The death penalty in NC: A call for truth and reconciliation

This month, I watched the federal government execute two Black men in two days, Brandon Bernard and Alfred Bourgeois.

In an unprecedented and spiteful move, Trump’s lame-duck administration has undertaken a spree of executions after a 17-year hiatus. If all goes as planned, thirteen people will be killed before Joe Biden, who has pledged to end the federal death penalty, takes office. Six of the last seven will be Black men.

As a native of Wilmington, NC, I am painfully familiar with state-sanctioned violence against Black people. The Wilmington Massacre of 1898 was the country’s only successful coup. White supremacists toppled a multiracial government and murdered at least 60 Black people — and likely many more.

Until recently, that history was shrouded in secrecy. I went to high school, college, and law school in North Carolina, but the first time I heard about the massacre was after I moved to New York to practice law. Despite the conspiracy of silence, the devastating impact of the massacre continues to be felt. Once a thriving town with a majority African-American population and solid Black middle class, Wilmington has never fully recovered. The events of 1898 became the lasting blueprint for white supremacy campaigns across the South.

The Equal Justice Initiative, led by Bryan Stevenson, has documented more than 4,000 racial terror lynchings in twelve southern states between 1877 and 1960. After lynching declined, the use of capital punishment increased: In the states of the Old South, where lynching primarily occurred, you are 11 times more likely to get the death penalty if the victim is white than if the victim is Black, and 22 times more likely to get it if the defendant is Black and the victim is white.

Data from North Carolina similarly show that racism infects its death penalty: Black people are twice as likely to be excluded from serving on capital juries. Crimes involving white victims are twice as likely to be punished with death as those with Black victims. And, of the ten innocent people exonerated from North Carolina’s death row, nine were people of color.

The stories surrounding Black defendants in North Carolina death penalty cases are chilling, and include:

• individuals being sentenced to death after virulent and graphic calls from community members for lynching;
• a prosecutor who invoked the image of a lynching during his closing argument;
• an openly bigoted white juror who said he believed Black people did not care as much about living as white people; and
• a jury selection process in which a prospective Black juror was excluded because he expressed concern upon overhearing white jurors say the police should have killed the defendants in the woods.

Prosecutors across North Carolina have urged juries to sentence Black men to death while dehumanizing them, including comparing them to animals.

In this moment of racial reckoning, following the police killings of George Floyd, Breonna Taylor, Elijah McClain and others, all of America’s institutions must take stock of how they may be complicit in perpetuating white supremacy. That includes the criminal legal system, which is plagued by racial disparities.

Fortunately, recent developments in North Carolina suggest a reckoning with its history is beginning.

In August, the state Supreme Court for the first time in its history acknowledged the “egregious legacy of the racially discriminatory application of the death penalty” and evidence of “pervasive racial bias in capital sentencing.”

Former North Carolina Supreme Chief Justice James Exum – who presided over a court that affirmed dozens of death sentences in the 1990s, including while I served as a law clerk to Justice Henry Frye – will publish an article this month urging the state’s courts to address forty years of evidence proving how arbitrary the death penalty has been. Observing that the race of the victim determines who receives the death penalty and that the race of prospective jurors determines who serves on capital juries, Justice Exum writes: “A death penalty riven with racial disparities is constitutionally intolerable.”

Just this week, Governor Cooper’s Task Force for Racial Equity in Criminal Justice – a group whose members include judges, law enforcement officers, legislators, and civil rights leaders – issued a report recognizing that “evidence demonstrates that the use of capital punishment in our state has been tainted by racial bias.”

These efforts are a step in the right direction. More is needed. As the saying goes, “When you know better, you do better.” North Carolina knows better and must do better.

The Governor’s task force called for a Truth and Reconciliation Commission to address capital punishment. Truth means acknowledging decades of injustice in the state’s death penalty. Reconciliation requires abolishing it.

Reggie Shuford is Executive Director of the ACLU of Pennsylvania and a board member of the Atlantic Center for Capital Representation.