Failure in Fairness

Failure in fairness The News and Observer
(Raleigh, NC)

September 23, 2000

Failure in fairness

EDITORIAL/OPINION

In recent years, the evidence has grown steadily in North Carolina and the nation that administration of the death penalty is seriously flawed. Indeed, after completing an intensive six-month study, The Charlotte Observer recently concluded that North Carolina's death penalty system "is so tainted with mistakes, unfairness and incompetence that it risks executing innocent people while sparing some of the most vicious killers."

It's all the more ironic, then, that during the past five years North Carolina's death row inmates have had a sharply reduced chance in the state Supreme Court of winning their appeals for new trials or sentencing hearings. Since 1995, according to a News & Observer report, the state court has overturned death sentences or convictions just one-fifth as often as in the previous 16 years.

There's a suggestion here, of course, that it's a more conservative court now with a 4-3 Republican majority on the bench. And, to be sure, the public cry for toughness on crime is hardly lost on judges, especially those who must win popular election.

When one justice, Republican Bob Orr, implies that under former Chief Justice James Exum, a Democrat, the court tended "to split hairs in favor of the defendant," there's an even deeper penetration of the political knife. And when Orr dismisses some trial judge technical errors as "nothing" issues, he might try telling that directly to some appellant whose life is more than technically on the line.

For inmates who appeal, the state court's increasing reluctance to reverse faces them with a double whammy. A level above, at the federal 4th U.S. Circuit Court of Appeals in Richmond, judges are virtually stone deaf to pleas from the condemned in North Carolina. They have made no concession to any such appeal since 1992. At both state and federal levels, too, time and opportunity for appeal from death sentences have been steadily cut back.

Referring to the small fraction of murderers selected for execution, former Chief Justice Burley Mitchell told the Durham-based Independent Weekly after he stepped down a year ago, "It's like being picked for a lottery. It's totally arbitrary." But Mitchell, a death penalty supporter who in 1995 succeeded Exum as chief, and some current members of the court offered fairly simple explanations to The N&O for why there's been such a decline since that year in successful death row appeals.

The death penalty law at the state and national levels is more settled, they say, and the courts more often are getting things right. So, presumably, few appeals have merit because police, prosecutors and judges keep errors to a minimum, discrimination by reason of race or class or even the district in which one lives is no longer a factor, and indigents get qualified, conscientious legal counsel in the fight for their lives. And some of this may in fact be the case.

But what must be said, then, about the injustices and unequal treatment that continue, as documented in The Observer's series? Or, as dramatized by the wrongful convictions that prompt public officials across the country to call for a moratorium on the death penalty? Surely most condemned prisoners have committed atrocious crimes and deserve harsh punishment. But to seek to ensure that all persons accused of murder are given a proper chance to prove their innocence - and that sentences are imposed fairly and consistently - hardly qualifies as splitting hairs.

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