“So Clear It’s Blinding”: Hasson Bacote and the Revival of North Carolina’s Racial Justice Act

June 27, 2024 by Mara Roth

Racial disparities in capital punishment have been thoroughly documented.1 Where explicitly racist laws once codified discrimination in the imposition of the death penalty, today, disparities in capital punishment are primarily the result of forces that are more difficult to prove: unstated, implicit, and systemic bias.2 North Carolina’s Racial Justice Act (“RJA”) represented an unprecedented legislative effort to address these insidious forms of discrimination and the historical legacy of racism in the imposition of capital punishment.3

Passed in 2009, the RJA allowed capital defendants to appeal their death sentences if they could prove that race significantly impacted the decision to “seek or impose” the death penalty against them.4 Among other means, the RJA permitted defendants to prove the impact of race through statewide statistical evidence demonstrating disparities in the imposition of the death penalty.5 This evidence could be related to disparities based on the race of the defendant, the race of the victim, or racial disparities in the use of peremptory strikes during capital jury selection.6 The RJA was retroactive and gave defendants on North Carolina’s death row one year to appeal their sentences.7 Nearly every person did.8 After partisan changes in the State legislature, and multiple efforts by conservative legislators to amend the Act, the RJA was repealed in 2013.9

The RJA’s ultimate repeal did not vitiate its impact. Between 2009 and 2013, four people successfully appealed their death sentences under the RJA and received life without parole.10 Moreover, in 2020, the North Carolina Supreme Court ruled that capital defendants who had already appealed their cases under the RJA, prior to its 2013 repeal, still had the right to have their cases heard.11

Enter, Hasson Bacote: the first person on North Carolina’s death row to have his RJA appeal heard since the court’s 2020 ruling.12 Mr. Bacote, a Black man, was sentenced to death on April 9, 2009 in Johnston County after being convicted under North Carolina’s felony murder law.13 According to court filings in Mr. Bacote’s case, his appeal relies on local data including statistics demonstrating that prosecutors statewide strike qualified Black and minority jurors at twice the rate of qualified white jurors—a rate that is even higher when the defendant is Black;14 that defendants with white victims can be as much as 3.5 times more likely to receive death sentences;15 and that Black defendants with white victims are the most likely to receive the death penalty.16 Mr. Bacote’s filings also mention similar trends specific to Johnston County and the eleventh prosecutorial district where he was tried, as well as historical evidence demonstrating the pervasion of racism in Johnston County.17

Mr. Bacote presented his case over the course of a two week long evidentiary hearing earlier this year.18 Ultimately, Mr. Bacote’s attorneys argued, the impact of race in the imposition of North Carolina’s death penalty is “so clear it’s blinding.”19 The hearing concluded on March 8, 2024.20 The presiding judge is expected to issue his decision in the coming weeks.21 This decision will set the precedent for the more than 100 capital defendants currently awaiting adjudication of their RJA appeals, and determine whether the RJA will continue to disrupt racialized capital punishment in the state for years to come.22

1 See generally NGOZI NDULUE, ENDURING INJUSTICE: THE PERSISTENCE OF RACIAL DISCRIMINATION IN THE U.S. DEATH PENALTY (2020); see Race and the Death Penalty by the Numbers, DEATH PENALTY INFORMATION CENTER (last visited March 11, 2024), https://deathpenaltyinfo.org/policy-issues/race/race-and-the-death-penalty-by-the-numbers; see Race: Additional Resources, DEATH PENALTY INFORMATION CENTER (last visited March 11, 2024), https://deathpenaltyinfo.org/policy-issues/race/race-additional-resources, (providing links to various studies that have identified racial disparities in capital sentencing).

2 See generally NDULUE supra note 1; see also Mara Roth, Discriminatory Death: An Analysis of the Legislative Advocacy Against the North Carolina Racial Justice Act, 20 HARV. J. AFRICAN AMER. PUB. POL’Y 57, 58-60 (2019).

3 North Carolina Racial Justice Act, ch. 15A, 2009 N.C. Sess. Laws 464, (repealed 2013).

4 Id. at §2010-2011(a); §2012(a)(3).

5 Id. §2011(b).

6 Id. §2011(b)(1-3).

7 Id. §2.

8 See Kelan Lyons, Death Penalty on Trial As Racial Justice Act Hearing Begins, NC NEWSLINE (Feb. 26, 2024 6:00 PM), https://ncnewsline.com/2024/02/26/death-penalty-on-trial-as-racial-justice-act-hearing-begins/; see also Stubbs et al., Challenging the Racist Death Penalty in North Carolina, ACLU (Feb. 22, 2024), https://www.aclu.org/news/capital-punishment/challenging-the-racist-death-penalty-in-north-carolina.

9 See North Carolina Supreme Court Strikes Down Racial Justice Act Repeal, Permits Race Challenges by 140 Death-Row Prisoners, DEATH PENALTY INFORMATION CENTER (June 8, 2020), https://deathpenaltyinfo.org/news/north-carolina-supreme-court-strikes-down-racial-justice-act-repeal-permits-race- challenges-by-130-death-row-prisoners.

10 See State v. Robinson, 846 S.E.2d 711, 718 (N.C. 2020).

11 See State v. Ramseur, 843 S.E.2d 106 (N.C. 2020).

12 See Kelan Lyons, North Carolina AG’s Office Pushes For Delay in Key Racial Justice Act Hearing, NC NEWSLINE (Feb. 7, 2024, 6:00 AM), https://ncnewsline.com/2024/02/07/north-carolina-ags-office-pushes-for-delay-in-key-racial-justice-act-hearing/.

13 Mot. Appropriate Relief Pursuant to Racial Justice Act, ¶¶ 3, 5.

14 Id. at ¶¶ 15, 16

15 Id. at ¶¶ 19, 20, 25.

16 Id. at ¶ 26.

17 Id. at ¶¶ 32, 36, 60, 62, 68, 70, 74.

18 See Historic Hearing Challenging Racial Bias in North Carolina’s Death Penalty Concludes With Overwhelming Evidence of Discrimination in Capital Cases, ACLU (Mar. 8, 2024), https://www.aclu.org/press-releases/historic-hearing-challenging-racial-bias-in-north-carolinas-death-penalty-conclu des-with-overwhelming-evidence-of-discrimination-in-capital-cases.

19 Id.; see also North Carolina Racial Justice Act Hearing Concludes in Hasson Bacote Case, DEATH PENALTY INFORMATION CENTER (Mar. 14, 2024), https://deathpenaltyinfo.org/news/north-carolina-racial-justice-act-hearing-concludes-in-hasson-bacote-case.

20 DEATH PENALTY INFORMATION CENTER, supra note 19.

21 Id.

22 See Stubbs et al., supra note 8; see Lyons, supra note 12.