The Death Penalty Raises Its Head

As I write elsewhere, North Carolina has not executed anyone since 2006. But it is clear that the law in this area is changing, at least at the federal level.

Recently the Supreme Court, now with a solid conservative majority, has moved toward reducing procedural protections and review of cases involving capital punishment.

As one commentator puts it, “The post–Anthony Kennedy Supreme Court majority has introduced itself to the nation by strapping itself to the decaying corpse of the American death penalty.”

I have three thoughts about this.

First, it is clear that the death penalty is an outmoded form of punishment and should be done away with.

Second, even though the United States Supreme Court has moved to the right, the North Carolina Supreme Court has moved to the center-left with the addition of Justice Mike Morgan and Justice Anita Earls. Consequently, since the death penalty is almost always a state, not federal, punishment imposed in state courts, the North Carolina Supreme Court will probably be a less eager to put people to death.

Side note 1: I’ve appeared before Morgan and tried a case, which I lost, but won on appeal – State v. Miller – making me – at 1 for 1 – undefeated in the North Carolina appellate courts!

Side note 2: I took a class on voting rights with Anita Earls when I got my law degree at the University of North Carolina. At the time I disagreed with her (although now I’m more solidly in her camp) but she was always extremely polite and open to hearing my – then, admittedly uninformed – views.

Third, what is really perplexing about death penalty practice in the trenches is how much more procedural and resource-oriented safeguards a person facing the death penalty gets over a person facing a life or de facto life sentences.

I have handled cases – mostly in the federal courts – where only the barest procedural safeguards exist involving drug crimes where my clients have been given massive sentences – stated in months – at their ages effectively mean life in prison.

In addition, a first degree murder conviction results in most cases in a life sentence in North Carolina – the only other option being death row. But first degree murder defense usually does not include the relatively generous resources afforded to an attorney defending a death penalty cases.

While I’m in favor of good funding and good representation in death penalty cases, I’m also in favor of good funding and good representation in any life or de facto life case.

While we’re at it, why don’t we fund all indigent defense work fully?

Return of the Death Penalty

North Carolina has not executed anyone since 2006. Yet county District Attorneys have continued to seek the death penalty for people they consider the “worst of the worst.” Since the prosecutor has almost unfettered discretion in choosing those who face the death penalty, the system is fraught with problems.

Today, more than 140 people sit on death row, more than 100 of whom were sentenced to the death penalty before the state created its indigent defense office. The North Carolina Center for Death Penalty Litigation reports that the implementation of the an indigent defense system and the Office of the Capital Defender has seen a drastic drop in death sentences.

When defendants get good advocacy, the imposition of the death penalty is relatively rare.

In Wake County, for instance, despite multiple heinous, atrocious and cruel killings and several efforts to secure a death penalty, until February 2019, juries had not returned a death sentence in any case.

Despite the valiant efforts of two very skilled lawyers and a strong team of mitigation and other experts, the State won the death penalty in the case of Seaga Gillard. While I am generally opposed to the death penalty, Gillard was a brutal killer who tortured and brutalized his mostly female victims. It is not surprising he got the death penalty.

I recently defendant, along with two other excellent lawyers, another defendant who was convicted of a triple homicide in Wake County. Fortunately, and against very good advocacy by the state’s prosecutors, we were able to beat back the death penalty.

Nonetheless, the death penalty is a very real danger in North Carolina, and for reasons I will explain in another article, the long delay in carrying death penalties is probably coming to an end as the United States Supreme Court trends to the right.

Note: Contrary to the photograph, North Carolina does not perform the death penalty by electric chair.

Wake County and the Death Penalty

North Carolina has 156 people who are on death row, four of whom are women. The rest are male. Even though African-Americans represent just 21.5% of the population, they account for more than half of the people currently on death row. Whether this is the result of racial prejudice that results in blacks being tried capitally more frequently, or whether there are other factors at play, is a matter of heated debate in the state, particularly in light the 2009 Racial Justice Act.

Currently, 10 people on death row were convicted by Wake County juries of first degree murder and sentenced to death. Wake has the second highest number of people on death row; Forsyth County tops the list, even though both counties are smaller than Mecklenburg which has just five people on death row.

The legal process in a death penalty case differs somewhat from an ordinary criminal case. The District Attorney is required to announce his intention at a Rule 24 hearing to seek the death penalty prior to trial. And trial is divided into two parts – the guilt or innocence phase where the jury must unanimously decide whether the defendant is guilty of the crime alleged and, if so, whether the crime is First Degree Murder. First Degree Murder is the only crime punishable by death.

The defense may argue that the wrong man has been accused, or that during the act the person was either insane or suffered from a diminished capacity that prevented him from forming the specific intent required under the law to commit First Degree Murder.

Where there’s no doubt that the person committed the crime, but merely an argument about mental capacity or about whether the crime merits the death penalty, the defense will often use the guilt-innocence phase of the trial to develop the argument that the defendant doesn’t deserve the death penalty.

Following the guilt-innocence phase, if the person has been found guilty of first degree murder, the trial moves into the sentencing phase. The death penalty is the only punishment in North Carolina that requires the jury’s input. In all other crimes, the trial judge alone sentences the defendant. But in a death penalty case, the trial judge may only impose the death penalty if it has been recommended by the jury following the punishment phase. In some cases, the punishment phase can take as long as the actual trial.

The death penalty may only be imposed if the jury finds that there is a statutory aggravating factor or circumstance, that that factor or circumstance is sufficiently substantial to warrant the imposition of the death penalty, and that any mitigating factors are insufficient to outweigh the aggravating factor or circumstances found by the jury.

The jury may consider any of the 11 statutory aggravating factors provided for in N.C.G.S. 15A-2000(e) in finding the person fit for the death penalty.

For whatever reason – perhaps a harsher attitude toward crime, a more religious disposition, or other cultural factors – the South accounts for about 80 percent of all executions in the United States. The Northeast, which is more populous than the South, but has fewer states that permit the death penalty, has fewer than 1 percent of all executions.

Cruel and usual: a life sentence for a 17-year-old

The United States Supreme Court issued an important opinion last week involving the Eighth Amendment to the United States Constitution. The Eighth Amendment – in addition to prohibiting excessive bail – prohibits “cruel and unusual punishment.” Most people are familiar with that prohibition because of the continuing controversy over whether the death penalty is “cruel and unusual.”

But cruel and unusual punishments can also be punishments that are excessively punitive or long, and not in proportion to the crime. In general, the Supreme Court allows a great deal of latitude to states and the Congress to construct their punishment scheme, such that many people think the Federal Sentencing Guidelines have components that many people think of as cruel and excessive. But the Supreme Court has never struck down the guidelines on that basis.

In Florida v. Graham, the Supreme Court last week said that the Eighth Amendment’s prohibition against cruel and unusual prohibition is violated when a judge sentences a juvenile to life in prison without the possibility of parole for a conviction other than a homicide.

The defendant, Terrance Graham, a 16-year-old, had burglarized a restaurant. He was arrested and charged with a felony, and charged as an adult. He ultimately pled guilty to armed burglary with assault or battery, a crime punishable by life in prison under Florida law, but was placed on probation without an adjudication of guilt (meaning that so long as he stayed out of trouble, the charges would ultimately be dismissed).

Later, before completing this deferral program, he committed another home invasion. The judge ignored the Florida Department of Corrections pre-sentence recommendation of a 4-year prison term and sentenced him to life in prison.

The Supreme Court ruled that the life sentence was cruel and unusual under a proportionality review in which the gravity of the offense is weighed against the severity of the sentence.

The Death Penalty in America

Like many defense attorneys, I am opposed to the death penalty. But unlike, many defense attorneys, I am not opposed to the death penalty because I think it’s immoral. I’m opposed to the death penalty because I think – as with most government programs – it is open to corruption and errors that have horrible consequences.

It’s clear that innocent people have been executed, whether because of prosecutorial misconduct or because of scientific error or coerced “confessions” or because defense lawyer incompetence. The question is why do we permit the death penalty given the chance for error.

The reason is that in the United States being “tough on crime” is synonymous with being pro-death penalty.

Last year China executed more people than all the rest of the world combined. But the United States was the only country in the Americas that executed anyone. That includes countries like Cuba, which are dictatorships.

As the saying goes, you’re judged by the company you keep.



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