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October 3, 2012

An update on just some of the uncertainty surrounding North Carolina's death penalty

North Carolina is not only a notable election swing state, but also a state in which the modern intricate history of its administration of the death penalty is almost impossible to sort trough. This new local article, "Unresolved challenges put death penalty on hold in N.C.," reports on part of this lengthy story:

North Carolina has not executed an inmate in six years because issues with the state medical board and unresolved litigation have led to a de facto moratorium. So while the state continues to pay for costly capital trials, no one is actually being put to death.

New Hanover County District Attorney Ben David, who is also president of the N.C. Conference of District Attorneys, said the moratorium has become a point of concern among prosecutors.  "Any decision to move forward (with the death penalty) has to include a frank discussion with the victim's family about the realistic possibility of the punishment being carried out," he said....

Prosecutors face a litany of hurdles when seeking death.  For one, jurors have shown a growing reluctance to impose the penalty, a shift that some scholars attribute to a string of highly publicized exonerations.  Even after a death sentence is secured, ongoing appeals and litigation challenging the constitutionality of lethal injection, the state's sole execution method, have tied up executions for the indefinite future.

Critics say pursuing capital punishment amid a moratorium is an expensive gamble.  That argument has gained traction as shrinking budgets and the frustratingly slow growth of the economy prompt some states to re-examine their criminal justice policies.... 

With 46 executions since 1976, North Carolina had been among the most active users of capital punishment, according to data from the nonprofit Death Penalty Information Center, based in Washington, D.C.  But recent years have seen a turnaround. Even before the state's moratorium took hold, executions had grown exceedingly rare for several reasons.  The number of death sentences handed out has trended downward since 2000, dropping from 18 that year to three in 2007, according to Isaac Unah, a political science professor at the University of North Carolina at Chapel Hill.

Notably, this story leaves out all the litigation and legislative debate over the application of the Racial Justice Act in North Carolina.  I am unsure where that litigation now stands, but I am sure that one could devote volumes to the (non)application of capital punishment in just this one state in recent years.

A few older and more recent posts on battles over the NC death penalty:

October 3, 2012 at 11:02 AM | Permalink

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Re: the RJA -- the DAs Office filed a cert petition in the first case where relief was granted (NC SCt File No. 411A94-5). No ruling on that yet. Additional hearings in the trial court are currently ongoing -- http://www.newsobserver.com/2012/10/01/2382199/3-nc-racial-justice-act-cases.html.

Posted by: JD | Oct 3, 2012 11:23:12 AM

"North Carolina had been among the most active users of capital punishment"
"North Carolina has not executed an inmate in six years because…litigation…"
"Critics say pursuing capital punishment amid a moratorium is an expensive gamble"

Funny. Who made it expensive? Who is making it a gamble?

Anti-death penalty activists have been hugely successful in
thwarting the constant will of the American people.
I believe something like 47-50 of the states popularly support Execution.

How many states can actually prevail over the scheming of the litigating obfuscators?

"A majority, held in restraint by constitutional checks and limitations...is the only true sovereign of a free people."~~Lincoln, 1st Inaug.

Posted by: Adamakis | Oct 3, 2012 1:22:11 PM

"Prosecutors face a litany of hurdles when seeking death. For one, jurors have shown a growing reluctance to impose the penalty, a shift that some scholars attribute to a string of highly publicized exonerations."

Precisely. That's how I was convinced by other jurors to change my mind from death to life without parole. Also the hide-the-ball tactics of the prosecutors in so many other cases I was told about by jurors caused me not to vote for death.

Posted by: former juror | Oct 3, 2012 4:07:20 PM

former juror --

Is there some reason the killer's lawyer wouldn't have been able to present evidence in mitigation?

Isn't the killer's behavior, as shown by the evidence, what deliberations are supposed to be about, rather than unsupported speculation about the behavior of the prosecutor?

Would you also have voted for life for Timothy McVeigh? If not, why not? The generalized possibility of prosecutorial misconduct was there too (as of course it will be everywhere, being generalized).

Did the judge say in his instructions that it was OK for jurors to base their decision on undocumented suspicion about the behavior of the lawyers?

Posted by: Bill Otis | Oct 4, 2012 3:00:15 AM

Mr. Otis:

I understood the judge's instructions in the penalty phase to say that we could vote to spare the defendant's life for any reason we felt mitigated the punishment. I had several reasons, only one of which I discussed above. I was not on the McVeigh jury so I can't say anything about that case.
I do remember the the defense attorney arguing that under the Constitution, the decision for life or death was up to 12 jurors, not 12 prosecutors. Now I understand why.

Posted by: former juror | Oct 4, 2012 3:34:35 PM

former juror --

I doubt the judge said that jurors could vote against the DP "for any reason we felt mitigated the punishment." Could you have voted against the DP because the defendant was white, and you don't think white people should be executed?

I don't think so. The usual instruction is that jurors may vote for life for any reason SUPPORTED BY THE EVIDENCE IN THE CASE that mitigated punishment.

"I was not on the McVeigh jury so I can't say anything about that case."

There have probably been 10,000 articles written about the McVeigh case by people who were not on the jury. The idea that you have to have been on Mr. X's jury to have a view about Mr. X's sentence is, ummmmm, novel.

You have not explained any reason for voting for life as you did beyond generalized suspicion of prosecutors. If you had any specific reason to suspect that the prosecutor in the case you sat on was "hiding the ball," you have not said what it was. Do you have such a reason? If not, why should the possiblility of misconduct in some different case count as a proper factor in a case where you saw none?

"I do remember the the defense attorney arguing that under the Constitution, the decision for life or death was up to 12 jurors, not 12 prosecutors."

Did anyone ever claim that the decision was up to 12 prosecutors? Of course not. The defense lawyer's line was grandstanding, not argument.

The question is not whether the decision is up to prosecutors or jurors. The question is whether jurors properly may base that decision on free-floating, visceral antagonism that has nothing to do with the specifics of their case.


Posted by: Bill Otis | Oct 5, 2012 10:28:48 AM

Mr. Otis: I am not alone!


On September 27, 2012 a federal jury in Puerto Rico rejected the death penalty for Edison Burgos Montes, who was convicted in August of the murder of his girlfriend in 2005. The jury deliberated for two days before sentencing Montes to life in prison for this drug-related crime. Puerto Rico's constitution forbids capital punishment, but U.S. prosecutors can seek the death penalty under federal law. This is the fourth capital case tried by U.S. authorities since the federal death penalty was reinstated in 1988. None of the cases has resulted in a death sentence. Governor Luis Fortuno and Resident Commissioner Pedro Pierluisi, Puerto Rico's sole representative to the U.S. Congress, spoke out recently against the death penalty. In addition, one of the candidates for governor, Senator Alejandro Garcia Padilla, promised to try to stop the use of the federal death penalty for Puerto Rico residents. There also have been popular demonstrations against this use of the death penalty in the Commonwealth.

Posted by: former juror | Oct 6, 2012 8:49:59 PM

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