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Last night, North Carolina became only the second state in the nation to rise to the challenge posed by the US Supreme Court in McCleskey v. Kemp, in which the Court acknowledged the existence of racial bias in the administration of the death penalty but said that states would have to fix the problem for themselves.  Governor Perdue is expected to sign the bill into law.

From the Winston-Salem Journal:

The General Assembly has approved a landmark bill that will allow death row inmates to challenge the death penalty by arguing that there is systemic racial bias in the way that capital punishment has been applied.Under the bill, which is expected to be signed into law by Gov. Bev Perdue, an inmate will be able to present statistical evidence showing racial disparities in how the death penalty has been used. If a judge finds the evidence convincing, the judge can overturn that inmate’s death sentence and convert it to a sentence of life in prison.

Similarly, in future murder trials in North Carolina, judges will be able to block prosecutors from pursuing the death penalty if they find a historical pattern of racial bias in the use of the death penalty.

The bill is seen by its supporters as a long-overdue solution to a history of discrimination that they say permeates the criminal-justice system and the system of capital punishment.

In an Associated Press interview, Forsyth County District Attorney Tom Keith attempted to sound the alarm, stating that the RJA could result in a flurry of former death row inmates being released on parole.  Nevermind that the bill explicitly states that anyone who is granted relief under the act will be re-sentenced to life without the possibility of parole.

In support of his claim, Keith cited the case of Bonnie Sue Clark – who was not sentenced to death and was never a death row inmate – and who was released from prison earlier this week after serving 22 years for the murder of her husband.  It is particularly interesting that Keith would select the Clark case as an argument against the Racial Justice Act, given that Clark, a white woman, received a life sentence while her co-defendant, a black man, was sentenced to death.  Robert Bacon was granted clemency by Governor Easley in 2001 due to concerns that racial bias played a role in the decision to seek and impose death in his case.  Bacon’s sentence was commuted to life without parole.  Unlike Ms. Clark, he remains and will die in prison.

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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.

Legislature

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.

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The Racial Justice Act is back.  The bill passed one chamber of the North Carolina General Assembly last year, but did not make it to a floor vote.

The Racial Justice Act simply provides that, “No person shall be subject to or given a sentence of death, or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.”  One would think that the law already provided such protections, but one would be wrong. Read More

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A new Elon University poll has found that fewer than 50% of North Carolinians think the death penalty is the most appropriate punishment for first-degree murder.  That’s down from 2005, when 61% of residents preferred death.

Seventy-one percent of those polled support life without parole as a punishment for first-degree murder.  Support for LWOP has gone up five points since the 2007 poll.  By a narrow margin, more NC residents approve of the current moratorium on executions than disapprove.

The Elon poll also covered other issues like health care and transportation.  See all poll results here.

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A pending US Supreme Court case 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.

The issue in the case is whether federal courts are required to pay for lawyers in state clemency proceedings.   The Court’s decision in the case could coincide with the end of the judicially imposed moratorium on executions in North Carolina.  If the case 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.

Clemency is vitally important because it is the last chance to prevent the execution of an innocent person or someone who for another reason should not be executed.  It is a non-legal proceeding that allows the governor to look at issues that might not have been presented in court.  Clemency can be granted on the grounds of justice and also on the basis of mercy.

In North Carolina, as in many states, the plea is made by the inmate’s lawyer directly to the governor.  If the governor decides to grant clemency, the inmate is sentenced to life in prison without the possibility of parole.   If not, he is executed.  Currently, 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.

In the case before the Court, two former NC governors, Jim Hunt (D) and Jim Martin (R), along with governors from other states, filed a “friends of the court” brief, urging the continued federal funding for attorneys to make clemency pleas.

Both governors granted and denied clemency requests during their tenures.  The governors’ brief discusses several cases, including the case of Anson Avery Maynard, to whom Governor Martin granted clemency, based on questions about who actually committed the killing.  The brief also emphasizes that there are many issues – beyond guilt or innocence – that deserve full investigation and presentation, and that are worthy of clemency, such as racial bias, mental illness and remorse.

Governor Martin and his staff spent days talking to witnesses, reviewing evidence and deciding whether to grant clemency to Maynard.  Given the volume of cases Governor Perdue may face, it is unlikely she will be able to devote a week to each one, but she can still be guided by her predecessors’ call to approach clemency hearings with the utmost seriousness and dedication to fairness.  The last thing we’d want to see is the execution of an innocent person because we didn’t have the resources or the time to discover the truth.