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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?

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