James Ferguson II on the meaning, impact and promise of 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

 

This article was originally published on June 17, 2020 in the NC Policy Watch.

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.

 

 

After hate-filled murders in N.C., choosing a legacy of love and light over the darkness of the death penalty

April 12, 2019

Deah Barakat, Yusor Abu-Salha, and Razan Abu-Salha
Deah Barakat, Yusor Abu-Salha, and Razan Abu-Salha

Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.

Those words were first spoken by Martin Luther King Jr., and many have repeated them. But it takes integrity to live by them, especially when hate has touched you in the most profound way.

Yet, that’s exactly what the families of Deah Barakat, Yusor Abu-Salha, and Razan Abu-Salha have done again and again since February 2015, when these three promising Muslim students were senselessly murdered by an angry white neighbor. The crime not only ripped a hole in their families and deprived the world of three wonderful people, it terrorized the entire Muslim community. To make it worse, since the murders, their loved ones have been targeted with hateful slurs.

Their response has been to ensure that the legacy of their beautiful children will be one of love, not hate. They opened a community center for young Muslim people in a house that Barakat once owned. They started an annual interfaith food drive in the victims’ honor. Just this week, they traveled to Washington D.C. to share their story at a Congressional hearing on hate crimes.

And then Thursday, when the Durham district attorney announced that she would not seek the death penalty against their killer, the victims’ brother, Farris Barakat, stood before a crowd of reporters and expressed the family’s support for the decision. He cited those words from Dr. King and acknowledged that nothing that happens in a courtroom can ever bring true “closure” for their loss.

The myth of the death penalty is that it has a magical power to bring closure to grieving families. But the truth is that it only stokes more hate and anger. It only creates more grieving families. It only brings more darkness into our world.

D.A. Satana Deberry explained that removing the death penalty from the picture would allow the trial – already overdue – to proceed without delay. Deberry made the right decision in this difficult case, one that should be an example for other prosecutors dealing with painful crimes. The death penalty delays and extends trials and appeals, making them more painful for all involved. And, for all that, only a tiny fraction of cases ever result in execution.

Deberry also said that bringing the case to trial quickly will allow the family to begin to heal. It’s clear they’ve already begun that difficult work. Their actions this week were yet another step toward ensuring that the memories of their loved ones will be beacons of love and hope, rather than catalysts for hatred and death.

Just like the death penalty, sentencing kids to die in prison is cruel and unusual

Feb. 25, 2019

In 2005, the U.S. Supreme Court declared it unconstitutional to sentence children to death. (Better late than never!) The decision cited research showing that human brains continue to grow and aren’t fully formed until people are in their early 20s, and that our character and ability to make reasoned decisions is still developing.

Given that, it’s unbelievable that North Carolina, and 28 other states, continue to impose a punishment almost as harsh on kids — life with no possibility of parole. Think about that: Still today, a 13-year-old can be declared “irredeemable” and sent to prison with no chance of ever getting out.

Since the sentence went on the books in 1994, 94 kids 13 to 17 have been sentenced to life without parole in North Carolina — and 86 of them were children of color. Apparently, this is a punishment we reserve almost exclusively for non-white kids. Many of them were not even the main culprit in the crime for which they were convicted. And as with the people on N.C.’s death row, the vast majority of them were sentenced in the 1990s, when we had very different ideas about justice.

According to a new report from Duke Law School, which delves into how juvenile life without parole is used in North Carolina, the cases are as riddled with unfairness and flimsy evidence as our death row cases. Consider this example:

In 1995, at age 16, Derrick McRae was accused of murder in Richmond County. McRae is black. There was no physical evidence linking him to the crime and eyewitness accounts were mixed. At his first trial, the jury hung with eight jurors arguing for acquittal. Before his second trial, the prosecutor offered him a deal: If he pled guilty to voluntary manslaughter, he would be out of prison in 13 months. McRae refused, claiming innocence.

At his second trial in 1998, the evidence against him came largely from a co-defendant and a jailhouse informant. In his closing argument, the prosecutor commented on McRae’s “uncaring, unfeeling” demeanor in court. The jury didn’t know that McRae was schizophrenic and, before the trial, had been denied his medication. They convicted him of first-degree murder, which led to an automatic sentence of life without parole.

Fortunately, the Supreme Court stepped in again. In 2012, the court ruled that children could not receive automatic life without parole sentences. Thus, children serving life without parole in N.C. were entitled to new hearings to determine whether they were permanently irredeemable or should receive new sentences with the possibility of parole.

In 2017, McCrae had his hearing and is now eligible for parole in 2021.

But seven years after the Supreme Court ruling, 46 kids — almost half — still haven’t had their hearings. And life without parole remains a possible sentence for kids as young as 13.

Just like the death penalty, sentencing kids to die in prison is barbaric and excessive. As Bryan Stevenson says so eloquently:

Life without parole is supposed to be a judgment that says this person is beyond hope, beyond redemption, beyond rehabilitation, has been given opportunities to change and hasn’t changed… You can never say that about a child.

Read an op-ed by one of the study’s authors, Duke Law Professor Brandon Garrett.