This story is the fourth in a series of articles by David Donovan that will examine important issues in criminal law for 2016.
When a Pitt County jury handed down its sentence on April 4 to Antwan Anthony, convicted of killing three people during a robbery, it did something that North Carolina juries have become less and less likely to do in recent years—it sentenced him to death.
It was the first death sentence delivered in North Carolina since a Johnston County jury handed one down almost two years to the day prior in 2014. But it may be a very long time before either execution is carried out—if ever. By Aug. 18, it will have been 10 years since the last execution in North Carolina.
The waning use of the death penalty in the state mirrors its decline across the country. Nationally, 28 people were executed in 2015, down from a peak of 98 in 1999, and only 49 death sentences were handed down, the lowest number since the Supreme Court allowed capital punishment to resume in 1976. A majority of Americans still approve of capital punishment, but by increasingly narrow margins, and most of the death sentences that are issued come from a tiny minority of the country’s counties.
Increasingly, these trends have had lawyers asking whether someday capital punishment in North Carolina, or perhaps in the United States as a whole, could itself be read its last rites.
Justice in an age of austerity
The death penalty’s decline has many—often reinforcing—causes, but three in particular stand out: the massive amount of resources required to prosecute such cases at a time when those resources are under pronounced pressure; the battery of constitutional challenges that have resulted in a de facto moratorium on executions; and juries’ increasing hesitancy to deliver death sentences. The waning enthusiasm of juries mirrors the decline in support for capital punishment generally, which itself has many causes, although some argue that it’s also the result of capital defendants receiving more competent legal counsel.
Start with the toll on prosecutors’ resources. In 2001, North Carolina’s legislators gave prosecutors the discretion to decline to pursue the death penalty in first-degree murder cases—discretion they are exercising with increasing frequency. A death penalty case will typically monopolize two of the district’s most veteran prosecutors for several months, and that forces district attorneys to make difficult decisions about how best to shepherd their offices’ already significantly overtaxed human capital.
“It’s one of the factors we consider,” said Cumberland County District Attorney Billy West. “We are fortunate here in a larger jurisdiction, and so if two of my attorneys and one or two of my support staff are devoted to a case like that for months, while it is difficult and does put a strain on our resources, we’re usually able to absorb that. But for a smaller jurisdiction, when you’ve got five or six assistant district attorneys, I think that would be very challenging to their resources.”
When making that cost-benefit analysis, prosecutors say that they have to consider both the likelihood that the jury will agree to hand down a death sentence and the chances that the death penalty will actually be carried out if they do. In recent years, neither of those considerations, particularly the latter, has lent itself toward pursuing death sentences.
On death row for decades
Every district attorney who spoke to Lawyers Weekly said that decisions about whether or not to pursue a death sentence are made in close consultation with the victims’ families. Although the family’s wishes are not dispositive, prosecutors put great weight on providing families with closure and sparing them from unnecessary further trauma. Prosecutors described candid conversations with families about the prospect of an appeals process lasting for decades and uncertainty about whether a sentence will ever be carried out.
The last person executed in North Carolina was Samuel Flippen, who was put to death in 2006. Since then, executions have been held up for several reasons. Death row inmates have challenged the state’s method of lethal injection, its sole means of execution. The state’s now-repealed Racial Justice Act allowed inmates to challenge their sentences by presenting evidence of racial bias. Perhaps most significantly, the state’s medical board ruled that doctors could not ethically participate in executions, effectively putting a halt to them.
Many of the legal challenges have now been dismissed, and state legislators, having repealed the Racial Justice Act in 2013, have sought to remove other obstacles. In 2015, they passed the Restoring Proper Justice Act, which eliminated the requirement that a physician be present at all executions and lets the state keep secret the contents of its lethal injections drugs. But until executions actually resume, a death sentence remains an act of faith, which deters prosecutors from seeking them.
“There hasn’t been a death sentence carried out here in a long time, and it doesn’t look like that logjam is going to clear out any time soon, so there’s not much of an incentive to pursue the death penalty,” said Mecklenburg County District Attorney Andrew Murray. “I think until that logjam breaks, it’s going to continue to be utilized very minimally. If and when the logjam breaks, that may cause district attorneys to take a second look at attempting to use it.”
Juries cooling on death option
Perhaps the most mysterious factor is why juries have been decreasingly inclined to issue death sentences even when prosecutors do seek them. Public support for the death penalty has long been in retreat—down from a high of 80 percent in 1994 to 61 percent last year, according to Gallup—but potential jurors are excused from capital cases if they feel they would not be able to sentence a defendant to death. Prosecutors and defense attorneys agree, though, that there’s a wide gulf between supporting capital punishment in the abstract and doling it out in a jury room.
In Wake County, juries have not handed down a death sentence since 2007 and have opted for a sentence of life in prison the last six times prosecutors have sought one. Wake County District Attorney Lorrin Freeman said that prosecutors have to take juries’ increasing hesitancy about capital punishment into account when making decisions.
“It’s hard to look at the outcomes of those cases and not perceive that there has been a shift in the community’s position on the implementation of the death penalty,” Freeman said. “It is becoming more and more difficult to stand behind the idea that it’s in the best interest of the victim’s family to pursue the death penalty.”
One possible reason that juries may be more reticent is the number of high-profile cases in which death row inmates have been exonerated, of which North Carolina has had more than its fair share. In 2014, Henry Lee McCollum and Leon Brown were exonerated after spending more than 30 years on death row after being wrongfully convicted for the 1983 murder of an 11-year-old girl. In total, North Carolina has had five death row exonerations in the last decade, and seven since 1999.
Murray said that he has prosecuted three death penalty cases since becoming Mecklenburg County’s district attorney in 2011, and all three returned sentences of life in prison. With neither of its biggest counties handing down death sentences, North Carolina has bucked one national trend. Most of the death sentences issued in the U.S. today arise from just 2 percent of its counties, mostly large ones in a handful of states, but the 11 death sentences issued in North Carolina since 2010 have come from nine different counties of widely varying sizes.
No one wants to get it wrong
All of these effects are cumulative, says Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C. He suggested the public attitudes toward the death penalty have been shifted by the exonerations and by evidence of racial bias in the sentencing process, suggested both by investigations under the Racial Justice Act and incidents like the shooting of an unarmed African-American man by a white police officer in North Charleston, South Carolina.
“What we are seeing as part of the long-term trend is that fewer people are being sentenced to death. Fewer counties are using the death penalty. The counties that are using the death penalty are seeking it less frequently. When it’s being sought, jurors are imposing it less frequently. And when it’s been imposed, it’s being carried out less frequently,” Dunham said. “That’s a long-term trend, and it suggests that North Carolina’s use of capital punishment will continue to decline.”
Dunham posited another possible reason why fewer juries are coming back with death sentences: better trial representation and the availability of competent institutional defenders for capital defendants. In North Carolina, those responsibilities fall to the Office of the Capital Defender, which represents all defendants in death penalty cases.
Robert Sharpe, the state’s chief capital defender, said that disentangling cause and effect was difficult in explaining the declining use of the death penalty, but noted many of the same factors that district attorneys identified concerning shepherding of resources and jurors’ reticence. But he said that the work done by his office had resulted in fewer cases where defendants had received ineffective assistance of counsel.
“I do know that we have done a better job now of training attorneys than we ever have before,” Sharpe said. “I think the effect is [defendants] obviously get counsel who are in fact effective and can provide effective representation. I think there’s a trend where we as society don’t want to get this wrong.”
No going back, it seems
Death sentences have also declined, of course, for the prosaic reason that the number of murders per year has declined significantly since peaking, in absolute terms, in 1991. But whether that or other trends will continue along their concurrent trajectories is hard to predict, attorneys said. Skeptics like Dunham believe that the U.S. Supreme Court may someday step in and put a halt to all executions, as it did for a period in the 1970s.
Already, the court has limited the circumstances in which states can apply the death penalty. At the same time, many pharmaceutical companies are refusing to provide states with the drugs necessary for lethal injections, causing crises in states still actively attempting to carry out executions. A 2014 execution in Oklahoma was botched after state officials used an untested mixture.
It seems unlikely, then, that even if executions eventually resume in North Carolina, that they will ever be pursued with the same vigor seen in past decades.
“I think for this office, all of the factors have to line up for us to think it’s the appropriate thing to go ahead with a death penalty trial, and in many cases we decide that it’s not the appropriate thing to do that,” said West, the Cumberland County DA. “I think we’ll probably see a pattern that is similar to where we are now, rather than going back to when we were trying more capital cases. I would think that the pattern we’re in now we would likely stay in terms in the number of capital cases being tried.”
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