America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Sentenced to death: A waiting game for 'the worst of the worst'

When Antwan Andre Anthony was sentenced to death in April for the 2012 killings of 3 convenience store workers in Farmville, it marked the end of a long wait for justice and the start of another.

Anthony, 33, became the fourth man since the early 1990s to be sentenced to death for a conviction of murder in Pitt County. He is one of 150 death row inmates in North Carolina. Before Anthony, the last inmate to be received on death row was in 2014.

Most of North Carolina's death row inmates - 111 of the 151 - have been there for 15 years or longer, with much of that time spent in the appeals process. The state also has had a de facto moratorium on the death penalty, and the last execution was 10 years ago.

Will Anthony ever meet the fate assigned to him by a jury and judge in Pitt County? It's not likely, according to Frank Baumgartner, a professor of political science at the University of North Carolina at Chapel Hill who has spent nearly 20 years studying the death penalty.

"65 % of the time, death sentences are overturned on appeal, and those reversals might come 3 years later, 5 years later, 10 years later, but that's an especially shocking number," he said.

Across the country, more than 8,000 death sentences have been handed down, but many of those sentences are overturned, with the defendant then receiving a sentence of life without parole, Baumgartner said.

"The 2nd-largest number of people who have been sentenced to death have simply languished on death row for 20 or 30 years," he said. And the least likely outcome is that the person will be executed.

"Nationally, it's not uncommon that the few executions that do take place, the crimes took place in the '80s," Baumgartner said.

The average delay is about 20 years.

For Anthony, Baumgartner said, "what happens now is going to be a very long waiting game."

Automatic appeals

Anthony and other defendants sentenced to death automatically are entitled to 2 rounds of appeals, 1 on the state level and another on the federal level, Baumgartner said.

It is not uncommon for the process to take 10 to 20 years, said Jeff Welty, associate professor of public law and government at the School of Government at UNC.

Generally, there are 4 steps to the appeals process, he said. In the initial step, called the direct appeal, the inmate and his defense team identify what they believe to be legal errors during trial and appeal to the N.C. Supreme Court.

"If that's not successful, we go to step 2, which is sometimes called the state collateral review, and at that point, the defendant files something called motion for appropriate relief and they file it with the superior court in the jurisdiction where they were tried," Welty said.

That already has happened in the Anthony case.

Anthony's attorneys filed a motion for appropriate relief about a week after he was sentenced on grounds that a sheriff's office employee reportedly made improper comments within earshot of jurors during the trial. The comments allegedly included the employee's opinion on what should happen to Anthony.

A hearing to determine if that occurred and if it is cause for a new trial or sentencing hearing is scheduled for Aug. 1.

"The grounds for reversal have to be very serious findings from appellate court," Baumgartner said. "It would have to be some very serious flaw that could have changed the outcome, either in the trial for guilt or more likely in the penalty phase."

If the superior court does not rule in favor of the defendant on a motion for appropriate relief, the defendant can appeal that decision to the state Supreme Court, Welty said.

"If that step doesn't bear fruit, then the case moves on to step 3, which is federal habeas review," he said. "... The idea there is to allow federal courts to take a look and make sure that state courts are carrying out their constitutional responsibilities."

That process begins in federal district court and can be appealed to the Fourth Circuit Court of Appeals in Virginia and ultimately to the U.S. Supreme Court.

If all of those avenues of appeal fail, the defendant's last opportunity is to make a request for clemency to the governor, Welty said.

Sticking points

North Carolina is 1 of 31 states where the death penalty is legal. It has been abolished in 19 states. While North Carolina has not declared any official moratorium on the death penalty, there have been no executions since 2006.

"There's been a whole bunch of litigation about different aspects of the death penalty that has had the effect of creating a de facto moratorium," Welty said.

The 3 sticking points have been the requirement that a licensed physician be present during an execution, concerns about the lethal injection procedure and uncertainty surrounding claims filed under the now-repealed Racial Justice Act.

"The Medical Board took the position that doctors couldn't participate in executions, and that caused litigation between the state and the Medical Board," Welty said. A bill that became law last year removed that requirement and allows for other medical professionals, a nurse practitioner for example, to be present instead of a doctor.

One of the next hurdles is the contention about lethal injection.

"Around the country, there's been so many controversies about lethal injections that have gone wrong," Baumgartner said, "so you can bet your bottom dollar that when they schedule the 1st execution, there will be litigation about what drug will be used and how can we guarantee the safety of the drug supply and where do they get the drugs, and all those complicated wranglings will start happening about the lethal injection process."

Last month, pharmaceutical giant Pfizer took steps to prevent distribution of its products for use in lethal injections. Pfizer limited the sale of seven of its products to wholesalers, distributors and direct purchasers under the condition that the products would not be resold to correctional institutions.

Pfizer's move further complicates the lethal injection process in states that used its products for that purpose.

There already is ongoing litigation over the Racial Justice Act, which was enacted in 2009 and allowed inmates to challenge their death sentences based on racial disparity statistics, related mostly to jury selection, Baumgartner said.

Nearly all death row inmates filed claims under the act, and 4 cases were heard in court, with each defendant seeing success. But the act was repealed last year.

A Cumberland County judge assigned to hear the 4 inmates' appeals on Thursday volunteered to remove himself, following months of arguments by defense attorneys that he had conflicts of interest. Another judge will be assigned to hear the appeals.

"Lawyers will be arguing probably for more than another year about whether the inmates who filed have a right to have their case heard under a law that no longer exists," Baumgartner said. "You have to be a lawyer to figure that one out, but it's still part of the landscape here in North Carolina, so I don't think we're going to be looking at the resumption of executions anytime soon."

'Worst of the worst'

Experts say there has been a sharp decline in the number of death sentences. In the last 5 years, 7 men have been sentenced to death in North Carolina.

Between 1993 and 1999, the number of defendants to receive the death penalty statewide generally was in double-digits. Now, the number of death sentences each year ranges from 0 to 3.

"The main reason is prosecutors are not seeking the death penalty as much, and juries are loathe to hand it out anymore," Baumgartner said. That may be because a high number of the accused have had their convictions overturned after it was determined they were innocent, he said.

"There's been about 1,400 executions nationally since 1976 and 158 exonerations," he said. "In North Carolina, there have been 42 (executions) and 5 or 6 exonerations. So it's almost like 1 in 10. That's a pretty scary, pretty low batting average of getting it right."

Some might ask why the state even goes to bat for the death penalty if so many sentences are overturned and there have been no executions in the last 10 years.

"The death penalty is still on the books," Pitt County Assistant District Attorney Clark Everett said. "I think you have to have the death penalty there for the worst of the worst. It's got to be there.

"You have to do it because who knows what's coming next week," he said. "If you don't follow the law and have some threshold where you say, 'Alright, this is a death penalty case,' then it pretty much puts you in a situation where you're never going to be able to."

The threshold includes 3 components: The murder must be particularly horrible, a double or triple homicide, for example; overwhelming evidence of guilt; and a defendant with significant criminal or violent history.

Juries who have found a defendant guilty in a capital trial face the task of determining if he should receive a sentence of life in prison without parole or death, but for now, Baumgartner says there isn't much of a difference.

"The odds are that the person won't be executed, even though the state may try its best to make it happen," he said.

Nationally, there is only a 13 % chance it will be carried out, he said. Among those, the executions come decades later, after several appeals, which serve as a routine reminder of the crime. But defendants sentenced to life without parole are not guaranteed the same automatic appeals.

"LWOP is a death penalty by another name because you don't leave prison alive, and there's nothing light about that penalty," Baumgartner said. "It's like 2 forms of a death penalty we're talking about: one where you get automatic appeals and the most likely outcome is you end up on LWOP eventually, just after many years of appeals, and the other is you just go straight to LWOP, and that's the end of the story."

For Anthony, the process is just beginning.

"What will happen now is he'll get automatic appeals, and there will be a lot of money spent and, most likely, he'll never be executed," Baumgartner said.

"It's just a tragedy all the way around," he said, "because it's not helpful to anybody in the system to have a death penalty in name only."

Source: Reflector.com, June 12, 2016

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