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.

(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.