Most of the 142 pris­on­ers on North Carolina​’s death row were con­vict­ed under obso­lete and out­dat­ed death-penal­ty laws and would not have been sen­tenced to death if tried today, accord­ing to a new report by the Center for Death Penalty Litigation. The report by the Durham-based defense orga­ni­za­tion, titled Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row, says that near­ly three-quar­ters of the pris­on­ers on the nation’s sixth-largest death row were tried and sen­tenced before the state enact­ed sig­nif­i­cant reforms in pros­e­cu­tion, defense, and tri­al prac­tices. “[I]f these peo­ple on death row had been tried under mod­ern laws, most of them would be serv­ing life with­out parole sen­tences instead of fac­ing exe­cu­tion,” said Gretchen Engel, the Center’s executive director.

Seventy-three per­cent of the men and women on North Carolina’s death row (103 pris­on­ers) were tried and sen­tenced to death before July 2001, when North Carolina repealed a 1990s-era law that had required pros­e­cu­tors to pur­sue the death penal­ty in every aggra­vat­ed mur­der case, irre­spec­tive of rea­sons that might call for mer­cy, and cre­at­ed a statewide office to rep­re­sent indi­gent defen­dants in cap­i­tal tri­als and appeals. North Carolina was the only state in the coun­try that denied pros­e­cu­tors the dis­cre­tion to decide when to seek the death penal­ty, and as a result, there were more than fifty cap­i­tal tri­als in the state each year, includ­ing cas­es involv­ing defen­dants who were seri­ous­ly men­tal­ly ill or intel­lec­tu­al­ly dis­abled or were com­par­a­tive­ly minor par­tic­i­pants in a mur­der. Capital tri­als fell to an aver­age of six­teen per year in the decade fol­low­ing the change. The cre­ation of the cap­i­tal defend­er office that same year dra­mat­i­cal­ly improved the qual­i­ty of rep­re­sen­ta­tion, and fur­ther reduced the num­ber of cas­es in which death ver­dicts were returned. Since then, North Carolina has enact­ed addi­tion­al reforms aimed at ensur­ing fair­er tri­als in cap­i­tal cas­es. In October 2004, the state became the first in the coun­try to require pros­e­cu­tors to make all wit­ness files, police reports, oth­er inves­tiga­tive records, and phys­i­cal evi­dence avail­able to cap­i­tal defen­dants pri­or to tri­al. In 2008, it adopt­ed a series of eye­wit­ness iden­ti­fi­ca­tion and inter­ro­ga­tion pro­to­cols designed to pre­vent mis­tak­en iden­ti­fi­ca­tions and false or coerced confessions.

The report states that dur­ing the 1990s, before the reforms were enact­ed, ​“court­rooms were dom­i­nat­ed by pros­e­cu­tors like Ken Honeycutt in Stanly County, who cel­e­brat­ed new death sen­tences by hand­ing out noose lapel pins to his assis­tant pros­e­cu­tors.” ​“Today,” Engel said, ​“we are liv­ing in a dif­fer­ent world .… Public sup­port for the death penal­ty is at a 50-year low, and North Carolina has stopped exe­cut­ing peo­ple. Juries now see life with­out parole as a harsh and ade­quate pun­ish­ment for the worst crimes.” That, how­ev­er, has pro­duced its own his­tor­i­cal inequities. In terms of moral cul­pa­bil­i­ty, Engel said, the defen­dants fac­ing tri­al in 1995 and 2015 ​“are equal. And yet, one of them is being sub­ject­ed to exe­cu­tion and oth­er is not and that is an unfair­ness that as a fair soci­ety, we can not tolerate.”

(The Center for Death Penalty Litigation, How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row, September 2018; Rebecca Martinez, ​‘The Rat in the Snake’s Belly’: Most Death Row Inmates In NC Await an Uncertain Fate, WUNC, North Carolina Public Radio, October 12, 2018; Michael Gordon, Most peo­ple on NC death row don’t belong there, new report says. Here’s why., Charlotte Observer, October 12, 2018.) See North Carolina, Arbitrariness, and Sentencing.

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