Complex challenges put NC death penalty on life support

However, even if courts hand down the state's ultimate sanction in these high-profile crimes, death penalty experts say it's impossible to say when, or even if, the sentences will ever be carried out.

North Carolina, which has 156 prisoners on death row, has not executed an inmate since Aug. 18, 2006, when Samuel R. Flippen was put to death by lethal injection for the beating death of his two-year-old step daughter.

Since then, a complex and evolving set of legal challenges have imposed a de facto moratorium on the death penalty in North Carolina.

The controversial Racial Justice Act, a 2009 law that allows death row prisoners to use statistical evidence of discrimination to appeal their sentence, has played a part in this stalemate. But so have other prisoner appeals that question whether the state's execution method is cruel and unusual or their crimes were investigated fairly. 

Even those who say the death penalty is needed have doubts when it might ultimately be enforced here. 

"The easy answer is nobody really knows," said Peg Dorer, executive director of the N.C. Conference of District Attorneys. "If it ever does resume, I'd say it will be 20 years."

Death row doesn't look a whole lot different than the rest of Central Prison in Raleigh. The 152 men there – four female death row inmates are housed at the North Carolina Correctional Institution for Women – wear red jump suits and their cell blocks are slightly different colors. 

According to prison officials, it costs the same to house a death row inmate as it does any other prisoner, about $80 per day. They do not mix with other parts of the prison population, although their routines are roughly the same.

"All of their movements and all their activities are restricted to their unit," said Kenneth Lassiter, warden of Central Prison. 

Life in the death row cell blocks has continued much the same as it has since before the state's last execution, the warden says. But its population is not growing at the same pace it once did. 

Of the 156 North Carolina inmates awaiting execution, 106 were sentenced before 2000. Even before the current morass of legal cases and appeals, prosecutors were seeking and winning death sentences less often.

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There are several reasons for the decline in death penalty prosecutions, including a 2001 change to state law.

In the 1990s, district attorneys were required to pursue the death penalty in all first degree-murder cases with aggravating circumstances. But in 2001, the General Assembly gave prosecutors the discretion whether or not to seek the death penalty for such cases. 

"Once that happened, there was a dramatic drop off in the number of capital trials," said Wake County District Attorney Colon Willoughby, Jr. District attorneys became more selective about when they would ask for death sentences. 

Willoughby would not speak about the specific reasons his office sought the death penalty for Williford, but spoke generally about the types of things that go into the decision to seek a capital sentence.

He said prosecutors generally look at whether a murder defendant had behaved in a particularly egregious manner or had a background of violent crime. The behavior of the victim also plays a part, he said. 

"When you look at the victim, you ask if this person is truly innocent," he said. "Were they at home minding their own business or in the grocery story just buying groceries?" In cases where victims were criminals in their own right or behaving badly, a capital conviction might be harder to obtain. 

Also important, he said, is whether the evidence in the case is "overwhelming."

The specter of putting an innocent person to death looms over those who would seek the sentence. Anti-death penalty groups point to the 140 people nationwide who, after having been sentenced to death, have been exonerated of those same crimes. 

Among those 140 was former North Carolina death row inmate Alan Gell, who was convicted of a 1995 murder but later found not guilty. His and other non-death row cases of wrongful convictions have repeatedly raised the specter of the innocent facing long imprisonments or worse. 

"I think there will be a case of someone who is now on (North Carolina's) death row who it will turn out to be innocent," said Tye Hunter, executive director of the Center for Death Penalty Litigation. "I expect that case to come before the summer is over."

Each such case, he said, chips away at the willingness of those involved in capital trials – prosecutors and juries especially – to impose the death penalty.  

So, too, has the time and cost involved in death penalty litigation.

"It's not just one lawyer in that courtroom," said Dorer, who runs the N.C. Conference of District Attorneys, a group that helps support and advocate for prosecutors. "It's a couple of prosecutors and a boat-load of support staff."

Dorer said the cost of such cases is one factor that district attorneys have to weigh against whether a crime is so horrible that death must be considered.

And in the past decade, she said, the cost and time involved in appeals have begun to weigh on prosecutors. 

Even as courts sent fewer inmates to death row, court challenges have put a stop to executions for the foreseeable future. Although each individual defendant can pursue his own case, there have been a few challenges that have affected the fate of all death row inmates.  

Two of the best-known challenges to North Carolina's death penalty have been settled by the state Supreme Court:

Lawyers on both sides of the death penalty debate said the issues in these cases were settled and would not come up again.

Another case heard in state courts has just begun to make its way through the appeals process. It takes aim at whether the state's lethal injection method could lead to cruel and unusual punishment. 

"We have a three-drug execution protocol. If the execution team messes up and makes a mistake on the first drug, the second two are going to cause torture," said David Weiss, a lawyer who argued this case on behalf of four death row inmates.

Currently, North Carolina law only allows for one execution method: lethal injection. In the three-drug procedure, the first drug anesthetizes and puts the condemned to sleep. The other two drugs paralyze and stop the heart. Weiss argues that if the anesthetic is not properly administered, the subsequent drugs will cause excruciating pain. 

But Judge Donald Stephens ruled on March 9 that the procedure was constitutional. 

"While there is an inherent risk of error in any human endeavor, the Protocol does not pose an objectively intolerable or substantial risk of harm to the Plaintiffs that they will suffer inhumane and torturous execution," Stephens wrote.

That case has now been appealed. It it likely to go straight to North Carolina's Supreme Court without stopping at the Court of Appeals. A spokeswoman for Attorney General Roy Cooper refused to make any Department of Justice lawyers available for interviews. 

It's worth noting that in 2008, the U.S. Supreme Court held that Kentucky's use of a three-drug protocol similar to North Carolina's was constitutional. 

Still, in addition to the state case, several North Carolina death row inmates also have appealed their sentences to the federal courts. 

"Those federal cases have been on hold since 2006," Weiss said.

Experts on both sides of the death penalty issue said federal courts will typically only rule when state appeals are exhausted. With state litigation ongoing, the federal cases are unlikely to move forward.

But for many current death row inmates, there appears to be a more promising route of appeal. 

Passed in 2009, the Racial Justice Act allows death row inmates to challenge their sentences based on statistical evidence that racial discrimination could have affected their trial, such as when jurors were chosen. If such a claim is successful, the inmate's sentence is commuted from death to life in prison.

With Robinson's success, there are only 156 inmates left on death row. Of those, 154 have brought Racial Justice Act claims, even though in many were of the same race as their victims. 

Rep. Paul "Skip" Stam, R-Wake, an opponent of the Racial Justice Act, says the outcome of the case is counter-intuitive. "Why would (Robinson) get life in prison if his jury was tainted," he asked. "If you really thought there was a problem with the jury, why would it affect the sentence and not the verdict?"

Stam helped lead an effort last fall and winter to repeal the Racial Justice Act. Gov. Bev Perdue, a Democrat, vetoed that measure and lawmakers fell one vote short of the number needed to override her veto.

Even if lawmakers do repeal the act, there is some question among lawyers whether or not the claims already filed would proceed. 

"After judge Weeks' ruling, from what I've been told, I think everyone with an existing claim is going to have a chance to litigate," said Dorer, who is not a lawyer.

As for the future of the Racial Justice Act, Stam said lawmakers would try again in May to repeal or rewrite it. One possibility, according to those who have seen proposals, is to narrow the scope of statistical material that may be considered to the single county or judicial district where an inmate's conviction occurred.

Even if changes are made, it's unlikely any court proceedings will go that much more quickly.

"With things like the Racial Justice Act, it will take tens of millions of dollars and years to clear up those motions," Willoughby said. 

In interviews, lawmakers and staff say that there is unlikely to be any other legislation connected to death penalty litigation considered this summer. 

As Racial Justice Act claims play themselves out, it's possible for other issues to arise. 

Hunter, with the Center for Death Penalty Litigation, said his staff was still looking at problems with evidence analysis in the state crime lab. 

The recent case of Greg Taylor, who spent 6,149 days in prison for a murder he didn't commit, was freed after being able to show the SBI crime lab used scientifically unsound blood analysis techniques. Hunter said that questions remain about other work the crime lab did in the case of other defendants. 

Dorer said that she believed the crime lab problems were by and large cleared up. 

"It's the defense bar's job to cast doubt on every part of the system," she said. Many of those claims, she added, will be "red herrings."

North Carolina is not the only state where litigation has stood in the way of the death penalty. For example, a federal judge in March ordered states to stop importing a drug used in executions, because the FDA never approved it for use in the United States. 

But if the legal roadblocks were cleared away, North Carolina prison officials say they would be ready to carry out death sentences once again. 

"If we were told today that we had to carry out an execution, I think we would be prepared to carry it out," said James French, deputy director for adult correction.

Inevitably, the practical delays in carrying out death sentences lead to other conversations about the broader implications of the death penalty and whether it serves as a deterrent to violent criminals.  

"I think the deterrent value of (the death penalty) has been limited by the inordinate delays in carrying it out," Willoughby said. "When an execution is carried out 10 or 15 years after a murder, it doesn't have the same effect as if were carried out after 18 months. 

Given that, should the state still have a death penalty?  

"That is a public policy decision for the legislature to make," Willoughby said. "And I think it's one where we ought to take into consideration how the people of this state feel. It seems like the public seems to think we ought to have the death penalty, and we ought to reserve it for a small number of very extreme cases."

Others feel differently.

"We are in a money crunch, so you would think that we might do away with policies or procedures that don't produce any discernible effect," Hunter said. He pointed to studies that show death penalty litigation costs taxpayers $11 million per year. 

More troubling, he said, are the questions raised in the Racial Justice Act litigation.

"Part of the appeal of the death penalty," Hunter said, "is when those who support it closed their eyes and imagine the person who is going to be executed, it's not a white person they see being executed."

Since 1977, 242 inmates have left North Carolina's death row, not counting those who were re-tried and sentenced to death a second time. Most of those had their sentences commuted to life in prison, others were exonerated or convicted of lesser crimes.