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Episode #2205
Death Penalty
Holt: North Carolina is one of the top ten states in the nation for the number of people on death row, and more than half of those individuals are African American. Since 1995, four people on death row in our state have been found innocent. Two of them were black. Why are so many people assigned punishment by death in North Carolina, and does race play a role? We’ll explore these questions and others, next on Black Issues Forum.
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Holt: Hello everyone, welcome to Black Issues Forum, I’m Deborah Holt in for Mitchell Lewis and Natalie Bullock Brown. In the year 2001 the Common Sense Foundation released a comprehensive report that linked race and the death penalty in North Carolina. Since then moves have been made to pass a moratorium through the Legislature that would provide for a two year time off from executions in order to study the issue. While the governor has recently signed into law the establishment of a commission where those believing they’ve been wrongly convicted may present new and unheard evidence, the questions regarding the qualifications of public defenders, race and errors in legal procedures remain. Today we’ll revisit the 2001 study and get some answers on some of the questions that led to the fight for a moratorium.
I’d like to welcome today’s guests. We have Republican Representative Paul Stam of the 37th District in Wake County, Brian Elderbroom, associate director of the nonpartisan think-tank, the Common Sense Foundation, and Jeremy Collins, director of the North Carolina Commission for a Moratorium. Welcome gentlemen. Let me start off with you, Brian, can you explain to us what the general scope of the study was and what the findings were?
Elderbroom: Well, in 2001 we had seen problems with racial disparity in sentencing, and we decided we needed to take a closer look at that. And what we found was that the race of the victim actually plays a larger role than the race of the perpetrator. We found that your odds increase three and a half times if you kill a white person than if you kill a black person. In our minds that’s wrong, it’s a sign that the system is broken, and it’s what led to the fight for a moratorium.
Holt: And can you also explain to us why you all even began this study and how it was that you began to link the two issues, race and the death penalty?
Elderbroom: Sure. We commissioned a study, it was conducted by Professor Isaac Una [ph] and the Dean of the UNC Law School, Jack Boger [ph]. And it was related to the disproportionate number of African-Americans that were on death row. Currently it’s 58% on death row, but less than 20% of the population in North Carolina. And that led us to believe that there were problems and we wanted to see what those were.
Holt: We actually have some figures with relation to that, and like to share those with you. Let’s take a look at some of the numbers that we’ve been talking about and some others. According to statistics from the National Coalition to Abolish the Death Penalty with a total of 197 individuals on death row, North Carolina is among the top ten states for the number of people on death row. California is number one with 639. There are 197 people on death row in North Carolina; 72 are white, or 37; 110 are African-American or 56%. And currently in our correctional system, 38% of the prison population is white and 58% is African-American. And let me come to you now Representative Stam, what is your position on the relationship between race and the death penalty, if any?
Stam: Well, each crime should be considered on its own. Your statistics are correct but they’re not complete. If you look at those actually executed, which have been 43 people in the modern era in North Carolina, execute for murder, actually two-thirds of those are white. You’re using statistics on conviction, but you know, it’s about 8 to 15 years between conviction and execution in North Carolina, so that individual defendant has a moratorium for 8 to 15 years for the facts to be sorted out in that particular person’s case.
Holt: And since they have, according to you, a moratorium, let’s talk to you now, Jeremy. Tell me a little bit about your organization and why your organization felt there was a need to have a moratorium.
Collins: We are the North Carolina Coalition for a Moratorium, and I want to be clear: we are not a group that supports a moratorium on the death penalty; we’re a group that supports a moratorium on executions. And there is a difference there, and I’d like to articulate that. The difference is what we support, the mission of our organization, is to ask the Legislature to not only do a comprehensive study of the death penalty as it’s applied, but also to enact reforms that would better the death penalty process, that would make the death penalty process more consist, and we would exclude the opportunity of even executing the innocent.
My organization came into being back in 1997, the American Bar Association acknowledged all these problems with the capital punishment process, one of them being race, the other one being cost. There was ineffective assistance of counsel, there was the problem of mentally ill people being found on death row. Because of that they recommended a national moratorium on the death penalty. In 1997 these different groups in North Carolina, People of Faith Against the Death Penalty, the Common Sense Foundation, the Center for Death Penalty Litigation, Fair Trial Initiative, the ACLU…a few other groups escape me right now, but all these groups came together and said that we will support a moratorium on executions to further the statement of the American Bar Association, we believe that these problems exist. The facts support or substantiate the fact that all these facts and statistics are correct, so we’re going to come together as a group, in coalition, and support a moratorium on executions.
Holt: Well actually there has been somewhat of a change since the initiative to push through or get past a moratorium, and now there’s been another step, sort of a compromise. Representative Stam, can you talk about that?
Stam: Oh sure. I believe it’s this month, the Innocence Inquiry Commission went into effect, I was the Republican floor leader for that, which gives people who have committed all sorts of felonies an opportunity to present their claims that they’re actually innocent. Many claims can be presented in court, but this is a more expedited procedure if your claim is not legal but factual innocence.
Holt: And let me ask you, Mr. Elderbroom, what is the Common Sense Foundation’s, or what do you think about the existence of this new commission?
Elderbroom: Well, we think the Innocence Commission is a good thing. We think that if there is an avenue for people to pursue their claims of innocence, that that is a good thing. But what the innocence commission doesn’t do is it doesn’t address the problems that Jeremy mentioned: the problems of cost, the problems of racial bias, the arbitrariness of the death penalty. And those are things that need to be addressed separately from innocence. High profile exonerations of Alan Gell, Daryl Hunt and others point to the fact that innocent people are in jail and that they are on death row, but that doesn’t separate that from the fact that there are people that are disproportionately being sentenced to death, and that’s what the racial bias is in the criminal justice system.
Holt: And I want to ask all three of you, in light of the fact that there is the Innocence Commission and there are these other issues that are being said need to be examined, what about those other issues, do they indeed need to be examined? Some people have said that it’s not a matter of race, it’s actually a matter of economics.
Stam: Well there’s a lot that you can do without a moratorium, because a moratorium has its own costs, which I’ll get back to. But during this time period when this coalition has been asking for this, many reforms have been made, not only the Innocence Inquiry Commission, but in 2001 we had an innocence protection act related to DNA, we stopped death penalty for the mentally retarded in 2001, in 2001 prosecutors were given discretion as to whom to seek the death penalty for. So the idea that we can’t do reforms without having a moratorium has been just demonstrated to be incorrect, and they of course asked for this two-year study five years ago, and there’s been a whole lot of study. But we don’t need more time to study, we know pretty much what the facts are. And the fact is that regardless of the “disproportionate amount of disproportionate sentencing” and you come back to disproportionate to what; as far as the actual executions, it’s not particularly disproportionate at all, when you get to the end of the process.
Holt: And yet there are people who are on death row, and two of them had been exonerated.
Stam: Well let’s talk about the whole concept of “on death row”. A lot of people have the idea that “on death row” means you’re about to have your last meal and people are fighting over whether the governor will give you clemency or so. And all this happens in a short period of time. In North Carolina, “on death row” is 15 years, sometimes 20 years. When it goes through numerous courts, including 47 different judges will look at that case. It’s not like you’re imminently about to be executed. It takes decades, and the worst possible cases before you can be executed. You can’t even volunteer for it; it’s got to be a horrible crime that essentially there’s no question as to your guilt, before you can actually be executed.
Holt: Let me hear your response on that, Mr. Collins.
Collins: Well, he brought up several issues. First of all, the death penalty by statute was done away with in the early ‘70s, and when it came back in 1976, North Carolina, the first I’d say 10 to 12 people we executed were white. So when we go over the figures of who has been executed, the numbers do look fair, but it’s because what we did, we’ve executed 43 people since the modern reinstatement of the death penalty. Well, the first 10-12 of those people were white. It doesn’t change the numbers of folks that were on death row, but those were the people who had their execution dates set, they had been on death row, those were the first people that we chose to execute. So that needs to be stated just to make sure that the facts are clear. But one of the things he just said was, you know, with the death penalty process, we’ve been asking for a moratorium since 1997; that’s factually true. What we were at first asking for was the Legislature to study the death penalty. But they wouldn’t study the death penalty so what we decided to do was actually find the problems with the death penalty. The ABA identified them, we wanted to know if these problems existed in North Carolina. Of course they do.
So what we’ve done is we’ve identified the problems, we’ve articulated that to the Legislature, and what we’re asking them to do now is to enact the reforms. And that brings up another issue. In 2001, and I think Brian will probably speak about this later, the Legislature implemented indigent defense service, which is basically, it’s the State’s way of appointing competent counsel for capital defendants, for defendants that are charged and tried capitally. But they didn’t make that reform retroactive, so although several reforms have been passed since 1997, there was no retroactivity to them. So all the people that were already on death row don’t benefit from the reform.
Holt: And there’s additional information that a more recent report has come up with from Common Sense, is that right?
Elderbroom: That’s right. Just last week we released a report, we found at least 37 people on death row whose attorney at trial would not meet the standards by today’s law. And this is a law that was passed in 2001, like Jeremy said, with overwhelming bipartisan support—I believe it had 108 votes to 3 in the House of Representatives—to create indigent defense services to represent low income clients. And those 37 people we’ve identified, their attorneys would not meet the standard today, which means they did not receive a fair trial. And that’s way too many people. And of the 43 who have been executed, 16 of those would not have attorneys at this time that they had then, and that’s just not fair. The year in which you’re tried should not determine whether or not you are sentenced to death.
Stam: Let me somewhat agree that the standards have improved since 2001, but that doesn’t mean that the 43 people who have been executed weren’t guilty of horrendous crimes and that they didn’t have competent representation. I’ll give you an example. We asked, what’s your number one case of somebody who has been executed who might be innocent or didn’t get a fair trial or racial bias, you know, point out one who actually was executed. And they come up with the case of Junior Brown. Well, Junior Brown, his lead attorney, Van Camp from Southern Pines, is a leading excellent defense attorney. Overwhelming evidence of guilt. His ring, I believe, was found behind the liver of the victim, which he had sliced them up. And oh, he might have been, he said maybe he was somewhere else at the time. It turned out he never testified, not only not at the trial, but none of the post trial hearings. He just, he never said he was innocent, he just never said anything at all. So they can’t come up with an actual case of anybody who has been executed who actually had a factual defense of innocence, that some high-falutin lawyer could have gotten him off one.
Holt: I’ll let Jeremy respond and then I’ll get to you, sorry Mr. Collins.
Collins: Well I mean, the problem with that is it’s difficult to prove innocence after death. That’s the immediate argument. But then aside from that, we are in the process of doing that right now, that’s exactly what we’re studying right now. We’re trying to—and I should say this, but I want to preface my comment with this: over the past year we’ve been polling North Carolinians to find out exactly, to find out what the most compelling argument is on behalf of the moratorium coalition. That means how we could reach North Carolinians, and what would compel them to support a moratorium. Believe it or not, innocence is not that. Folks understand that as a state we’ve probably executed someone that’s innocent, and they don’t have a problem with it. And I’m speaking about mainstream North Carolinians.
Holt: Why don’t they have a problem with it?
Collins: Well they believe that innocence is a casualty of the system. The system isn’t perfect, it’s run by human beings, human beings are fallible, so we’re going to make mistakes. So, you know, David Junior Brown is a case that has been used in the past, but we shouldn’t just focus on innocence or the claims of innocence, because there are mentally ill people who are on death row. Guy LeGrand [ph], a young man who is about to be executed by the state whose date has been set for December 1st, severely mentally ill, there are questions of his guilt or innocence, but as to tangible, him being able to prove whether or not he’s innocent or guilty, well, he’s severely mentally ill, he couldn’t even represent himself competently at trial. He didn’t receive any relief at the trial level, he didn’t receive any relief in the appellate process, and I’m hopeful that he’ll receive relief from the governor, but up until this point he hasn’t received any relief.
So there are several issues to look at, but to say that innocence, with the Innocence Commission, or with the claim of innocence, that’s not really the strongest argument, the strongest suit we’re talking about.
Holt: Let me jump in there though, to sort of represent those who are the family members, say, of members of capital crimes. How often is it the case that someone is really not receiving their just due in the judicial system, and I was wondering if the Common Sense Foundation report had done any investigating on that.
Elderbroom: Well one thing that I would like to point out is that it is very costly to administer the death penalty, it’s $2.16 million per case. And we believe that money could be better spent on law enforcement, on the courts, and in particular, on victims’ families. We think there could be restitution costs, costs for psychiatric care, different things that need to be taken care of for victims’ family members, and that’s something that we can use for the death penalty. But I’d also like to respond to the question of innocence, because I think innocence is an important issue, but it’s not the only one. And the idea that we’re executing the worst of the worst in our state is not true. We aren’t executing more than 2% of the people who commit homicides in North Carolina. It’s very arbitrary, and people are being represented by poor attorneys. In 2002 the Common Sense Foundation released a report that showed one in six of the people on death row had attorneys who had been disciplined by the State Bar. Now, that’s compared to 2% of the overall attorney populations.
If you are on trial for a traffic citation you most likely have an attorney who has not been disciplined by the State Bar, but if you’re on trial for your life, you have close to a 20% chance that your attorney has been disciplined by the State Bar, and that’s not right.
Stam: Well, we have to look at the costs of a moratorium as well, if you’re talking about the cost of not having a moratorium. In the state of Texas there was sort of an involuntary moratorium for 21 months, and Texas actually executes enough people where deterrence is a factor. Most states that’s not correct, because so few are executed. But the researchers from the University of Houston actually calculated that during that 21 month period there were about 90 excess homicides, that is 90 additional dead people because of the moratorium. And if you translate that to North Carolina, that would be about 30 or 40 additional dead people a year, because we’re not punishing murderers. That doesn’t mean there would be 30 or 40 additional murders, because murder is not the same as homicide, but the cost of innocent dead people is a big cost that has to be factored in.
Holt: And let me get this question out to all three of you. What can individuals who have a position on the death penalty, on the moratorium and so forth, what is your message to them, and I’m going to start with you, Representative Stam.
Stam: I would say that the most important thing that a state does is to suppress murder of citizens. I mean, there are a lot of other things we do, education and environmental protection, but if we can’t assure safety of our citizens, we’re in bad shape. So we have got to maintain a credible deterrent to murder, and that includes the death penalty, and folks out there need to let their representatives know that that’s important to them.
Holt: And Mr. Collins?
Collins: The facts don’t lie. The death penalty is not a deterrent. The states that have the death penalty have higher homicide rates. Our message is that a moratorium is responsible, it’s a responsible way for citizens and for the Legislature to approach the ultimate punishment. With the ultimate punishment comes the ultimate scrutiny, and at this point we’ve proven ourselves to be irresponsible with our application of the death penalty. We need to take a moment, because better responsible citizens, actually examine the death penalty process, and enact reforms that would not only carry us from this point forward, but would look back and be responsible to the people that we’ve already put on death row.
Holt: And Mr. Elderbroom?
Elderbroom: A majority of North Carolinians, close to two thirds, support a moratorium, and 42% of those who strongly support the death penalty also support a moratorium. And there’s a reason for that. It’s because of the innocent people like Alan Gell on death row, it’s because of racial bias, it’s because of the excessive costs. And they need to let their legislators know that it’s an important issue to them and hopefully we’ll get a moratorium and we’ll be able to address these problems.
Holt: And we do have a few more minutes left. Representative Stam, do you believe that judiciary review is sufficient for people who are facing possible death penalty for capital punishment crimes?
Stam: I do, and I say this because I was a law clerk once myself for a supreme court, and when I say 47 judges look at these cases before execution, in addition to the judges, 46 of those have multiple law clerks, and there are so many people, good lawyers, looking at these cases, looking for errors that may have sent a guilty person to be convicted, that we have a really solid system. It doesn’t mean there are no mistakes, but the system is set up to catch those mistakes and give new trials where they’re deserved. I’m confident that at the end of the day, when you get to the execution stage, you’re not executing innocent people or people to whom the death penalty should not apply.
Holt: Mr. Collins?
Collins: There’s no question that in North Carolina we have executed people who, there was a question of their guilt, but more than there being a question of their guilt, it was clear that they didn’t belong on death row. Statutorily speaking, they were not the worst of the worst, they did not meet the aggravating factors necessary to make them eligible for capital trial. We still tried them capitally, they found themselves on death row, and these 47 judges have gotten it wrong. They have messed the process up before. The lawyers have messed it up, the judges have messed it up. We’re asking the Legislature to step in and say, you know, just to say that 47 judges are looking at these cases, well obviously that’s not enough. These problems wouldn’t exist if these 47 judges were equipped to do what they need to do, with respect to these cases.
So my response to that is, maybe 52 judges need to look at this. But clearly we’ve shown ourselves to be missing the mark here.
Holt: And I’d like to take a moment to go back to a case that was referenced a little bit earlier, the LaGrange case, and wondered if the Common Sense Foundation had done any research on that as well.
Elderbroom: We did include Guy, it’s Guy LeGrand, and we included his case in our report. And I think he’s an excellent example of what Representative Stam was talking about. It’s not just innocent people we shouldn’t be executing, it’s another group of people. And we’ve already in North Carolina eliminated the death penalty for people who are mentally retarded, for juveniles, and we also believe we should do that for people who are mentally ill. And Guy LeGrand is one of those people. He went to court wearing a Superman T-shirt, was tried by an all-white jury, and he’s set to be executed on December 1st, and we think that that’s wrong, the district attorney in Stanley County where he was prosecuted gives out gold nooses to assistant district attorneys when they receive death sentences in their cases, and we think this case needs to be looked at, the governor needs to grant clemency, and it’s a perfect example of another group of people who should not be executed: the mentally ill.
Holt: And I do have about a minute left. Let me hear from you, Representative Stam, do you want to comment on that.
Stam: I’m not familiar with that case, so I won’t comment on it.
Collins: I’d like to comment on it, and there are other issues, but I think the most glaring issue is that Guy LeGrand, as Brian stated, wore a Superman T-shirt to his trial, during his entire trial he makes a mockery of the judicial system, he’s appointed co-counsel, they’re trying to write these motions to the judge to say that he can’t properly represent himself. The judge turns a blind eye to these motions, allows Mr. LeGrand to represent himself. He then begins to taunt the jury, an all-white jury at that, in Stanley County, North Carolina, and they immediately sentence him to death, and he’s been sitting on death row ever since. So there are issues of race and disproportional even in that case.
Stam: I will say that if you—
Holt: Gentlemen, I really appreciate all the thoughts that you’ve shared and hopefully our viewers have learned a lot from this discussion. I’d like to thank Representative Stam, Brian Elderbroom, and Jeremy Collins for joining us today. If you’d like to get in touch with our guests or obtain a copy or transcript of tonight’s show, please visit us online at unctv.org/bif. You can also call us on the Black Issues Forum hotline at 919-549-7167. For Black Issues Forum, I’m Deborah Holt, thank you for joining us.
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