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Henry Bailey, a Black man, was one of the last prisoners publicly hanged by the State of North Carolina in 1906. Accused of killing a white person, Bailey lamented that were the roles reversed, the state wouldn't even consider the murder a crime. Moments before his death, he spoke about the inequality of his jury, on which none of his Black peers sat. His truth telling stirred the large crowd, where many Black people gathered to support him in his last moments. They knew that with little provocation or due process, it could be them on the scaffold.
Over a century after Bailey's "legal lynching," after working class women of color defended Black men in a campaign to stop the state from lynching them, and after the state medicalized its executions and removed them from public view, the 2009 Democrat-controlled North Carolina General Assembly attempted to amend death sentences gained through racist tactics. They enacted the Racial Justice Act (RJA), which granted death row prisoners the right to challenge their sentence if it was "sought or obtained on the basis of race," including by the systematic removal of Black people from juries. Prisoners who win RJA cases are granted life sentences instead of the death penalty.
But in 2010, Republicans won a supermajority in the North Carolina General Assembly. They immediately worked on first diluting the RJA, and then ultimately repealing the law in 2013. The repeal applied retroactively, condemning prisoners recently removed from death row back to death row. Litigation over the retroactive application of the repeal continued for seven years.
As a death row prisoner, I've watched the fight over the RJA slowly take shape over the last decade. Despite being celebrated as a progressive beacon, the RJA was presented to my peers, 54 percent of whom are Black, as their only real option for leaving death row. This happened even when other options, like exoneration, might be possible. Many attorneys operate under the belief that any relief from a potential execution is good relief. This "shut up and accept it" attitude is so pervasive that it fuels a lot of cynicism and apathy toward the legal system. As a result, the RJA is viewed by many of us on death row as another attempt by attorneys to avoid the hard work of freeing their clients from prison.
This June, in the midst of global uprisings against the murder of George Floyd by Minneapolis police, the RJA was partially salvaged by the North Carolina Supreme Court, thanks in large part to Chief Justice Cheri Beasley, the first Black woman to hold the Court's top position in the state's history. In State v. Ramseur, the Court ruled that the RJA repeal could not be applied retroactively to death row prisoners who filed their claims back in 2009. This ruling does not restore the RJA as current law, but rather allows death row prisoners who filed RJA appeals before the repeal to proceed with their cases.
Over 130 death row prisoners (about 90 percent of North Carolina's death row prisoners) are now entitled to a hearing to prove race was a significant factor in their capital prosecution. If successful, these death row prisoners will receive a revised sentence of life without parole (LWOP).
At best, LWOP is a muddled victory against racist prosecution. At worst, it's silent execution.
See also: Free the press in prisons, too
Some prisoners reject the idea of the RJA because they believe accepting its relief will end their right to claim innocence. At a minimum, LWOP could mean losing legal representation because noncapital defendants have no right to an attorney beyond appealing their case after trial. This is especially damning for prisoners who are fighting to prove they are not guilty of first-degree murder.
North Carolina prisons do not have law libraries. Jailhouse lawyers are rare. The state-funded prisoner legal services is understaffed and underfunded, spread thin among thousands of prisoners seeking relief. Dying of illness or age-related causes after decades in prison often evokes as much fear as being executed.
For those on death row who admit guilt, can no longer appeal their sentence, and have no other options, the RJA may feel like an extension of life away from the depressing confines of death row. But no one believes LWOP is merciful, though it's often hailed as such by anti-death penalty advocates. Choosing between dying on a gurney or in a prison infirmary is not an alternative, it's masqueraded leniency.
I asked my friend Mac, who has been on death row since the mid-1990s and is one of the 130 eligible for a hearing, what he thought of June's RJA ruling.
"Praise God," he said. "I'm ready to give these people back their death sentence and get away from this place. I don't want no life without parole, but if that's what they give me—so be it."
But another friend, a 55-year-old Black man who hadn't heard from his attorney in two years, recently got a letter from the lawyer about his RJA case. Before his murder trial, he was offered a 20 year plea deal. But winning under the RJA wouldn't restore that plea deal.
"So I get death either way for going to trial?" he said. "I've done over 20 years in prison already. My kids have kids. The RJA won't help me be with them."
My other peers on death row told stories of racism so explicit there was no need for statistics. White bailiffs intimidating Black witnesses. White jury foreman belittling Black jurors who question state evidence.
"Cuz, you think they care about fair?," Chief* asked me. "The [district attorney] in my county wore a gold pin of a noose. Like a badge of honor for hanging another person from a tree."
That prosecutor was former Union County district attorney Kenneth Honeycutt, who awarded similar pins to assistant prosecutors who won death penalty cases. All current death row prisoners from Union County are people of color.
Just as bitterly ironic as RJA's "remedy" is the story of how the law was repealed. In the run up to the 2010 midterm election, which resulted in a Republican super majority in the state legislature, the North Carolina Republican Executive Committee used Democrat Rep. Hugh Holliman's vote for the RJA against him. The committee sent mailers to every resident in Holliman's district, threatening the release of death row prisoners who win RJA relief. The mailer featured two prisoners who "could leave prison early and move in next door." One of the prisoners, Henry McCollum, was a Black man convicted and sentenced to death for the 1985 rape and murder of Sabrina Buie, an 11-year-old Black girl.
"Holliman voted to allow activist judges to weaken the sentence of death row inmates … making some eligible for parole immediately" "Keep Death Row Inmates Where They Belong And Get Rid of Criminal Coddler Hugh Holliman."
The fear mongering worked, and Holliman was defeated by Republican Rayne Brown. One of the RJA's principal opponents, Rep. Phil Burger, became Speaker of the House. By 2012, the legislature amended the 2009 RJA, eliminating mandatory hearings, restricting use of statistics, and requiring claimants waive any objection to LWOP even if they would have otherwise been eligible for parole, and forcing previous claimants to file under the amended RJA.
Even despite these new hurdles, four death row prisoners still won their RJA cases, receiving LWOP sentences and paving the way for every other claimant on death row. Opponents of the RJA in the legislature realized even the amended RJA could potentially empty death row so they quickly repealed the law in its entirety in 2013. The four prisoners who won LWOP were returned to death row, beginning the seven yearslong litigation battle over retroactive application of the repeal.
A year after the RJA repeal, McCollum was exonerated by the North Carolina Innocence Inquiry Commission after 30 years of wrongful imprisonment on death row. When McCollum was 19, he and his 15-year-old brother Leon Brown were misidentified as suspects, then coerced by detectives into confessing. DNA evidence that had been hidden by the Red Springs Police Department eventually cleared both men. The man who actually committed those crimes, Artis Roscoe, had already been a suspect. Roscoe was sentenced to death for another rape and murder, and then had his sentence converted to LWOP while McCollum remained on death row. Had it not been for the Innocence Inquiry Commission, McCollum would still be on death row while his attorneys try to persuade him to accept his lot under the RJA.
Republican Gov. Pat McCrory, who also signed the RJA repeal, was publicly pressured into pardoning McCollum and Brown, who had been serving LWOP. There was no public response by U.S. Supreme Court Justice Antonin Scalia, who referred to their case as continued justification for the death penalty. No public apology was ever made for using McCollum, a wrongfully convicted and falsely imprisoned Black man, as a Republican scapegoat to repeal the RJA.
Arbitrary and Racist
Between the RJA repeal in 2013 and the Court's ruling this year, the RJA litigation effectively stopped other types of death penalty appeals. Instead of serving the interests of justice based on the facts of each prisoner's case, attorneys and judges took a "wait-and-see" approach to death row cases, pegging everyone's fate to the reinstatement of an inactive law with a minimal remedy. When several prisoners sought to withdraw their RJA claims to pursue other appeals, one judge left the withdrawal decision to their attorneys.
Rather than a clear victory, the reinstatement of the RJA for previous claimants means that death row prisoners will have to wait even more years to see if they "win" LWOP or if they can move on to seek justice in some other, likely more preferable, way. The arbitrary and racist state court system has made clear that they cannot fight for their lives in multiple ways at once.
Henry Bailey died like so many other Black people in the U.S. — in full knowledge of a state system unwilling to uphold "equal justice under the law." Eighty years later, Henry McCollum experienced the evolution of that injustice, the victim of a racist system of law-enforcement, prosecutors, and judges. The harm caused cannot be remedied by an easily repealed law that provides dubious relief to a small group of people on death row. If George Floyd's murder has taught us anything, it's that the time for accepting half-measures is over. No justice. No peace.
*For confidentiality, Chief is a pseudonym.