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…

Executions won't resume in North Carolina any time soon

North Carolina's death chamber
North Carolina's death chamber
Dixie Lowry Davis, whose husband was shot to death on Interstate 95 in 1997, has no expectation that Tilmon Golphin will be executed for the murder.

"No, I don't. I really don't," Davis said on Wednesday. She thinks that Golphin - sentenced to die for killing her husband, a state trooper, along with a deputy sheriff - is more likely to die in prison of natural causes.

Criminal justice lawyers share Davis' assessment that it will be a long time before North Carolina carries out an execution again, if it ever happens. North Carolina's last execution was in August 2006 and its unofficial moratorium on the death penalty started in January 2007.

Legal challenges to North Carolina's capital punishment laws pending in state and federal courts have forced executions to grind to a halt. And most death row inmates filed claims under the now-repealed Racial Justice Act, which allowed them to claim discrimination in their sentencing.

These legal actions are keeping the state's 150 condemned inmates away from the death chamber.

"Nobody is going to be executed as long as there is a motion pending in state or federal court that has not been heard," said Robeson County District Attorney Johnson Britt.

"Nobody can tell you how long it's going to be, but I would expect, given all these different levels of litigation, it's probably going to be years before we would have any executions," said retired University of North Carolina law professor Richard Rosen.

Defense lawyer Ken Rose with the North Carolina Center for Death Penalty Litigation is deeply involved in the issues that have stopped executions. There are 3 broad matters that the courts need to address, he said.

First, Rose said, are the continuing legal challenges to North Carolina's execution protocols. These are in North Carolina and federal courts.

The protocol questions triggered North Carolina's execution hiatus in 2007, but the matters had been in court well before then.

The issues in 2007 included the role of a doctor in executions, whether the drugs used in executions by lethal injection were causing intense pain as they killed the inmates and whether North Carolina prison officials illegally modified the execution protocols by not first getting approval from the state's top elected officials.

Over the years, the courts resolved some of the legal questions and North Carolina eliminated the use of the pain-causing drugs that were being challenged. Also, the legislature, upset that executions have been stopped for so long, changed death penalty laws to try to circumvent the legal challenges and resume carrying out death sentences.

The new laws fueled new legal motions by inmates.

"What is the current method of execution in North Carolina? What is the protocol?" asks Rose, who represents death row inmates. "...Where is the drug coming from? What is the drug?"

The Restoring Proper Justice Act of 2015, one of the laws aimed at restarting executions, has a provision to keep the company that produces the lethal drug a secret. Rose sees constitutional problems with that.

"In order to determine whether or not the use of a particular drug is cruel and unusual punishment, does the defendant have a right to know what that drug is? Know the source of the drug?" Rose said.

"You have a right to know enough detail to know if it's going to be unnecessarily torturous," Rose said.

Lethal injection executions in other states have gone wrong. According to media reports, Oklahoma this past week halted all of its executions because an execution in 2014 was badly botched and in 2015 the state was sent the wrong drug for use in lethal injection. Oklahoma now has plans to use nitrogen gas to kill its condemned inmates instead of lethal injection.

In North Carolina, Rose wants to know what North Carolina does to ensure the competency of the drug manufacturer or compounding pharmacy that produces the drug for lethal injection. He wants to know the qualifications of the people carrying out the execution.

"If the execution's botched and the drug doesn't kill the defendant in minutes, or even hours, what (are) the procedures that the state will use to revive the person - to prevent that person from just suffering without killing him?" Rose said. There appears to be no procedures in place for that contingency, he said.

A second factor postponing executions is the North Carolina Racial Justice Act of 2009. Out of the state's 150 death row inmates, approximately 140 have made Racial Justice Act claims.

The law gave death row inmates a chance to have their sentences commuted to life in prison without parole. They had to prove to a judge that racial bias tainted their trials and led to them receiving the death sentence.

The law was repealed in 2013 - and that repeal gave the inmates more legal fodder postpone their execution dates.

The issue is whether the repeal unconstitutionally snatched away a vested right when it repealed the Racial Justice Act, Rose said.

Four inmates, all defendants in Cumberland County homicides, had Racial Justice Act hearings. In 2012, their sentences were commuted to life without parole, but the state Supreme Court said a procedural error by the judge tainted their hearings. They have been sent back to death row and new hearings are scheduled.

The rest of the roughly 140 defendants who asked for Racial Justice Act hearings did not get them before the law was repealed.

Lawyers for the state argue that the law that did away with the Racial Justice Act prevents the inmates from pursuing the claims they filed before it was repealed.

The death row defendants may be able to beat that argument, said Rich Rosen, the retired UNC law professor.

"The federal constitution says that once you give a right you can't willy-nilly deprive people of that right," he said.

The 4 Racial Justice Act cases from Cumberland County are scheduled for a hearing Nov. 29 in Charlotte. A judge is to hear arguments that day on the state's motions to dismiss the cases.

Separately, the North Carolina Supreme Court has agreed to consider whether to the rest of the Racial Justice Act defendants can have hearings on their allegations that racism was a factor in their death sentences.

2 of the Cumberland County defendants have additional cases pending in federal courts alleging that the state violated the double jeopardy clause in the U.S. constitution that when it returned the inmates to death row. The double jeopardy clause says that once a defendant is acquitted, he can't be tried again. Their claim attempts to apply the clause to the ruling overturning their death sentences, saying they can't be imposed again once they've been lifted by a judge.

One of these inmates is Tilmon Golphin, who killed state Trooper Ed Lowry and Deputy David Hathcock in 1997. Lowry was Dixie Lowry Davis' husband. The other is Marcus Reymond Robinson, who killed a Fayetteville teenager in a robbery in 1991. Robinson was hours away from execution in January 2007 when North Carolina executions were halted.

The third major factor delaying executions, Rose said, is a new angle of attack that defense lawyers are using to try to overturn death sentences handed down in North Carolina prior to July 1, 2001.

That's when North Carolina implemented a major change to its death penalty laws, one that has drastically reduced the number of death penalty cases in this state.

Prior to July 1, 2001, state law required local prosecutors to seek the death penalty if the facts surrounding the crime were sufficient. If a murder was especially heinous, for example, or committed to obtain something of value.

Requiring that prosecutors seek the death penalty when certain elements were present resulted in dozens more death penalty trial and sentences. Prosecutors had no choice but to seek the maximum penalty.

"North Carolina as a result was one of the top death-sentencing states in the country," Rose said. "And that changed dramatically after July 1, 2001."

The law change in 2001 gave prosecutors discretion - freeing them to accept plea bargains that gave defendants sentences of life in prison without parole.

In the 1990s, North Carolina sometimes sentenced 20 to 30 people to death annually, according to a chart by the Death Penalty Information Center. In the past 10 years, juries have issued 5 or fewer death sentences per year, its chart says.

The old law that required prosecutors to seek death was unconstitutional, Rose argues.

Dixie Lowry Davis, Trooper Ed Lowry's widow, thinks Tilmon Golphin and his brother, Kevin Golphin, should have been executed shortly after they were sentenced in 1998 for Lowry's murder.

Now she worries whether they will be released from prison.

While Tilmon Golphin is on death row, Kevin Golphin, previously sentenced to death, is now serving life in prison and could become eligible for parole. Kevin Golphin was only 17 when he and Tilmon killed Lowry and Hathcock. The U.S. Supreme Court has ruled that defendants who were under 18 when they committed their crimes can't be sentenced to death and may not be automatically sentenced to life in prison without parole.

"It's been so long, we're just all so frustrated," Davis said of her family. "We would like to see the end to it. But we don't want the end to be that they get out of jail. So we want them to stay right where they are."

Source: Fayetteville Observer, September 19, 2016

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