North Carolina

North Carolina

LAW REVIEW: North Carolina Lacks Constitutionally-Sufficient Proportionality Review

A law review article by Brooks Emanuel (pictured), a Law Fellow at the Equal Justice Initiative, argues that North Carolina's capital punishment statute violates the Eighth and Fourteenth Amendments to the U.S. Constitution because it lacks a meaningful appellate mechanism to prevent the arbitrary and discriminatory application of the death penalty. Citing extensive historical evidence, Emanuel argues that "racial discrimination in North Carolina death sentences was pervasive" in the years leading up to the U.S. Supreme Court's 1972 decision in Furman v. Georgia, which declared existing death penalty statutes unconstitutional. After Furman, North Carolina adopted comparative proportionality review as its primary appellate protection against systemic arbitrariness and discrimination. However, Emanuel says, racially disproportionate capital sentencing continues to be endemic in the state. Examining the North Carolina Supreme Court's proportionality cases, Emanuel argues that the court has failed to provide meaningful proportionality review: "First, the court often does not appear to fulfill its mandate to consider 'similar cases,' instead relying too heavily on the very small group of cases in which death was previously found disproportionate. Second, the review’s lack of transparency is itself unconstitutional in its violation of defendants’ rights to due process." Emanuel argues that evidence from recent Racial Justice Act cases and from its fundamentally flawed proportionality review show that North Carolina has failed to prevent discriminatory sentencing and that systemic arbitrariness and racial disparity persist. Although the U.S. Supreme Court ruled in Pulley v. Harris that a state is not constitutionally compelled to provide comparative proportionality review so long as some mechanism exists for meaningful appellate review, Emanuel notes that North Carolina has selected proportionality review to perform that function and it has failed to do so. For those reasons, he concludes, North Carolina's death penalty is unconstitutional.

FORMER DEATH ROW INMATES FREED IN NORTH CAROLINA

On September 2, 2014, Leon Brown (left) and Henry McCollum (right) were exonerated and released from prison in North Carolina.

Judge Dismisses Capital Murder Charges After Finding State Report "Intentionally Misleading"

On March 10, a North Carolina superior court judge released his opinion throwing out murder charges against Derrick Michael Allen, who was accused in the 1998 death and sexual assault of a 2-year-old girl. Judge Orlando Hudson dismissed the case after finding that a State Bureau of Investigation (SBI) report was prepared in an "inaccurate, incomplete and intentionally misleading manner.” Judge Hudson also found that an SBI agent (now suspended) and a former assistant district attorney working on the case “decided to stop further testing of items for DNA testing because they believed further testing of physical evidence of the case would not prove inculpatory to the defendant Derrick Allen and could possibly inculpate others." He wrote that Allen was coerced into entering an Alford plea (a plea in which the defendant accepts that the weight of the evidence points to his guilt but without admitting actual guilt) after being threatened with the death penalty. An autopsy showed that the girl died of shaken baby syndrome. Allen spent more than 10 years in prison.  Allen’s case was among 200 cases that an outside audit discovered were mishandled by the SBI. The audit revealed that agents failed to report correct evidence in a number of cases. Because evidence has been destroyed or is missing since Allen’s case started, Judge Hudson noted, “It is no longer possible for Mr. Allen to ever receive a fair trial.”

MENTAL ILLNESS: Death Sentences Vacated for Two with Severe Mental Illness

One death row inmate from Oregon and another from North Carolina recently had their death sentences removed because of concerns about their mental competency. In Oregon, Robert James Acremant’s sentence was reduced to life without the possibility of parole. Since 2003, prison psychiatrists have diagnosed him as mentally ill, and Acremant said he hears voices and has a transmitter in his head that allows others to control him.  He still has a death sentence from a case in California.  Isaac Stroud in North Carolina was removed from death row after a judge ruled his mental condition kept him from assisting with his own defense. With consent from the victim's family, District Attorney Tracey Cline agreed to a life sentence for a 1995 murder conviction and an additional 30-year sentence for kidnapping. Cline said, "It was apparent that he did suffer from a mental health condition. The [victim’s] family, after so much time, basically just wanted to be sure that Mr. Stroud was not released from prison during his lifetime.” Stroud's attorney, Marilyn Ozer, said, "Everyone looks at the system differently than they did 20 years ago, so it makes sense to go back and look at these cases."  Stroud was not eligible for a sentence of life without parole at the time of his conviction.

Jurisdictions with no recent executions

Although the United States is considered a death penalty country, executions are rare or non-existent in most of the nation: the majority of states—31 out of 50—have either abolished the death penalty or have not carried out an execution in at least 10 years. An additional 6 states have not had an execution in at least 5 years, for a total of 37 states with no executions in that time. Three additional jurisdictions (the District of Columbia, the Federal Government, and the Military) have not had an execution in at least 10 years.

Legislative Activity - North Carolina

  • North Carolina Could Become Second State to Pass Racial Justice Act North Carolina's legislature recently took an important step toward becoming the nation's second state to pass a Racial Justice Act, legislation that gives defendants the opportunity to challenge the death penalty based on studies showing racial bias. The bill was quickly approved by members of the House Judiciary II Committee and will now go before the full House for consideration.

Gell files suit over prosecution

The former death row inmate contends the state violated his civil rights by withholding evidence

Joseph Neff, Staff Writer
May 3, 2005
The News and Observer
Former death row inmate Alan Gell on Monday sued five state prosecutors and investigators in federal court, charging that they violated his civil rights by withholding helpful evidence from him at his 1998 trial.

"Gell's ordeal was not an accident," the complaint says. "It resulted from the concerted effort of veteran law enforcement officers of the North

Chapter 4: Evidence points to innocence

"People lie, but insects don't lie"

Joseph Neff, Staff Writer
December 11, 2002
The News and Observer

Getting sentenced to death was a lucky break for Alan Gell.

Like any other indigent inmate found guilty of a serious crime, he was entitled to an appeal of his conviction for the 1995 shotgun murder of Allen Ray Jenkins in Jenkins' Bertie County home. That appeal focused narrowly on Gell's 1998 trial. 

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