Why most of N.C.’s death row inmates never should have gotten the death penalty

October 9, 2018

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year fighting to execute those men and women, even though the vast majority of them were sentenced decades ago under outdated laws and standards of justice.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.

CDPL’s report, Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row, finds that out of 142 death row prisoners in North Carolina:

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.

Remaining human in the face of an inhumane death penalty system

October 3, 2018

It’s hard to describe what it feels like to be a capital defense attorney. To be responsible for saving the lives of people who’ve committed terrible crimes, and sometimes, to be forced to watch them die. In this video, Elizabeth Hambourger, a staff attorney at the Center for Death Penalty Litigation, explains in moving and personal terms what it’s like to do this most difficult of jobs.

She performed this piece at Poetic Justice, an event organized by the Carolina Justice Policy Center, in which poets, advocates, attorneys, and others told stories of the criminal justice system. Take a few minutes to watch, and step into someone else’s world.

Some of Elizabeth’s words:

I was a 22 year old summer intern when I was asked to work on the case of a man named Timmy. He was scheduled to be executed at the end of that summer … And I went to see Timmy’s family. He had a young son. And I remember sitting in that family’s home and the boy brought out his calendar, like the kind you hang on the wall. And in the square of the date on the calendar that was the execution date, he had written “Dad dies.”

The more I know about the death penalty, the more problems I see with it. But what seems most pressing to me now is that the death penalty increases pain. It’s like a machine that takes this terribly painful human event, and it takes that pain and replicates it and sends it spewing out in all directions.

By my count, I have gotten to know about 20 people living their lives on death row. Under sentence of death, but living their lives. Some have a hard time coping. But there are some who I actually count as role models for me in how to grow and change and deal with the difficult parts of life.

I have one client who writes beautiful essays that he shares with the world by having his friend post for him online. I have another client who helps administer a pen pal program for his fellow inmates.  I have another client who when I met him he wanted to die. Slowly, through artwork and by building relationships with other inmates, pen pals, and his legal team, he has gained the will to live. He had no contact with his mother when I met him. And then one day around Christmas time he heard a sappy song on the radio that made him want to write to his mom, and through that small act of humility he has rebuilt their relationship into something they never had before he went to prison. One client remarked to me that God works in mysterious ways: he had to be sentenced to death in order to learn that there were people in the world who would care about him and fight for him.

See more videos from Poetic Justice here.

“Fearless & relentless” — Ken Rose retires after 35 years on death penalty’s front lines

At the beginning of 2017, Ken Rose retired from his longtime post as an attorney with the Center for Death Penalty Litigation in Durham.  Below is our tribute to the unforgettable 35-year career of one of North Carolina’s most passionate and committed death penalty abolition advocates.

Ken Rose’s client, Henry McCollum, was about to be released from death row. The story was spreading around the world: An innocent man, sentenced to death as a teenager, finally freed after 30 years by definitive DNA evidence. The moment was a defense attorney’s dream come true.

But Ken wasn’t celebrating. Instead, his mind was racing. Night and day, he pored over the case files, catalogued every injustice Henry had endured in three decades of awaiting his execution, every lie that was told in order to convict him, every person who allowed it to happen. He didn’t exempt himself. He had represented Henry for 20 years and, until now, had not been able to prove Henry’s innocence.

Even after more than 30 years of defending death row inmates, seeing the injustices of the death penalty in the starkest possible light, Ken was struck anew by the cruelty and indifference of our system. “There was so little evidence, and they were going to kill him,” Ken told the News & Observer afterward, when he was profiled as a Tar Heel of the Week. “It took almost a miracle to stop it.”

Ken retired this month from the Center for Death Penalty Litigation, where he worked since 1996. He had come to North Carolina in 1989, a young lawyer who began his career in Mississippi with the idealistic notion that a poor criminal defendant facing the death penalty should get the same quality of defense as a deep-pocketed corporate client. He grew into one of North Carolina’s most respected and visionary death penalty attorneys.

Ken pushed for the passage the N.C. Racial Justice Act, a groundbreaking 2009 law that brought to light decades of systematic racial bias in capital cases. He is also a key player in North Carolina’s lethal injection litigation, which has kept executions on hold here for more than a decade – an achievement that no other southern state has even approached.

Through it all, Ken never lost the idealism or the passion that has driven him since his earliest days. He never stopped being surprised – and outraged – at injustice. He never stopped plotting how to outwit the machinery of death, constantly dreaming up creative strategies that pushed boundaries and set precedents. And he never stopped representing every client as if both of their lives depended on it.

“Ken is both fearless and relentless on behalf of his clients,” says CDPL’s Executive Director Gretchen M. Engel. “There were times when he made judges and opposing counsel furious with his arguments. You could cut the tension in the courtroom with a knife. Most lawyers would have lost their nerve and started backpedaling.  Ken was eerily calm and he never backed down.”

Ken said that the biggest lesson of his 35 years defending some of the most despised people on the planet was: There is no such thing as a “monster.” Instead, he found that his clients were people damaged by poverty, racism, mental illness, intellectual disabilities, or abuse. People at the mercy of a system that punished arbitrarily, and of a society that failed to see the humanity of its most disadvantaged citizens. He said he found his clients to be no more or less human than himself — capable of terrible mistakes, but also of love, kindness, and generosity.

Even as he was crafting complex legal strategies, Ken always took the time to honor his clients’ humanity. As a young mitigation investigator, CDPL’s Gerda Stein remembers working with Ken on the case of David Huffstetler, a condemned man who stood very little chance of having his death sentence overturned, who was also gravely ill and not expected to live much longer. They were granted a hearing, and Ken asked the judge’s permission for David to speak.

“David spoke at length, much of which was completely irrelevant,” Gerda remembers. “I started to get nervous, but Ken sat calmly and after David finished, treated him with deep respect and kindness, thanking him for speaking. I was incredibly moved at how he gave David that last chance to be heard, to have a voice.”

Ken started his career with CDPL as its executive director. But 10 years later, in 2006, he decided that administrative duties were taking him away from the work of saving lives. He stepped down and became a staff attorney.

He was without ego, requiring neither a fancy office nor fancy clothes. He was generous with his time, happily giving it to any attorney, staff member, intern, or random person off the street who was interested in helping end the death penalty. Every staff member at CDPL knows the feeling of Ken barging into their office, almost vibrating with excitement to discuss his latest idea. Yet, when his ideas came to fruition, he frequently gave the credit to others.

“He sometimes introduced me to others by giving me total credit for things he was the driving force behind, or projects where we worked together closely,” says CDPL staff attorney David Weiss. “He’d say, ‘This is the guy in charge of the lethal injection litigation stopping executions in North Carolina.’ I never saw Ken try to claim the limelight for anything, even though he always deserved it.”

Ken’s commitment was total, and he expected the same from others. Ken believed that constant vigilance was crucial to longterm success. He never allowed people to rest on their victories, because he worried that while they celebrated, the next defeat could sneak up on them.

This was true even on the night the legislature passed the Racial Justice Act, a surprise victory achieved only minutes before the Senate’s adjournment. CDPL’s Board President, Jay Ferguson, had worked with Ken to lobby for the law. They stayed up late that night, watching in astonishment as a last-minute victory was snatched from the jaws of defeat.

“Of course, we were all ecstatic,” Jay remembers. “We were all wearing these blue and white buttons that said ‘Support the Racial Justice Act.’ As we were walking out, I took off my button and made a grand gesture of throwing it in the trash because we didn’t need it anymore. Ken, without any hesitation, dug in the trash, took it out and said, ‘This isn’t over. We may need these again.’ It’s that level of thinking — many moves ahead — that makes him such a great advocate.”

Even in his last weeks in the office, Ken stayed in character. He continued pitching ideas for ambitious new impact litigation projects. He continued poring over every report and national news story on the death penalty. And he spent days preparing a clemency petition for a death row inmate who wasn’t even his client. Ken went to visit the man at Central Prison and was moved to tears by his efforts to redeem his life, even within the confines of death row.

As 2017 begins, Ken is no longer in his office at CDPL. But he is far from gone. He is still representing some of his clients and working on lethal injection and RJA litigation. And we have no doubt he’ll still be reading the news, poring over statistical reports on the death penalty, and plotting. We expect he’ll be calling us any minute with his next idea.