ARBITRARY USE

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More than 35 years ago, the U.S. Supreme Court held in a landmark death penalty case that states must carefully administer the death penalty to make sure it is reserved for the “worst of the worst.” It is intolerable, the Court said, for the death penalty to be imposed in a manner that is as random as being struck by lightning. North Carolina completely revamped its death penalty statute in response to that ruling. Yet today, the use of the death penalty in North Carolina remains largely arbitrary.

Whether a defendant ultimately receives the death penalty depends less on the severity of his or her crime than on random factors such as the prosecutor’s enthusiasm for the death penalty, the skill and experience of the defense lawyers, and the race of the victim. For example, studies have found that defendants in cases with white victims are significantly more likely to be tried capitally and to receive death sentences than those where the victim was a person of color.

The inconsistency in the application of the death penalty led former North Carolina Supreme Court Chief Justice and death penalty supporter Burley B. Mitchell, Jr. to remark, “It’s like being picked in a lottery… It’s totally arbitrary.”

 

Justices' benches at the Supreme Court of the State of North Carolina

 

Imagine yourself in the shoes of a death row prisoner.

These questions are more likely to determine whether you got the death penalty than the facts of the crime.

 

WHAT YEAR WAS IT?

If you were tried before 2001, you had the misfortune to be sentenced during an era when pro-death penalty sentiment was running high and key legal protections were not yet in place. Dozens of people were sent to death row each year, compared with few or none today. You might have gotten an unqualified lawyer or been denied the right to see key evidence in your case. Beginning in 2001, laws changed to give capital defendants far more legal protections. But you were tried before then, so you’re out of luck. [Read CDPL’s comprehensive report on pre-reform cases, Unequal Justice.]

 

WHAT COUNTY WERE YOU IN?

In North Carolina, district attorneys (DAs) decide which defendants will face the death penalty. There are more than 40 elected DAs across the state, and each one approaches the death penalty differently. Some never seek death sentences, while others stake their political reputations on winning them. Maybe you had the misfortune of being tried under the reign of Ken Honeycutt, who aggressively sought the death penalty against black defendants and celebrated death sentences by handing out noose-shaped lapel pins to his staff. [Learn how the death penalty is warped by overzealous prosecutors who seek executions at disproportionate rates.]

 

WHAT WAS THE RACE OF YOUR VICTIM?

A comprehensive study showed that, if your case involves at least one white victim, you are 2.6 times more likely to get the death penalty in North Carolina than if the victim is a person of color.

 

WHO WAS YOUR LAWYER?

Were you rich enough to pay hundreds of thousands of dollars for a defense lawyer? Almost certainly not. That means you, like nearly everyone else on death row, relied on a public defender. Were you assigned a highly qualified one who devoted months of painstaking work to making the case for your life? Or did you get an overworked, inexperienced lawyer who spent just a few hours preparing for your trial? Did you get a lawyer who came to court drunk? Missed key deadlines in your case? Especially if you were tried before 2001, when the state finally created an agency to oversee capital defense, it was the luck of the draw.

 

DID YOU REFUSE A PLEA DEAL?

Imagine this scenario. You and a friend were involved in a crime. Your friend planned the crime and did most of the work of carrying it out. The DA offers you both a deal. If you plead guilty and accept life in prison, with zero chance of parole, you can avoid a death sentence. Your friend accepts. But you feel you don’t deserve such a harsh sentence for your minor role in the crime. You are only 19 and think you should get a second chance instead of dying behind bars. (Maybe you have a mental illness and cannot understand the risks of refusing this plea. Maybe, for a variety of reasons, you don’t entirely trust your lawyer, who is telling you to take the deal. Or maybe you simply want to exercise your constitutional right to a trial.) As punishment for refusing the plea, the DA seeks the death penalty and wins. You were the minor player in this crime, yet your co-defendant got life and you got death. Many people on death row ended up there because they refused plea bargains, which isn’t a very good way of choosing who lives and who dies.