Racial Justice’s Second Act

Nearly 15 years after Hasson Jamal Bacote first filed a claim under the Racial Justice Act, a judge ruled last week that racism not only significantly affected Bacote’s case, but pervaded every death penalty case ever tried in Johnston County. 

But the only relief Superior Court Judge Wayland Sermons Jr. could grant under the law had already been granted just weeks earlier, when outgoing Gov. Roy Cooper commuted the sentences of Bacote and 14 other death-row inmates to life in prison. 

The 120-page order Sermons’ issued February 7 did send a strong message that prosecutors had used race illegally and repeatedly over the years to exclude Black people from juries. Sermons noted that in Johnston County, located just southeast of Raleigh, “Black defendants like Mr. Bacote have faced a 100 percent chance of receiving a death sentence, while white defendants have a better than even chance of receiving a life sentence.” 

As scathing as Sermons was on the role race has played in Johnston County’s criminal justice system, he stopped short of applying that analysis statewide, as some had hoped. Sermons wrote that a study on racial bias in jury selection by two Michigan State University law professors, which every Racial Justice Act claim has cited, lacked the precision and trustworthiness to be applied statewide. 

As the first evidentiary hearing under the Racial Justice Act, or RJA, in more than a decade, Bacote’s case had been closely watched. The act, passed by a Democratic majority in 2009, allowed death-row inmates to challenge their sentences if they could prove race played a significant role in their cases. Cumberland County Superior Court Judge Gregory Weeks held the first evidentiary hearings on claims made under the act in 2012, resulting in four inmates getting their death sentences commuted to life. 

The next year, however, the new Republican majority repealed the law. Litigation ensued, and in 2020, the state Supreme Court ruled that the pending claims could move forward, paving the way for Bacote’s two-week evidentiary hearing that began February 26, 2024. As the lead case, Sermons’ decision in Bacote’s case could provide guidance on how other RJA claims would be handled. 

More importantly, it could ultimately help determine the future of the death penalty itself, as North Carolina has not carried out an execution since 2006, in part because of the ongoing RJA litigation. 

A Racist History in Johnston

In his decision, Sermons considered the testimony of witnesses such as Bryan Stevenson, the famed criminal-defense attorney whose story became the movie Just Mercy. The judge also reviewed more than 680,000 pages of discovery from prosecutors’ files in 500 capital cases across the state dating back to 1980, which included court transcripts and prosecutors’ handwritten notes taken during jury selection that had never before been introduced in a hearing. 

Some of the notes were damningly racist and sexist. One Halifax County prosecutor described a potential female juror as “obese in a jungle print dress” while another was “heavy” with “stringy red hair” and “big breasts.” A Cumberland County prosecutor said a Black male juror had “broad shoulders” and was “strong as a bull.” Experts testified that prosecutors used racist stereotypes and applied double standards to exclude Black people from juries.  

In Johnston County, the Ku Klux Klan was active as recently as 2001, billboards once warned visitors of the white supremacist group’s presence, and there were four documented lynchings between 1884 and 1914. Six Black men faced capital charges, including Bacote, between 1970 and 2011, and all were sentenced to death. Over the same period, 11 white men faced the death penalty; only five received a death sentence. 

Sermons also said that prosecutor Gregory Butler, who also handled Bacote’s trial, had disproportionately excluded Black people from juries in his cases and had a “history of denigrating Black defendants in thinly veiled racist terms.” Butler called Black defendants “predators of the African plain” in another death penalty case, Sermons’ order said. 

Immediately after a judge admonished him, Butler told the jury in that case: “Just like the animals in the African plain, after having felled their victim, they dragged their victim away; and, finally, they killed their victim.”

“The Court finds that Mr. Butler, on more than one occasion, has stood before capital juries and deployed racist language designed to evoke the very prejudices and stereotypes that have long caused jurors to punish Black defendants more harshly,” Sermons wrote. 

Butler testified that he never used race in jury selection and that he had no racist intent in the language Sermons cited in his order. Butler could not be reached for comment last week. 

For those opposed to the death penalty, Sermons’ ruling provided affirmation that racism affects every aspect of its operation. “This decision is a damning indictment of the death penalty, and should serve as a call for every North Carolina death sentence to be re-examined,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation. 

Bacote, 38, said in his own statement that he felt relieved when Cooper commuted his sentence. “I am grateful to the court for having the courage to recognize that racial bias affected my case and so many others.”

But the litigation over Bacote’s case and the Racial Justice Act is far from over. The North Carolina Attorney General’s Office is planning to appeal Friday’s ruling to the North Carolina Supreme Court. The office declined to comment on the ruling. 

Thanks to Cooper’s commutation, Bacote is off of death row. But at least 100 others still have pending claims under the Racial Justice Act, and judges across the state will have to decide how to handle them. 

And until the North Carolina Supreme Court renders a decision, the death penalty continues to be on hold for the foreseeable future. 

Michael Hewlett is a staff reporter at The Assembly. He was previously the legal affairs reporter at the Winston-Salem Journal. You can reach him at michael@theassemblync.com.