Update: Intellectually Disabled Georgia Man Faces Monday Execution if Supreme Court Does Not Step In

RALEIGH, N.C. – In a landmark case, a North Carolina judge ruled today that race played an impermissible role in jury selection for Hasson Bacote, a Black man who challenged his death sentence under the North Carolina Racial Justice Act (RJA). The court found evidence of discrimination in Bacote’s case, the cases prosecuted by North Carolina Assistant District Attorney Greg Butler, as well as in Johnston County and District 11, relying upon statistical, cultural, historical, and social science, in addition to court files and records. Consistent with prior case law, he ruled that the RJA does not require defendants to make a showing of discrimination in their own case but found that Bacote did prove discrimination in his case. “This decision provides more definitive proof that capital prosecutions in North Carolina are tainted with racial bias and discrimination,” said Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project. “What we saw in Mr. Bacote’s case is that the more we look for evidence of discrimination in our state’s capital jury selection system, the more we find. This ruling creates a path to justice for the hundred plus individuals who have filed claims and whose cases were similarly tainted with bias.” In his ruling, Superior Court Judge Wayland J. Sermons Jr. found that prosecutors deliberately struck Black jurors from jury service in Bacote’s case at three times the rate of white jurors. In his findings of discrimination, the judge also cited the prosecutor’s references to thinly veiled racist phrases to refer to Black defendants, like “thug,” “piece of trash,” and “predators of the African plain.” “I am deeply grateful to my family, my lawyers, the experts, and to everyone who fought for justice — not just in my case, but for so many others,” said Hasson Bacote, petitioner. “I want to thank Bryan Stevenson in particular for showing how unfair the jury selection was in my case. When my death sentence was commuted by Governor Cooper, I felt enormous relief that the burden of the death penalty — and all of the stress and anxiety that go with it — were lifted off my shoulders. I am grateful to the court for having the courage to recognize that racial bias affected my case and so many others. I remain hopeful that the fight for truth and justice will not stop here.” The judge’s ruling set out guidance and made important fact findings that could pave the way for others on death row with RJA claims to successfully challenge their death sentences. On Dec. 31, 2024, former Gov. Cooper commuted the sentences of 15 people on death row, including Hasson Bacote. Even though Bacote was already resentenced to life without parole, the judge issued a ruling in his case because of its importance for the 100-plus people with pending RJA claims. “Racial discrimination in our courts and criminal legal system has long impacted death penalty sentencing,” said Ashley Burrell, senior counsel at the Legal Defense Fund. “Today’s ruling affirms what we have argued all along: racism infects the death penalty. We are hopeful that future decisions will result in relief under the RJA for other North Carolinians currently on death row.” The North Carolina Racial Justice Act was a novel piece of legislation passed in 2009 that allowed people to challenge their death sentences if they could show race played a role in their trials. Those who prove racism stand to be resentenced to life without parole. Four individuals won their claims at a hearing in 2012 in Cumberland County and were resentenced to life without parole. The decisions in those cases were ultimately vacated in order to give the state more time to prepare its defense to the sweeping charges of statewide bias, although their life sentences were protected by double jeopardy. The state legislature repealed the statute in 2013, but after a legal challenge, the North Carolina Supreme Court ruled in 2020 that those who had already filed claims under the RJA were entitled to hearings. Bacote’s case was the first to move forward since the Supreme Court ruling and is the first North Carolina case where a trial court ordered statewide discovery of prosecution notes from jury selection in all capital trials since 1980. “The sweeping evidence of discrimination in jury selection and the definitive conclusions by Judge Sermons vindicate the legislature’s decision to enact the Racial justice Act in 2009,” said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation. “The ruling creates an opportunity for leaders in North Carolina to turn the page on this shameful chapter for our state. At a minimum, Governor Stein and Attorney General Jackson should commit to addressing the failures of the criminal legal system and adopt policies that prevent this kind of discrimination in future death penalty cases.” Bacote is represented by the ACLU Capital Punishment Project, the ACLU of North Carolina, the Legal Defense Fund, the Center for Death Penalty Litigation, and attorneys Jay Ferguson and Henderson Hill.

SALT LAKE CITY — The American Civil Liberties Union and ACLU of Utah filed an amicus brief in the Utah Supreme Court today urging the court to uphold the Utah Constitution’s protection against “unnecessary rigor” in the carceral system and allow a group of people on the state death row to challenge their method of execution. The Utah Constitution bars “cruel and unusual punishment” using language that mirrors the U.S. Constitution’s prohibition under the Eighth Amendment. However, article I, section 9 of the Utah Constitution goes further, dictating that people “imprisoned shall not be treated with unnecessary rigor.” The ACLU brief in Menzies v. Utah Department of Corrections argues that this more expansive protection means that people sentenced to death should not be forced to identify an alternative when challenging their method of execution, a requirement that the U.S. Supreme Court imposed in Glossip v. Gross for federal method-of-execution challenges. “The Utah Constitution’s broad protections for incarcerated people are a feature, not a bug. History shows that the drafters of the Utah Constitution intended for these protections to be more expansive than the protections offered by the U.S. Constitution,” said Bridget Lavender, legal fellow with the ACLU State Supreme Court Initiative. “Forcing people sentenced to death to overcome unnecessary barriers to challenge their execution method would violate the plain text and ignore the unique nature of the Utah Constitution.” Utah state law provides that criminal defendants sentenced to death must be executed by lethal injection, with firing squad available as an alternative in certain situations. In this case, plaintiffs challenge these two methods as a violation of the Utah Constitution's protections in article I section 9. “The Utah Constitution provides incarcerated people with more expansive protections than the United States Constitution,” said Abby Cook, staff attorney for the ACLU of Utah. “Based on our state’s unique history and the text of our constitution, our brief underscores that cruel and unusual punishment and unnecessary rigor have no place in our criminal legal system.” The brief is online here: https://www.aclu.org/cases/menzies-v-utah-department-of-corrections?document=Menzies-Amicus-Brief

Article I, section 9 of the Utah Constitution protects incarcerated individuals from both cruel and unusual punishment and unnecessarily rigorous treatment. This case asks whether death-sentenced plaintiffs seeking to challenge certain execution methods as cruel and unusual or unnecessarily rigorous under this provision must identify, in their pleadings, an alternative method of execution. The U.S. Supreme Court has required this alternative for Eighth Amendment challenges, but the ACLU’s State Supreme Court Initiative, alongside the Capital Punishment Project and ACLU of Utah, filed an amicus brief in support of the plaintiffs, arguing that federal caselaw does not limit the greater protections provided by section 9 of the Utah Constitution. Forcing prisoners challenging a method of execution to identify an acceptable alternative method is cruel, coercive, and not necessary to the administration of Utah’s death penalty laws.

KANSAS CITY, Kan. — The death penalty in Kansas is racist, unconstitutional, and irretrievably broken, said witnesses in a series of hearings challenging the state’s use of capital punishment and the practice of death qualification in jury selection. Over the course of a week in October and concluding today, the American Civil Liberties Union, the ACLU of Kansas, the Kansas Death Penalty Defense Unit, Hogan Lovells, Democracy Forward, and Ali & Lockwood presented expert testimony from historians and legal experts demonstrating that the death penalty in Kansas undermines the principles at the core of our legal system. “The testimony presented throughout these hearings has made it abundantly clear that the death penalty in Kansas is unjust and unconstitutional,” said Cassandra Stubbs, director of the ACLU’s Capital Punishment Project. “Every step of the capital process is rife with racism and error, from who gets charged to who sits on capital juries. The expert testimony has conclusively proved what we have long known to be true: If you are charged with capital murder, you are effectively denied your constitutional right to a fair trial.” The case, filed in October, challenges the constitutionality of the death penalty in Kansas as well as death qualification, the practice of jury selection in capital cases which dictates that a prospective juror must be willing to impose the death penalty to serve on a capital jury. By systemically excluding groups that are more likely to oppose capital punishment, this practice disproportionately discriminates against Black people, women, and people of faith. Monsignor Stuart Swetland, president of Donnelly College, testified about the discriminatory impacts of death qualification because of his faith. “The death penalty is a direct attack on human dignity—something no one can lose, no matter what crime they’ve committed,” said Monsignor Swetland. “As Catholics, we’re called to respect and protect that dignity, which is why we work to abolish the death penalty worldwide. But here in death penalty trials across the country, people like me are excluded from serving on capital juries simply because of our faith. This exclusion undermines the principle of a jury as the conscience of the community and silences a large segment of the population in critical decisions about life and death.” Professor Scott Sundby presented overwhelming evidence that death qualification results in juries that are more likely to convict than other juries, ultimately creating an unfair trial for capital defendants. Local studies in Sedgwick and Wyandotte Counties, conducted and presented by Mona Lynch, reinforce what national studies of death qualification repeatedly show: Black prospective jurors are significantly more likely to oppose the death penalty and distrust the criminal justice system, and more likely to be excluded for opposition to the death penalty as part of the death qualification. Professor Elisabeth Semel presented evidence about the discriminatory use of peremptory strikes, which compounds the discriminatory effects of death qualification. Professors Shawn Alexander and Brent M. S. Campney testified about the legacy of racism in Kansas, drawing connections between the state’s history of societal exclusion, racial terror, and police violence and its application of the death penalty today. “Kansas has a long and troubling history of racist violence against Black communities,” said Campney. “Racial violence in the state has taken many forms over the years, from mob lynchings in the 1800s to police violence in the 20th century, but the goal has always been the same: to exert control over Black communities. This legacy of racial terror continues to cast a long shadow over the state’s criminal legal system today.” Professor and expert on police practices, Charles Epp, presented a study that shows a modern-day variation of these themes, wherein Black residents of Wyandotte County described mistreatment by police leading to a profound distrust of law enforcement, a fact which itself contributes to their exclusion by the death qualification process. Three scholars conducted statistical analyses across Kansas that revealed one uniform truth: Capital charging decisions are impermissibly influenced by race. Professor Frank Baumgartner presented a statewide study that showed that death sentences are sought more often when the victim is white or female, and particularly when the victim is both white and female. Law professor and criminologist Jeff Fagan presented a second study, in Sedgwick County, indicating the same. Finally, Professor Brent Never of the University of Missouri, Kansas City, examined capital charging decisions in the Wyandotte County District Attorney’s Other historians and legal experts testified about the fundamental flaws with the death penalty. Brittany Street, economics professor at University of Missouri, testified about the enormous costs associated with the death penalty, highlighting how these tax dollars could be better spent on crime prevention and community programs. In addition to sharing results of his Sedgwick County charging study, Professor Fagan presented evidence that the death penalty has no deterrent effect on homicides. Executive director of the Midwest Innocence Project, Tricia Bushnell, and law professor, Carol Steiker, testified about the myriad unconstitutional aspects of capital punishment, including the well-documented failure to protect the innocent. “Researchers have tried to extrapolate from the known number of people who have been exonerated off of death row to the likely rate of mistakes in capital cases, and they say their conservative estimate, is 4 percent, or one in 25,” said Steiker. “If someone said one in 25 airplanes will crash, no one would fly. And yet we accept the fact that one in 25 people convicted of a capital crime are innocent. It is clear that the American death penalty is irretrievably broken; it cannot be fixed.”