North Carolina Death Penalty Cases and Innocence Inquiries

POLI 203, North Carolinas Death Penalty since Furman April 13, 2020 Baumgartner, POLI 203, Spring 2020 1

Announcements and catch-up Note this news story about an Innocence Inquiry Commission case currently being considered: https://www.newsobserver.com/news/local/crime/article241190191.html On March 13, four men convicted of a killing saw their cases put forward to the three-judge panel by a 5-3 vote of the commission. The video shows one of them describing their police interrogation, which included being threatened with lethal injection; they were 14 and 15 years old at the time, 18 years ago; all were convicted of 2nd degree murder Baumgartner, POLI 203, Spring 2020 2

Watch this 6-minute video about childhood trauma in prisons https://vimeo.com/398088783?fbclid=IwAR3- JIulpdHhjKKCp38U4zUMTAGKISVLMnXLB5K-9Eu0s2tLdlmpC3FRNOE (Note: at the end there is a fund-raising appeal; feel free to skip that part if you wish! I don t really know much about this organization.) My point here is many of you have asked what to do with what you have learned in this course. My biggest answer is to help work on reforms that would make more people have better childhoods. There are many elements of that of course. But our focus on punishment for crime ignores the question of why people commit crimes. Baumgartner, POLI 203, Spring 2020 3

Another innocence case from Philadelphia https://www.inquirer.com/news/walter-ogrod-prison-barbara-jean- horn-murder-sharon-fahy-mother-innocent-20200408.html The more you look, the more you find When the DA s office no longer attempts to resist efforts to find innocence cases, this can make a big difference. Philadelphia may see a large number of exonerations not necessarily because they have more wrongful convictions, but because the DA is supportive of looking Also note the discussion in the article about Covid-19 in prisons Baumgartner, POLI 203, Spring 2020 4

Speaking of Covid-19 The ALCU, NAACP, Disability Rights NC, and other plaintiffs have sued the state to force them to release prisoners in light of the pandemic: https://www.acluofnorthcarolina.org/en/press-releases/civil-rights- groups-file-emergency-lawsuit-demand-governor-state-officials- protect See also the link with in the article to the PDF of the lawsuit itself. Contrasting points to think about: People were sentenced to prison, not to catch a deadly fever. Are there safe alternatives to prison, that also protect the community from crime? If so, does the state have an obligation to use them? Baumgartner, POLI 203, Spring 2020 5

A film you might want to see Alfre Woodard stars in Clemency Not sure you can find it for free, but it s a movie about a prison warden and the psychological damage of overseeing an execution team. It just came out in 2019. Warning: it s sad, then gets sadder. But you can watch the trailer; that s not too bad: https://www.youtube.com/watch?v=HzUhz2XkFfE Baumgartner, POLI 203, Spring 2020 6

NC death penalty system For historical background, see Seth Kotch, Lethal State. Seth is a professor in American Studies. He s an historian; also works on lynching (Take any class he teaches.) My focus here: 1972-present Baumgartner, POLI 203, Spring 2020 7

NC and Louisiana respond to Furman with mandatory death for all eligible crimes NC response to Furman: No legislation at all. The NC SC ruled that if the current law is ruled invalid, we simply revert to the previous law. That law dated to the 1940s and mandated death as the sole punishment for first-degree murder At the time, it was common for governors to commute, and even for judges to ask the governor to commute the sentence when they gave the sentence. Obviously this is no longer the case. Baumgartner, POLI 203, Spring 2020 8

NC and LA mandatory schemes ruled unconstitutional in 1976 Woodson v. North Carolina (please review it on the book web page, legal citations section): it s very simple. Any law that mandates death as the punishment for a certain class of crimes is cruel and unusual. Roberts v. Louisiana: same ruling. So, in response to that, NC did pass a law. Mandatory prosecution. Jury can then decide. Baumgartner, POLI 203, Spring 2020 9

Mandatory prosecution, but no mandatory sentence (1976-2001) The DA *must* seek death if the crime is death-eligible. The sentencer (e.g., the jury) can then weigh the aggravators and the mitigators in the penalty phase of the trial Note: The NC SC made this even more harsh in 1979 and 1991 2001: DA discretion allowed (last state in the US to stop the practice of mandatory capital prosecution) Baumgartner, POLI 203, Spring 2020 10

1979, State v. Johnson No plea-bargains allowed that would preclude death. That is, the DA could not promise only a life sentence in exchange for a guilty plea. Rather, the accused must plead guilty to the capital crime, and seek mercy from the jury. This did still allow one to plead guilty to 2nd degree murder, if the DA allowed it. But that s a big step down and so many DA s would not want that. The punishment might be too low. Also recall that before 1993 there was no such thing as LWOP. So Life meant 20 years + eligibility for parole. Baumgartner, POLI 203, Spring 2020 11

1991, State v. Case You can t plead guilty on the condition that the DA agree to go light in presenting the aggravating factors to the jury. Mr. Case had reached a deal to plead guilty and the state agreed to present evidence of only one out of several aggravating circumstances in the crime. The Court said this was unacceptable. So, from 1991, no pleas and no opportunity to avoid the death penalty. Note that just 2 years later, LWOP is enacted. Note: very tough-on-crime period. NC was leading the way throughout all this time. Also, note the judges here were leading the way: These two rulings, particularly State v. Case, told the DA s that they were FORCED to be tough. So the judges were being harsher than the DA s. Think about that. Baumgartner, POLI 203, Spring 2020 12

2001, Prosecutorial discretion NC was the last state in the nation to enact this reform. It mean that even for a capital-eligible crime, the state did not have to go for death. It allowed for two punishments for Class A felonies: LWOP and Death, not just Death. This dramatically reduced the number of capital prosecutions. It allowed three steps for the most serious homicides: First degree capital (penalty: death) First degree, non capital (penalty: LWOP) Second degree (penalty: Life with parole or LWOP) Baumgartner, POLI 203, Spring 2020 13

So, really three periods of the death penalty in NC 1972-76: Pre-Woodson Extremely high numbers of death sentences, none of which were sustained; all these individuals saw their sentences converted to life with parole. Some have been released. 1976-2001: Mandatory Prosecution Very high numbers of death sentences as well 2002-present: Lower usage DA s could choose, and in fact they have often chosen not to use it. Baumgartner, POLI 203, Spring 2020 14

North Carolina leads the nation in death sentencing (1972-1976) The NC death row was emptied, like all others, in 1972 But it filled up again very quickly under the mandatory death sentence law in place from 1972 to 2001 July 1, 1976: 115 individuals on death row All these sentences were ruled invalid by Woodson v. North Carolina March 1978: just six people on death row NC death row was the largest in the nation in 1976 Of the first 100 death sentences nationally after Furman, 44 were in NC Baumgartner, POLI 203, Spring 2020 15

The early growth and quick decline of NC death row in the pre- Woodson years Baumgartner, POLI 203, Spring 2020 16

Three periods of the NC death penalty: Before Woodson; Mandatory Prosecution; Discretion. Baumgartner, POLI 203, Spring 2020 17

Comparison to national trends Though NC was harsher than almost any other state, and certainly had more death sentences in the early years, trends in general in the 1980s and 1990s were similar to the national trends: increased use. Similarly, the period from about 1996 to present mirrored the national trends. We were probably a little later than other states to start on the decline, because discretion only came in 2001. But after a delay, we followed a steep downward trends similar to other states. Baumgartner, POLI 203, Spring 2020 18

The NC death penalty statute: https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/BySection /Chapter_14/GS_14-17.html 14-17,a: A murder which shall be perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction as defined in G.S. 14-288.21, poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony. Baumgartner, POLI 203, Spring 2020 19

Aggravating circumstances separately listed https://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection /Chapter_15A/GS_15A-1340.16.html There are more than 20 things listed, too long for a slide. Includes several vague things: Gang-related especially heinous, atrocious, or cruel great risk of death to more than one person Killer was armed or used a deadly weapon #20: Any other aggravating factor reasonably related to the purposes of sentencing (Note: Mitigating factors also listed a similarly long list.) Baumgartner, POLI 203, Spring 2020 20

So, we have a pretty expansive death penalty, with several catch-all phrases Lying in wait Any other kind of willful, deliberate, and premeditated killing During the perpetration of (another felony) So any premediated homicide, or felony murder And, at the penalty phase, many many things are possible aggravators, and lots of potential mitigators All in all, this is pretty similar to other states; on the expansive side. Baumgartner, POLI 203, Spring 2020 21

Over the entire time period: 543 total 319 reversed 143 remaining 43 executed 39 died Baumgartner, POLI 203, Spring 2020 22

Death Sentence Outcomes: Similar to national trends, extremely inefficient Baumgartner, POLI 203, Spring 2020 23

More recent trends (more in the lecture on reforms on Wednesday) 2006: Medical board rules: A physician should not be a participant in a legally authorized execution. 2009: RJA 2015: Restoring Proper Justice Act removes the requirement of a doctor being involved As of today: RJA litigation at the NC SC Sustained: all inmates will file, and most likely win, so by logic the governor or the legislature may act to commute all sentences or find another way to deal with these cases Not sustained: executions could resume. But litigation on the method of execution will ensue. Baumgartner, POLI 203, Spring 2020 24

Method of execution: the next round of litigation to come. NC has used hangings, electric chair, gas, and lethal injection. Because the last execution was in 2006, it has been almost 15 years. Also, the Restoring Proper Justice Act (2015) changed the protocols including by no longer requiring the participation of a doctor. So, this will certainly be litigated before the first execution takes place. That litigation has not happened yet because no executions can be scheduled until after the RJA question is resolved. So, lots of uncertainties about whether it will ever start up again. Baumgartner, POLI 203, Spring 2020 25

Counter-trends in favor of the death penalty 2012 change in the legislature Amendments to the RJA in 2012 Repeal and replacement in 2015. Restoring Proper Justice Act does more than only repeal the RJA. It calls for a jump-start to the system. Federal executions will resume if the administration can get these reforms through the courts. They did schedule 4 executions but they were stopped by the courts and remain tied up in litigation. But this will be resolved before too long and the federal system may be more supportive, certainly as long as the current administration is in power. Also, the federal courts have changed dramatically and will be more supportive of the death penalty. Net result: DP is still a legal option. Will it come back? Will it fade out? Baumgartner, POLI 203, Spring 2020 26

The politics of it all Immediate, powerful, and very strong response to Furman: Federal encroachment on states rights Little push, ever, for abolition Concern about exonerations, errors, innocence, and race Gradual decline in use, progressive reforms Only five governor s commutations for anyone on death row Big push in 2012 to have Gov. Purdue (Dem.) empty death row. Did not happen. See the video on Sakai (resources) concerning the clemency request for Henry Hunt. Very powerful stuff. But Hunt was executed in 2003. (NOTE: I was unable to upload this video to Sakai as it is too big. Sorry.) RJA and its repeal make clear the volatile politics Possible slow fading away of the death penalty, but some may see a political opportunity in attempting to bring it back. Federal government certainly receptive to this. Baumgartner, POLI 203, Spring 2020 27

The politicization of the RJA and what it shows Recall that every single Democrat voted for the RJA in 2009, after intense lobbying within the Caucus. Note that Republicans won the next election, and the one after that, and that the RJA was part of their election campaign: Don t let these convicted killers move into a neighborhood near you Note that neither Gov. Roy Cooper nor Atty Gen. Josh Stein has really said a single thing about the death penalty. If they thought it was a political winner to come out strong for abolition, they would have done so already. So, the politics are not clear. Elected officials may be waiting for a ruling on the RJA from the NC SC. Then perhaps they can explain a logic to ending it because of complications, not because of moral views on it. Not exactly an example of moral courage. Baumgartner, POLI 203, Spring 2020 28

Some summary stats about the death penalty in NC Age at crime The 43 people executed Time on death row Status of current DR population Lots of information here on the NC Department of Public Safety web site: https://www.ncdps.gov/adult-corrections/prisons/death-penalty Look through the various pages there Baumgartner, POLI 203, Spring 2020 29

Of all those sentenced to death in NC, they were typically pretty young; 29 years old, with only a few older than 40. Very few over 50. Baumgartner, POLI 203, Spring 2020 30

Those executed have a similar age profile at the time of crime, but they serve a long time and are old when they are executed. Years on death row before execution: 11 years on average. Age at execution: 43 Baumgartner, POLI 203, Spring 2020 31

Current death row inmates have served on average more than 20 years; longer than almost all those who were executed. Baumgartner, POLI 203, Spring 2020 32

Current NC Death Row Inmates Age at time of crime: 28, plus or minus; just a few were over 35 Age as of now: 51, with pretty many in their 60s and one over 80 Baumgartner, POLI 203, Spring 2020 33

Thats it for today Thanks for your attention. I hope you and your families all stay healthy and well. Don t forget your quizzes every Wed, due on Friday. Use the quizzes to study for the quiz-section of the final exam. Baumgartner, POLI 203, Spring 2020 34