime – the family of Sabrina Buie, the 11-year-old girl who was killed, has never received justice.

Henry McCollum was one of 10 men wrongfully convicted and sentenced to death in NC. The others were Sam Poole, Christopher Spicer, Alfred Rivera, Alan Gell, Jonathon Hoffman, Glen Chapman, Levon Jones, Henry McCollum, Leon Brown, and Charles Finch.

Nothing about the death penalty apparatus operates with surgical precision. Yet it is eerily good at targeting Black people. Eight of these 10 men were Black. One was Latino. Nine of 10 were people of color. Collectively, these men spent 155 years in prison for crimes other people committed.

Innocent people are disproportionately people of color. The same is true of other vulnerable populations. Of the people on North Carolina’s death row when the U.S. Supreme Court ruled it was unconstitutional to execute people who committed their crimes as children, under the age of 18, three of four were Black. Of the people on our death row when North Carolina barred the execution of people with intellectual disabilities, 16 of 18 were people of color.

Chief Justice Beasley recently observed: In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty. The death penalty was conceived as punishment for the “worst of the worst.” Worst crimes, worst people. Most calculated and most cruel killings, committed by the most depraved.

Our “modern” death penalty was supposed to be rational, not arbitrary. Getting the death penalty was not supposed to be like being struck by lightning. And, actually, it isn’t. More often, it simply strikes people who are Black. Let’s look at marginal cases, cases that don’t seem to be the “worst of the worst.”

Consider the people on our death row even though they did not personally kill the victim. They were non-shooters, non-triggermen. Of the people who have been sentenced to death in North Carolina who were not the actual killers, four of four were people of color.

Consider the people on death row whom the jury found did not premeditate and deliberate the murder, people who were convicted only of felony murder. Seven of seven in this group are people of color.

Let me go back for a minute to what Chief Justice Beasley said about African Americans being more harshly punished. In fact, the Blacker you are, the more harshly you will be punished.

A 2006 study by Stanford University psychologist Jennifer Eberhardt showed that murderers with stereotypically “Black-looking” features are more than twice as likely to get the death penalty as lighter skinned Black defendants.

In 2001, when Robert Bacon had an execution date, I interviewed Bonnie Clark’s lawyer. The lawyer was a former prosecutor and a prominent civil lawyer when I spoke to him 13 years after Bonnie enlisted Robert in the plot to kill her husband. I asked him why he thought Bonnie got life and Robert got death. Here’s what he said: You know what I think happened? Robert Bacon is a very dark skinned black man, very dark skinned, pure Negro. She was white. The victim was white. To tell you the truth, that’s what I think happened, that’s what I think the jury thought about.

At the point he told me this, I hadn’t yet told him what the juror said about how Robert had no business running around with a white woman.

Shirley Burns had two sons. One of them is Marcus Robinson. When Marcus was 18, he killed a 17-year-old white boy. Marcus was sentenced to death. The other was Curtis Green. Curtis was murdered. Nobody went to death row for that murder.

When it comes to the death penalty, white lives matter. In 2016, FBI data showed the homicide rate for Black victims was nearly four times the national average and more than six times that of whites. Consistently, Black people make up the majority of murder victims.

But the death penalty is imposed as a punishment for killings of white people. A 2001 UNC study of homicides between 1993 and 1997 showed the odds of receiving the death penalty in NC were 3.5 times higher when the victim was white. A 2010 study by Michigan State University showed defendants charged with murder in NC from 1990 to 2009 were more than twice as likely to receive the death penalty if the victim was white.

I wish what I’ve told you today were new. But it’s not. Today the Death Penalty Information Center released its report on the history of race and the death penalty. The title of the report is Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty. Next month, my office will launch a web-based project called Racist Roots: Origins of North Carolina’s Death Penalty. What I’ve told you today is an old story. As Rev. Barber says, “The link between slavery, Jim Crow, lynching and the death penalty is as connected as the intertwined ropes of the lynchman’s noose.”

We are at a momentous time in our history. We have to ask ourselves, what do we value? The death penalty is irrevocable punishment. If we continue to tinker with it, we will execute an innocent person. How could we not?

The death penalty experiment in NC has been going on for more than 40 years. We’ve yet to come even close to eliminating the taint of race. It’s time. If we value racial equity, we cannot maintain the death penalty.

Watch CDPL’s 2020 Osborn Award Celebration

October 23, 2020 By Kristin Collins

Congratulations again to Tye Hunter, the 2020 winner of CDPL’s Osborn Award for outstanding leadership in capital defense. If you missed our virtual event on October 15, you can watch it here. Even though we couldn’t be together in person, we had a lovely time together. We know that Tye felt loved and appreciated, and all of us felt buoyed in our work to end the unjust death penalty.

Here are just a few of the comments from the chat that evening. It was amazing how we felt our community’s presence, even though we were all in our separate homes.