Former Chief of North Carolina Supreme Court make pitch against death penalty

The former Chief Justice of the Supreme Court of North Carolina, I. Beverly Lake, Jr., has this notable new Huffington Post capital punishment commentary under the headline "Why Protecting the Innocent From a Death Sentence Isn’t Enough." Here are excerpts:

I’ve always been known as a tough-on-crime, pro-law enforcement individual, and I still am. During my years as a North Carolina State Senator, I vigorously advocated for the death penalty.  As a superior court judge, I presided over trials where the death penalty seemed like the only suitable punishment for the heinous crimes that had been committed.  Finally, as a Justice, and then as Chief Justice, on the Supreme Court of North Carolina, I cast my vote at appropriate times to uphold that harsh and most final sentence.

After decades of experience with the law, I have seen too much, and what I have seen has impacted my perspective. First, my faith in the criminal justice system, which had always been so steady, was shaken by the revelation that in some cases innocent men and women were being convicted of serious crimes....

Last year in America, over half of the individuals that were executed had severe mental impairments.  Too much reliance is put on jurors to identify those who are the “worst of the worst.”  As Chief Justice of the Supreme Court of North Carolina, I was responsible for assessing the personal culpability of defendants in capital cases to ensure that the punishment would be applied appropriately, so I understand just how difficult this task can be.

In order for mitigation evidence to be considered it must be collected and introduced at trial.  In states where indigent defense systems are woefully underfunded, as it is in North Carolina, or where standards of representation are inadequate, this evidence regularly goes undiscovered.

Additionally, a number of impairments are difficult to measure.  For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability.  Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime.

The categorical exclusions for juveniles under the age of 18 and those with intellectual disability are simply drawn too narrowly to encompass everyone who has diminished culpability.  These categorical exclusions are particularly inadequate when multiple impairments exist....

After spending years trying to instill confidence in the criminal justice system, I’ve come to realize that there are certain adverse economic conditions that have made the system fundamentally unfair for some defendants.  These systemic problems continue to lead to the conviction of the innocent, as well as those individuals for whom the death penalty would be constitutionally inappropriate, regardless of the crime.  Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment.  I have come to believe that it probably cannot.