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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Death penalty advocates say executions are needed to punish a small handful of the “worst of the worst” criminals. However, a new report from the Center for Death Penalty Litigation finds that the death penalty in North Carolina is being used broadly and indiscriminately, with little regard for the strength of the evidence against defendants — and putting innocent people at risk of being sentenced to die.

On Trial for Their Lives: The Hidden Costs of Wrongful Capital Prosecutions in North Carolina is the first study in the United States of cases in which people were charged or prosecuted capitally but never convicted. The study finds that 56 people since 1989 — about two a year — have been capitally prosecuted in North Carolina despite evidence too weak to prove their guilt. The wrongful prosecutions happened in 31 counties in every region of the state.

The report comes on the heels of the exoneration of Henry McCollum, North Carolina’s longest serving death row inmate. It exposes another facet of a capital punishment system that targets innocent people with the death penalty. Considering that only 40 people have been executed in North Carolina in the time period the report covers, more people have faced the death penalty and not been convicted of a crime than have been executed in North Carolina.

“Many say we need the death penalty to punish the very worst offenders for the most heinous crimes, but that is not how the death penalty is being used,” said senior CDPL attorney Ken Rose, who represented McCollum for 20 years. “People are being charged capitally based on the thinnest of evidence. Prosecutors are using the threat of the death penalty to persuade people to plead guilty. If we keep using the death penalty like this, North Carolina will sentence more innocent people to death.”

While it is inevitable that innocent people will occasionally be swept up in investigations, the report finds that the system took years to correct its errors and that shoddy investigations or misconduct were frequently a factor.

These unjust prosecutions had a devastating impact on the lives of the defendants  — as well as a large public cost. The report finds that:

• The state spent nearly $2.4 million in defense costs alone to pursue these failed cases capitally. Had the defendants been charged non-capitally, all that money could have been saved. (This conservative figure does not take into account the additional prosecution and incarceration costs in capital cases.)
• Defendants who were wrongfully prosecuted spent an average of two years in jail before they were acquitted by juries or had their charges dismissed by prosecutors.
• The 56 defendants in the study spent a total of 112 years in jail, despite never being convicted of a crime.
• By the time they were cleared of wrongdoing, many defendants lost their homes, jobs, businesses, and savings accounts, and saw personal relationships destroyed. They received no compensation after they were cleared of charges.
• Serious errors or misconduct played a role in many cases. The 56 cases involved instances of witness coercion, hidden evidence, bungled investigations, the use of improper forensic evidence, and highly unreliable witnesses.

Interviews with defendants and attorneys show that North Carolina is using the threat of the death penalty as leverage to encourage defendants to confess or accept plea bargains, a strategy for securing convictions in cases with weak evidence.

“National polls tell us that Americans across the country have become increasingly uncomfortable with the administration of the death penalty in the United States,” said Robert Dunham, executive director of the Death Penalty Information Center, a national non-profit organization that provides analysis and information on issues concerning capital punishment. “This study shows that the misconduct and miscarriages of justices that so frequently occur in capital cases are not limited to cases in which the death penalty is imposed. The types of wrongful capital prosecutions documented in this report can only further undermine public confidence that the death penalty can be administered fairly.”

The 56 cases included in the report represent a conservative estimate of the number of wrongful capital prosecutions during the past 25 years. The state does not track such cases, and researchers did not consider cases in which they could not find adequate information. They also used strict criteria that excluded cases where the defendant was convicted of any lesser offense related to the murder.

READ THE FULL REPORT HERE