It’s been nearly 50 years since the U.S. Supreme Court declared the death penalty unconstitutional nationwide, saying there was “no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” States, including North Carolina, have spent the years since writing laws that — theoretically — allow us to cleanly sort those who deserve the death penalty from those who don’t.
All these years later, it’s clear we have failed.
Just look at the two most recent death penalty verdicts in North Carolina, in the cases of Seaga Gillard and James Bradley. Both involve tragic murders that caused unimaginable pain to the families of the victims.
The first was a double homicide by a person who had previously committed kidnappings, rapes, and robberies. The second was a single killing by a person who had committed two previous homicides, one of them a child. Both were black men who had killed white women.
Both were tried in urban centers, Raleigh and Wilmington. The same expert, a former prison warden, testified in both cases that the defendants could be safely housed in prison and would suffer a life of harsh deprivation there.
If you gave a detailed summary of these cases to a random sampling of people and asked which defendant should live and which should die, there would be no rational way to decide between them. Yet, the Raleigh jury sentenced to Gillard to death in March, and the Wilmington jury deadlocked last week, leaving Bradley with a sentence of life without parole.
This disparity isn’t just irrational and indefensible, it’s unconstitutional. The Supreme Court has already established that a death penalty that’s as random as a lightning strike is not justice, it is cruelty.
After 12 years without an execution, many people believe the North Carolina death penalty is dead. That might be true — if it weren’t for the more than 140 people still on death row.
Our state continues to spend millions every year fighting to execute those men and women, even though the vast majority of them were sentenced decades ago under outdated laws and standards of justice. If they had been tried in modern times, most would never have received the death penalty.
Watch the story of one of N.C.’s longest serving death row inmates:
This week, a new report from the Center for Death Penalty Litigation exposes just how unfair many of those sentences are by today’s standards. About three-quarters of N.C.’s death row inmates were tried in the 1990s, before a slate of reforms were enacted to protect defendants’ basic rights and prevent wrongful convictions.
92% (131) were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications, which have been leading causes of wrongful convictions across the country. The new laws require interrogations and confessions to be recorded in homicide cases and set strict guidelines for eyewitness line-up procedures.
84% (119) were tried before a law granting defendants the right to see all the evidence in the prosecutor’s file — including information that might help reduce their sentence or prove their innocence.
73% (104) were sentenced before laws barring the execution of people with intellectual disabilities. Despite a promise of relief for these less culpable defendants, disabled prisoners remain on death row.
73% (103) were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending an unprecedented requirement that prosecutors pursue the death penalty in every aggravated first-degree murder. Before these changes, prosecutors did not have the ability to seek life sentences in these cases and poor people often received a sub-standard defense.
CDPL’s engaging and easy-to-read report is full of facts and true stories from death row that will change how you think about the death penalty. Read it here.
In a federal courtroom in Greensboro last week, attorneys were parsing a single conversation between a juror and a religious adviser, which took place during a capital trial more than 20 years earlier. It wasn’t the stuff of juicy news headlines. But it did serve to remind us of a little-known aspect of the death penalty: Its impact on jurors who must make life-and-death decisions.
The court was weighing whether a N.C. death row inmate, Russell Tucker, should get a new sentencing hearing because, during his 1996 trial, a juror asked a trusted person what the Bible says about the death penalty and sitting in judgment of others. The juror received an answer that he says allowed him to vote for the death penalty.
Conducting research and seeking advice seems like a logical thing to do when you are given a task as momentous as deciding whether a human being should live or die. Yet, capital jurors are not allowed to do it. They are not even allowed to talk the case through with a spouse or close friend. If they break the rules, they risk being charged with a crime.
There are good reasons for the law. Decisions in criminal cases must be based only on the evidence presented in the courtroom and the law as explained by the judge, not on a confusing array of private investigations and outside advice. Jurors have a solemn duty to decide without inappropriate influence or pressure, and it is critical that they not be swayed by someone else’s feelings or beliefs about the case.
But this necessity puts capital jurors in the uncomfortable position of having to make a life-changing decision without any of their usual support networks.
The Tucker case was actually the third N.C. death row case in the past two years to go to federal court because a juror sought outside spiritual advice. In all three cases, we are awaiting the court’s ruling on whether the defendants will get new sentences.
In William Barnes’ case, a juror asked her pastor which side was correct after the prosecutor and defense attorney offered opposing biblical perspectives on the death penalty in their closing arguments.
And in Jason Hurst’s case, a juror asked her father for advice about which sentence to choose. He directed her to a Bible passage about “eye for an eye.” The next day, she voted for the death penalty.
As long as we ask jurors to make profound and extraordinary moral decisions, we will continue to see well-meaning citizens end up on the hot seat. The fact is, we should never have put them in the wrenching position of deciding another person’s right to live.
Since Arkansas shocked the world by trying to execute eight people in 10 days just to beat the expiration date on its lethal drugs, there has been more talk about the death penalty in North Carolina.
Most recently, WUNC’s Rusty Jacobs did a piece on where the death penalty stands, almost 11 years after North Carolina’s last execution. It revealed serious concerns about executing innocent people, and explained why it’s far more expensive to execute than to sentence people to life in prison.
However, one concept goes unchallenged in many stories about the death penalty: The naïve idea that the death penalty is used only in those rare, “worst of the worst” cases. Having spent my entire career up-close with North Carolina’s capital punishment system, I can tell you that’s not how it truly works.
First, let’s look at the 147 people on death row in North Carolina. More than three-quarters of them were sentenced more than 15 years ago, during an era in which North Carolina had one of the highest death-sentencing rates in the nation — even higher than Texas and Florida. Far from using the death penalty only in a handful of the most shocking crimes, execution was pursued Wild West-style in nearly every first-degree murder case.
During those years, we had a law unlike any other in the nation, which required prosecutors to seek the death penalty in every first-degree murder case with an aggravating factor. And, of course, the law is written so broadly that an aggravating factor can be found in almost any intentional killing.
Prosecutors were required to push for execution without regard to mitigating factors, or evidence that pointed to possible innocence. Even they thought this was a terrible idea, and they recommended the law be changed.
The General Assembly ended this requirement in 2001, but by then, death row had swollen to more than 200 people, more than 100 of whom remain there today. All of them were tried without the benefit of reforms intended to ensure fairness and prevent the conviction of innocent people.
There was, for example, no requirement that confessions be recorded. In many cases, the state presented unreliable forensic testing and “junk” science, and defendants were sentenced to death by juries selected in a racially-discriminatory fashion. Some of them, like Henry McCollum and Leon Brown, were innocent. Most would never have received death sentences under today’s laws. These are the people who would be first in line if our execution chamber were to crank up.
Next, consider how the death penalty is used today. Do prosecutors use their discretion to carefully cherry-pick death penalty cases? Absolutely not.
In reality, our justice system runs on pleas. Prosecutors use the death penalty as leverage, to persuade reluctant defendants to plead guilty and accept life sentences.
It works like this: The vast majority of murders are initially charged capitally, and pleas are negotiated from there. The theory is that a defendant facing the threat of execution is more likely to accept whatever deal the state offers. Pursuing the death penalty even when the prosecutor thinks the case is not execution-worthy makes a mockery of justice.
Defendants who refuse a deal are often our most vulnerable clients: those who are mentally impaired, those who least trust their lawyers, or those who are innocent and refuse to plead guilty. People who refuse plea deals represent the vast majority of people who are tried capitally in North Carolina today.
This means a defendant’s chance of facing the death penalty depends less on the crime than on a willingness to accept a life sentence without a trial. Often, several defendants are involved in a crime. Some accept a deal and get a life sentence, while another — maybe not even the most culpable — ends up on trial for his life.
Juries can see that the people who go to trial are not the “worst of the worst.” Look at the two capital trials in North Carolina this year. Both defendants were offered pleas but insisted on going to trial.
The first trial, in Wake County, ended with a verdict of life imprisonment. This marked eight times in a row that a Wake jury has chosen life over death. In the second, just this month, a Robeson County jury not only rejected a death sentence but refused even to convict the defendant of first-degree murder. He was found guilty of second-degree murder.
Prosecutors might tell you they need the death penalty to punish the “worst of the worst.” But in practice, our state spends millions to pursue death sentences that are arbitrary and unnecessary, and uses the threat of death as a negotiation tactic — sometimes putting innocent lives on the line.