How a Confederate Amnesty Case Could Save Black Death Row Inmates in North Carolina

Black prisoners were granted new sentences because of racial bias. Then they were sent back to death row.

The exterior of the The North Carolina Supreme Court building.
The North Carolina Supreme Court. Alexisrael/Wikipedia

This week, the North Carolina Supreme Court will consider whether black prisoners who have proved racial bias in their murder trials and been taken off of death row are entitled to the same legal protections as Confederate soldiers accused of murdering teenage civilians at the end of the Civil War.

That’s one of the central questions the court will consider on Monday and Tuesday as it decides whether to send six prisoners back to death row with the knowledge that their trials were racially biased.

In Tilmon Golphin’s case, a prospective black juror was struck from the pool after she reported to the court that she overheard two prospective white jurors state Golphin “should have never made it out of the woods” where he had been apprehended by police. In Quintel Augustine’s case, a prospective black juror who drank was labeled by the prosecutor as a “blk. wino” and struck from the pool, while a white prospective juror who drank was marked as “country boy- OK.” In Marcus Robinson’s case, a black high school graduate in the jury pool was asked if he had repeated any grades or had trouble reading, when white prospective jurors were asked no such questions. The prosecutor in that case admitted he might have implicit racial biases.

In all of these cases, a judge found racial bias under a 2009 North Carolina law called the Racial Justice Act and converted the death sentences to life without parole. The RJA gave death row prisoners a chance to challenge their sentences if they could prove race was a “significant factor” in their trials. This law was significantly different than federal capital punishment challenges because it allowed for a ruling based on statistical evidence that the death penalty as carried out in the state or county was inherently racially biased. So, prisoners didn’t have to undertake the difficult task of proving specific instances of intentional racial discrimination in their own trials. It was enough to prove that prosecutors in their jurisdiction sought death sentences “significantly more frequently” for defendants of one race than another, or in cases involving victims of one race or another, or that race was a statistical factor in peremptory challenges. Then, those death sentences could be overturned. This ability to rely on statistical evidence alone to prove racial bias made it the only law of its kind in the country.

A study conducted by Michigan State University College of Law found that in 173 death penalty cases between 1990 and 2010, prosecutors in North Carolina were about 2.5 times more likely to strike black jurors from the jury. In Cumberland County, cases with white victims were more than 3.4 times as likely to result in the death penalty than those with victims of another race.

Armed with this data, four Cumberland County death row inmates were granted RJA hearings, proved racial discrimination, and were taken off of death row and resentenced to life in prison. But the state reversed the law a little more than a year after the first successful RJA hearing,  and the death penalty sentences were all reinstated without new hearings. The inmates are challenging their return to death row on multiple state and federal constitutional grounds, while two other death row prisoners are challenging on the grounds that their RJA cases were prematurely dismissed.

In addition to the systemic state- and countywide bias proved by the MSU study, the Cumberland Four were able to prove to varying degrees that individual racial bias infected their cases and had their sentences reduced to life. In each case, though, the North Carolina Supreme Court granted the state’s appeal saying that the trial judge had made procedural mistakes and ordered new hearings in all four cases.

As all of this was happening, Republicans took control of the state government and repealed the RJA in 2013. The Cumberland cases were spotlighted during the public debate over the repeal.

At this point, rather than holding an additional hearing in the cases of the Cumberland Four as had been ordered, the lower court judges dismissed the RJA claims entirely and returned them all to death row. This was the first time in the state’s history that someone had been returned to death row without a new sentencing proceeding.

More than 130 inmates had brought claims under the RJA while it was the law, but these were the only four cases that were adjudicated successfully and then mooted overnight without further proceedings. Two additional cases—one in which a defendant was referred to a “big black bull” during closing arguments and another in which the defendant’s family was cordoned off from the rest of the courtroom by crime scene tape—were similarly dismissed without a hearing, while other cases were put on hold.

“These are really historic cases,” said Cassy Stubbs, the director of the ACLU’s Capital Punishment Project and one of the lawyers who is scheduled to argue before the North Carolina Supreme Court this week. “You have six cases that are all tied in the sense that they are all related to the Racial Justice Act and the denial [by the state] of racial bias, but each one has this deep record of racial bias. I can’t think of any analogue in the country when you had one case like this, let alone six at the same time.”

Constitutional protections against double jeopardy and other doctrines seem to make a strong case for the Cumberland Four. But there is another strange precedent that could help the prisoners who never received a hearing but had begun their RJA processes when the law was repealed: an 1869 case called State v. Keith.

In 1866, the North Carolina General Assembly issued a blanket amnesty to Confederate soldiers accused of crimes, stating that it would be assumed that any acts committed during the war were done under lawful orders unless the state could prove otherwise. In 1868, the Amnesty Act was repealed. Lt. Col. James A. Keith was then tried for murder for leading a grisly civilian massacre of 13 prisoners including a 13-year-old boy and a 14-year-old boy. Keith claimed, though, to be protected under the repealed Amnesty Act. The trial court denied that claim, but the state Supreme Court overturned the lower court, ruling that the repeal was an invalid ex post facto law that also denied Keith of the due process he was owed under the original act. Unlike the RJA cases, Keith hadn’t even filed his amnesty claim while that law was still on the books. But he was still granted amnesty by the state Supreme Court, and that law has remained precedent for 150 years. In 2003, Keith’s case was cited favorably in a Supreme Court ruling that overturned a California law that was a violation of the ex post facto clause of the U.S. Constitution.

“It’s a really on point case,” Stubbs told me. “Either the North Carolina Supreme Court’s going to have to say … that case is no longer good law and overturn it so that constitutional doctrine that protected Confederate soldiers will not protect these death row prisoners who’ve proven racial bias in their case, or they’re going to say it does apply, and they’ll win.”

The Keith precedent could also help the more than 100 inmates who had already filed RJA claims by the time of repeal.

“There are a lot of pending claims out there where the judges have not ruled one way or the other,” Stubbs said. “The state has argued in those cases that we should pause and wait to see how the Supreme Court handles these cases.”

Depending on how this week’s cases go, North Carolina’s entire death penalty system could soon be back on trial.