While racial injustice has been a central thread of the histories of the United States, since 2013 we’ve seen a tremendous rise in public concern about racism within and beyond our criminal legal system in North Carolina, and across the nation. In part sparked by Trayvon Martin’s and Michael Brown’s deaths, and then reignited by George Floyd’s and Breonna Taylor’s murders in 2020, the Black Lives Matter movement has encouraged critical examination of instances of state-sanctioned violence, both in the case of police-involved deaths, but also in what Rob Nixon describes as “slow violence.”
Nixon defines slow violence as “a violence that occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all.” In addition to realities like environmental racism, our carceral system disproportionately targets Black and Brown communities and disappears people behind bars. This impacts not only those who are incarcerated, but their families and broader communities, gradually but consistently robbing these communities of resources, dignity, and chances for a prosperous future. It’s hard to think of anything more violent than mass incarceration.
Directly affected people, community organizers, activists, and even legislators have worked to pull on all available resources to address the destructive realities of mass incarceration. For example, in 2009, North Carolina passed the groundbreaking Racial Justice Act (RJA). Although the Act was swiftly repealed, it allows those on death row who timely filed for relief prior to repeal to challenge their sentences if they can demonstrate that race, or more aptly, racism, played a factor in their trials.
In recent years, litigation under the Racial Justice Act has unsurprisingly unearthed evidence of racial discrimination across the state, including the purposeful exclusion of Black and Brown people from death penalty juries which undoubtedly skews the outcomes of these trials. At least 25 people on North Carolina’s death row were sentenced by all-white juries, including one this year. More than 30 others had only a single non-white person on their jury, despite research showing that diverse juries deliberate more carefully and are less likely to convict the innocent. Of North Carolina’s twelve death row exonerees, eleven are men of color.
The RJA might soon enable another blow to racist pillars in our criminal legal system. The ACLU of North Carolina, along with the national office of the ACLU, Capital Punishment Project, Center for Death Penalty Litigation, Thomas, Ferguson & Beskind, LLP, and the NAACP Legal Defense and Educational Fund, Inc., is now representing Hasson Bacote, a Black man from Johnston County, North Carolina, who is challenging his death sentence under the RJA. 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. Mr. Bacote’s case exposes why the death penalty should be terminated in NC. A trial court will begin to hear evidence in the case on February 26, 2024.
For those able to file for relief while it was in effect, the RJA enables tremendous interventions in the slow violence of incarceration, especially unjust convictions. But these interventions are not enough given the slow turning of the rusty wheels of justice. We should and must draw on all available resources to address the racist legacies of the past that continue to shape the lived realities of the present. In many ways, this is what another strategy to resist the carceral state, The Vigil for Freedom and Racial Justice, demands.
The Vigil, which is in its fourth year, is an ongoing campaign calling on Governor Roy Cooper to use his clemency powers to reduce the number of people in state prisons and address racial disparities in the justice system. The Vigil’s participants will walk laps around the governor’s mansion every day until December 22nd, incorporating various events including the Freedom Block Party, the No More Death Penalty Rally, and community conversations that will address topics like sentencing, public health crises related to incarceration, compassionate release, and alternatives for early release.
In keeping with tradition, the organizers of the Vigil have sent a letter to Cooper, identifying “excellent candidates” for clemency, including people incarcerated for crimes committed before October 1994 (many of those incarcerated are serving sentences they would not have received had they committed the same crime under the current sentencing model), people incarcerated for drug convictions (52% of whom are Black), people incarcerated who are older than 65 and have served more than a decade in prison, those who are terminally ill while incarcerated, and those who have served half their sentence and are scheduled to be released in two years.
The list of possible candidates outlined by the Vigil Organizers makes one thing very clear: our tax dollars are being used to detain those who are not a threat to our communities. Clemency, the interventions enabled by the RJA, and any other strategy toward decarceration are opportunities to make our communities stronger. As the Vigil organizers remind us, “the holidays can be challenging for those incarcerated and their families.” While many gather with their families, spend cherished quality time together, and exchange meals and gifts, others, because of racist policy failures and callous practices, are not afforded this privilege. As we move to and through the holiday season, the ongoing RJA litigation and calls for clemency should remind us to center justice, fairness, and a more perfect North Carolina for all.