pWith his white handlebar mustache, Levon “Bo” Jones was a striking and unmistakable presence. Mr. Jones, a Black man from Duplin County, North Carolina, was wrongfully convicted in 1993 and sentenced to death. a href=https://www.aclu.org/press-releases/innocent-north-carolina-man-exonerated-after-14-years-death-row After 14 years on death row/a, Mr. Jones, who had always maintained his innocence, was exonerated and released in 2008. We were among the lawyers working with Mr. Jones to win his freedom./p pIn 2009, Mr. Jones was among three death row exonerees — found guilty and sentenced by all-white or nearly all-white juries — who lobbied in support of novel and transformative legislation that would allow people on death row to challenge their convictions if they could show race played a significant factor in their prosecution. Out of that effort, the state legislature passed the North Carolina Racial Justice Act (RJA)./p pThe RJA was a historic and overdue piece of legislation that sought to rectify long standing racial injustices in death penalty cases. After its momentous passage in 2009, more than 100 people on death row filed RJA claims, challenging their convictions. We represented several of these people, bringing some of the first successful cases under the RJA and reducing four people’s sentences from death to life./p pUnfortunately, a new conservative majority in the North Carolina Legislature repealed the law four years after it was passed./p pBut the fight for justice never stopped. After a lengthy legal battle, the North Carolina Supreme Court ruled, in 2020, that all lawsuits brought under the RJA before its repeal could still move forward./p pThat brings us to this month, where, in a landmark hearing, we’ll be back in court arguing on behalf of Hasson Bacote, a Black man who was sentenced to death after the prosecution prevented multiple qualified Black jurors from serving on his jury. He argues that race played an impermissible role in jury selection, not just in his case, but in all death penalty cases in North Carolina./p div class=wp-heading mb-8 h2 id= class=wp-heading-h2 with-standardPervasive Racial Discrimination in Jury Selection/h2 /div pWe will come to court with statistical, case specific, and historical evidence that racial discrimination tainted jury selection in Mr. Bacote’s case, in Johnston County (where Mr. Bacote was prosecuted), and the entire state./p pIn Mr. Bacote’s case, the prosecution a href=https://www.aclu.org/cases/north-carolina-v-hasson-bacote?document=North-Carolina-v-Bacote-Amended-RJA-Motion-with-Exhibits#press-releasesstruck/a three times more Black prospective jurors than white prospective jurors. In Johnston County, prosecutors struck prospective jurors of color at nearly twice the rate of white prospective jurors in all capital cases. A similar pattern emerges across the state: in North Carolina capital cases, prosecutors struck Black prospective jurors at nearly twice the rate of white jurors./p div class=mp-md wp-link div class=wp-link__img-wrapper a href=https://www.aclu.org/cases/north-carolina-v-hasson-bacote target=_blank tabindex=-1 img width=3000 height=2058 src=https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295.jpg class=attachment-original size-original alt= decoding=async loading=lazy srcset=https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295.jpg 3000w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-768x527.jpg 768w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-1536x1054.jpg 1536w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-2048x1405.jpg 2048w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-400x274.jpg 400w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-600x412.jpg 600w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-800x549.jpg 800w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-1000x686.jpg 1000w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-1200x823.jpg 1200w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-1400x960.jpg 1400w, https://www.aclu.org/wp-content/uploads/2023/12/39338ce9384b4dff4baa9810b8eb2295-1600x1098.jpg 1600w sizes=(max-width: 3000px) 100vw, 3000px / /a /div div class=wp-link__title a href=https://www.aclu.org/cases/north-carolina-v-hasson-bacote target=_blank North Carolina v. Hasson Bacote /a /div div class=wp-link__description a href=https://www.aclu.org/cases/north-carolina-v-hasson-bacote target=_blank tabindex=-1 p class=is-size-7-mobile is-size-6-tabletHasson Bacote, a Black man from Johnston County, is challenging his death sentence under the North Carolina Racial Justice Act./p /a /div div class=wp-link__source p-4 px-6-tablet a href=https://www.aclu.org/cases/north-carolina-v-hasson-bacote target=_blank tabindex=-1 p class=is-size-7Source: American Civil Liberties Union/p /a /div /div pHow have prosecutors gotten away with this?/p pIn all criminal cases that go to trial, prosecutors and defense attorneys have what are known as “peremptory strikes” — that is, an attorney can remove a certain number of potential jurors for any reason. Often, prosecutors exclude Black jurors on the basis of their race./p pEven though the landmark 1986 Supreme Court case, iBatson v. Kentucky,/i prohibited peremptory strikes on the basis of race or gender, unconstitutional juror discrimination persists./p pOften, prosecutors offer pretextual — or disingenuous — reasons for excluding Black jurors and other jurors of color. In our previous RJA casei, /ia href=https://www.aclu.org/cases/north-carolina-v-robinson?document=north-carolina-v-robinson-orderiNorth Carolina v. Robinson/i/a, a judge found North Carolina prosecutors excluded Black jurors for pretextual, even irrational, reasons, interrogated Black jurors with invasive questions not posed to white jurors, and struck Black jurors even though they allowed white jurors with similar characteristics to remain in the jury pool./p pWe even have a href=https://www.aclu.org/news/capital-punishment/will-north-carolinas-supreme-courtevidence/a of overt racism in jury selection which we’ve presented in past RJA cases. One prosecutor wrote in his notes that a Black juror with a criminal record was a “thug” while a white juror with a criminal record was “a fine guy;” a Black juror was described as a “blk wino” while a white juror with a DUI conviction was a “country boy – ok.” In another case, a prosecutor noted on a juror questionnaire that a Black woman was “too dumb.”/p figure class=wp-image mb-8 img width=2294 height=1112 src=https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM.png class=attachment-original size-original alt=Handwritten jury selection notes in which a black candidate was described as a “blk wino.” decoding=async loading=lazy srcset=https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM.png 2294w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-768x372.png 768w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-1536x745.png 1536w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-2048x993.png 2048w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-400x194.png 400w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-600x291.png 600w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-800x388.png 800w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-1000x485.png 1000w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-1200x582.png 1200w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-1400x679.png 1400w, https://www.aclu.org/wp-content/uploads/2024/02/Screen-Shot-2024-02-21-at-3.32.06-PM-1600x776.png 1600w sizes=(max-width: 2294px) 100vw, 2294px / /figure pThe effect of outright or pretextual racial discrimination is ultimately the same: Black prospective jurors are excluded from jury service at greater rates than white prospective jurors, and a person facing capital punishment is judged by a jury inot/i of their peers./p pThe results of these unrepresentative juries are stark: Since 1990, a href=https://www.aclu.org/cases/north-carolina-v-hasson-bacote?document=North-Carolina-v-Bacote-Amended-RJA-Motion-with-Exhibits#press-releasesevery Black person/a facing a capital prosecution in Johnston County has been sentenced to death./p div class=wp-heading mb-8 h2 id= class=wp-heading-h2 with-standardA Question of Democracy /h2 /div pParticipation in the jury box is one of the fundamental ways Americans engage with their democracy. Even though the Thirteenth, Fourteenth, and Fifteenth amendments conferred citizenship rights and equal protection to Black Americans, the right to serve in a jury remains compromised by racial discrimination. Jury service — like the right to vote — is a question of democracy. Who do we consider part of our community, whose voices matter, who has power./p pLevon “Bo” Jones’ voice mattered. Even though he was disenfranchised for the years he was wrongfully convicted, he became a powerful voice for freedom and equal justice. Because of his efforts and the efforts of other Black exonerees — survivors of the racist death penalty and criminal legal system — our client Hasson Bacote will have his day in court on February 26, and the opportunity to win relief for his case, and a ruling that could mean relief for almost all of North Carolina#8217;s death row./p pRace has always been at the center of the death penalty. The RJA challenges give North Carolina the rare legal opportunity to confront that shameful fact. In court this month, we will take another step with our client Mr. Bacote to shed light on and rectify the harms that racism has caused in our legal system./p div class=wp-heading mb-8 h2 id= class=wp-heading-h2 with-standardThe Racial Justice Act: A Timeline/h2 /div div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark1977/h2 /div pNorth Carolina passes the current law authorizing the death penalty. Johnston County a href=https://www.newsobserver.com/news/local/article233018762.htmlremoves the KKK billboards /athat line the highway into Smithfield, the County Seat./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark1987/h2 /div pIn iMcCleskey v. Kemp/i, the Supreme Court majority holds that, despite statistical evidence of racial discrimination in Georgia’s administration of the death penalty, there is no Equal Protection violation because the petitioner, Warren McCleskey, couldn’t show overt racial discrimination occurred in his case./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark1988/h2 /div pA federal Racial Justice Act bill is drafted in response to iMcCleskey/i. The federal RJA ultimately passed the House of Representatives in 1992 and in 1994, but failed in the Senate./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark1998/h2 /div pKentucky becomes the first state to enact a Racial Justice Act statute./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2007-2008/h2 /div pThree Black men, Jonathan Hoffman, Levon Jones, and Glen Chapman, are exonerated from death row in North Carolina. All three innocent men, wrongfully convicted by all-white or nearly all-white juries, become inspired to help other people wrongfully convicted on the basis of race./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2009/h2 /div pMr. Jones, Mr. Hoffman, and Mr. Chapman join with Darryl Hunt, another wrongfully convicted person charged with capital murder and later exonerated, to lobby the North Carolina Legislature. North Carolina enacted the Racial Justice Act in August, allowing people on death row to challenge their sentences if they could show race played a significant factor. The North Carolina law is the first law in the country to specify that statistical evidence of discrimination in jury selection and/or jury sentencing is sufficient proof to set aside a death sentence./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2009/h2 /div pOur client, Hasson Bacote, is convicted of felony murder in Johnston County. Like every Black man tried in Johnston County, Mr. Bacote receives the death penalty./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2010/h2 /div pIn August, more than 100 people on North Carolina’s death row filed RJA motions. At least 30 of those people were sentenced to death by all-white juries./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2010/h2 /div pIn November, control of the North Carolina General Assembly flipped from Democratic control to Republican control. A single Republican donor, Art Pope, was connected toa href=https://www.npr.org/2011/10/06/141078608/the-multimillionaire-helping-republicans-win-n-c 75 percent/a of all outside group spending on the race, spending millions on small local campaigns. Some of these groups ran ads deliberately attacking candidates for voting for the Racial Justice Act. Ironically, these ads profiled a href=https://nccadp.org/stories/henry-mccollum-leon-brown/Henry McCollum/a, a Black man then on North Carolina’s death row who would ultimately be exonerated./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2012/h2 /div pNorth Carolina Gov. Beverly Perdue issued pardons of innocence to the defendants in the a href=https://www.cnn.com/2012/12/31/justice/north-carolina-wilmington-10/index.htmlWilmington 10 case/a on December 31, citing “the dominant role that racism played in jury selection.” The prosecution’s jury selection notes included overt race-based bias, such as a capital B written next to the name of every Black juror, and “KKK good!!” written next to the names of at least six prospective jurors./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2012/h2 /div pThe first RJA case in the country is heard by a superior court judge in Cumberland County in a href=https://www.aclu.org/cases/north-carolina-v-robinsoniNorth Carolina v. Robinson/i/a. The death row petitioner, Marcus Robinson, proved widespread discrimination in jury selection across North Carolina, in Cumberland County, and in his own case. a href=https://www.aclu.org/cases/north-carolina-v-tilmon-golphin-christina-walters-and-quintel-augustineThree other cases/a were heard in Cumberland County later that year based on similar evidence, and those challengers, Tilmon Golphin, Christina Walters, and Quintel Augustine, also prevailed. The state sought review of these decisions by the North Carolina Supreme Court./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2013/h2 /div pThe North Carolina Legislature repealed the Racial Justice Act on June 19 and overrode the governor’s veto./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2015/h2 /div pThe North Carolina Supreme Court held that prosecutors should have been given more time to prepare for the Cumberland County RJA hearings, vacated the decisions, and remanded for new cases. This meant that the iRobinson/i and other Cumberland County case orders had no precedential value./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2017/h2 /div pA North Carolina Superior Court dismissed the claims of Mr. Robinson and the other three people in Cumberland County, holding that the legislature’s repeal was retroactive and required dismissal of their cases. The four defendants sought review./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2019/h2 /div pCharles Finch, a Black man, is exonerated from North Carolina’s death row. Mr. Finch is the 12th person exonerated in North Carolina since the death penalty was reinstated in 1973. a href=https://deathpenaltyinfo.org/database/innocence?state=North+CarolinaEleven of the 12/a men exonerated are men of color and 10 are Black men./p div class=wp-heading mb-8 hr class=mark / h2 id= class=wp-heading-h2 with-mark2020/h2 /div pIn iState v. Ramseur/i, and iState v. Burke/i, the North Carolina Supreme Court held that application of the repeal to bar review of properly-filed RJA claims violated the Ex Post Facto clause of the North Carolina Constitution. This ruling effectively reinstated the more than 100 filed claims by people on death row, including Hasson Bacote./p pIn iState v. Robinson/i, the Hon. Justice Cheri L. Beasley, the first African-American woman to serve as Chief Justice of the North Carolina Supreme Court, wrote for the majority in an opinion that cataloged the history of Black citizens’ exclusion from jury service in the United States and North Carolina, and the failure of state appellate courts to confront the problem. The state Supreme Court reinstated the life sentences of Marcus Robinson, Tilmon Golphin, Christina Walters, and Quintel Augustine./p

pOn January 25, the state of Alabama executed Kenneth Smith using nitrogen hypoxia, subjecting him to inhale pure nitrogen through a mask until he suffocated. Despite state claims that it would be a painless death, a href=https://www.msn.com/en-us/news/us/alabama-man-shook-violently-on-gurney-during-first-ever-nitrogen-gas-execution/ar-BB1hhPTewitnesses reported /aMr. Smith shook, convulsed, writhed, and gasped for minutes until he was pronounced dead at least 22 minutes after the execution began, thougha href=https://www.statnews.com/2024/01/29/kenneth-smith-nitrogen-gas-execution-science-alabama/ just how long it took is unknown/a since Alabama closed the execution curtain before the official time of death./p pEarlier this month, a href=https://www.ohchr.org/en/press-releases/2024/01/united-states-un-experts-alarmed-prospect-first-ever-untested-executionUnited Nations human rights experts/a warned that the untested execution method might result in a painful and humiliating death. Moreover, it is likely to constitute torture, violating international human rights treaties ratified by the U.S. Ahead of the execution, the a href=https://www.ohchr.org/en/press-briefing-notes/2024/01/execution-nitrogen-asphyxiation-alabamaU.N. High Commissioner for Human Rights/a, Volker Türk, urged Alabama state authorities to cancel the execution./p pVeterinary scientists, who have carried out laboratory studies on animals, have even largely a href=https://www.theguardian.com/us-news/2024/jan/18/alabama-nitrogen-gas-executionruled nitrogen gas out /aas a euthanasia method due to ethical concerns. Authorities in the U.S. and Europe have issued guidelines discouraging its use for most mammals, citing potential distress, panic, and seizure-like behavior./p pMr. Smith shouldn’t have even been on death row. In 1996, a jury of his peers voted 11-1 for life in prison for his role in a 1988 killing. However, the sentencing judge imposed the death penalty anyway. If Mr. Smith were tried today, that could not happen, as Alabama a href=https://www.theguardian.com/us-news/2024/jan/10/alabama-ruling-allow-execution-nitrogen-gas-kenneth-smith#:~:text=Smith's%20initial%201989%20conviction%20was,decision%20on%20death%20penalty%20decisions.no longer /apermits a judge to override a jury#8217;s decision to sentence someone to life without parole./p pIn 2022, the Alabama Department of Corrections attempted to execute Mr. Smith by lethal injection but failed to find a suitable vein, calling it off after hours of needle insertions./p pKilling Mr. Smith, or any other person, by nitrogen gas is cruel and inhumane. Plans to do so should have been abandoned for those reasons alone – but there are others. Nitrogen gas presents a grave danger to prison staff, incarcerated people, and the public. The Alabama Department of Corrections is aware of the risks, evident in requiring Mr. Smith#8217;s spiritual adviser a href=https://www.npr.org/2023/12/12/1218591962/alabamas-upcoming-gas-execution-could-harm-witnesses-and-violate-religious-liberto sign a waiver /aacknowledging he could be at risk of gas exposure for for being with Mr. Smith at the execution./p pA recent a href=https://www.aclualabama.org/en/news/nitrogen-alabama-prison-ticking-time-bombtragedy at a Gainesville, Georgia poultry plant /aunderscores the dangers of nitrogen gas. Following a leak that filled a freezer room, five workers entering it collapsed and died. A sixth worker was pronounced dead at the hospital. After evacuating 130 workers, an additional 13 people, including four first responders in safety gear, required hospitalization and intensive care./p div class=wp-sizing-container sizing--standard figure class=wp-image mb-8 img width=952 height=1210 src=https://www.aclu.org/wp-content/uploads/2024/01/Screen-Shot-2024-01-19-at-11.15.02-AM-1.png class=attachment-original size-original alt=An ACLU of Alabama infographic on the dangers of Nitrogen Hypoxia. decoding=async loading=lazy srcset=https://www.aclu.org/wp-content/uploads/2024/01/Screen-Shot-2024-01-19-at-11.15.02-AM-1.png 952w, https://www.aclu.org/wp-content/uploads/2024/01/Screen-Shot-2024-01-19-at-11.15.02-AM-1-768x976.png 768w, https://www.aclu.org/wp-content/uploads/2024/01/Screen-Shot-2024-01-19-at-11.15.02-AM-1-400x508.png 400w, https://www.aclu.org/wp-content/uploads/2024/01/Screen-Shot-2024-01-19-at-11.15.02-AM-1-600x763.png 600w, https://www.aclu.org/wp-content/uploads/2024/01/Screen-Shot-2024-01-19-at-11.15.02-AM-1-800x1017.png 800w sizes=(max-width: 952px) 100vw, 952px / /figure /div pThe tragedy in Georgia is no outlier. The a href=https://www.csb.gov/board-releases-safety-bulletin-on-nitrogen-asphyxiation-hazards-underscores-need-for-good-safety-practices/U.S. Chemical Safety Board/a reports an annual average of 8 deaths and 5 injuries from nitrogen exposure. History, science, and common sense tell us that storing and using nitrogen in Alabama prisons, or elsewhere, is a ticking time bomb. The question isn’t whether nitrogen gas will kill staff and incarcerated people; the question is when./p pGovernor Kay Ivey had the authority to stop Mr. Smith’s execution by nitrogen gas; or any other method proposed — but she did not exercise that power. As a broader consequence, a href=https://apnews.com/article/death-penalty-ohio-attorney-general-c47ea9e0ef7e96c8e0264f50e6c15566other states/a are now considering following Alabama’s dangerous and irresponsible path./p pWe believe the death penalty should be abolished in Alabama and in the U.S. entirely. The justifications for ending it go beyond the cruel, dangerous, and tortuous methods employed. It’s a barbaric practice that too often condemns wrongly-convicted individuals to die and disproportionately kills people of color, people with low-income, people with intellectual disability, people living with mental illness, and others who are over-targeted for arrest and incarceration./p pThe U.S. must stop inventing new and more heinous methods of execution, and put an end to it once and for all./p div class=rss-cta__titleWe need you with us to keep fighting/diva href=https://action.aclu.org/give/now class=rss-cta__buttonDonate today/a/div