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 24^th 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​.char​lot​teob​serv​er​.com/​o​b​s​e​r​v​e​r​/​s​p​e​c​i​a​l​/​d​e​a​t​h​p​e​n​a​l​t​y​/​d​a​y​1​/​d​e​a​t​h.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.