22 Apr 2021

Chauvin trial shows that justice requires diverse, inclusive juries

by | posted in: Latest News, National News, Public Safety Officials, Racial Bias, Racial Justice Act | 0

By Elizabeth Hambourger

George Floyd Memorial
Remembering George Floyd at the scene of his murder in Minneapolis. Photo by Vasanth Rajkumar.

No one should have been on the edge of their seat about the verdict in Derek Chauvin’s trial. He was caught on video kneeling on George Floyd’s neck for more than nine minutes as Floyd begged for his life. But this is America, where police are almost never held accountable, so we held our breath and prepared for Chauvin to be acquitted. 

But in this rare case, a jury of six white, four Black and two multiracial  people provided a measure of justice, finding Chauvin guilty of murder. Surely, the jury’s diverse makeup helped it reach this much-needed verdict.

Yet, it’s exactly this kind of diversity that prosecutors often work to avoid. They strike Black citizens from juries at far higher rates than whites. Then, when they’re accused of violating the law prohibiting racist jury strikes, they offer the flimsiest possible defenses. And no matter how implausible their excuses are, they almost always get away with it. 

Especially in North Carolina, where the courts have never overturned a case because of racist jury selection, prosecutors have been allowed to break the law with impunity.

But the N.C. Supreme Court may finally be ready to change that. Last week, the state’s highest court agreed to take a closer look at the cases of two men on North Carolina’s death row, Russell Tucker and Christopher Bell, both of whom have compelling evidence that prosecutors unfairly removed Black citizens from their juries.

Tucker and Bell’s cases present our state’s highest court with the clearest evidence yet of the ways prosecutors win death sentences by racially skewing North Carolina juries, and their cases offer the best opportunity to finally do something about it. 

In Christopher Bell’s case, the prosecutor removed most of the Black jurors in the pool. Then, in closing argument, he compared Bell and his co-defendants, all young Black men, to “predators of the African plain” as he urged the mostly white Sampson County jury to sentence them to death. 

When asked to explain his removal of Black citizens from Bell’s jury, the prosecutor defended himself by claiming that he removed one woman not because she was Black but because she was female. Gender discrimination in jury selection is just as unlawful as race discrimination. That this prosecutor so openly traded one unconstitutional reason for another reflects the impunity fostered by years of indifference from our courts. What’s more, despite the prosecutor’s confession of discrimination, the lower court found nothing wrong with his actions.

Russell Tucker’s case is equally clear. When asked to explain their removal of every single Black citizen from Tucker’s jury, Forsyth County prosecutors parroted reasons from a cheat sheet that had been distributed at a training seminar — a cheat sheet specifically designed to help prosecutors disguise their strikes of Black jurors. They claimed they struck Black men and women for subjective and derogatory reasons like “bad” body language or not making eye contact. They struck one Black woman because she rented her home and wasn’t registered to vote, saying she lacked a “stake in the community” even though she’d lived her whole life and raised her family there. The same prosecutor accepted white jurors who rented homes or weren’t registered to vote.

This evidence must also be placed against the backdrop of statewide studies showing that North Carolina prosecutors remove Black jurors at twice the rate of whites. Nearly half the people on North Carolina’s death row were sentenced to death by all-white jury or a jury with only one person of color. In a state as diverse as North Carolina, that’s inexcusable.

Especially when people’s lives are on the line, it’s critical that courts ensure fair trials untainted by racism. Recently, North Carolina appellate courts have started to take the problem more seriously.

In the Chauvin case, the jury brought healing by acknowledging reality: Derek Chauvin murdered George Floyd in the middle of the day, on a city street, while a crowd of people watched. 

It’s time for the N.C. Supreme Court to also acknowledge reality: Prosecutors discriminate against Black jurors in open court, and they’ve been allowed to get away with weak excuses for far too long.

Elizabeth Hambourger is a capital defense attorney at the Center for Death Penalty Litigation.

7 Apr 2021

Virginia just abolished its deeply racist death penalty; North Carolina must follow suit

by | posted in: Abolition, Latest News, National News | 0

This piece is reposted from N.C. Policy Watch.

By Elizabeth Hambourger

“This is, as we know, a historic day for Virginia. We are the first Southern state to abolish capital punishment, but we will not be the last.”

— Jayne Barnard, Virginians for Alternatives to the Death Penalty, March 24, 2021

CDPL Attorney Elizabeth Hambourger
CDPL Attorney Elizabeth Hambourger

This week, Virginia became the first southern state to abolish the death penalty. At the signing ceremony, Gov. Ralph Northam and other speakers repeatedly referenced the racist history of the Virginia death penalty as a prime reason for its abolition.

It is not a coincidence that Virginia, the birthplace of American slavery and the capital of the Confederacy, has been at the forefront of the American death penalty. Over the course of its bloodthirsty history, Virginia executed nearly 1400 people, more than any other state in the union — and most of those executed were Black.

Rev. Lakeisha Cook of the Virginia Interfaith Center described how “early death penalty statutes in the Commonwealth reserved the death penalty almost exclusively for Black people… As extrajudicial lynchings became commonplace in the late nineteenth and early twentieth century, the state responded by carrying out more state-sanctioned executions in order to placate and deter white mobs who threatened to take justice into their own hands… Between 1901 and 1981, nearly six times more Black people were executed in Virginia than white people.” [Watch a video of her remarks.]

North Carolina’s death penalty is no less rooted in our own history of slavery and lynching, and it continues to bear the hallmarks of white supremacy. Our state’s modern death penalty is disproportionately used against people of color. Those accused of killing white victims are more likely to get death sentences. Black jurors are systematically excluded from capital juries. And of the twelve innocent people who’ve been exonerated after receiving death sentences in North Carolina, just one is white. The death penalty’s history is explored in depth in the Center for Death Penalty Litigation’s recent project Racist Roots: Origins of North Carolina’s Death Penalty.

The historic signing ceremony was held outside the prison where Virginia carried out its last 101 executions. As someone who has been fighting the death penalty for more than 20 years, I watched through tears, but they were not only tears of joy.

Just four years ago, I stood on the same spot while yet another Black man, my client Ricky Gray, was put to death in that well-used death chamber. We didn’t realize then that his execution would be one of the last. As grateful as I am that the slaughter has ended, I’m painfully aware that abolition came too late for many.

Meanwhile, across the state line, 138 people remain on North Carolina’s death row, and too many prosecutors persist in their efforts to increase that number. Some of the people who await their executions are my clients.

They are people who have made grave mistakes but who have worked hard for redemption. One just finished writing his memoir. Another is caring for a chronically ill fellow prisoner. Many grew up in poverty and dysfunction that was the legacy of racism, lynching and Jim Crow. All have families who love them. Their executions would not make our society safer; they would only cause more suffering and grief.

But Virginia’s reversal on the death penalty brings hope. As Gov. Northam said, punishment and justice are not the same thing. Rev. Cook called for the transformation of our current punitive system into “one that is rooted in fairness, accountability, and redemption.”

Accountability isn’t just for those we label criminals; it applies to all of us, and it begins with acknowledging our history. As Virginia demonstrates, when we properly acknowledge the death penalty’s racist roots — together with its ever-mounting toll — we cannot allow it to continue.

Elizabeth Hambourger is a capital defense attorney at the Center for Death Penalty Litigation in Durham. She represents several men on North Carolina’s death row.

11 Jan 2021

Three more federal executions planned this week will bring no justice, only cruelty and heartbreak

by | posted in: Blog, Latest News, National News | 0
Lisa Montgomery as a kindergartener. She is set to be executed tomorrow by the federal government.

This week, the federal government plans to execute three people: Lisa Montgomery, Cory Johnson and Dustin Higgs. If all three executions are carried out, that will make 13 people executed by the Trump administration since July — all against the backdrop of a raging pandemic that has infected even the people facing execution and their attorneys and, now, the recent mob violence that killed five people at the Capitol. 

If there has ever been a time for our nation to see that more killing is not the path to justice, this is it.

Lisa Montgomery suffered childhood abuse so severe and unimaginable that she developed psychosis. Cory Johnson is intellectually disabled. Dustin Higgs received death for murders that he did not carry out, while the person who pulled the trigger received a lesser sentence.

The stories of these individuals sound familiar because they are much like the stories of people on death row in North Carolina. The people our government seeks to execute are, almost always, people who live on society’s margins. People scarred by poverty, violence, and childhood trauma. 

Their death sentences are not the result of a careful process, but arbitrary and disproportionate — depending more on the quality of their lawyers or the place where they were prosecuted than on the facts of their crimes.

They are also, very clearly, tainted by the same racism that recently paraded itself through the halls of the nation’s Capitol. White people make up more than three-quarters of the U.S. population, yet less than half of those sentenced to die, both at the federal level and in North Carolina. If these three executions are carried out, the current administration will have executed 13 people, eight of whom — 60 percent — are people of color. 

Joe Biden has promised to end the federal death penalty. And before 2020, no president had carried out an execution since 2003. People can make their own assumptions about what’s behind this administration’s frenzied killing spree in its waning days.

But it’s clear that our nation faces many dangers right now, and these three people are not among them. Their deaths will bring no healing, only more cruelty and heartbreak.

1 Apr 2020

In the wake of the Coronavirus pandemic, let’s deem the death penalty nonessential work

by | posted in: Abolition, Latest News, National News, Public Opinion | 0
NC death row
The execution viewing area at Central Prison in Raleigh, Photo by Scott Langley, deathpenaltyphoto.org

In the midst of a Coronavirus pandemic, society is forced to decide which work is essential. Across the United States, that question is now being applied to countless enterprises — including the death penalty. Is it essential for states to kill people?

Eighteen executions are scheduled between now and the end of the year in Texas, Missouri, Ohio and Tennessee. Countless death penalty trials are also planned across the country, including in North Carolina.

The courts are likely to call most or all of them off because, right now, if our society wants to kill, we must risk harming innocent people too. That has always been true, but the Coronavirus allows us to see and feel that risk more concretely.

Texas has already called off two executions. In mid-March, John Hummel and Tracy Beatty had their executions delayed indefinitely. At the time, visitors had already been barred from the state’s prisons and the nation was at the beginning of massive community spread. In those conditions, the idea of bringing together a group of people in a confined space to carry out a lethal injection was rightly deemed absurd 

What’s unbelievable is that, in both cases, prosecutors opposed the delay of the executions. One told the court there was “no evidence” that Coronavirus would affect the state’s ability to carry out an execution, a statement that reveals just how deeply irrational the death penalty is.

Had the executions been carried out, prison staff and witnesses would have been forced to pack themselves together in tiny rooms. The families of the people being executed might have been denied a final visit, or been forced to choose between saying goodbye to their loved ones or possibly contracting a deadly virus. All to kill a person who no longer presents any threat to society. 

In any situation, some people will cling to their old ideas. But in this exceptional time when the death penalty has come to a shuddering halt, it’s possible that many people will gain a new perspective.

Maybe when we emerge from this time in our cocoons, society will be transformed. Maybe we will understand that the law of nature is far more powerful than the law of people, and that the safety the death penalty promises is an illusion. Maybe we will finally see that humans don’t need to do the work of killing. 

— April 1, 2020

25 Mar 2020

Even amid the chaos of coronavirus, states still moving away from the death penalty

by | posted in: Latest News, National News, Public Opinion, Uncategorized | 0

As we fight a global pandemic, it feels more absurd than ever before to devote the resources of any state to trying to kill people.

Colorado state capitol

This week, some much-needed good news came out of Colorado. Gov. Jared Polis signed a bill ending the death penalty and commuting the sentences of the state’s three remaining death row prisoners. His signature made Colorado the tenth state since 2007 to decide that the death penalty isn’t necessary to maintain public safety and does more to perpetuate injustice than to ensure justice. 

Right now, with Covid-19 bearing down, most states and local governments are focusing on short-term efforts to cut jail populations and release some of the scores of people who are behind bars only because they can’t afford to pay bail. But Colorado has taken a step at the other end of the spectrum, joining a national movement away from the death penalty.

As public opinion turns against the death penalty, almost of half of U.S. states no longer have the death penalty on the books. It’s past time for North Carolina to join them in abandoning this flawed and ineffective policy. 

In North Carolina, a 2019 poll found that when voters were offered a broad range of alternatives to the death penalty, only about a quarter of them favored the death penalty. And nearly three-quarters said it’s likely an innocent person has been executed in North Carolina. In the past few decades, ten people sentenced to death in North Carolina have been exonerated. Ten innocent people on death row is a good enough reason to end the death penalty on its own.

Like North Carolina, Colorado’s death penalty was racially skewed. In a state where just 4 percent of the population is African American, all three men on its death row were black. In North Carolina, more than 140 people are living under sentences of death. Sixty percent are people of color, compared with only about 30 percent of the North Carolina population.

Also like North Carolina, Colorado had become deeply uneasy about the death penalty and long ago ceased executions. The people on its death row were sitting year after year, decade after decade, waiting for an execution that was unlikely to be carried out.

Yet, even when no one’s being executed and very few people are being sentenced to death, the death penalty has an outsize effect on a state’s criminal punishment system. It adds millions in yearly costs and skews the whole system toward harsher penalties. And it allows the state to threaten vulnerable suspects with death to assure their compliance, a pressure tactic that sometimes persuades even innocent people to confess. 

As we fight a global pandemic, it feels more absurd than ever before to devote the resources of any state to trying to kill people. We sincerely hope that, once this health crisis is over, North Carolina will follow Colorado’s lead and turn to endeavors that support life rather than death.

— March 25, 2020

12 Apr 2019

After hate-filled murders in N.C., choosing a legacy of love and light over the darkness of the death penalty

by | posted in: Criminal Justice Reform, Declining Support, Declining Use, Failure to Serve Victims, Latest News, National News | 0

April 12, 2019

Deah Barakat, Yusor Abu-Salha, and Razan Abu-Salha
Deah Barakat, Yusor Abu-Salha, and Razan Abu-Salha

Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.

Those words were first spoken by Martin Luther King Jr., and many have repeated them. But it takes integrity to live by them, especially when hate has touched you in the most profound way.

Yet, that’s exactly what the families of Deah Barakat, Yusor Abu-Salha, and Razan Abu-Salha have done again and again since February 2015, when these three promising Muslim students were senselessly murdered by an angry white neighbor. The crime not only ripped a hole in their families and deprived the world of three wonderful people, it terrorized the entire Muslim community. To make it worse, since the murders, their loved ones have been targeted with hateful slurs.

Their response has been to ensure that the legacy of their beautiful children will be one of love, not hate. They opened a community center for young Muslim people in a house that Barakat once owned. They started an annual interfaith food drive in the victims’ honor. Just this week, they traveled to Washington D.C. to share their story at a Congressional hearing on hate crimes.

And then Thursday, when the Durham district attorney announced that she would not seek the death penalty against their killer, the victims’ brother, Farris Barakat, stood before a crowd of reporters and expressed the family’s support for the decision. He cited those words from Dr. King and acknowledged that nothing that happens in a courtroom can ever bring true “closure” for their loss.

The myth of the death penalty is that it has a magical power to bring closure to grieving families. But the truth is that it only stokes more hate and anger. It only creates more grieving families. It only brings more darkness into our world.

D.A. Satana Deberry explained that removing the death penalty from the picture would allow the trial – already overdue – to proceed without delay. Deberry made the right decision in this difficult case, one that should be an example for other prosecutors dealing with painful crimes. The death penalty delays and extends trials and appeals, making them more painful for all involved. And, for all that, only a tiny fraction of cases ever result in execution.

Deberry also said that bringing the case to trial quickly will allow the family to begin to heal. It’s clear they’ve already begun that difficult work. Their actions this week were yet another step toward ensuring that the memories of their loved ones will be beacons of love and hope, rather than catalysts for hatred and death.

14 Mar 2019

In California, the moral case for ending the death penalty

by | posted in: Abolition, Declining Support, Declining Use, Latest News, National News | 0

March 14, 2019

In today’s world, it’s easy to think politicians on both sides of the aisle care only about their own power and reelection chances. But every once in a while, we see an act of moral leadership that renews our faith in government. This week, it happened in California.

Gov. Gavin Newsom announced that he would dismantle the death chamber and grant the state’s nearly 750 death row inmates a reprieve. They will remain incarcerated but will no longer live under the threat of execution. It was a stunning move in a state with the nation’s largest death row.

Newsom ends California death penalty

What’s more, Newsom didn’t just couch his decision in the safe terms of how much money it would save the state —billions — or how hopelessly backlogged the state’s death penalty machine was. Since 1976, California has sentenced hundreds of people to death yet carried out 13 executions. He also made a strong moral argument against the death penalty.

Newsom noted proven racial disparities in the criminal justice system, the way the death penalty preys on poor people, and the national epidemic of wrongful convictions. And then he described a conversation with Bryan Stevenson. “He said it’s not a question, the death penalty, of whether people deserve to die for their heinous acts. The question really is, do we have the right to kill? That’s a deep and existential question. I know people think it’s an eye for an eye, but if you rape, we don’t rape. And I think, if someone kills, we don’t kill. We’re better than that.”

Newsom also laid out the unthinkable scenario that might have ensued without his action. “What we’re being asked to do in California is to consider executing more people than any state in modern American history,” he said. “To line people up to be executed — premeditated, state sponsored executions — one a week for over 14 years. That’s a choice we can make, or we can make, I think, a more enlightened choice, to advance justice in a different way.”

Watch Newsom’s full speech here.

North Carolina faces a very similar situation. Like California, we have not executed anyone since 2006. We have one of the country’s largest death rows, made up mostly of people tried decades ago. Nine innocent people have been exonerated after being sentenced to die, and more claims of innocence are under investigation.

Our state has spent millions on the death penalty and executed just a few dozen people, offering the ultimate punishment to only a tiny handful of victims’ families. And if North Carolina were to resume executions, at the rate of one a week, it would take us nearly three years to kill all the people on death row — a macabre spectacle.

North Carolina, too, should make the enlightened choice to put an official end to the death penalty. There are better ways to do justice and bring comfort to the families of victims. And there are better ways to show that killing is wrong.

16 Oct 2018

NC, let’s take a hint from Washington: It’s time to end the racist death penalty

by | posted in: Abolition, Arbitrary Use, Declining Support, Declining Use, Latest News, Laws have Changed, but Sentences Remain Unexamined, National News, Racial Bias | 0

October 16, 2018

Last week, Washington became the 20th state to end the death penalty after its Supreme Court ruled that capital punishment is arbitrary and racially biased. If those are reasons to outlaw the death penalty, then it is surely time for the North Carolina death penalty to go.

How much more proof can you ask for that the death penalty is racist and arbitrary in our state?

More than 63 percent of North Carolina’s death 141 row prisoners are people of color, even though they make up less than 30 percent of the state population. More than two dozen of the people on death row were sentenced to die by all-white juries.

A comprehensive statistical study found that defendants who kill white victims are more likely to get the death penalty, and that across the state, African American citizens are systematically, and illegally, excluded from capital juries.

If that’s not enough, let’s talk about arbitrariness.

A new report from the Center for Death Penalty Litigation shows that most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials. Had they been tried under modern laws, most wouldn’t be on death row today.

Watch the story of Nathan Bowie, who because there was no indigent defense agency at the time of his trial, ended up with an alcoholic lawyer who came to court drunk.

Today, after the enactment of many reforms, only a handful of people each year face capital trials. Yet, the selection of that handful remains arbitrary. It has more to do with the practices of the local DA, the county where the crime occurred, and the defendant’s willingness to accept a plea bargain than it does with the severity of the crime.

Across the country, people have become unwilling to ignore the obviousness unfairness that infects the death penalty. Last week, Washington admitted the truth about its death penalty. It’s time for North Carolina to do the same.

14 Dec 2017

Time to move on: Calls for death penalty fall flat in N.C.

by | posted in: Declining Use, Innocence, Latest News, Laws have Changed, but Sentences Remain Unexamined, Lethal Injection, National News, Public Opinion, Statistics | 0

December 17, 2017

Maybe you heard that N.C. legislative leaders called last week for executions to return to North Carolina. It’s one of the oldest political tricks in the book, whipping up fervor for the death penalty to score points with conservative voters.

But in 2017, more than 11 years after North Carolina’s last execution, it’s starting to feel a bit retro.

Let’s take a look back at this year:

There were just four capital trials in North Carolina and juries rejected the death penalty at every one of them. This means N.C. juries have sent just one person to death row in the past three and a half years.

Most N.C. district attorneys didn’t seek the death penalty at all, and some said they see no point in continuing to pursue death sentences. Life without parole is a harsh punishment suitable for the worst crimes.

Four more U.S. death row inmates were exonerated, and a Gallup poll found death penalty support was at its lowest point in 45 years.

A N.C. death row inmate won a new trial after the vast majority of the evidence against him was discredited. Michael Patrick Ryan, who has always claimed his innocence, is awaiting his new day in court to prove he was wrongly convicted in 2010.

Other states that tried to carry out executions continued to botch them terribly and scramble for lethal drugs.

[Read the Center for Death Penalty Litigation’s year-end report on the state of the N.C. death penalty.]

In light of those facts, North Carolina looks pretty smart to have stayed out of the execution business for another year.

The truth is, resuming executions would do nothing to solve today’s problems. Instead, we would be executing people who were tried 15, 20, or even 30 years ago — before a slew of reforms intended to protect innocent people and ensure fair trials. More than three-quarters of North Carolina’s 143 death row inmates were tried at least 15 years ago.

As we look to 2018, let’s skip the outdated death penalty rhetoric and start looking for solutions that actually make people safer — like properly staffing prisons and supplying guards with working radios.

30 Oct 2017

Gallup Poll: The death penalty question they never ask

by | posted in: Blog, Homepage Right, National News, Public Opinion, Statistics | 0

Last week’s Gallup poll showed us that Americans’ support for the death penalty continues to erode. Fifty-five percent said they are in favor of executing people, the lowest number in 45 years. That’s down from a high of 80 percent in the mid-1990s.

But a more accurate picture would have emerged if the poll had asked the question that truly gauges people’s views on the death penalty: Would you support replacing the death penalty with life in prison, if you were assured that those convicted would never be released? When that question is asked, a clear majority of Americans, in poll after poll, say they are ready to give up the execution chamber.

The question our society should be asking is not: Do you believe that people who commit murders should be punished? The answer to that is obvious. The question that gets to the heart of the matter is: What’s the fairest, most efficient, and most effective way to punish people who commit the worst crimes? When you ask it that way, the death penalty is clearly not the answer.

The death penalty costs far more than life without parole, takes decades to carry out, and carries with it the risk of executing an innocent person. And it does nothing more to protect us from crime than the harsh and irrevocable sentence of life in prison with no possibility of parole.

Recently, police chiefs and prison officials, even some N.C. prosecutors have acknowledged the waste and futility of continuing to pursue the death penalty. For more than a decade, North Carolina has remained among the vast majority of states who no longer execute people. Meanwhile, our state’s murder rate has gone down.

It’s time to stop clinging to a waning and outdated punishment.

16 May 2017

Why North Carolina’s death penalty is not for the “worst of the worst”

by | posted in: Arbitrary Use, Crime Lab, Declining Use, False Evidence, Guest Posts, INNOCENCE, Innocence, Latest News, National News | 0

By Gretchen M. Engel
Reposted from the blog of N.C. Policy Watch

Henry McCollum innocent man on death row
The justice system said Henry McCollum was the “worst of the worst.” He turned out to be innocent.

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.

Gretchen Engel is the Executive Director of the Center for Death Penalty Litigation.