Illinois Abolishes Death Penalty; Could NC Be Next?

March 11, 2011

This Wednesday, Illinois Governor Pat Quinn signed a bill abolishing the death penalty in Illinois. After speaking with a variety of people on both sides of the issue, Gov. Quinn reached the conclusion that “our system of imposing the death penalty is inherently flawed [and] that it is impossible to devise a system that is consistent, free of discrimination…and always gets it right.” (Read the Governor’s statement here.)  Governor Quinn expressed concern about wrongful convictions, racial discrimination, the lack of a deterrent effect, the financial strain imposed by capital punishment, and the failure of the death penalty to bring closure to victims’ families. Thus, Illinois became the 16th state to ban capital punishment. The inmates on death row have had their sentences converted to life without parole and the money that would have been used for their special housing and legal costs has been redirected to law enforcement and victim support groups.

Many in North Carolina took notice of Illinois’ historic step. “Even a flawless capital punishment system raises serious ethical questions,” wrote The Charlotte Observer, “But the truth is, the death penalty in America is nothing close to flawless. It is riddled with irreparable problems and needs to be abolished.” The paper argued, as did Governor Quinn, that the punishment of life without parole is sufficient to punish the offender and protect society from further harm – “without the risk of the state killing an innocent person.” The recent false evidence scandal at the state forensics lab is an indelible stain on the possibility of fairness in North Carolina capital cases.

Mark Kleinschmidt, of the Fair Trial Initiative and the NC Coalition for a Moratorium, has called upon North Carolina lawmakers to consider abolishing the death penalty in the Tarheel State. “We applaud Governor Quinn for recognizing that a fatally flawed system cannot be fixed and precious funds are much better spent on solving crimes and assisting victims,” said Kleinschmidt. He continued, “The capital punishment system in North Carolina is fraught with all of the same problems as Illinois. Innocent people have been sentenced to death, costs are exorbitant for such an ineffective policy, and recent studies have demonstrated significant racial bias.”

As the Death Penalty Information Center observes, there are now fewer active death penalty states in America than at any other time in the modern era. New Jersey abolished the death penalty in 2007, followed by New Mexico in 2009. The national tide is slowly shifting away from capital punishment. DW hopes that North Carolina will soon see its way to joining states like Illinois in choosing sound legal, correctional and fiscal policy over winning easy political points at the expense of human lives.

New Approach to Death Penalty Decision-Making?

August 26, 2009

A new article, featured at Sentencing Law and Policy, caught my eye.  Here’s the abstract:

In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials.  This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often.  By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness.  The difference between life and death may depend on the side of the county line where the offense was committed.  Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense.

Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties’ involvement in the death penalty system.  All aspects of capital cases — charging, trial, appeal, and everything in between — can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases.  This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.

What do you think, dear readers?  Studies in multiple states have shown that where a crime occurs can have more to do with whether prosecutors seek the death penalty than the facts of the crime itself.  Is centralizing resources and decision-making a wise alternative, or should local authorities be the ones to decide how a murder case is handled?

88% of People Who Know What They’re Talking About Say Death Penalty Does Not Deter Crime

June 17, 2009

A new survey of top criminologists reveals that the vast majority of them believe, based on factual research and not personal opinion, that the death penalty does not deter crime.  In addition, 87% of those surveyed believe that the abolition of the death penalty would not have any significant effect on murder rates.

Other study findings include:

  • 75% of respondents agree that legislative debates about the death penalty distract lawmakers from focusing on real solutions to crime problems
  • According to 75% of respondents, research shows that death penalty states do not have lower homicide rates than neighboring non-death-penalty states
  • Only 9% of criminologists stated that the death penalty significantly reduces the number of homicides
  • Only 3% found evidence that executions deter future homicides

NC Prisoner Waits for Justice

June 16, 2009

[A guest post from a friend of DeathWatch]

Rayford Burke was convicted of first-degree murder and sentenced to death in 1993.  No physical evidence connected Burke to the crime, a fatal shooting in a Statesville crack house.  The murder weapon was never found and Burke has steadfastly maintained his innocence.  More than a decade ago, Rayford Burke learned that prosecutors used false evidence to persuade the jury of his guilt.  Burke is still waiting for a chance to prove his claim and to have a fair trial.

It’s not the first time Burke has been accused of murder based on shaky evidence.  In 1990, Burke was arrested for the murder of Calvin Royal at the Busy Bee Lounge.  Burke went to trial in that case in 1992, and the jury found him not guilty.  Just two months later, Burke was arrested and charged with killing Timothy Morrison, a prosecution witness in the Busy Bee case.

Burke remains convinced that he was framed in the Morrison case.  The same police investigators and prosecutors were involved in both cases.  Burke believes they were angry that their earlier attempt to convict him had failed and that Burke filed a multi-million dollar civil suit for malicious prosecution against them.

At trial, prosecutors admitted that the linchpin of their case was evidence that Burke had threatened Morrison three weeks before the killing.  The only witness to testify about the alleged threats was an employee of the District Attorney’s office.  She testified that Morrison told her his girlfriend and uncle had told him Burke was threatening to kill him because he had testified in the Busy Bee case.  She also testified that she had spoken with Morrison’s uncle and girlfriend.  The prosecution did not call the uncle or girlfriend to the stand or explain why these witnesses were not available to testify.

Nevertheless, the trial judge allowed the jury to hear this triple hearsay testimony, concluding that the evidence was sufficiently reliable for the jury to consider.  Prosecutors stressed this evidence — which they described as “critical” to their case — and told the all-white jury they should convict Burke, whom they described as a “big, black bull.”

Turns out, the evidence was not reliable at all.  In the prosecutor’s own file were notes from an interview with the uncle.  According to the notes, Morrison’s uncle “never heard defendant make any threats” and Morrison “never told him about any threats.”  The prosecutor’s file contained no notes of interviews with Morrison’s girlfriend.  However, she gave Burke’s attorneys a sworn affidavit in which she described being interviewed by staff from the District Attorney’s office.  She told them she was never threatened by Burke, she never told Morrison that Burke had threatened him, and Morrison never told her of any threats from Burke.  Thus, prosecutors knew that testimony that formed the heart of their case was, in fact, false.

The State’s other main witnesses were three men who were present at the drug house when the shooting occurred.  Each man gave inconsistent statements to the police before trial, but ended up testifying that Rayford Burke shot Morrison after an argument.  Each man also testified that he was sober at the time of the shooting.  Subsequent investigation has revealed that all three had been drinking and smoking crack at the time of the crime.

Burke has asked repeatedly for a hearing on his claim that the prosecution hid evidence favorable to him.  In 2005, a Superior Court judge said that Burke should have his day in court, but no hearing has yet been scheduled.

Where the Death Penalty Stands in North Carolina

May 15, 2009

It has been more than two years since anyone was executed in North Carolina. In the last few weeks, several legislative actions and court decisions have made it seem likely that executions will resume in the near future. What is really going on?

Medical Board

On May 1st, the North Carolina Supreme Court issued its decision in a lawsuit between the North Carolina Medical Board and the NC Department of Correction. The Medical Board, an agency responsible for licensing and regulation of doctors in North Carolina, had issued a policy stating that doctors cannot ethically participate in executions. The Department of Correction claimed that it was unable to find a doctor willing to assist with lethal injection, and that it was therefore unable to execute its inmates. The DOC sued, and the NCSC ruled that because the legislature has required physician participation in executions, it is not within the power of the Medical Board to sanction doctors for doing so.

Council of State

On May 13th, Wake County judge Donald Stephens issued a decision denying and dismissing the claims brought by several death row inmates against the Council of State, a body of elected officials responsible for, among other things, approving North Carolina’s lethal injection protocol. The inmates had alleged that the Council did not follow proper administrative procedure in approving the protocol. Judge Stephens found that the inmates did not have standing to challenge the Council’s decision, and that the Council’s approval was not subject to further review by any court.

Lethal Injection

Judge Stephens also issued an order setting a hearing during the June 1 session of court for oral argument on the remaining 8th Amendment issues in the inmates’ case. Both parties are expected to brief the impact of the US Supreme Court’s decision in Baze v. Rees on the question of whether the North Carolina lethal injection protocol is cruel and unusual.


The Senate chamber of the North Carolina General Assembly voted this week to approve the Racial Justice Act, which would allow pre-trial defendants as well as death row inmates to challenge the decision to seek or impose the death penalty in their case if it was based on impermissible racial bias. The bill passed with an amendment which prohibited the Medical Board and other health care agencies from disciplining medical professionals involved in executions, removed the requirement that the Council of State approve the execution protocol, and mandated that executions cannot occur more than once every 30 days.

What Happens Now

There will be no appeal in the Medical Board litigation, but it is possible for the inmates to appeal Judge Stephens’ decision in the Council of State matter; some of Stephens’ findings were contrary to an earlier ruling by another judge.  A specific date has not yet been set for the hearing on the 8th Amendment issues related to lethal injection. Finally, the House has yet to pass the Racial Justice Act, and if it does, any discrepancies between the House and Senate versions of the bill will need to be worked out.

It is hard to say exactly if or when executions will resume in North Carolina.  Injunctions are still in place preventing the State from re-setting executions dates for the six residents of death row who were scheduled to be executed before the moratorium began.

What we do know is that our system of capital punishment remains imperfect. In the years we have been without executions, three innocent men were freed from death row, having served a combined 41 years and faced death for crimes they did not commit.  Many of those who will face execution when the moratorium ends were convicted in an era when the standards for performance by defense counsel and fairness from prosecutors were far below what they are today.  No one should be executed until all litigation is resolved and the known flaws with North Carolina’s death penalty have been remedied.

High Court Rules…

May 8, 2009

[This post was authored by a friend of DeathWatch.]


The North Carolina Supreme Court ruled last week that the Medical Board cannot discipline doctors who take part in executions because state law requires their participation.  Where does this leave us?

The Hippocratic Oath holds that doctors may do no harm.  Both the American Medical Association and the North Carolina Medical Board agree that this means it is unethical for doctors to participate in executions.

The North Carolina Supreme Court’s ruling ignores this established ethical consensus.  In doing so, it creates a conflict for doctors who are asked to take part in executions.  Should they do what the State asks or follow their professional code of ethics?  A doctor who chooses the former and carries out an execution disregards the medical profession’s centuries-old code of ethics.

The death penalty cannot be humanely administered by unethical doctors.  The state of Missouri discovered this when it hired Dr. Alan Doerhoff to supervise executions even though he had been banned from practicing medicine in two hospitals and sued over twenty times for medical malpractice.  After over 50 executions, it was finally revealed that Dr. Doerhoff was dyslexic and knew that his disorder caused him to transpose numbers. In effect, this means that Dr. Doerhoff may have tortured inmates to death by giving them the wrong dose of anesthetic.

The Supreme Court’s decision makes it more likely that this could happen in North Carolina because it strips the Medical Board of its power to discipline doctors who inflict great pain during executions.

Before the Supreme Court’s decision, other legal challenges had already brought executions to a halt.  Now, the Court has made it even more unlikely that they will resume any time soon.

Human beings should not be put to death by unethical, unregulated doctors who are free to do what they want without any oversight from the Medical Board.  Our state doesn’t need a black eye like this.

Former NC Govs Weigh in on Clemency

February 5, 2009


On January 12th, the U.S. Supreme Court heard arguments in a Tennessee case called Harbison v. Bell. The issue is whether federal courts are required to pay for lawyers in state clemency proceedings. If Harbison loses, it could have disastrous consequences for justice and fairness in North Carolina. It could also present our new governor, Beverly Perdue, with one of the greatest challenges of her tenure.

Clemency means “disposition to show forbearance, compassion, or forgiveness in judging or punishing; leniency; mercy.” In a death penalty case, clemency refers to the final stage before an inmate is executed. Both sides present evidence to the governor or another executive authority, who then decides whether the execution will proceed. Clemency is important because it is the last chance to prevent the execution of an innocent person or someone who for another reason should not have been sentenced to death.

In North Carolina, as in many states, the plea is made by the inmate’s lawyers directly to the governor and/or members of her staff. The governor has the opportunity to learn information that the jury didn’t know, and which might have affected their decision about the defendant’s guilt or the appropriate sentence for the crime. If the governor decides to grant clemency, the inmate’s sentence is commuted to life without the possibility of parole. If not, he is executed. The Fourth Circuit Court of Appeals, a federal court, appoints and pays attorneys to prepare the clemency presentation. There is no state funding for clemency.

The Brief

Two former North Carolina governors, Jim Hunt (D) and Jim Martin (R), filed a “friends of the court” brief with the Supreme Court in support of the inmate’s position in Harbison. This kind of brief is an opportunity for someone who is not a party in a lawsuit, but has a strong interest in its outcome, to inform the Court of their perspective and assist them in deciding the case.

Hunt and Martin are two of eleven current and former governors who joined in the brief. Each of the eleven has served as governor of an active death penalty state, and has been called upon to decide whether an inmate should live or die. The Governors urged the Court to allow federal funding of counsel in clemency proceedings, noting that the assistance of defense attorneys is essential to them in making this weighty decision.

While every state has its own method of determining who should receive clemency, the Governors assert that all of the models assume a full exploration of the issues. To fulfill his or her responsibility to promote fairness, accuracy, and public confidence in the system, a governor must closely examine both the facts related to the inmate’s guilt and those related to the inmate’s deservingness of a death sentence. In addition to examining issues related to guilt, a Governor may be called upon to consider issues like mental illness, the effect of race on sentencing, and the inmate’s capacity for remorse and redemption.

The Governors’ brief profiled several cases, giving examples of situations in which clemency was deemed appropriate. In referencing the case of Earl Washington, Jr. of Virginia, the Governors acknowledged that the appeals process is not 100% guaranteed to prevent the execution of an innocent person. The brief also described the North Carolina case of Anson Avery Maynard. In Maynard’s case, it was unclear whether or not he was the person who pulled the trigger. Having some doubt about Maynard’s guilt and the degree of his culpability, Governor Martin granted him clemency.

Clemency is also important in cases where the inmate’s guilt is not in question. For example, when Governor Mike Easley granted clemency to Robert Bacon, Jr. in 2001, many believed it was because the Governor was concerned that Bacon was sentenced to death because of racial bias. In other states, clemency has been granted for a variety of reasons, including serious mental illness, remorse and rehabilitation, disproportionate sentencing as compared to a co-defendant, poor representation by trial counsel, and even pleas for mercy from the victim’s family.

What It Means for North Carolina

The Court’s decision in Harbison v. Bell could coincide with the end of the moratorium on executions in North Carolina. If Harbison loses, Governor Perdue might find herself confronted with an unprecedented number of clemency decisions to make just as all of those inmates have lost their attorneys.

Inmates have been represented by counsel in every clemency hearing in the modern era. It would be a radical departure from precedent for Perdue to allow inmates to represent themselves, or to refuse them any representation at all. Were the Governor to choose this route, it would surely lead to further litigation and delay. Without federal assistance, it is more likely that Perdue will find herself trying to scrape up additional state funding for an already cash-strapped indigent defense system to take on these new cases.

Whatever the Court decides, it is important that Gov. Perdue embraces what Gov. Hunt and Gov. Martin have written about the importance of the clemency process. Every inquiry should be broad in scope; taking into account not only guilt or innocence, but also matters related to culpability, sentencing, and the overall fairness of the death penalty. The Governors’ brief mentions a few considerations – mental illness, possible innocence, race, and remorse – but there are many more. Governors must familiarize themselves with both the court file and information outside the record. The process of receiving, reviewing, considering, and exploring all of this evidence is necessarily fact and resource-intensive, requiring the governor to delve into a wide range of issues. As the brief concludes, “Only through this kind of process can Governors fulfill their responsibility to make capital clemency decisions that are as fair and accurate as possible.”

Governor Martin and his staff spent days talking to witnesses, reviewing evidence, and deciding whether to grant clemency to Anson Maynard. Given the volume of cases she will be confronted with, it may not be possible for Gov. Perdue to dedicate a week to each petition, but she can still be guided by her predecessors’ call to approach clemency hearings with the utmost seriousness and dedication to fairness. When for whatever reason the courts have failed to weed out the innocent and those otherwise undeserving of death, it falls to the governor to have the courage and integrity to ensure that this last safeguard against wrongful execution functions as it should.

A transcript of the oral argument in Harbison is available here. A summary of the case and links to petitions filed are here.


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