Lisa Montgomery as a kindergartener. She is set to be executed tomorrow by the federal government.
This week, the federal government plans to execute three people: Lisa Montgomery, Cory Johnson and Dustin Higgs. If all three executions are carried out, that will make 13 people executed by the Trump administration since July — all against the backdrop of a raging pandemic that has infected even the people facing execution and their attorneys and, now, the recent mob violence that killed five people at the Capitol.
If there has ever been a time for our nation to see that more killing is not the path to justice, this is it.
Lisa Montgomery suffered childhood abuse so severe and unimaginable that she developed psychosis. Cory Johnson is intellectually disabled. Dustin Higgs received death for murders that he did not carry out, while the person who pulled the trigger received a lesser sentence.
The stories of these individuals sound familiar because they are much like the stories of people on death row in North Carolina. The people our government seeks to execute are, almost always, people who live on society’s margins. People scarred by poverty, violence, and childhood trauma.
Their death sentences are not the result of a careful process, but arbitrary and disproportionate — depending more on the quality of their lawyers or the place where they were prosecuted than on the facts of their crimes.
They are also, very clearly, tainted by the same racism that recently paraded itself through the halls of the nation’s Capitol. White people make up more than three-quarters of the U.S. population, yet less than half of those sentenced to die, both at the federal level and in North Carolina. If these three executions are carried out, the current administration will have executed 13 people, eight of whom — 60 percent — are people of color.
Joe Biden has promised to end the federal death penalty. And before 2020, no president had carried out an execution since 2003. People can make their own assumptions about what’s behind this administration’s frenzied killing spree in its waning days.
But it’s clear that our nation faces many dangers right now, and these three people are not among them. Their deaths will bring no healing, only more cruelty and heartbreak.
Tilmon Golphin, held by his uncle, Mr Willie McCray in 2019.
On Friday, September 25th, 2020, Christina Walters, Quintel Augustine, and Tilmon Golphin were resentenced from death to life without parole. The North Carolina Supreme Court ruled that they had been unconstitutionally returned to death row after receiving life sentences under the state’s Racial Justice Act. The decisions in their cases are based on the state constitution and cannot be appealed.
“Hallelujah!” cried Sylvia Golphin, Tilmon’s mother, upon hearing the news. Her brother, Willie McCray added, “Justice is not always perfect, and it’s often slow. We see people fall through the cracks; we know it happens–just look at Breonna Taylor. But today, for my family, this time justice came through.”
This decision marked the final rulings in a series by the state Supreme Court, which affirmed that rights granted under the 2009 Racial Justice Act had been wrongly taken away from death-sentenced people who have brought forward evidence of racial discrimination in their trials and sentences.
LeRoi Brashears, a friend of Tilmon’s, said, “In these days, this is a badly-needed reaffirming symbol of the possibilities of extracting justice out of our system. I’m grateful for the Court saw fit to make it happen in this case.”
From CDPL’s Press Release:
“We are grateful to the court for upholding the law that says a person cannot be sentenced to death twice for the same crime,” said CDPL Senior Staff Attorney David Weiss. “Our clients proved that race was a major factor in their death sentences. Their evidence has never been disputed, and they never should have been sent back to death row.”
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. It also found that crimes with white victims were twice as likely to be punished with death.
Walters, Augustine, and Golphin — along with Marcus Robinson, who was resentenced to life in August — were the only four death row prisoners to have Racial Justice Act hearings before the law was repealed in 2013. All four won their cases, using the study to show a pattern of race discrimination in North Carolina capital cases. The defendants also 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 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. However, 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.
Now, the Supreme Court has ruled that the reinstatement of their death sentences was unconstitutional and has restored life sentences for all four.
In a separate ruling in June, the court also said that all North Carolina death row prisoners who filed RJA claims before the law’s 2013 repeal are entitled to hearings where they can present evidence that prosecutors purposefully excluded African American citizens from their juries and that racism tainted their trials. The courts have not yet decided how those cases will proceed.
“The court has again affirmed what we already knew,” Weiss said. “The Racial Justice Act was a necessary law that revealed an epidemic of racism in death penalty cases. We cannot sweep that evidence under the rug. And we certainly cannot execute people who’ve proven that racism played a part in their sentences.”
A portion of the post contains 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.
Vernetta Alston, Sen. Floyd McKissick Jr., and author Ken Rose talk during a break in the RJA hearings at the NC Supreme Court in September 2019
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.
The mothers of Marcus Robinson and Quintel Augustine speaking to attorneys at the North Carolina Supreme Court in 2019
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 Racial Justice Act legal team
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.
James Ferguson II, pictured here with Ken Rose and Burton Craige at the conclusion of the first day of the Racial Justice Act hearings before the N.C. Supreme Court in August of 2019
When I was a young Black lawyer in the late 1960’s and 1970’s, there was an unwritten rule in North Carolina’s courtrooms: Though race shaped every aspect of the criminal punishment system, we were not to mention it, let alone raise objections to it. Well over a decade before the U.S. Supreme Court outlawed racial discrimination in jury selection, I objected to Black people being excluded from a jury. The judge not only angrily overruled my objection, but also hastily hauled me into his chambers to berate me for “seeing race in everything.” Although, at the time, I did not “see race in everything,” I have come to realize that perhaps I should have, because in reality, race has permeated practically everything in our criminal punishment system.
Today, we can no longer ignore the racism at the heart of this system. Videos of police officers beating people like my former client, Johnnie Rush, who was brutally beaten and falsely accused of “jaywalking” at midnight in Asheville, and of George Floyd, pinned to the ground and publicly executed in Minneapolis as he cried for his mother, saying, “I can’t breathe,” and many others, have made this painfully clear. People are marching in the streets and demanding change. Two weeks ago, amid these protests, our state Supreme Court issued a momentous decision requiring us to take an honest look at racism and the death penalty.
In its decision, the court declined to ignore evidence that Black people have been systematically denied the right to serve on capital juries. Instead, the evidence must be fully addressed, not just for the good of a few defendants, but for the sake of our courts’ integrity. As Justice Anita Earls, herself African-American, wrote, the harm of racial discrimination in criminal cases “undermines the integrity of our judicial system and extends to society as a whole.”
This victory lifts the knee off the necks of people sent to death row after racist trials, and breathes new life into the Racial Justice Act. The RJA will take its place in the history of other civil rights I have dedicated my career to advancing: integrated public schools, fair employment and the right to vote.
The RJA promised the people of North Carolina that no one would be executed in our names if race played a role in the death sentence. The RJA recognized that the death penalty is a powerful symbol of the state’s power, one that sits at the summit of our criminal punishment system.
The RJA revealed that prosecutors exclude Black citizens from death penalty juries at astonishingly disproportionate rates, and have even been trained to circumvent legal protections against racist jury selection.
It also led us to discover outrageous prosecutor notes reminiscent of those made during the trial of my Wilmington 10 clients in 1972. Prosecutors in my client Quintel Augustine’s case labeled one potential Black juror a “thug,” another a “blk wino.”
The RJA revealed more than some of our legislators wanted to see, and, in 2013, the law was repealed by a General Assembly different from the one that passed it in 2009. This new legislature – the very same one federal courts found have enacted racially discriminatory voting laws that targeted and disenfranchised African Americans “with surgical precision” – turned its back on our commitment to eradicate race discrimination in the death penalty.
In many ways, this is an old story. Throughout history, civil rights advances have met with resistance. I was attending junior high at an all-Black school in Asheville when Brown v. Board of Education was decided. As North Carolina vehemently resisted Brown, I waited September after September to attend an integrated school. It was only years later, after the federal courts accepted the argument of my firm’s client James Swann and stepped up to enforce it, that the promise of Brown was realized.
Now, the North Carolina Supreme Court has stepped up to say our state’s decades of tolerating race discrimination in death penalty cases are over. Our state must now reckon with undeniable and irrefutable evidence that Black citizens are denied the right to serve on capital juries solely because of the color of their skin.
We must finally bring the evil of race discrimination out of the shadows and into the sunlight. We must speak honestly about the ways it has distorted our capital punishment system and denied Black citizens access to the levers of power in our most serious cases. Only once we have done that can we begin to build a new structure that truly seeks justice.
James Ferguson II is a renowned North Carolina attorney and civil rights champion. He represents men and women on death row in litigation under the Racial Justice Act and is a founding partner and the president of Ferguson, Chambers and Sumter in Charlotte, established in 1964 as the first racially integrated law firm in North Carolina.
Last week’s Gallup poll showed us that Americans’ support for the death penalty continues to erode. Fifty-five percent said they are in favor of executing people, the lowest number in 45 years. That’s down from a high of 80 percent in the mid-1990s.
But a more accurate picture would have emerged if the poll had asked the question that truly gauges people’s views on the death penalty: Would you support replacing the death penalty with life in prison, if you were assured that those convicted would never be released? When that question is asked, a clear majority of Americans, in poll after poll, say they are ready to give up the execution chamber.
The question our society should be asking is not: Do you believe that people who commit murders should be punished? The answer to that is obvious. The question that gets to the heart of the matter is: What’s the fairest, most efficient, and most effective way to punish people who commit the worst crimes? When you ask it that way, the death penalty is clearly not the answer.
The death penalty costs far more than life without parole, takes decades to carry out, and carries with it the risk of executing an innocent person. And it does nothing more to protect us from crime than the harsh and irrevocable sentence of life in prison with no possibility of parole.
Recently, police chiefs and prison officials, even some N.C.prosecutors have acknowledged the waste and futility of continuing to pursue the death penalty. For more than a decade, North Carolina has remained among the vast majority of states who no longer execute people. Meanwhile, our state’s murder rate has gone down.
It’s time to stop clinging to a waning and outdated punishment.
the more you know about a person, the less likely you are to support their execution; the more you know about the criminal justice system, the less likely you are to support anyone's execution
Last week’s