How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row

The death penalty is all but extinct in North Carolina. Juries have recommended only a single new death sentence in the past four years. The state hasn’t carried out an execution since 2006. Yet, North Carolina has the sixth largest death row in the nation, with more than 140 men and women. It is a relic of another era.

More than 100 of N.C.’s death row prisoners — about three-quarters — were sentenced in the 1990s, under wildly different laws. During those years, North Carolina juries sent dozens of people a year to death row, more than Texas. The state’s courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.

Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape. New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases. A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended.

Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case. Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era. The bulk of North Carolina’s death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past.

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CDPL’s report, Unequal Justice, finds that out of 142 death row prisoners in North Carolina:

92% (131) were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications, which have been leading causes of wrongful convictions across the country. The new laws require interrogations and confessions to be recorded in homicide cases and set strict guidelines for eyewitness line-up procedures.

84% (119) were tried before a law granting defendants the right to see all the evidence in the prosecutor’s file — including information that might help reduce their sentence or prove their innocence.

73% (104) were sentenced before laws barring the execution of people with intellectual disabilities. Despite a promise of relief for these less culpable defendants, disabled prisoners remain on death row.

 73% (103) were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending an unprecedented requirement that prosecutors pursue the death penalty in every aggravated first-degree murder. Before these changes, prosecutors did not have the ability to seek life sentences in these cases and poor people often received a sub-standard defense.

Of all the men and women on death row in North Carolina, Henry McCollum’s guilty verdict looked airtight. He had signed a confession full of grisly details. Written in crude and unapologetic language, it told the story of four boys, he among them, raping and suffocating 11-year-old Sabrina Buie. His younger brother, Leon Brown, also admitted involvement in the crime. Both were sentenced to death in 1984.

Leon was later resentenced to life in prison. But Henry remained on death row for 30 years and became Exhibit A in the defense of the death penalty. U.S. Supreme Court Justice Antonin Scalia pointed to the brutality of Henry’s crime as a reason to continue capital punishment nationwide. During North Carolina legislative elections in 2010, Henry’s face showed up on political flyers, the example of a brutal rapist and child killer who deserved to be executed.

What almost no one saw — not even his top-notch defense attorneys — was that Henry McCollum and Leon Brown were innocent. In 2014, both were exonerated by DNA evidence and, in 2015, then-Gov. Pat McCrory granted them a rare pardon of innocence.

In a new report, the Center for Death Penalty Litigation — which represented McCollum for the last two decades he spent on death row — tells the story of how two intellectually disabled teenagers were pressured into signing the false confessions that sent them to death row and how they were finally able to prove their innocence.

Henry and Leon’s case is not so much a lesson in how wrongful convictions are uncovered as it is a warning of how easily they can be missed entirely. If not for a complex and unlikely chain of events that unfolded over decades, Henry and Leon would likely have remained in prison for the rest of their lives. Henry might have been executed.

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