Abstract

Excerpted From: Danielle Smith and David Weiss, The North Carolina Racial Justice Act At A Crossroads: Lessons Learned From State v. Bacote And The Ongoing Fight Against Racial Bias In Capital Punishment, 104 N.C. L. Rev. Forum 55 (2026) (242 Footnotes) (Full Document)

The American criminal justice system was built, at least in part, on racially oppressive beliefs and practices. This is especially true for capital punishment. Our courts have acknowledged the death penalty’s connection to slavery. Even after the post-Civil War amendments granted citizenship to Black people, Jim Crow laws continued to discriminate against Black defendants in capital cases. Although the United States Supreme Court has taken occasional action to remedy this discrimination, the existing federal protections have not gone nearly far enough.

As a result, some state legislatures sought to mitigate the discriminatory effects of the death penalty’s racist roots. In 2009, the North Carolina General Assembly enacted the North Carolina Racial Justice Act (“RJA”), which allowed death-sentenced individuals to make claims for relief using statistical data showing their death sentence was sought or imposed on the basis of race. Following the RJA’s enactment, several defendants obtained judicial relief. In response, the North Carolina General Assembly amended--and eventually repealed--the RJA. In 2020, however, the Supreme Court of North Carolina ruled that the repeal could not apply retroactively.

State v. Bacote is the most recent development in North Carolina’s RJA litigation. Hasson Bacote raised claims of racial bias arising from discriminatory capital sentencing decisions by juries in the county where he was tried, the actions of his prosecutor, as well as broader prosecutorial decisions in other capital cases tried in Johnston County and Prosecutorial District 11. In addition to statistical evidence, Bacote presented historical and social science research illustrating Johnston County’s history of racism against Black people. After hearing all the evidence, the superior court issued an order in February 2025, finding that the statistical evidence presented by Bacote showed that race was a significant factor in the prosecution’s jury selection decisions in Bacote’s individual case, death penalty cases in Johnston County, and death penalty cases in Prosecutorial District 11. Bacote’s death sentence was vacated, and he was resentenced to life without parole.

Bacote and its result on appeal are likely to influence the course of more than one hundred pending RJA claims brought by other North Carolina death row prisoners. Because of Bacote’s potentially broad impact, this Article will examine the case itself, as well as the background of the RJA leading up to the Bacote litigation. The discussion will include a timeline and historical context for the RJA--from its enactment, narrowing, and eventual repeal, as well as several rounds of litigation along the way. It will then describe the superior court’s decision in Bacote. The conclusion will consider what the Bacote decision might mean for those sentenced to death and awaiting RJA litigation in North Carolina and what lessons advocates might take away from the RJA’s history to date.

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As UNC’s own Jack Boger has observed, “[a] well-constructed litigation campaign has the potential to shape public understanding, even though it fails in a purely legal setting, if it is carried out with the greatest candor, rigor, and transparency.” Professor Boger also highlighted the importance of persistence: “[S]ome truths gain their power not on first encounter, but only over time.” The RJA may result in more death row prisoners having their death sentences vacated. It may not. That remains to be seen. What we do know is that the truths the RJA uncovered about persistent racism in capital punishment will continue to shape our legal system in the decades to come, especially if we continue to tell them.

Danielle Smith is an Assistant Federal Public Defender with the Capital Habeas Unit for the Fourth Circuit, representing people on death row principally in North Carolina and South Carolina.

David Weiss is also an Assistant Federal Public Defender with the Capital Habeas Unit for the Fourth Circuit. Prior to joining the Capital Habeas Unit, Weiss was a North Carolina capital postconviction defense attorney. In that capacity, he represented Marcus Robinson and Hasson Bacote during portions of their Racial Justice Act litigation. Due to a change in employment, Weiss withdrew from Mr. Bacote’s legal team in 2021, prior to the Bacote litigation discussed at length in this Article.