Race and the Death Penalty in North Carolina

Race and the Death Penalty in North Carolina

An Empirical Analysis: 1993-1997

Principal Investigator

Dr. Isaac Unah

Principal Collaborator

Prof. Jack Boger Presented by The Common Sense Foundation North Carolina Council of Churches April 16, 2001

TABLE OF CONTENTS

Fact Sheet

North Carolina Homicide Statutes

North Carolina Death Sentencing System

Table One - Race of Victim Summary of Findings 1993-1997

Table Two - Chart of Victim/Defendant Race Combinations 1993-1997

History and Context of Study

Methodology

Appendix

• Data Collection Instrument
• Table Three - All Cases 1993-1997
• Table Four - Death Eligible Cases 1993-1997
• Table Five - Cases to Trial 1993-1997
• Table Six - Cases Where Prosecutors Sought Death 1993-1997
• Table Seven - Cases at Penalty Phase 1993-1997

Backgrounds of Principal Investigator and Collaborator

Contact Sheet

Endnotes

FACT SHEET

RACE AND THE DEATH PENALTY IN NORTH CAROLINA

April 16, 2001

I. What are the findings of the Study?

It concludes that racial factors—specifically the race of the homicide victim—played a real, substantial, and statistically significant role in determining who received death sentences in North Carolina during the 1993-1997 period. The odds of receiving a death sentence rose by 3.5 times or more among those defendants (of whatever race) who murdered white persons.

2. What is the significance of the Study?

It is the most comprehensive study of North Carolina’s system of capital sentencing in the state’s history, and the first substantial study of death sentencing conducted anywhere in the South since 1984.

3. What is the scope of the Study?

The study examines all homicide cases that occurred in North Carolina over a five-year period, from January 1, 1993 through December 31, 1997. There were 3990 homicide cases during that period. Among these 3990, 99 first-degree murder cases eventually received death sentences, and 303 first-degree cases received life sentences. The study looks at every one of those cases. It also examines a scientific sample of the remainder of the second-degree murder cases in which life sentences were imposed, and scientifically samples from among those cases in which sentences less than life were imposed.

The study employs a 33-page data collection instrument (DCI) that included over 113 questions about each case, as well as a narrative summary that captures the special features of each case. Data collectors obtained their data from the public records of the State of North Carolina—judicial records from Superior Courts statewide, from the North Carolina Court of Appeals, and from the North Carolina Supreme Court, as well as from the files of the Office of the State Medical Examiner, the Department of Corrections, and the Administrative Office of the Courts. They also spoke with prosecutors, defense attorneys where necessary to complete their investigation of each case.

DCI’s were completed on over 502 defendants, including every defendant convicted of first-degree murder anywhere in the State who received either a life sentence or a death sentence during this period.

4. Who conducted the Study?

The principal investigator is Dr. Isaac Unah of the Department of Political Science of the University of North Carolina at Chapel Hill. His collaborator is Professor Jack Boger of the UNC School of Law.

Meredith Nicholson, a graduate of UNC School of Law and a practicing attorney, served as Project Manager. Eight UNC Law graduates from the class of 2000, after extensive training, were employed full-time as data coders.

The study was funded by a grant from the Chapel of the Cross in Chapel Hill to the North Carolina Council of Churches, whose Executive Director is Rev. George Reed, and by the Common Sense Foundation, the Open Society Foundation, and many individual donors.

5. Whom should I contact to learn more about the Study?

Chris Fitzsimon - Executive Director, Common Sense Foundation

Office: (919) 821-9270

Cell: (919) 349-3915

Email: chris@common-sense.org

Dr. Isaac Unah - UNC-CH Department of Political Science

Office: (919) 962-6383

Email: unah@unc.edu

Professor Jack Boger - UNC-CH School of Law

Office: (919) 843-9288

Email: jcboger@email.unc.edu

NORTH CAROLINA’S HOMICIDE STATUTES

DEGREES OF HOMICIDE:

FIRST DEGREE MURDER: (Alternative Bases)

(1) Death by Poison, Lying in Wait, Imprisonment, Starvation

(2) Willful, Deliberate, and Premeditated Killing

(3) Homicide During the Perpetration of Arson, Rape, Robbery, Kidnapping, etc.—N.C.G.S.§ 14-17

PERMISSIBLE PUNISHMENTS: Death or Life Imprisonment Without Parole

ONLY Defendants Convicted of First Degree Murder May Be Sentenced to Death)

SECOND DEGREE MURDER:

All Other Murders; “Common Law” Murder, i.e. Unlawful and Malicious, But Without Premeditation or Deliberation—G.S.§ 14-17

PERMISSIBLE PUNISHMENTS: Class B2 Felony; Life, or Term of Years

VOLUNTARY MANSLAUGHTER:

Unlawful Killing Without Malice, Without Premeditation or Deliberation, & Without the Intent to Kill or to Inflict Serious Bodily Injury —G.S.§ 14-18

PERMISSIBLE PUNISHMENTS: Class D Felony; Term of Years

INVOLUNTARY MANSLAUGHTER:

Unlawful Killing, Unintentional, Without Malice, Resulting From an Unlawful But Non-Felonious Act, Or From Culpable Negligence—G.S.§ 14-18

PERMISSIBLE PUNISHMENTS: Class F Felony; Term of Years

NORTH CAROLINA’S DEATH SENTENCING SYSTEM

The General Assembly Has Provided That ONLY Defendants:

(1) Convicted of First Degree Murder;

(2) With A Separate Finding of At Least ONE “Statutory Aggravating Circumstance”

Are ELIGIBLE for Capital Punishment—N.C.G.S.§ 15A-2000(a)(1)

Any One of Eleven “STATUORY AGGRAVATING CIRCUMSTANCES” Can Make a Homicide Sufficiently Serious To Warrant A Death Sentence, If A Jury So Finds. They are:

(1) That the Defendant Was “Lawfully Incarcerated” When the Homicide Occurred;

(2) That the Defendant Had Previously Been Convicted of Another Capital Felony;

(3) That the Defendant Had Previously Been Convicted of A Violent Felony;

(4) That the Homicide Was Committed to Avoid or Prevent an Arrest, or to Escape From Custody;

(5) That the Homicide Was Committed During Another Homicide, Robbery, Rape, Arson, Burglary, Kidnapping, etc.

(6) That The Homicide Was Committed “For Pecuniary Gain”

(7) That The Homicide Was Committed To Disrupt or Hinder Government or Law Enforcement;

(8) That the Homicide Victim was a Law Enforcement Officer, Judge, Prosecutor, Etc.;

(9) That the Homicide Was “Heinous, Atrocious, or Cruel;

(10) That The Defendant “Knowingly Created A Great Risk of Death To More Than One Person By Use of a Hazardous Weapon or Devise;

(11) That The Homicide Was Part of a Course of Conduct Involving A Crime of Violence Against Another Person.

N.C.G.S.§15A-2000(e)(10)-(11)

Before It Can Impose A Death Sentence, A Jury Must Also Consider and Weigh, Against the Aggravating Circumstances, Any MITIGATING CIRCUMSTANCES, Including Both Those Specified in North Carolina’s Statutes and Any Others Suggested by the Defendant. The STATUTORY MITIGATING CIRCUMSTANCES are:

(1) That the Defendant Had No Significant History Of Prior Criminal Activity;

(2) That the Homicide Was Committed While the Defendant Was Under The Influence of Mental or Emotional Disturbance;

(3) That the Victim Voluntarily Participated in the Defendant’s Homicide;

(4) That the Defendant Was Only An Accomplice And His Participation Was Relatively Minor;

(5) That the Defendant Acted Under Duress or the Domination of Another Person;

(6) That the Defendant’s Capacity to Appreciate That His Conduct Was Criminal, or to Conform His Conduct to the Law, Was Impaired;

(7) The Age of the Defendant;

(8) That the Defendant Aided the Prosecution in Apprehending Another Capital Felon, or Testified Truthfully to Assist the Prosecution at Trial;

(9) That the Defendant Shows Any Other Circumstances That the Jury Deems to be of Mitigating Value.

N.C.G.S.§15A-2000(f)(1-(9)

Table 1

Summary of Findings with Regard to the Importance of the Race of the Victim, Based upon a Thirty Six Variable Model Explaining the Application of Capital Punishment in North Carolina (1993-1997)

* These numbers represent the odds of receiving a sentence of death if
the victim was white as compared with the odds of receiving a death
sentence if the victim was nonwhite. Thus in the all homicide category
the odds are, on average, 3.4 times greater that a defendant would
receive the death sentence if the homicide victim was white rather than
nonwhite, even after controlling for 35 other factors

Table 2

Unadjusted Percent of Defendants Sentenced to Death in All Homicide Cases

PRELIMINARY REPORT ON THE FINDINGS OF THE NORTH CAROLINA DEATH PENALTY STUDY 2001

By Dr. Isaac Unah and Professor John Charles Boger

April 16, 2001

1. The NC Death Penalty Study 2001

This is a preliminary report concerning a new study of capital punishment in the State of North Carolina that has been undertaken during the past nine months - the North Carolina Death Penalty Study 2001. It is the first major social scientific study of the death penalty conducted in North Carolina in over 20 years, and the first systematic look for patterns of racial discrimination in capital sentencing in the South employing data more recent than 1984. The report has been prepared by Dr. Isaac Unah of the Department of Political Science of the University of North Carolina at Chapel Hill (“UNC”), with the assistance of Professor John Charles Boger of the UNC School of Law.

As we will elaborate below, the preliminary findings present clear and disturbing evidence that North Carolina’s capital system in the 1990s continues to exhibit patterns of racial discrimination that cannot be explained by any of the legitimate sentencing considerations that have been sanctioned by North Carolina’s legislative and judicial branches.

2. The Preliminary Findings of the New Study

Our principal finding to date is that racial disparities continue to plague North Carolina’s capital punishment system in the 1990s—especially discrimination against defendants (of whatever race) whose murder victims are white. This finding is confirmed by numerous individual analyses we have conducted, employing different methods, and looking at various decision points throughout the capital charging and sentencing system. Race matters in the initial decision whether to charge a defendant with first degree murder, second degree murder, or manslaughter; it matters in the decision whether to go forward to trial; it matters in the decision whether to seek a death sentence; it matters in the jury’s life-or-death decision at the penalty phase of a capital trial.

Our first analysis looks at the frequency at which death sentences were imposed among all of the homicide cases that occurred in North Carolina during the 1993-1997 period. The overall death-sentencing rate in these cases is quite low—only 2.8%. Yet the death-sentencing rate among white-victim cases is nearly twice as high as among non-white victim cases (3.7% versus 1.9%). Moreover, looking beyond the race of the victim to that of the defendant, further racial disparities appear. When non-whites defendants murder white victims, the death sentencing rate is 6.4%; however, when white defendants murder white victims, the death sentencing rate falls by half, to 2.6%. When non-whites are both the defendant and the victim, death sentences dips even more, to only 1.7% of the cases.

Even when we refined our analysis, looking only at those cases that are “death eligible”— that is, those containing one or more factors designated by North Carolina law as “statutory aggravating circumstances that warrant imposition of a sentence of death, if the jury so chooses” (for example, the murder of a police officer, or a murder during an escape from prison)—we find that race continues to make a substantial difference in whether capital punishment is actually imposed. Capital punishment is imposed in 8% of all “death-eligible” white-victim cases, but the capital rate plummets to 4.7% in non-white victim cases. Moreover, just as in our earlier analysis, a wide disparity appears when comparing the sentencing rate for non-white defendants who murder whites (11.6%) with that of white defendants who murder whites (6.1%).

These findings, however, do not constitute the heart of our analysis, since they do not take into consideration other legitimate considerations that might possibly work in these cases to explain the apparent racial outcomes. For example, it is possible that more defendants in white-victim cases have serious criminal records than do defendants in non-white-victim cases, or that homicides committed against white victims are more frequently accompanied by rape, armed robbery, torture, or other serious crimes. To consider these factors, we turned to multiple regression analysis—a widely accepted statistical technique regularly employed in research in a variety of scientific fields. We conduct a series of regression analyses, using the “logistic regression” method that the research literature recommends for such studies. The advantage of such analyses is that their ability to detect whether a particular factor—such as race—is having an independent effect on a decision—such as a death sentence—even when other factors, such as the presence of a prior criminal record, or an accompanying rape or robbery, are simultaneously taken into account.

Our regression analyses confirm that the race of the homicide victim is indeed playing a real, substantial, and statistically significant role in North Carolina’s capital sentencing system, one that simply cannot be attributed to any legitimate sentencing factors. For example, our analysis of “death-eligible” cases reveals that the race of the victim was statistically significant in predicting who will receive a death sentence, and that the “death odds multiplier” is 3.5, indicating that, on average, the odds of receiving a death sentence are increased by a factor of 3.5 when the murder victim is white. Similar analyses at different stages of the system—whether among all cases, only those cases that proceed to trial, cases where the prosecutor actively seeks a death sentence, or cases in which a jury must decide whether to impose a death sentence—all reaffirm this basic finding.

In sum, no matter what analyses we have performed, and no matter what stage of the process we have examined, the fact that the homicide victim is a white person turns out to operate as a “silent aggravating circumstance” that makes death significantly more likely to be imposed. While our study is not yet complete, we have confidence that these results do not represent a statistical anomaly or a fluke. Instead, they demonstrate that racial bias is a real and deeply troubling feature of North Carolina’s capital punishment system in the 1993-1997 period.

3. The Design and Focus of the New Study

The NC Death Penalty Study examined homicides that occurred in the State of North Carolina during the five-year period between 1993 and 1997.1 We included within our study: (1) every case prosecuted by the State for a homicide committed during this period that eventually led to a death sentence; (2) every case that led to a life sentence after a penalty trial on the issue of life vs. death; (3) cases that led to a life sentence without a life-or-death penalty trial; and (4) a random sample of intentional homicide cases that were not prosecuted as first degree or capital murder cases. This comprehensive look at the universe of potentially capital cases allows us to make highly accurate analyses of exactly what patterns exist in these cases.

Working in consultation with Dr. David Baldus of the University of Iowa College of Law (the nation’s leading expert on capital sentencing systems) during the spring and summer of 2000, we created an elaborate data collection instrument (“DCI”), for every case examined. The DCI is designed to collect data on over one hundred and thirteen (113) separate factors about each crime, including the charges brought by the State, the defendant’s background and character, the circumstances of the crime (including whether it occurred during the commission of another felony or misdemeanor), the presence or absence of statutory aggravating factors or mitigating factors specified as important by the General Assembly, the presence or absence of non-statutory factors, the motives of the crime, the background and character of the victim, and the strength of the evidence. The DCI also includes a section for a narrative description of each case, permitting our data collectors to include unique factors about each case that could not by captured by the specific questions included in the DCI.

The data was collected in the fall and winter of 2000-2001 by UNC Law School graduates working under the direct supervision of a full-time project manager, a licensed attorney and member of the North Carolina bar. All of the data collectors underwent extensive training to assure that uniform methods were followed, and all questions about coding were relayed to the project manager, who consulted frequently with Unah and Boger to assure a consistent, conservative approach in data collection. The project manager regularly reviewed the DCI entries to ensure that data collectors were making impartial, uniform decisions as they entered the data.

Most of the data entered in the DCI’s came directly from public records on file with the State of North Carolina - court records found in the Supreme Court of North Carolina, the North Carolina Court of Appeals, or the state’s trial courts, as well as the Office of the Chief Medical Examiner and the Department of Corrections. Advice and guidance on the use of these data sources came from public officials connected with North Carolina’s Institute of Government, the Administrative Office of the Courts, the Department of Corrections, and other state criminal justice agencies.

4. The Historical Context of the New Study

Research conducted in North Carolina during the era of Jim Crow segregation in the 1940s indicated that racial discrimination was playing a regular, illegitimate role in two different respects: black defendants were more likely to receive death sentences for similar crimes than were white defendants, and those defendants (of whatever race) who murdered white victims were also more likely to receive death sentences.2 Similar racial disparities were identified by careful researchers in other states,3 and these features become one of the features condemned by several Justices who joined in striking all capital punishment statutes in 1972 in the Furman v. Georgia decision.4

After Furman, states such as North Carolina that reenacted capital sentencing statutes were on clear notice that it was unconstitutional for race to play any role in determining the appropriate punishment. Those who defended the new statutes assured the federal courts that the combined effects of the desegregation of formerly segregated courtrooms, the coming of African Americans to capital juries, and the gradual desegregation of police, prosecutorial, and judicial ranks would lead to an end of racial bias in capital sentencing. The Supreme Court, in upholding several of the new, post-Furman capital statues in 1976, accepted these state assurances. It declined to conclude that the state’s new, post-Furman sentencing procedures—including separate guilt and penalty phases to death penalty trials and lists of statutory “aggravating” and “mitigating” circumstances to guide the jurors’ deliberations on the question of the appropriate punishment—would be insufficient to curb racial discrimination and other forms of arbitrariness that had characterized earlier capital punishment statutes.5

Soon thereafter, social scientists began to examine the actual operation of death sentences in the post-Gregg era to see whether the new statutes had successfully eliminated racial bias. Many reported that racial factors, especially discrimination based upon the race of the homicide victim, continued to play an impermissible role. Perhaps the most prominent of these research efforts involved two overlapping studies conducted by Professor David Baldus and his colleagues on the capital system of the State of Georgia from 1973 through 1979.6 The results of these studies were introduced as part of a constitutional challenge, brought by Georgia death row inmate Warren McCleskey, an African American prisoner who alleged that his own race and that of his homicide victim (a white police officer) had been factors in his receipt of a death sentence, in violation of the Eighth Amendment’s bar against “cruel and unusual punishment” and the Fourteenth Amendment’s promise of the “equal protection of the laws.”

After an extensive hearings in the lower federal courts, McCleskey’s claims were reviewed by the Supreme Court of the United States, which rejected them in a sharply divided, 5-to-4 decision.7 Justice Lewis Powell, writing for a majority of the Court, held that purposeful discrimination in capital sentencing - whether on the basis of the defendant’s race or the victim’s race - would violate the Equal Protection Clause, and likely the Eighth Amendment as well.8 However, Justice Powell found that the Baldus study relied upon by Warren McCleskey did not offer sufficiently clear evidence that his capital jury had been influenced by racial considerations, and the Court suggested that statistical arguments about patterns of capital sentencing “are best presented to the legislative bodies” that “are better qualified to weigh and ‘evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.‘“9 Since the McCleskey decision in 1987, federal courts have been closed to virtually all systemwide claims of racial discrimination.

During the post-McCleskey period, however, a substantial body of empirical social scientific studies has emerged to examine death sentencing patterns in several dozen states. In 1990, at the request of the United States Congress, the General Accounting Office, after evaluating this body of studies,10 concluded:

Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision.

In 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques. The finding held for high, medium, and low quality studies.11

5. The Unique Look Afforded by the New North Carolina Study

As Professor David Baldus has recently noted, most of the earlier studies focused on sentencing patterns either in the immediate post-Furman v. Georgia period after 1972 or in the early-to-middle 1980s.12 The two leading modern studies of North Carolina’s capital system that pattern. The first was an exemplary look at the first year (1977-78) of North Carolina’s experience under its current statute, conducted by Professors Barry Nakell and Kenneth Hardy of UNC-Chapel Hill. That study found both race-of-defendant and race-of-victim effects at various stages of the capital charging and sentencing system during the new law’s first year of implementation.13

A later study that relied upon data submitted by North Carolina law enforcement personnel to the Federal Bureau of Investigation in the years 1976 through 1980, found that “the race of the victim had sizable and statistically significant effects on the likelihood that a defendant would receive the death penalty.” However, because only a small number of defendants had received capital sentences at that time, “the race-of-victim effect became smaller and statistically insignificant” when the race of the defendant was added to the analysis.14

Since 1980, no thorough examination of North Carolina’s capital sentencing system has been undertaken at all. Indeed, only five substantial studies have examined data in any state that includes sentencing decisions in the 1990s, and all five are from non-Southern states: California (1990-1994); Connecticut (1973-1994); Kentucky (1976-1991); New Jersey (1982-1996); and Pennsylvania (1983-1993).15 None have examined data from cases as recent as those covered by the three latter years of the new North Carolina study (which spans the years from 1993-1997).

In September of 2000, the Charlotte Observer released an important, suggestive analysis noting that North Carolina’s death row population varied substantially, in its racial composition, from what one might expect had the race of defendants and their homicide victims played no part in the capital sentencing determinations.16 Yet the Observer study had no systematic access to crucial information about other, legitimate factors in North Carolina cases. Therefore, its analysis could ask, but could not fully answer, the critical question: whether it is racial bias, or other, legitimate sentencing considerations, that explain the apparent racial disparities on North Carolina’s Death Row.

The new North Carolina study gives us, at last, tools to answer specific questions about the racial justice of North Carolina’s capital sentencing system, and more broadly, to reflect on whether Southern states, during the 1990s—many now boasting multi-racial juries and prosecution teams, and some significant fraction of African American judges—have finally shed their age-old tendency to employ racial considerations in imposing the penalty of death. The regrettable answer that emerges from this new study, as we noted in Part 2 above, appears to be that race remains important. Though condemned by federal and state constitutions and widely acknowledged to be illegitimate and shameful, racial considerations seem alive and well in recent capital sentencing decisions made in the Old North State.

Research Design and Analytical Methodology

(Dr. Isaac Unah)

In this section of the report, we give details about the methodology used in generating the data and the analytical techniques on which we derived our research findings and conclusions. From the outset, it is important to emphasize that we were careful to employ sound methodological techniques; the use of sound techniques is the hallmark of a good social scientific study, especially one that tries to tease out various complex influences that contribute to the application of an important legal and political issue such as capital punishment. Our study is detailed and wide-ranging, with data covering most of the 100 counties of North Carolina. The methodological account given here is sufficiently detailed so that individuals interested in replicating or extending our study can do so.17 We shall skip the unnecessary micro details and focus instead on providing information that will facilitate replication.

1. Developing A Data Collection Instrument (DCI)

The first major task was to develop a detailed data collection instrument (DCI) that contains information about various aspects of the homicide and about the individuals directly involved in or affected by the homicide. In doing so, we sought the advice of death penalty experts from the Institute of Government, and from defense counsel and prosecuting attorneys in North Carolina and around the country. We obtained the most extensive assistance from Professor David Baldus of the University of Iowa, the premiere national expert on the scientific analysis of the death penalty in the United States. With Professor Baldus’ sage counsel, we generated questions that would allow us to obtain identifying and procedural information about each case, including the date of the offense, the charges brought, the status of the defense counsel and the judge, and whether the prosecutor sought the death penalty in the case. We also generated questions on the personal background characteristics of the defendant, including race, gender, age, employment status, and educational level, as well as the defendant’s criminal history. Due to some institutional barriers, we were unable to obtain exhaustive information on the criminal background of most defendants. Two primary reasons accounted for this difficulty. First, many of the defendants had criminal records in other states to which we have no access. Second, many of the defendants had juvenile criminal records which are sealed and therefore not introduced at the criminal trial.

The DCI also contains extensive information about the victim(s). In addition to data on the demographic characteristics of the victim such as race, gender, employment status, and educational level, we obtained information about the relationship the victims had with the defendants that may inform the nature and circumstance of the homicide. For example, were the defendant and victim friends, acquaintances, intimates, family members, or strangers? The North Carolina Office of the Medical Examiner provided records that were particularly useful in obtaining information about homicide victims.

In order to analyze the impact of race in the imposition of the death penalty, we needed to examine the characteristics of the homicide itself. Therefore, we sought descriptive information about the crime scene and the manner of death. We were also interested in taking note of the extent to which special non-statutory circumstances surrounding the victim may aggravate the offense and thus make it more likely to receive a death sentence. For example, was the victim defenseless due to advanced age or pregnancy or handicap? In addition to these non-statutory aggravating circumstances of the victim, we were also interested in accounting for the non-statutory aggravating features of the offense itself, including whether the offense involved multiple gunshot wounds, multiple victims, sniper killing etc. We also added questions to allow us to assess whether the offense was especially heinous, atrocious or cruel. Under North Carolina law, there are eleven statutory aggravating factors, one or more of which must be found before an individual may be given the death penalty. An example would be the murder of a police officer. Moreover, there are several mitigating factors that, when found, might render the crime less aggravated and thus less likely to merit a death sentence. An example would be that the defendant had no significant history of prior criminal activity. These statutory aggravating and mitigating factors played a prominent role in our analysis.

We were also interested in investigating the perceived role of ideology and electoral politics in the prosecution of criminal homicides. Therefore, we sought to obtain information on the temporal proximity of the criminal trial or plea to the district attorney’s next reelection. Finally, the DCI contains hand-written descriptions of the facts of the case. These descriptions are particularly useful in forming opinion about various dimensions of the crime.

2. Universe of Cases and Inclusive Years of Coverage

Once the data collection instrument was constructed, the second important task was to decide upon a universe of cases to examine. Because of financial constraints, we decided to focus solely on homicides that resulted in a charge of murder, first degree murder, or second degree murder. We examined only homicides that occurred from January 1, 1993 to December 31, 1997. We chose this time period for three simple reasons. First, we wanted to provide reasonable continuity to studies conducted during the 1970s and 1980s on North Carolina capital sentencing system, by examining whether, in light of reforms undertaken by State officials to enhance racial inclusiveness (e.g., the individual efforts of prosecutors to be impartial and the inclusion of nonwhites in juries), the impact of race in death penalty prosecutions is but a memory. Secondly, we wanted a period of at least five years to allow us to capture any inter-temporal trends in the incidence of homicides in the state. Secondly, we chose a period five-year period as near to the present as possible so that all homicides that occurred during this period would have reached final trial resolution.

3. Criminal Justice Data from the Administrative Office of the Courts

We obtained our list of homicide cases from the North Carolina Administrative Office of the Courts (AOC) in Raleigh. One of the most methodologically challenging aspects of the project was working with AOC data. Due to problems associated with software incompatibility and AOC data archiving system, we needed to convert the AOC data into usable format. The AOC sent us a CD-ROM containing eleven data files. Working with the assistance of technicians at the Odom Institute for Research in the Social Sciences at UNC-Chapel Hill, we converted and merged these data files. From these we generated our statistical data.

4. Case Selection

We employed a multistage sampling technique to generate a portion of the cases analyzed. We were interested in examining the treatment of those cases that received the death penalty as well as those that did not. In short, we are interested in homicide case outcomes. But in this report, we focus primarily on cases that have the potential to receive the death penalty.

We included the entire population of first degree homicide cases in which the defendant received a sentence of either life or death in North Carolina between 1993 and 1997 in the analysis. We relied upon multi-stage sampling technique to select the rest of the cases, including second degree murder cases that received a life sentence and all other cases that received a term of years.

What is the logic of multi-stage sampling and how was it implemented? Under multistage statistical sampling, cases are selected in stages to arrive at an overall nonzero probability that any given case in a predefined population or sub-population will be selected for analysis. We want to be very clear about our case selection method. As already noted, all cases that received a death sentence and all those that received a life sentence based upon a charge of murder or first-degree murder were included in the analysis. The rest were generated through multi-stage sampling. First, we selected a random sample of judicial districts based upon the suggestion of Professor David Baldus (the reason for sampling judicial districts will become clear shortly). Second, from the judicial districts thus selected, we randomly selected the remaining cases included in the study. We now discuss these two stages.

Stage 1. There are 44 judicial districts in North Carolina representing a total of 100 counties. Each judicial district is headed by a single district attorney who oversees the prosecution of cases and the exercise of prosecutorial discretion within the counties that comprise the judicial district. This is why we selected counties via judicial districts. While most judicial districts contain only one or two counties, several districts contain five or more counties. For example, the second judicial district is composed of five counties: Beaufort, Hyde, Martin, Tyrell, and Washington counties. Similarly, the 24th judicial district is composed of Avery, Madison, Mitchell, Watauga and Yancey counties. Only the first judicial district contains seven counties, the highest number on record: Camden, Chowan, Currituck, Dare, Gates, Pasquotank, and Perquimans.

Because we aimed to obtain a broad geographic representation of the state, we randomly selected 26 judicial districts. These contained a total of 57 counties. The original AOC data contained several hundred duplicated records. While we were mostly interested in the final outcome of the case, the AOC inputs its data on each defendant at several stages of the criminal trial process, not necessarily the final disposition of the case alone. For example, decisions made at the district and superior court levels are recorded separately into the AOC data archive, thus creating the duplicates. These duplicates were expunged so that only a single record (i.e., case) remains for each defendant.

Stage 2. Overall, there were 3990 homicides charged during the study period. Our sample was based upon 1921 cases after separating all cases where the defendant was acquitted and all term of years cases from the unselected counties (n=1486). There were 99 cases where a defendant was sentenced to death and 303 cases were the defendant received a life sentence (based upon a first-degree murder charge). There were 181 second-degree murder cases that also received a life sentence. Using the internal random sampling procedure in SPSS (Statistical Package for Social Sciences), we selected an additional 100 cases (5.2%) from the 1921 cases and added these to the murder or first-degree murder cases that received a death and life sentence. We also randomly sampled 10% of the 181 second-degree murder cases that received a sentence of life; we are finalizing data gathering on these 18 cases and they will be included in subsequent analyses. Our current core analysis is therefore based upon 502 cases, representing 502 individual defendants. We created sample weights to reflect the differing sampling probabilities in the two sampling stages. Generally speaking, when the geographic source of each case is considered, our individual cases came from 80 out of 100 counties of North Carolina. The distribution of the cases is given below.

Distribution of Cases (Unweighted)

5. Training Coders (UNC Law School Graduates)

We were fortunate to have the assistance of several bright and highly motivated recent graduates of the UNC-Law School. The principal investigator (Dr. Unah) has extensive experience in training coders in other projects he has undertaken. This, along with Professor Boger’s extensive experience in capital punishment cases and the coders’ own educational background and interest in the project greatly facilitated the training. We hired another UNC Law School graduate as project manager and devoted one to two weeks to training the coders and evaluating the data collection instrument. Following the training sessions, the coders were dispatched across the state to code cases and, where necessary, to speak with district attorneys and defense counsel that had handled death penalty cases to gather additional information. Coders were also instructed to keep inter-coder communication about coding protocols to a minimum but instead to direct questions to the project manager who in turn consulted regularly with the principal investigator.

6. Data Sources

The information gathered for this project came from numerous sources. We list those sources here:

1. Office of the Chief Medical Examiner in Chapel Hill and Charlotte NC. Files from these offices contain considerable initial information about the victim, including demographic factors such as race, sex, age and information about the probable cause of death, and a narrative summary of the circumstances surrounding the death and the nature of the wounds sustained by the victim. Each victim has an OCME case number, which makes it relatively easy to track the information.

2. County court records. We examined court records, including indictments sheets; records on appeal; superior court files; jury instructions and verdict sheets for both guilt and penalty phases; defendants’ briefs; State’s briefs; issues and recommendations forms; and opinions from the North Carolina Court of Appeals and the North Carolina Supreme Court.

3. Police reports and arrest warrants

4. Police information network records of previous arrests and convictions

5. Interviews with prosecuting and defense attorneys

6. Newspaper/journalistic accounts of the homicide

7. Department of Corrections website. Used for verifying defendant’s demographic characteristics and prior criminal record data.

Data Analysis

The analysis was performed in SPSS. The dependent variable, i.e., what we are interested in explaining is whether a defendant got the death penalty or not. Therefore, we want to account for the factors that might explain the imposition of capital punishment. Given the dichotomous nature of the dependent variable, we used maximum likelihood estimation technique (logistic regression) to derive our estimates of what is happening in the real world of murder prosecutions.

The selection of variables included in the models was guided by legal theory, common sense, and the empirical literature on the death penalty. For example, legal theory suggests that homicides that contain any one of the eleven aggravating factors listed on the North Carolina death penalty statute can result in the application of that ultimate sentence. Therefore, we included in our analysis disaggregated measures that capture the presence of these statutory aggravating factors. Legal theory would also suggest that mitigating conditions listed in the North Carolina statute that make an offense less aggravated and thus less likely to result in a death sentence should be included in the analysis as well. In theory, only these aggravating and mitigating factors as well as other legally sanctioned conditions would explain or help us to predict whether a defendant accused of a homicide will receive the death penalty.

Unfortunately, this is not what is happening in the practical world of death penalty prosecutions. We have noticed in our study that beyond the legal factors discussed above, several other influences that should not play a role in the application of the death penalty do indeed influence the decision to apply the death penalty. These illegitimate factors include the race of the victim. A defendant is significantly more likely to get the death penalty if the victim is white rather than non-white, even after taking into account the statutory aggravating and mitigating factors approved by the North Carolina General Assembly for determining death worthiness.

Table 4

Thirty-Six Variable Model Explaining the Application of Capital Punishment in North Carolina
(Death Eligible Cases only, 1993 - 1997)

Number of cases = 294
-2xLog Likelihood = 187.31***
Predicted correctly = 86%
Reduction in error = 79%

* p <.10; ** p <.05; ***p<.01 (Levels of statistical significance; all two-tailed tests).

Table 5

Thirty-Six Variable Model Explaining the Application of Capital Punishment in North Carolina
(Cases that went to trial, 1993 - 1997)

Number of cases = 338
-2xLog Likelihood = 171.43***
Predicted correctly = 88.5%
Reduction in error = 85%

* p<.10; ** p < .05; *** p<.01 (levels of statistical significance, all two-tailed tests)

Table 6

Thirty Six Variable Model Explaining the Application of Capital Punishment in North Carolina
(Cases where prosecutor sought death penalty, 1993 - 1997)

Number of cases = 262
-2xLog Likelihood = 169.36***
Predicted correctly = 85.5%
Reduction in error = 77%

* p < .10; ** p < .05; *** p<.01 (Levels of statistical significance; all two-tailed tests)

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Table 7

Thirty Six Variable Model Explaining the Application of Capital Punishment in North Carolina
(Cases at penalty phase, 1993 - 1997)

Number of cases = 226
-2xLog Likelihood = 160.92***
Predicted correctly = 83%
Reduction in error = 71%

*p<.10; ** p < .05; *** p<.01 (Levels of statistical significance; all two-tailed tests)

Backgrounds of Principal Investigator and Collaborator

Dr. Isaac Unah

Assistant Professor of Political Science, is a product of the State University of New York (SUNY) System. He earned his B.S. degree in economic and management science from SUNY College at Cortland (1989), his M.A. in political science from SUNY Stony Brook (1991), and his Ph.D. also from SUNY Stony Brook in 1995. His research and teaching interests focus on judicial politics, public law, and bureaucracy and organizational behavior. His published research has appeared in The American Journal of Political Science and Political Research Quarterly. He has written The Courts of International Trade: Judicial Specialization, Expertise, and Bureaucratic Policymaking (University of Michigan Press). The book analyzes the role of expertise in structuring the behavior and policy influence of specialized federal court judges in U.S. trade policy implementation. Unah’s most recent publication examines the incidence and structure of conflict on the U.S. Court of Appeals for the Federal Circuit (Law and Policy Quarterly, 2001). He is currently researching the attitudinal model of U.S. Supreme Court justices’ behavior and the death penalty in North Carolina, among other projects.

John Charles Boger

Professor of Law

A.B., 1968, Duke University; M.Div., 1971, Yale Divinity School; J.D., 1974, The University of North Carolina at Chapel Hill. Associate editor, North Carolina Law Review; Phi Beta Kappa, Order of the Coif.

Boger is a native of Concord, North Carolina. After completing law school, he clerked with the Honorable Samuel Silverman of the New York Supreme Court Appellate Division and practiced for three years in the litigation department of Paul, Weiss, Rifkind, Wharton & Garrison in New York City. In 1978, Boger joined the staff of the NAACP Legal Defense and Educational Fund, where he litigated capital punishment cases for a decade, becoming in 1983 the director of the fund’s Capital Punishment Project. In 1987, he became director of a new poverty and justice program at LDF established to enlarge the legal rights of the minority poor. The program specializes in housing, health care, and education litigation. Boger is chair of the Poverty and Race Research Action Council, a Washington, D.C.-based federation of civil rights, civil liberties, and legal services groups that encourages national coordination of social scientific research and legal advocacy on behalf of the poor. He has taught as a lecturer or adjunct professor at Harvard, New York Law School, and Florida State University. He teaches civil procedure, constitutional law, education law, racial discrimination and poverty law.

CONTACT SHEET

For Additional Information About the Study

Chris Fitzsimon - Executive Director, Common Sense Foundation

Office: (919) 821-9270

Cell: (919) 349-3915

Email: chris@common-sense.org

Dr. Isaac Unah - UNC-CH Department of Political Science

Office: (919) 962-6383

Email: unah@unc.edu

Professor Jack Boger - UNC-CH School of Law

Office: (919) 843-9288

Email: jcboger@email.unc.edu

Capital Punishment Experts Familiar with Study

Justice James Exum - Former Chief Justice, North Carolina Supreme Court

Office: (336) 378-5385

Email: Jim_Exum@shmm.com

Professor James Coleman - Duke University School of Law

Office: (919) 613- 7057

Email: jcoleman@law.duke.edu

Endnotes

1. We chose this period to obtain the most recent information available about North Carolina’s sentencing patterns. Had we extended the study past the year 1997, the trials of many defendants would still have been incomplete at the time we began our data collection effort.

2. See Guy Johnson, The Negro and Crime, 217 Annals 92 (1941) (finding that, among 330 murder cases in five North Carolina counties between 1930 and 1940, 32 percent of all black defendants, but only 13 percent of white defendants, received death sentences when the victims were white; moreover, death sentences were imposed in 17.5 percent of all white victim cases, but only four-tenths of one percent of black victim cases); Harold Garfinkel, Research Notes on Inter- and Intra-racial Homicides, 27 Social Forces 369 (1949) (finding similar disparities among 821 cases in ten North Carolina counties between 1930 and 1941).

3. See, e.g., Marvin Wolfgang and Mark Riedel, Race, Judicial Discretion, and the Death Penalty, 407 Annals 119 (1973) (reporting on racial disparities observed in a study of over three thousand rape cases in eleven Southern jurisdictions from 1945 to 1965).

4. 408 U.S. 238 (1972)(per curiam); see, e.g., id. at 249-57 (Douglas, J., concurring) (expressing concern that race may be playing an impermissible role in capital sentencing); id. at 293-95 (Brennan, J., concurring) (same); id. at 364-66, 388 (Marshall, J., concurring) (same).

5. See Gregg v. Georgia, 428 U.S. 123, 255 (White, J., concurring).

6. David C. Baldus, George G. Woodworth, & Charles A. Pulaski, Jr., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (Boston: Northeastern University Press, 1990).

7. McCleskey v. Kemp, 481 U.S. 279 (1987).

8. Id. at 292; id. at 306-13.

9. Id. at 319 (quoting Gregg v. Georgia, 428 U.S. 153, 186 (1976)).

10. United States General Accounting Office, Report to Senate and House Committees on the Judiciary: Death Penalty Sentencing (February 1990).

11. Id. at 5-6.

12. See David Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, With Recent Findings from Philadelphia, 83 Cornell Law Review 1638, 1742-44 (listing all such studies by state and by dates of study).

13. Barry Nakell & Kenneth A. Hardy, The Arbitrariness of the Death Penalty 158-59 (Philadelphia: Temple University Press, 1987) (finding that the race of the homicide defendant in North Carolina “had a significant effect when the seriousness of the case was controlled for” in determining the likelihood that a case would be charged and submitted to the jury as a death-eligible case, and that “[a]t the verdict stage,” the race of the victim emerged as a serious factor, since “a defendant charged with murder of a white was six times more likely to be convicted than a defendant charged with murdering a nonwhite”).

14. Samuel R. Gross & Robert Mauro, Death & Discrimination: Racial Disparities in Capital Sentencing 91 (Boston: Northeastern University Press, 1989).

15. Id.

16. See Ames Alexander & Liz Chandler, Errors, inequities often cloud capital cases in the Carolinas, Charlotte Observer, Sept. 9, 2000 (https://www.charlotteobserver.com/observer/special/deathpenalty/day1/death.htm) (visited March 3, 2001).

17. After our analysis is accepted for publication in a refereed journal, we will make the data available to interested parties. We also plan to deposit the data with the Inter-University Consortium for Political and Social Research (ICPSR) for full public access.