Gov. Cooper should delay no longer in pardoning exonerated man

Image: Screenshot from BBC documentary

Dontae Sharpe’s supporters will gather this afternoon outside the Governor’s Mansion to renew their pleas for justice

In 2019, after having been wrongfully convicted and imprisoned for more than a quarter century for a murder he didn’t commit, a Greenville man named Dontae Sharpe was released from prison by a North Carolina judge.

Click here to watch a powerful BBC documentary that tells the story of Sharpe’s wrongful conviction at age 19 and ultimate exoneration.

As the documentary also explains, since his release, Sharpe has sought a state pardon so that he can have his record cleared and get on with what’s left of the rest of his life.

This shouldn’t even be necessary. When the state is found to have erred so egregiously and wrongfully stolen the best years of a person’s life, such pardons – along with financial compensation – ought to be automatic. This is actually the case in some jurisdictions.

Unfortunately, North Carolina law makes no such provision and so the matter is left exclusively up to Gov. Roy Cooper.

Reverends Barber and Spearman at Thursday’s press conference

Yesterday, at press event outside the Governor’s office, advocates — including national Poor People’s Campaign leader Rev. William Barber, state NAACP president Rev. T. Anthony Spearman, Diana Powell of the group Justice Served NC and Dennis Gaddy of the Community Success Initiative — revealed that, after years of pleas from Sharpe’s family, lawyers, civil rights advocates and others, a Cooper assistant had recently indicated that a pardon might be in the offing, but probably not until the end of the year.

This is simply wrong. As all the speakers yesterday repeatedly and persuasively explained, a deserving person like Sharpe who’s been so horrendously and wrongfully punished for so long should not have to wait another day for justice.

Indeed, they said, it is offensive and smells of politics that Sharpe’s pardon might be “batched” with a group of holiday season pardons when it could be granted now.

The bottom line: Gov. Roy Cooper has been an extraordinary chief executive for North Carolina over the last nearly five years. On issue after issue, he’s battled the forces of reaction and prejudice and done his best to move our state forward.

In the case of Dontae Sharpe, however, he’s making a big and inexplicable mistake. The Governor should come address protesters at this afternoon’s “freedom vigil” and issue the pardon immediately. Click here to watch the vigil online.

‘Must read’ from Duke criminal justice experts: Everything you need to know about clemency in NC

Ben Finholt

Jamie Lau

Most North Carolinians probably have a vague notion of what “clemency” and “pardons” are and the fact that the Governor has some power to grant them to people convicted of criminal offenses. What most probably don’t know, however, is that there have been some important developments in this realm of late, or that the practical reality of how the system works sometimes differs from what one can glean from merely reading the state statute books.

It’s thus an extremely helpful and timely development that a pair of criminal justice experts at Duke University — Ben Finholt the Director of  the Just Sentencing Project at Duke’s Wilson Center for Science and Justice and Prof. Jamie Lau, the Supervising Attorney for Duke Law School’s Center for Criminal Justice and Professional Responsibility — have put together a new and extremely thorough compilation of the rules that also explains how the system works in the real world.

They’ve entitled their article “Everything you need to know about clemency in North Carolina,” and it’s definitely worth the time it takes to review — especially during this era in which even large swaths of the political right have come to grasp the futility of mass incarceration and the need for dramatically enhanced systems and structures to assisted the formerly incarcerated. One of their central, if unsurprising conclusions: “First, despite continued attempts to increase ‘truth’ in sentencing, there is clear racial bias in North Carolina prison terms.”

After highlighting the fact that Gov. Cooper established a new Juvenile Sentence Review Board earlier this year — something that could, they say, revive an important but long neglected area of executive power in our state given that “there have been no sentence commutations or pardons of forgiveness granted since 2002” — the authors tackle the issue this way:

“The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses (except in cases of impeachment), upon such conditions as he may think proper, subject to regulations prescribed by law relative to the manner of applying for pardons.  The terms reprieves, commutations, and pardons shall not include paroles.”

With this statement in Article III, § 5(6), the drafters of the 1971 North Carolina Constitution gave the right to grant clemency from a criminal conviction to the Governor. This was not a new concept. English monarchs had the power, as has every Tar Heel governor since the first state constitution in 1776.

The North Carolina General Assembly has very limited authority in the clemency process, as the 1971 Constitution limits the Assembly’s power to providing the manner of applying for a pardon. Given the bare-bones nature of guidance from both the executive and legislative branches, we will attempt to answer the following questions using what is officially and unofficially known about the process in North Carolina:

  1. What is executive clemency?
  2. Who can receive clemency?
  3. How does one petition for clemency?
  4. How are clemency petitions evaluated?
  5. What information is available about pending clemency petitions?
  6. Can clemency be revoked?
  7. Who gets clemency?

We will then abandon the attempt at official answers to address two additional questions:

  1. Who should get clemency?
  2. What about the Juvenile Sentence Review Board?

What is executive clemency?

Officially: Read more

Recently elected Appeals Court judge fires troubling broadside at former Chief Justice Cheri Beasley

Judge Jefferson Griffin (pictured at left) hasn’t served on the North Carolina Court of Appeals very long — he was only first elected last November along with several other Republicans swept in on Donald Trump’s coattails — but that doesn’t appear to be dissuading him from using his new platform to issue assertive statements that venture into politics and public policy.

Consider, for example, Griffin’s concurring opinion in the case of State of North Carolina v. Kevin Lee Johnson, that was issued yesterday. The case involved a search by an Iredell County Sheriff’s office lieutenant who found cocaine on an individual he stopped for allegedly failing to wear his seat belt. The defendant appealed his trial court conviction on the grounds that the bodily search the officer conducted was unlawful. By all indications, the officer was white and the suspect was Black.

In yesterday’s opinion, all three judges on the panel (including Griffin and fellow recently elected Republican Jeffery Carpenter) agreed that the search was unlawful and that the evidence obtained as a result of it should be suppressed.

What stood out from Griffin’s concurring opinion, however, was not his vote in the case, but a broadside on the issue of racially-biased law enforcement that Griffin decided to launch in the direction of former state Chief Justice Cheri Beasley.

Former Chief Justice Cheri Beasley

Beasley, you may recall, spoke publicly, courageously and quite accurately last year in the aftermath of the murder of George Floyd about the horrific and undeniable reality that has long confronted Americans of color — and, in particular, young Black men — when it comes to policing and criminal justice. As Raleigh’s News & Observer reported on June 3 in the aftermath of protests that rocked the nation:

“We must do better,” she said. “We must be better. Too many people believe that there are two kinds of justice. … In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty.”

Beasley later established a commission to examine the blatant racism that has long permeated the state’s criminal justice system.

Griffin it seems, however, was none to happy with this fact and has apparently been spoiling to vent about if for some time. And when the lawyers for the defendant in the illegal search case raised the issue of race, he seized on that as grounds to attack Beasley.

Indeed, in his concurring opinion — a locale usually reserved for fine legal distinctions — Griffin decided to republish several paragraphs of a speech Beasley delivered last June in which, among other things, she called for “a plan for accountability in our courts” and training judges to “recognize our biases.”

Weirdly and disturbingly, Griffin was and is bothered by such talk, and by the fact that lawyers for a Black defendant would raise it in his case. We know this because he then used the remainder of his opinion to attack Beasley for wrongfully venturing into public policy.

“The speech by the former Chief Justice states our justice system does not treat people equally based on the color of their skin. It also encourages and charges the courts to become an active body by involving our judicial branch in policy decisions. The judiciary should at all times practice judicial restraint….We are fortunate to live in the United States of America where the law is applied the same to all citizens.

To which all a body can say in reply is “what planet did this man grow up on?”

The bottom line: Word on the street is that Griffin is an ambitious politician who, despite being one of the youngest and least experienced judges on the Court of Appeals, is already planning a run for a Supreme Court seat in the near future.

Sadly, it appears we already have a strong inkling as to what his campaign will look like.

Breaking: U.S. Supreme Court schedules Dec. 1 oral arguments in major abortion case

WASHINGTON — The U.S. Supreme Court will hear oral arguments on Dec. 1 in a case that threatens to overturn decades of abortion protections established under the landmark 1973 ruling in Roe v. Wade.

The upcoming case, Dobbs v. Jackson Women’s Health Organization, stems from a Mississippi law that bans most abortions after 15 weeks. It has been blocked by a lower federal court.

The nation’s top court announced in May that it would take up the Mississippi case. Since that announcement, the justices also voted in a 5-4 decision against preventing a more-strict Texas law from taking effect.

That Texas law bans abortions once cardiac activity can be detected — typically around six weeks of pregnancy, and early enough that many women still do not know they are pregnant. It also allows private citizens to file lawsuits against abortion providers and anyone who aids an abortion.

Also on Monday, a coalition of attorneys general from 23 states and the District of Columbia filed an amicus brief asking the Supreme Court to deny Mississippi’s request that it declare broadly that there is no constitutionally protected right to an abortion.

That coalition includes attorneys general from Colorado, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania, Virginia, and Wisconsin.

They argue in the brief that the Roe v. Wade decision takes into consideration state interests, while also protecting the ability of individuals to “make one of the most consequential, intimate and properly private decisions” they will ever confront.

Congressional Democrats are taking up legislation as soon as this week to enshrine the legal protections from the Roe ruling in federal law. But even if that bill passes the U.S. House, where Democrats hold a slim majority, it’s unlikely to pass in the evenly divided U.S. Senate.

Superior Court permanently enjoins 2018 NC voter ID law

A three-judge panel ruled 2-1 Friday that the state voter ID law enacted by the General Assembly in 2018 is unconstitutional. The law required voters to present a photo ID when casting their ballots, including provisional ones.

Lawmakers approved Senate Bill 824 by overriding Gov. Roy Cooper’s veto of the legislation during a lame duck session  in December 2018.

Represented by the Southern Coalition for Social Justice as well as pro bono counsel from the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, five North Carolina voters sued legislative defendants, including House Speaker Tim Moore in Wake County Superior Court.

Signed by Democratic Judges Michael O’Foghludha and Vince Rozier, Jr., the majority opinion held that the law was passed with discriminatory purpose or intent. Plaintiffs’ expert Kevin Quinn, a University of Michigan professor, performed an analysis in which he matched voter files to databases that track the rates at which various groups possess the required ID and unearthed disparities between voters of different races.

According to the ruling, “When restricting [Quinn’s] analysis to active voters—those who voted in the 2016 and 2018 elections—African American voters were over twice as likely to lack qualifying ID than white voters.”

Therefore, the majority opinion said, the burden of obtaining qualifying ID, including free ID, would fall more heavily on Black voters, who more often lack a form of qualifying ID required under SB 824 and encounter more barriers to obtaining such IDs compared to white voters.

In his dissenting opinion, Republican Judge Nathaniel Poovey wrote that plaintiffs failed to prove that legislative defendants acted with discriminatory intent.

“Senate Bill 824 was a bipartisan bill that was supported along the way by multiple African American legislators and enacted after the people of our State approved a constitutional amendment calling for voter-photo-ID requirements,” Poovey wrote. He said that SB 824 should not be declared unconstitutional.

Three-judge panels, composed of three superior court judges from different judicial districts, are a common form of arbitration for constitutional challenges to state laws. The Holmes v. Moore decision came after a three-week trial in April.

In 2019, the Wake County Superior Court denied plaintiffs’ request for a preliminary injunction, which was granted later by a Court of Appeals panel in 2020.

In response to today’s ruling, Southern Coalition for Social Justice co-executive director and chief counsel for voting rights Allison Riggs issued a statement lauding the judges’ action:

Southern Coalition for Social Justice co-executive director and chief counsel for voting rights Allison Riggs

“We applaud the three-judge panel’s decision and hope it sends a strong message that racial discrimination will not be tolerated. Should legislative defendants appeal today’s ruling, we’ll be prepared to remind them of what this court and the state’s constitution mandate: every vote matters.”

A separate federal lawsuit on the voter ID law is ongoing. As Policy Watch previously reported, Senate President Pro Tem Phil Berger and House Speaker Tim Moore sought to intervene in that suit, but were rebuffed in that effort by the Court of Appeals for the Fourth Circuit. Berger and Moore are seeking review of that issue by the U.S. Supreme Court. In response to today’s ruling, Moore’s attorney promised an appeal, saying in  a statement “We look forward to appealing this partisan ruling on behalf of the people of North Carolina.”

This is not the first time North Carolina pushed for a stricter photo ID requirement. After the U.S. Supreme Court’s landmark Shelby County v. Holder ruling, the Republican-controlled North Carolina General Assembly voted to pass HB 589, which only allowed one of eight forms of voter ID for in-person voters. That bill also included other restrictive measures such as ending pre-registration for 16- and 17-year-olds and forbidding voters from casting ballots outside of their precincts.

The Fourth Circuit of Appeals said in the decision striking down the law, that the General Assembly was “eager to rush through the legislative process the most restrictive voting law North Carolina has ever seen since the era of Jim Crow.”

Quinn’s analysis shows that though SB 324 added a few eligible IDs to the eight types of acceptable IDs under HB 589, it added only a “minuscule number” of voters.

Policy Watch will publish additional updates on this case as they become available.