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Reposted from N.C. Policy Watch

By Gretchen M. Engel

A few months ago, my former client Robert Bacon died in the hospital at Central Prison. Because of COVID-19, he died alone. His loving sister had only a video call with him a few weeks after medical staff stopped Robert’s cancer treatments.

I’ve been thinking about Robert a lot lately, because 20 years ago this week, he was scheduled to be executed. But on Oct. 2, 2001, three days before he was to receive a lethal injection, Gov. Mike Easley issued a rare grant of clemency, allowing Robert to serve out his natural life in prison.

Robert was one of only five people to receive clemency in North Carolina since the modern death penalty was created in 1976. The racism in his case was so great that even a governor who presided over more than two dozen executions could not turn away from it.

Bonnie Clark, Robert’s white girlfriend, co-defendant, and clear mastermind of the murder of her estranged husband, was tried first and got a life sentence. Prosecutors nevertheless demanded the death penalty for Robert, and the all-white jury agreed. Robert was sentenced to death despite the pleas of his family members and the fact that he had never even been arrested before he met Bonnie.

As one of Bonnie’s attorneys explained to me, when I asked about the disparity in sentences:

You know what I think happened? Robert Bacon is a very dark-skinned Black man, very dark-skinned. 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.”

Years later, I confirmed the truth of this hunch. One of Robert’s jurors admitted that race was explicitly discussed during punishment deliberations. She told me jurors believed “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.”

The juror signed an affidavit eight days before Robert’s date with the executioner and, three days later, the Sunday edition of the Charlotte Observer ran a front-page story headlined, “Juror: Race tainted decision on execution.” The ensuing public outcry led the governor to spare Robert’s life.

This juror had been living out of state during Robert’s initial appeals. It was pure serendipity that at the time Robert was facing execution, the juror was back in North Carolina and reached out to me. Absent her honesty and bravery, Robert may well have been executed.

The day I talked to the juror, another attorney in my office, Zephyr Teachout, went to see Robert. I was excited because I knew the juror’s revelation was a game-changer for our clemency campaign. Zephyr came back from the prison, and I asked her about Robert’s reaction.

“Was he happy?” I wanted to know.

“Actually,” she said, “He felt bad. He looked down for a long time and then said he was sad the jury couldn’t see him. They only saw his color.”

Had jurors been able to see Robert, they wouldn’t have sentenced him to death. They might have even seen him as worthy of a second chance. Robert grew up in a military family in Panama and Massachusetts. He had no history of violence.  Years after he graduated from high school, his teachers still remembered how he broke up a fight in the school cafeteria and protected teachers from harm. As a young man, he worked in a youth center before coming to North Carolina at age 26. His first job here was selling vacuum cleaners. He met Bonnie after answering an ad for a room for rent.

Robert was always reticent. I think he was deeply ashamed of what he’d done, and he hated that he had disappointed his family, especially his mother and sister, whom he adored.

On death row, he treated his fellow prisoners with kindness. In the weeks before his execution date, Robert emptied his prison account buying coffees for other men on death row.  I remember a conversation where he told me about who on death row liked a double-single (two creams, one sugar), a double-double, and so on.

A little over a month before Robert escaped death, another man — Ronnie Frye — was executed. Ronnie deserved clemency just as much as Robert. As a child, his parents gave him away to strangers at a gas station. He was beaten so badly that police used photos of his battered body at child abuse trainings. The jury that sentenced Ronnie to die didn’t know that because his attorney was an alcoholic who, instead of preparing Ronnie’s case, drank at least a pint of rum every night of the trial.

Given the choice, I think Robert would have given his own life to spare Ronnie.

In the past 20 years, Robert sent me Easter and Christmas cards every year. His mother called me several times a year until her death in 2014. Robert and my mother were pen pals as well. I saw Robert a few years ago, after he was first diagnosed with cancer. Despite his dire prognosis, he was relaxed and calm. He seemed to have reached a place of peace with himself.

Even in prison with no chance of release, Robert’s life meant something. Strapping him onto a gurney and killing him would not have made our world better in any way. He inspires me to keep working until no one is in danger of being executed by the state — and to fight against the many other racist death sentences that still stand in North Carolina.

I think of Robert every time I order a triple-triple.

Last week, the North Carolina Supreme Court broke new ground for a state court in the South. Not only did the justices nullify a death sentence poisoned by racism, they also spoke directly to the death penalty’s “egregious legacy” of racially discriminatory application: “[t]he same racially oppressive beliefs that fueled segregation manifested themselves through public lynchings, the disproportionate application of the death penalty against African-American defendants, and the exclusion of African-Americans from juries.”

The support for the court’s conclusion that the death penalty is a racial justice issue is overwhelming and the remedy apparent: Ending the death penalty.

A 2017 study by UNC Professor Frank Baumgartner in North Carolina found that .7 percent of homicides of white people resulted in executions, compared to .12 percent of homicides of Black people. This is only the latest of numerous scholarly reports, demonstrating pervasive racial discrimination in seeking or imposing the death penalty, and the racially biased exclusion of jurors from deciding who lives and who dies in death penalty cases. The state does not execute people convicted of the worst of the worst crimes. Overwhelmingly, the state executes people who are poor and accused of killing white people, and it achieves that outcome in part by seeking to exclude Black persons from serving on juries.

For example, in 2003 North Carolina executed Robbie Lyons for an unpremeditated murder following a botched robbery of Stephen Stafford, the white owner of a small Winston-Salem store. Lyons was a severely mentally ill 21-year-old Black man with no prior history of homicide, who had suffered violent beatings and exposure to drugs and alcohol beginning at age four. Robbie Lyons would not have been executed if he were white and the victim Black.

Despite the overwhelming evidence of racial bias in the death penalty, the Supreme Court found in the 1987 case McCleskey v. Kemp that statistical evidence is not enough to challenge the constitutionality of the death penalty, though it invited state legislatures to take on this task. McCleskey is harshly criticized by many, including N.Y.U. Law Professor Anthony G. Amsterdam, as “the Dred Scott decision of our time.” The author of the opinion, Justice Powell, later said the decision was the biggest regret of his tenure on the Court.

That decision led North Carolina to pass in 2009 the Racial Justice Act, the first law to permit the use of state-wide statistics to demonstrate that race was a significant factor in seeking or imposing the death penalty. Republicans repealed the N.C. Racial Justice Act after an election filled with racist depictions, including of my client Henry McCollum who has since been found innocent.

Eleven years after the passage of the Racial Justice Act, the North Carolina courts are doing their part by acknowledging the plague of racism infesting our criminal justice system, and by starting to root out those injustices on a case-by-case basis. Now is the time for the Governor and General Assembly to respond with equal vigor by commuting the sentences of persons currently on death row to life imprisonment and ending the death penalty. This is no pipe dream; ten other states have abolished their death penalties in the last 15 years.

Last month, Governor Cooper announced a task force on racial equity in criminal justice, which will “work to eliminate” racial inequities in the justice system. In the announcement, Attorney General Josh Stein said, “I look forward to working alongside them to find real and meaningful solutions to improve the way Black people are treated in North Carolina. Now it’s time to get to work.”

In eliminating the death penalty, an extreme punishment inextricably linked to lynching and the perpetuation of white supremacy, our leaders have the opportunity to leave one clear legacy of racial justice.

Author Ken Rose is the former director of the Center for Death Penalty Litigation, an attorney who has represented multiple clients sentenced to Death Row and a longtime advocate for abolition of the death penalty. He lives in Durham.

This article was originally posted on NC Policy Watch on August 8, 2020.

The North Carolina Supreme Court has issued a historic call for the state to address and rise above its history of excluding Black citizens from jury service and allowing racial bias to seep into the prosecution of capital cases. In the majority opinion, Chief Justice Cheri Beasley wrote, “equal protection to all must be given—not merely promised” and pointed to an “egregious legacy of the racially discriminatory application” of the death penalty. (Read the full decision here.)

The 4-3 ruling came in the case of Marcus Robinson, the first death row prisoner to be resentenced to life without parole under North Carolina’s Racial Justice Act. The court found that Robinson had been unconstitutionally returned to death row, despite unrefuted proof that Black jurors were intentionally denied the right to serve on his jury. The court ruled that Robinson cannot be executed, but may serve a life sentence instead, because of the “overwhelming evidence” of racial bias presented in his case.

“Robinson’s claims under the RJA do not negate or diminish his guilt or the impact of his crimes on the victim’s family, the victim’s friends, and the community,” Chief Justice Cheri Beasley wrote. “Rather, the Act ensured that even those who commit the most serious offenses are entitled to a trial and sentencing free from racial discrimination.”

“This is one of the most important decisions I’ve ever seen from our state Supreme Court,” said CDPL Executive Director Gretchen Engel. “It seems that Justice Beasley and her colleagues intend to make good on the promise that no person should be executed if race was a factor in their death sentence. This is a critical issue of racial justice, both for people on death row and for African Americans seeking to participate in our democracy. It’s heartening to see the court recognizing that fact, in all its difficulty and complexity, and taking bold action.”

The decision marked the second time in three months that the state Supreme Court forcefully rejected a legislative effort to void the Racial Justice Act and bury the evidence of racially-biased death sentences that the law revealed. In June, the court ruled that all death row prisoners who filed claims under the Racial Justice Act are entitled to hearings, even though the law was repealed in 2013.

Friday’s decision, in addition to finding clear evidence of discrimination against African American jurors in Robinson’s case, recognized the connection between modern jury selection practices and the centuries-long history of racism in America. It chronicled “the many ways African Americans have struggled to participate in our democratic processes,” beginning with post-Civil War laws explicitly barring Black people from jury service and then morphing into Jim Crow-era poll taxes and literacy tests. It described the modern peremptory strike as the newest tactic used to remove qualified Black citizens from juries.

The court made a strong case for the Racial Justice Act’s necessity, saying it was passed in response to the failure of North Carolina courts to enforce federal standards barring racially motivated jury strikes. “The goal of this historic legislation was simple: to abolish racial discrimination from capital sentencing. That is, to ensure that no person in this state is put to death because of the color of their skin,” Beasley wrote.

The North Carolina legislature passed the Racial Justice Act in 2009. It led to a statewide study showing that, in capital trials, prosecutors dismissed Black citizens at 2.5 times the rate they excluded whites. This disparity was driven entirely by race and could not be attributed to any other factor, such as death penalty views.

Robinson, along with Quintel Augustine, Tilmon Golphin, and Christina Walters, were the only four death row prisoners to have Racial Justice Act hearings before the law was repealed in 2013. All four defendants won their cases, using the study to show a pattern of discrimination that denied them the right to a jury of their peers. In addition to the study, the defendants unearthed prosecutors’ notes referring to jurors with denigrating terms like “blk wino,” and training materials showing that their prosecutors had been instructed on how to invent “race-neutral” reasons to justify their strikes of Black jurors.

In 2012, Cumberland County Superior Court Judge Gregory A. Weeks resentenced all four to life without parole after finding a “wealth of evidence” that systemic exclusion of Black jurors had tainted their death sentences. Friday’s decision recognized that Weeks’ findings were “meticulously detailed.” However, over the next few years, though their evidence of racial bias was never disproven, they were again placed at risk of execution.

After the repeal of the Racial Justice Act, the N.C. Supreme Court overturned Weeks’ ruling on procedural grounds, saying the hearings should have been held separately rather than jointly and that prosecutors should have had more time to prepare their case, even though the trial court had already given the state two continuances. The court ordered new RJA hearings for the four defendants, and in a legally questionable move, the N.C. Department of Public Safety quickly returned them to death row.

Then, when they requested the hearings the Supreme Court had ordered, a Superior Court judge refused to hold them, saying that the defendants were no longer entitled to hearings because the law had been repealed. All four appealed to the state Supreme Court, but the court has not yet decided the cases of Augustine, Golphin and Walters.

“Our clients ended up in the ultimate Catch-22,” Engel said. “They had clear proof of racism that they presented under a valid law. Then, the state Supreme Court asked them to present the evidence again. When they tried to do that, the state said, ‘Sorry, too late. The law no longer exists.’ Today, this Supreme Court, under the strong leadership of Chief Justice Beasley, said that North Carolina must stop playing games with justice and start looking at the big picture, which clearly shows that our death penalty is racist.”

Advocates said they believe the evidence of racial bias in capital prosecutions, uncovered as a result of the Racial Justice Act, raises serious questions about the legitimacy of North Carolina’s death penalty.

“It’s unthinkable that we could amass a mountain of evidence showing that race plays a role in the North Carolina death penalty and then just ignore it and return to executing people,” said Henderson Hill, an ACLU attorney who is part of the Racial Justice Act litigation. “Today, the high court declared that it’s unacceptable for North Carolina to keep its head in the sand, and we are grateful. It is time for everyone in North Carolina to ask themselves, after decades of racially-biased prosecutions, whether the state should still have the right to carry out executions.”

Originally posted as a press release by the Center for Death Penalty Litigation (CDPL). CDPL is a non-profit law firm based in Durham, N.C., that represents people on death row and is part of the team litigating North Carolina’s Racial Justice Act.

Go here for more detail on the Racial Justice Act.

Read Bryan Stevenson’s op-ed on the importance of the Racial Justice Act.