Don’t miss this new project on the Racist Roots of the NC death penalty

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October 15, 2020

Racist Roots quote

This month, the Center for Death Penalty Litigation launched an ambitious new online project, Racist Roots: Origins of North Carolina’s Death Penalty

The project includes essays, poetry, artwork, commentary, and historical documents that place the state’s death penalty in the context of 400 years of history and expose its deep entanglement with slavery, lynching, Jim Crow, and modern systemic racism. The death penalty, the project contends, is another Confederate monument that North Carolina must tear down.

“The death penalty began as a way to enforce a racist social order, and as it evolved through the generations, our state never addressed the original sin that lay at its root,” said CDPL Executive Director Gretchen Engel. “Today, the death penalty is the apex of a racist criminal punishment system that cages hundreds of thousands of people and declares human lives, particularly those of Black people, expendable. The clear message of this project is: Any meaningful conversation about race and criminal justice in North Carolina must include the death penalty.”

Racist Roots shows that in every incarnation, from slavery to post-Civil War Reconstruction, to Jim Crow, and to the modern criminal punishment system, those wielding the death penalty have imposed it disproportionately on Black people; valued the lives of white victims above all others; and excluded citizens of color from power by systematically excluding them from capital juries. So, while the precise influence of racism in the death penalty has changed from era to era, its essential nature has not.

Read Henderson Hill’s essential introduction to the project here, and then head over to RacistRoots.org to explore the rest.


Raleigh Confederate Monument  

The Death Penalty is Another Confederate Monument We Must Tear Down

By Henderson Hill

Right now, our nation is in a moment of reckoning with our criminal punishment system. We are finally seeing clearly what should have been obvious long ago: The system has its knee on the necks of Black people.

In North Carolina, as we begin a long-overdue conversation about the future of police and prisons, we must confront the punishment that sits at the top of that system, condoning all its other cruelties — the death penalty.

When citizens have acclimated to the state strapping a person to a gurney and killing them in front of an audience, it becomes harder to shock them. The death penalty teaches a cruel and inhumane lesson: As long as we brand people criminals, we can kill them.

Meanwhile, there is absolutely no evidence that capital punishment enhances public safety or prevents crime. Instead, it creates more violence and pain, more parentless children and grieving families. I’ve seen this trauma up close as an attorney representing people on death row.

The death penalty’s history is inseparable from our history of slavery, Jim Crow, and mass incarceration.

It is time for us to examine not just the daily cruelties of today’s death penalty, but to see its true nature. And to understand that, we must understand its history.

This report lays bare what too many people, lulled by the myth of a post-racial society, have allowed themselves to forget. The death penalty’s history is inseparable from our history of slavery, Jim Crow, and mass incarceration. Even as the number of executions and death sentences declines, it remains a powerful symbol of white supremacy.

When we open our eyes to the history of capital punishment, the conclusion becomes inescapable. The death penalty is just one more Confederate monument that we must tear down.

READ MORE AT RACISTROOTS.ORG

Three More RJA Cases Decided: NC Supreme Court Removes Ms Walters, Mr Augustine, and Mr Golphin from Death Row

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.

Supreme Court ruling shows why NC must end its racist death penalty

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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.

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

N.C. Supreme Court: Racial Justice Act is key to ending death penalty racism

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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.

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

Firing racist Wilmington police officers caught on tape should be only the beginning

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Wilmington Police Department

Last week, three Wilmington police officers were fired after being caught on tape making some of the most vile and racist statements imaginable. Unbelievably, their desire to gun down Black people in a race war was just one entry in a litany of shocking and despicable comments. 

Of course, we support the Wilmington Police Department’s decision to immediately fire the officers and make their statements public. The district attorney’s office also said it is investigating all pending cases in which the officers played a major role and has already dismissed 89 of them. In addition, the office said it might be willing to negotiate convictions in which the officers played a part. It’s still unknown how many people these racist officers sent to prison. 

These are necessary actions, but they address only cases in which these three officers were involved. Stopping there would be like finding a few cancer cells and not checking to see if the disease has spread. If we look only at these three officers, we could be missing a far broader problem.

The officers worked for the Wilmington police department for decades and seemed very comfortable voicing the most brazen racist ideas in casual conversation. It’s likely that others knew about their attitudes toward Black citizens, but as far as we know, no one reported them.

Their conversation was captured by chance when one of them accidentally activated a patrol car’s recorder. This single fragment prompts a host of questions:

How many other conversations like this took place, and who was involved?

More importantly, what were the real-life consequences of these racist attitudes? What was the racial breakdown of the people they arrested? How many people did they injure, terrorize, or kill on the job? How many wrongful convictions resulted from their work? How many complaints of excessive force have been filed against them?  

Did these attitudes affect the prosecutions of the four people — three Black and one Native American — on death row from New Hanover County?

It’s time for a thorough investigation, not just of these officers but of every Wilmington police officer. Only once we see the full scope of the problem can we begin to solve it.

Police officers, even those caught on tape fantasizing about killing innocent Black people, invariably say they are “not racist.” Regardless of individual officers’ intentions, the data will show whether they are contributing to the problem of racist policing. 

In 1898, Wilmington made history for being home to the worst racist massacre in North Carolina. Now, let it make history for a different reason. Let this incident be the start of a real reckoning with race and policing, one that can serve as a model for other departments.

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.

 

 

Landmark N.C. Supreme Court ruling brings death penalty racism into spotlight

Rayford Burke as a child

The Center for Death Penalty Litigation’s June 5 2020 Press Release:

The North Carolina Supreme Court today issued two landmark civil rights rulings on the Racial Justice Act, clearing the way for a much-needed review of racial discrimination in death penalty cases across the state.

The court decided 6-1 Friday that Rayford Burke and Andrew Ramseur, prisoners on North Carolina’s death row, were 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 rulings also mean that death row prisoners across North Carolina who filed claims under the N.C. Racial Justice Act before its repeal in 2013 are entitled to present their evidence in court. The justices decided the case under the state constitution, so it cannot be appealed. [Read the full decisions: Ramseur and Burke.]

“This is a momentous decision that sends a clear message: Our state’s highest court will not allow North Carolina to ignore evidence that racism has infected the death penalty,” said CDPL Executive Director Gretchen M. Engel. “This was also an urgently needed decision as our state and our nation confront a long history of racism. The death penalty is the apex of a criminal legal system that has failed people of color.”

The court has not yet decided the cases of four other RJA defendants, Marcus Robinson, Quintel Augustine, Christina Walters, and Tilmon Golphin, who initially won their cases but saw them overturned on appeal.

The ruling comes just days after Chief Justice Cheri Beasley responded to protests against police violence with a candid admission that North Carolina’s courts have helped perpetuate racial disparities. “We must come together to firmly and loudly commit to the declaration that all people are created equal, and we must do more than just speak that truth,” Beasley said. “We must live it every day in our courtrooms.”

Justice Anita Earls authored the decision, and affirmed that it was about more than two individual defendants. She wrote that “the harm from racial discrimination in criminal cases is not limited to an individual defendant, but rather it undermines the integrity of our judicial system and extends to society as a whole.”

At oral arguments in August, Burke and Ramseur presented stark evidence. Both are black men convicted by all-white juries in Iredell County. Prosecutors at Burke’s trial referred to him during closing arguments as a “big black bull.” Ramseur’s trial was shadowed by widespread threats of lynching, and the judge and sheriff forced his family to sit in the back of the courtroom while the white family of the victim sat in front.

“This decision is built on basic fairness,” said Don Beskind, a Durham attorney and Duke Law professor involved in the litigation. “The evidence in these death penalty cases was stark and undeniable. The very least we can do is allow it to be heard in court. Even our most conservative U.S. Supreme Court justices, most recently Justice Kavanaugh, have said that race discrimination in jury selection is a serious long-standing problem that courts must address.”

Burke and Ramseur, like most of the people on North Carolina’s death row, first presented this evidence shortly after the N.C. legislature created the Racial Justice Act, which allowed death-sentenced people to bring forward evidence of racism in their trials. Those who could prove that race was a significant factor in their sentences would be resentenced to life in prison without parole. The law’s passage marked the first time a death penalty state allowed for a systematic review of racial bias in capital cases.

A statistical study commissioned as a result of the RJA found overwhelming evidence that, in scores of North Carolina capital cases over two decades, prosecutors illegally struck black jurors because of their race. And death row prisoners across North Carolina unearthed disturbing evidence of racism in their trials that had never before been examined by the courts.

However, in 2013, after the first four RJA defendants won their cases, a new legislature repealed the RJA. This same legislature was found by the U.S. Supreme Court to have enacted racially discriminatory voting laws. The RJA repeal legislation sought to invalidate all pending cases and prevent any court review of the evidence of bias that was uncovered. In its decision today, the Supreme Court rejected that gambit, saying that the evidence of rampant discrimination against black North Carolinians was too troubling to ignore.

Friday’s ruling was based on the precedent of State v. Keith, an 1869 case in which the N.C. Supreme Court ruled that a Confederate soldier charged with war crimes was protected by a post-Civil War amnesty law and could not be prosecuted, even though the amnesty law had since been repealed. The death row prisoners argued that if the Constitution protects Confederate war criminals, it must also protect their right to present evidence of race discrimination against black jurors even after the repeal of the Racial Justice Act.

“In light of decades, if not centuries, of mistreatment and brutalization of black citizens at the hands of America’s criminal system, today’s decision to take the death penalty off the table when there is evidence of racial bias is just one small but important step toward achieving the broad-based reform needed in North Carolina, and across the country,” said Henderson Hill, a prominent ACLU attorney who represents RJA defendants. “It’s something to celebrate, but also a reminder that we must keep working for justice.”

 

ADDITIONAL BACKGROUND:

Go here for more detail on the Racial Justice Act.
Read Bryan Stevenson’s op-ed on the importance of the Racial Justice Act.

—-

See post on NCCADP’s Racial Bias page regarding Mr. Ramseur and a recent poem written by Mr. Burke in honor of Covid-19 first responders.

A poem from death row in honor of Covid-19 first responders

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There have not yet been any reported cases of Coronavirus on North Carolina’s death row, but prisons have emerged as some of the worst hot spots for Covid-19. More than 25,000 cases have so far been diagnosed among U.S. prisoners and the numbers are increasing exponentially. Many of the 143 people on North Carolina’s death row are over 60. They are now in danger not just of state-sponsored execution, but of being killed by a virus from which they have nowhere to hide.

Rayford Burke is 62 years old and has lived on North Carolina’s death row since 1993. He was born in Georgia in 1958 and raised in Statesville, North Carolina. He was one of nine children born into a chaotic home with an abusive, alcoholic father. At school, he was a frequent target for bullying. He struggled in class and dropped out in the eighth grade, beginning a downward slide that ended with him receiving a death sentence for the murder of Timothy Morrison.

In prison, Rayford has taken up writing and become a keen observer of the world. He published a poem commemorating the election of Barack Obama. He is also working on his autobiography. Recently, he penned a poem celebrating the people working on the front lines of the Covid-19 pandemic.

With Rayford’s permission, we are sharing his poem with you.

Rayford Burke poem

 

First Responders, by Rayford L Burke

In the midst of a brutal, silent killer, that is raging worldwide;
Countless people has fallen ill, scores of whom has died;
It’s called the coronavirus — or covid nineteen;
A killing force, the like of which, mankind has never seen;
It has no known cure, so to treat it is hit or miss;
Its origin is said to be of snakes and bats, but I really question this;
It supposed began its reign terror, in a place called Wuhan China;
And even as it spread to the United States, Donald Trump downplayed it as minor;
And through that ignorance, it has grown into the monster that it is today;
As it wreaks havoc, and takes lives, across the USA;
But there are silver linings, in every dark cloud;
And in this case it is the heroes, of whom we’re all so proud;
They have no superpowers, and no they cannot fly;
But they’re fighting hard to save our lives, though they themselves may die;
And, in fact, many of them this deadly disease has taken;
But they’re forever in our hearts, and will never be forsaken;
They’re known as “First Responders,” resilient women and men;
Many of whom has survived the virus, to brave the frontlines again;
Putting their own families at risk, doing what they were trained to do;
Giving their all, despite their fears, to see this crisis through;
They’re doctors, nurses, firemen, cops, and the helpers of people in need;
Preachers, teachers, even sanitary workers, they’re all a very rare breed;
And though all glory be to God, we praise our heroes in spades;
None of us could ever thank you enough, for the sacrifices that you’ve made.

Dedicated to all first responders in the United States and around the world

 

A Covid-19 death sentence showcases an inhumane and illogical punishment system

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Faye Brown
Faye Brown

Last week, the state announced that an unnamed prisoner had become the first person to die from a Covid-19 outbreak at North Carolina Women’s Prison. The person was Faye Brown, and her death is the end of a 45-year story that demonstrates the cruelty and excess of our punishment system.

In a humane system, this 67-year-old woman who reformed herself in every way possible would have gotten a second chance at life in the free world. In that world, she would have had at least the possibility of protecting herself from a deadly virus. But in our system, which prides itself on unending punishment at any cost, a life sentence turned into a death sentence.

Brown earned a cosmetology degree in prison and, for many years, held a full time job at a cosmetology school. Because of her clean disciplinary record, she was in minimum custody and earned the privilege of work release. She was beloved by people outside and inside prison, becoming like a mother to many incarcerated women. “She was everybody’s confidant and friend,” one woman told the News & Observer.

She spent two-thirds of her life paying for a crime she committed 1975. At 22 years old, Faye Brown was one of three people involved in a bank robbery in Martin County. No one was injured in the robbery, but shortly afterward, a highway patrolman stopped their car. In a split second, one of the men in the car shot and killed Trooper Guy Thomas Davis Jr. 

There was no evidence that Brown planned or participated in the trooper’s killing, but she was convicted of first-degree murder under North Carolina’s felony murder rule. The rule says that if you’re involved in a crime that leads to murder, you’re as culpable as the person who pulls the trigger. It’s an unforgiving rule that has sent several people who did not kill to North Carolina’s death row. Some of them remain there today.

Brown’s conviction happened during an era when racial disparities in the criminal punishment system were even more glaring than they are today, so the fact that she and her co-defendants were black, and the slain trooper was white, almost surely contributed to the lack of mercy she was shown.

In North Carolina at that time, a first-degree murder conviction came with an automatic death sentence. But a few years later, the U.S. Supreme Court declared North Carolina’s mandatory death penalty unconstitutional, and Brown’s sentence was changed from death to life. Today, life sentences come with no possibility of parole. But at that time, a life sentence meant a maximum of 80 years and could be reduced with good behavior credits. 

Brown had good behavior credits in spades, and in 2009, a judge ordered her release. However, the higher courts blocked her release after a political outcry, and created new law saying that good behavior didn’t apply to life sentences, dooming not just Brown but many other prisoners too. 

Then-governor Beverly Perdue was outraged at the idea that Brown might leave prison. “This is not how government and the courts are supposed to work for the people of North Carolina,” Perdue said. “This is wrong. I’ve been in politics a long time, and I have never been this disgusted with the system in my life.”

In fact, Brown’s release is exactly how the system is supposed to work, if it’s about justice instead of punishment for punishment’s sake. It should ensure public safety by incarcerating dangerous people and helping them reform. Once they can demonstrate that they are no longer a threat to society, they should be able to return to productive lives on the outside.

Instead, Brown was told that one youthful mistake was the end for her. She would never get another shot at freedom, no matter how hard she worked to change her life. 

When the pandemic began creeping into prisons, advocates at the ACLU and other organizations began raising alarms, asking for the release of older and medically vulnerable people who were no longer dangerous. If anyone fit that category, it was Faye Brown. 

But our system chose to keep her in prison despite the risks. We as a society chose to let her die rather than show even the smallest bit of mercy.

—May 13, 2020

NC Supreme Court sends a message to judges: Start taking jury discrimination seriously

Justices' benches at the Supreme Court of the State of North Carolina

In these days of COVID, it’s easy to be overwhelmed by bad news. But we shouldn’t forget to celebrate good news, and we’ve had a little of that in the past week. On Friday, the North Carolina Supreme Court issued a decision that sends a clear message: North Carolina’s courts must finally begin to take the exclusion of black jurors from criminal trials seriously.

The decision says that, when a person on trial suggests that a prosecutor struck a  juror because of the juror’s race, the courts must fully investigate. They must consider the history of disproportionate jury strikes in the county, and compare the treatment of white people and people of color in the jury pool to see if it’s been equal.

If these sound like no brainers, that’s because they are. This is the least the courts can do to begin to end the decades-long practice of denying people of color a voice in the criminal punishment system.

But the reality has been that, despite exhaustive studies proving that jury discrimination is a statewide problem, judges across North Carolina have not acknowledged the problem and have often dismissed allegations of jury discrimination out of hand. In this 6-1 decision, the Supreme Court has signaled that era might be coming to a long-overdue end.

For all the details about the decision and what it means, read CDPL’s press release.

—May 6, 2020

COVID Lessons: Public safety means letting go of extreme punishment

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Durham DA Satana Deberry
Durham DA Satana Deberry

COVID-19 is teaching society many lessons. One of them is that public safety doesn’t always mean locking people up for as much time as possible. Right now, public safety means letting people go home.

With the number of infected prisoners and guards growing quickly, reducing incarcerated populations protects us all — because once the virus spreads inside a prison, it doesn’t stay there. Prisons are like small cities. Many people go in and out every day: staff, defense lawyers, law enforcement, doctors, and many more. If a virus is in a prison, it threatens the free world too. No matter how much we try to deny the humanity of prisoners, we are all connected.

Public officials are being forced to take action.

First, many county jails began to reduce their populations. This was the obvious place to start, since jails hold people who have not yet been convicted  — and many are in jail not because they present grave threats to society, but because they can’t afford to pay bail.

Now, they’ve started taking bolder steps. Gov. Roy Cooper announced plans to release about 500 people who are at high risk for the virus, including pregnant women and people who are sick and elderly. It’s a shame it took a deadly virus for our society to see that people in these categories shouldn’t be kept in prison.

Perhaps most notable, Durham District Attorney Satana Deberry agreed to the early release of nine prisoners and announced her intention to consider other motions for early release. Though they don’t use it frequently, district attorneys have the power to agree to settlements and early release in cases where a defendant has been convicted, as long as a judge approves the deal.

Considering the immense power that district attorneys wield to put people behind bars, it’s only fair for them to also use their power to reexamine sentences when circumstances have changed. Occasionally, they even do this in death penalty cases.

In the past few years, district attorneys have agreed to remove a handful of people from death row, letting them instead serve sentences of life without parole. The settlements helped right wrongs including race discrimination, a death sentence for a man with severe mental illness, and disparate sentences for people involved in the same crime.

It’s often easier for district attorneys to let convictions stand than to reopen cases, but it’s not always what’s best for society. We hope more DAs will show the courage Deberry has displayed in her willingness to reconsider old decisions in light of new circumstances. 

As the coronavirus has shown us so clearly, it’s not always safest to push for the most severe punishment. 

—April 15, 2020

In the wake of the Coronavirus pandemic, let’s deem the death penalty nonessential work

NC death row
The execution viewing area at Central Prison in Raleigh, Photo by Scott Langley, deathpenaltyphoto.org

In the midst of a Coronavirus pandemic, society is forced to decide which work is essential. Across the United States, that question is now being applied to countless enterprises — including the death penalty. Is it essential for states to kill people?

Eighteen executions are scheduled between now and the end of the year in Texas, Missouri, Ohio and Tennessee. Countless death penalty trials are also planned across the country, including in North Carolina.

The courts are likely to call most or all of them off because, right now, if our society wants to kill, we must risk harming innocent people too. That has always been true, but the Coronavirus allows us to see and feel that risk more concretely.

Texas has already called off two executions. In mid-March, John Hummel and Tracy Beatty had their executions delayed indefinitely. At the time, visitors had already been barred from the state’s prisons and the nation was at the beginning of massive community spread. In those conditions, the idea of bringing together a group of people in a confined space to carry out a lethal injection was rightly deemed absurd 

What’s unbelievable is that, in both cases, prosecutors opposed the delay of the executions. One told the court there was “no evidence” that Coronavirus would affect the state’s ability to carry out an execution, a statement that reveals just how deeply irrational the death penalty is.

Had the executions been carried out, prison staff and witnesses would have been forced to pack themselves together in tiny rooms. The families of the people being executed might have been denied a final visit, or been forced to choose between saying goodbye to their loved ones or possibly contracting a deadly virus. All to kill a person who no longer presents any threat to society. 

In any situation, some people will cling to their old ideas. But in this exceptional time when the death penalty has come to a shuddering halt, it’s possible that many people will gain a new perspective.

Maybe when we emerge from this time in our cocoons, society will be transformed. Maybe we will understand that the law of nature is far more powerful than the law of people, and that the safety the death penalty promises is an illusion. Maybe we will finally see that humans don’t need to do the work of killing. 

— April 1, 2020

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