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.

(B. Emanuel, ​“NORTH CAROLINA’S FAILURE TO PERFORM COMPARATIVE PROPORTIONALITY REVIEW: VIOLATING THE EIGHTH AND FOURTEENTH AMENDMENTS BY ALLOWING THE ARBITRARY AND DISCRIMINATORY APPLICATION OF THE DEATH PENALTY,” New York University Review of Law and Social Change, Vol. 39:419, 2015.) See Race and North Carolina.

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