A North Carolina Judge Just Acknowledged an Undeniable Truth: The Death Penalty Is Racist

Yahoo

13-02-2025

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Sometimes, what is right in front of you is the hardest to see, and the truth is hidden in plain sight. For a long time, that has been the case with the role of race in America's death penalty system.
It is by now well documented that from start to finish—from charging decisions to jury selection, decisions about sentencing, and decisions about who gets executed—race plays a key role in death penalty cases. Yet often, courts have found a way to ignore or dismiss those unpleasant facts in their capital punishment jurisprudence.
Following a notorious 1987 Supreme Court precedent, McCleskey v. Kemp, judges have focused narrowly on the question of whether defendants in capital cases can provide proof of overt, intentional discrimination. They could do so if they could show that the prosecutor said that they were charging the defendant with a capital crime because of their race or the race of their victim.
Or maybe if prosecutors make overt appeals to racial prejudice during jury selection or the trial? Or perhaps if jurors say anything about race in their deliberations or in explaining why they believed the defendant deserved a death sentence?
These things happen rarely, though. Focusing on them means that judges will ignore context and patterns of racial prejudice and miss what is right in front of them.
On Feb. 7, North Carolina Judge Wayland Sermons showed what happens when judges broaden the context and notice patterns. What he did made the realities of race in death cases come alive.
His ruling has the potential to change the way Americans think about race and capital punishment. It is one of the most thorough and persuasive demonstrations ever recorded in this country of the way the death penalty serves as a form of legal lynching.
Sermons made his ruling in the case of Hasson Bacote, who, as NBC News notes, was convicted of murder 'along with two others in the 2007 fatal shooting of Anthony Surles, 18, during a home robbery attempt when Bacote was 20. The other two defendants in the case were convicted on lesser charges and later released from prison.'
The judge based his decision on a combination of 'statistical analyses, social science research, the historical and present-day influence of race in the administration of criminal punishment … as well as the words and actions of North Carolina prosecutors.' Judge Sermons also considered documents from the trial court, 'affidavits of prosecutors, voir dire transcripts and jury selection notes from the files of prosecutors around the state.'
He drew together this evidence and was inventive in piecing it together. His willingness to do so helped him see what was right in front of him.
Sermons did not have to insist that Bacote had to find a smoking gun showing evidence of intentional racial discrimination in his case because the same year Bacote was convicted, North Carolina enacted the Racial Justice Act. That act allowed judges in North Carolina to consider a wide range of evidence, including statistics, in determining whether race played an impermissible role in a criminal trial.
Before its passage, judges in the Tar Heel State had only found racial discrimination in jury selection one time.
Nonetheless, in 2013, a mere four years after its passage, as the Equal Justice Initiative notes, 'In the face of overwhelming evidence that racial bias had infected death penalty cases in North Carolina, the state legislature repealed the RJA … [and] made the repeal retroactive.' Seven years later, the North Carolina Supreme Court 'declared the repeal's retroactivity provision unconstitutional' and allowed people like Bacote to continue litigating RJA claims.
Bacote was one of them, though from the time he filed his RJA claim, it took nearly 14 years for it to be heard.
Bacote was given a death sentence by a jury composed of 10 white and two Black jurors. He contended that his trial was replete with racism.
He offered evidence to suggest that the racial composition of his jury was not a coincidence. It included the fact that local prosecutors '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.'
Judge Sermons was convinced. He went out of his way to make clear that 'the RJA does not require proof of discrimination by a specific prosecutor or in a defendant's own case.'
The judge also pointed out that a capital trial can be racialized when prosecutors denigrate 'Black defendants in thinly veiled racial terms.' Sermons took note of the fact that in an earlier trial, the person handling Bacote's case had 'described Black defendants as 'predators of the African plain.' '
And, in Bacote's case, the prosecutor referred to him as a 'thug,' a term Judge Sermons said 'has racial connotations.' For a long time such thinly veiled racial terms have played a role in capital trials across this country.
They prod juries, as I wrote more than 30 years ago, 'to assert the value of white life against the devaluing acts of Black men.' And, if judges ignore those kinds of remarks, they will never understand the complex ways in which racism appears in the death penalty system.
Finally, Bacote also offered statistics to show that Black defendants were much more likely to be sentenced to death in the county where he was prosecuted than were whites. Again, Judge Sermon was convinced.
'In Johnston County,' he wrote, 'Black defendants … 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.'
The fact that Sermons' kind of analysis is not the usual fare in death penalty cases can, as I noted above, be traced back to the Supreme Court's McCleskey decision. In that case, a Black defendant introduced a sophisticated statistical study that demonstrated a very powerful race-of-the-victim effect. The study showed that Black people convicted of murder were much more likely to be sentenced to death if they murdered a white victim than if they murdered a person of color.
The Supreme Court did not dispute the validity of the statistics. However, it ruled that they were irrelevant in proving that a particular defendant was subject to racial discrimination.
As the court put it, 'The statistics do not prove that race enters into any capital sentencing decisions or that race was a factor in the petitioner's case. The likelihood of racial prejudice allegedly shown by the study does not constitute the constitutional measure of an unacceptable risk of racial prejudice. … At most, the Baldus study indicates a discrepancy that appears to correlate with race, but this discrepancy does not constitute a major systemic defect.'
Since it was decided, McCleskey has helped blind judges to the realities of racial discrimination that were staring them in the face. Judge Sermons' decision cannot change that in one fell swoop. But it will have far-reaching effects.
In the first instance, it will help 'many of the other 122 inmates facing the death chamber by paving the way for them to successfully challenge their sentences.' Beyond that, it offers a template through which Americans can see how race operates in capital cases.
And in the long run of history, it will pave the way for the time when the United States Supreme Court gets around to overruling McCleskey.