Just before Christmas, the Supreme Court of North Carolina decided the Racial Justice Act cases that were argued back in April 2014. Rather than ruling on the merits, the court remanded the cases for further proceedings, concluding that the State should have been granted a continuance to allow it to respond to the inmates’ statistical study of jury selection across the state in capital cases. Continue reading
Tag Archives: death penalty
The Supreme Court issued a per curiam opinion yesterday, reversing the Sixth Circuit in a capital case. The opinion doesn’t necessarily break new doctrinal ground but it is an interesting application of existing law, and it provides a window into an ongoing dispute between two federal appellate courts. Continue reading →
It’s a bird, it’s a plane . . . no, it’s a drone over the skies of North Carolina. And soon it may be operated by law enforcement. The News and Observer reports that the General Assembly is poised to enact S 446, which flew through the House yesterday and has been returned to the Senate for concurrence with relatively minor amendments. The bill repeals the prohibition on governmental use of unmanned aircraft enacted in 2013 and authorizes the State’s Chief Information Officer to approve the procurement and operation of unmanned aircraft systems by State agencies and local governments. Continue reading →
The United States Supreme Court just decided a capital case about intellectual disability, formerly known as mental retardation. In some ways, it’s an “error correction” case that doesn’t break new doctrinal ground. But it stands out for two reasons. First, it may be indicative of the current Court’s attitude towards the death penalty. And second, Justice Thomas wrote a dissenting opinion focused in large part on former professional football player Warrick Dunn. Continue reading →
During the second phase of a capital trial, the jury must decide whether to sentence the defendant to death or to life in prison. The jury’s perception of prison life may influence that decision. If the jury believes that prison life is comfortable, it may be more inclined to impose a death sentence, while if it believes that prison life is difficult, it may be more likely to return a verdict of life in prison. But is the quality of prison life relevant to any aggravating or mitigating circumstance? Should the parties be permitted to introduce evidence about, and to argue about, what prison life is like? This post tackles those questions.
What is prison life evidence? Prison life evidence concerns the quality of life in prison, including the amenities and activities that are available, or are not available, to inmates. Either party may seek to introduce such evidence, and the witnesses through whom it might be introduced include correctional officials, prison consultants, and inmates. As noted at the end of this post, prison life evidence is not the same as evidence about the defendant’s ability to adapt to prison life.
Is it admissible? Courts generally have ruled that prison life evidence is not admissible. At a capital sentencing hearing, the rules of evidence don’t apply, and any evidence that is “probative” may be admitted. G.S. 15A-2000(a)(3). The jury’s task is to identify and weigh aggravating and mitigating circumstances, so “probative” evidence means evidence that is relevant to one or more such circumstances. Prison life evidence doesn’t bear on any of the enumerated aggravating factors in the statute, so I don’t see any basis for the State to introduce such evidence. Nor does such evidence relate to any of the enumerated mitigating circumstances. And although the statute contains a catchall mitigating circumstance, G.S. 15A-2000(f)(9) (“Any other circumstance arising from the evidence which the jury deems to have mitigating value.”), prison life evidence doesn’t seem to fit there, either. The Supreme Court has held that a defendant is entitled to present, as a mitigating circumstance, “any aspect of a defendant’s character or record and any of the circumstances of the offense” that may serve to support a sentence less than death. Lockett v. Ohio, 438 U.S. 586 (1978). But prison life evidence has nothing to do with the defendant’s character or record or the circumstances of the offense, and so appears to fall outside the scope of mitigation.
I am not aware of a North Carolina case on point, but courts in at least three other states have addressed this issue, and all have ruled that evidence about prison life is inadmissible:
- State v. Kleypas, 40 P.3d 139 (Kan. 2001) (trial court correctly excluded “evidence regarding the conditions and effects of a life sentence in the Kansas correctional system”; such evidence was not mitigating in itself and was “too far removed” from the defendant’s ability to adapt to prison life to be admissible in support of that mitigating circumstance; the court did note that “[s]uch evidence might be admissible in rebuttal to counter . . . evidence produced by the State showing that life in prison is . . . easy”)
- People v. Ervin, 990 P.2d 506 (Cal. 2000) (citing previous California precedents and ruling that the trial court correctly excluded testimony from a “prison consultant” concerning “the security, classification, and management of inmates sentenced to prison for life without possibility of parole”)
- Cherrix v. Commonwealth, 513 S.E.2d 642 (Va. 1999) (defendant sought to introduce evidence regarding “the general nature of prison life” through “an expert penologist, several Virginia corrections officials, a criminologist, a sociologist, and an individual serving a life sentence”; the trial court properly excluded this evidence as “not relevant mitigation evidence”)
A few readers may be interested in this motion in limine by the prosecution in a Colorado case, seeking to exclude prison life evidence.
What about arguments related to prison life? There are a number of North Carolina cases about the propriety of closing arguments referring to the quality of prison life. All of the cases I found concern remarks made by the prosecutor, though the courts’ rulings appear to apply equally to remarks by defense counsel. I’ve summarized the cases below, but in general, (1) arguments about prison life that aren’t supported by the evidence are improper, and (2) absent an objection, they aren’t normally so improper as to require the trial judge to intervene or to require reversal on appeal.
My sense is that the more detailed the arguments are, and the more they refer to specific activities and amenities, or to specific privations and hardships, that are not in evidence, the more troubling they are. General remarks that are obviously true are not very concerning. For example, an argument by the State that “in prison, the defendant will enjoy nutritious meals and an opportunity to interact with other inmates” is relatively benign, as is a defense argument that “in prison, the defendant will be behind bars, locked away from the free world with time to think about what he has done.” On the other hand, detailed and possibly erroneous recitations of leisure activities that will be available to the defendant, or of difficulties that the defendant will face, are more likely to be objectionable.
Here are the cases on point, from older to newer. The newer cases seem to reflect a bit more skepticism about arguments about prison life.
- State v. Reeves, 337 N.C. 700 (1994) (during closing argument, the prosecutor stated that if the defendant were sentenced to life in prison, he would enjoy a “cozy little prison cell” with television, “air conditioning and three meals a day”; the defendant did not object at trial but on appeal argued that there was no evidence in the record to support these claims; the supreme court ruled that “[t]he prosecuting attorney was arguing that the defendant would lead a comfortable life in prison” and that “[i]f he used some hyperbole to describe that life it was not so egregious as to require the court to intervene ex mero motu”)
- State v. Alston, 341 N.C. 198 (1995) (during closing argument, the prosecutor denigrated life in prison by stating that it is “difficult to be penitent with televisions, and basketball courts, and weight rooms”; this was not improper and simply “emphasized the prosecution’s position that life in prison was not an adequate punishment”)
- State v. Holden, 346 N.C. 404 (1997) (at a capital resentencing hearing, “a prison guard testified that defendant was permitted to watch television, play cards, lift weights, play basketball, go to the music room, and eat lunch with other inmates”; the admissibility of this evidence was not addressed in the opinion; at closing argument, over a defense objection that the argument was irrelevant and speculative, the prosecutor contended that “if the jury recommended life imprisonment, defendant would be able to watch television, play cards, play basketball, listen to music, and eat lunch with fellow inmates”; the supreme court found the argument permissible under Alston and stated that it was reasonable to infer that the defendant would continue to enjoy the privileges to which the guard testified)
- State v. Smith, 347 N.C. 453 (1998) (briefly, citing Alston, the supreme court ruled that the trial judge did not err by failing to intervene ex mero motu when the prosecutor argued “that if defendant were sentenced to life in prison, he would spend his time comfortably doing things such as playing basketball, lifting weights, and watching television”)
- State v. May, 354 N.C. 172 (2001) (citing Smith and Alston, the supreme court ruled that although “the prosecutor improperly argued facts not in the record” by asserting that the defendant would play cards, go the gym, and watch TV while in prison, the impropriety was not so severe as to require the trial judge to intervene without a defense objection)
- State v. Taylor, 362 N.C. 514 (2008) (although the prosecutor argued facts outside the record by remarking “that defendant would potentially be able to do the following while in prison: visit with his mother and sisters, eat his meals and drink his coffee, watch the sun rise, exercise, watch television, read, draw, receive an education, and enjoy the fresh air,” the comments were not so grossly improper as to require ex mero motu intervention by the trial judge)
Ability to adapt to prison life is a separate question. Evidence of the defendant’s ability to adapt to prison life is admissible generally is admissible in mitigation. Skipper v. South Carolina, 476 U.S. 1 (1986) (explaining that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination”); State v. Green, 336 N.C. 142 (1994) (trial court erred in refusing to submit the nonstatutory mitigating circumstance that the defendant “will continue to adjust well to prison life and be a model prisoner”). Some facts about prison life might be admissible in support of this mitigating circumstance, but this post doesn’t attempt to identify or classify the facts that would be admissible for that purpose.
I spent a few minutes this morning looking at death penalty data. As most readers know, North Carolina hasn’t had an execution since 2006, as a result of litigation over lethal injection and the Racial Justice Act. But the death penalty remains on the books, the State may seek it, and juries may impose it. How often do they do so?
In recent years, not very often. In the 1990s, the death penalty was imposed 20 times or more in most years. Since 2000, the norm has been just a handful of death sentences annually. (For more detail, see the graph here, produced by the Death Penalty Information Center.) In fact, in 2012, not a single death sentence was imposed in the state.
Since then, however, there has been a slight uptick. In 2013, one death sentence was imposed, on Mario McNeill in Cumberland Co., for killing 5-year-old Shaniya Davis. A WRAL story about the case is here.
In 2014, so far, juries have sentenced three defendants to death:
- Bernard Lamp (Iredell Co., for killing Bonnie Lou Irvine, local story here)
- Juan Rodriguez (Forsyth Co., for killing his wife, Maria Rodriguez, local story here)
- Jonathan Richardson (Johnston Co., for killing 4-year-old Teghan Skiba, WRAL story here)
I don’t know whether other capital trials are scheduled this year. If readers are aware of any, please post a comment.
There may be a slight uptick nationally as well. After a steep decline from the 1990s through the 2000s, there were just 77 death sentences imposed nationally in 2012. In 2013, there were 80. I couldn’t find year-to-date data for 2014.
Trends in the death penalty are often scrutinized closely and trumpeted loudly by advocates on both sides, so I’ll close by emphasizing that the uptick is quite small and may be the result of random variation. We’ll see what happens in 2015.
Yesterday, the United States Supreme Court decided Hall v. Florida, a case about the death penalty and intellectual disability. It’s an important case with implications for North Carolina.
Background. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court prohibited the imposition of the death penalty on mentally retarded defendants. The Court indicated that it would leave the details of the prohibition to the states, but suggested in a footnote that states should “generally conform to the clinical definitions” of mental retardation when deciding which defendants are eligible for capital punishment.
Since Atkins, the term “mental retardation” has given way to “intellectual disability.” Generally, the condition is present when, prior to age 18, an individual manifests both (1) significantly below average intellectual functioning, generally indicated by low IQ score, and (2) significant limitations in “adaptive functioning,” i.e., difficulty with everyday activities. Different states have adopted slightly different formulations of the condition, and defense attorneys have challenged the most restrictive definitions as inconsistent with Atkins and with accepted clinical practice.
Facts and procedural history of Hall. In 1978, the defendant and an accomplice raped and murdered a young woman and killed a law enforcement officer. The defendant was sentenced to death. After Atkins, the defendant alleged that his intellectual disability rendered him ineligible for execution. He offered evidence of an IQ score of 71 (and other scores, less relevant here but discussed in the Court’s opinion), as well as evidence of difficulty in adaptive functioning. The Florida Supreme Court ruled that an IQ score of 70 or below was indispensable to a claim of intellectual disability under the state’s statute, and that such a hard cutoff was constitutional. The United States Supreme Court agreed to review the case.
The majority opinion. The Court reversed, 5-4. Justice Kennedy wrote the majority opinion. He reviewed the medical community’s current approach to intellectual disability. Prominent sources such as the DSM-V allow for a diagnosis of intellectual disability even when a person’s IQ is above 70, if the person has sufficient difficulty in adaptive functioning. Further, medical experts generally view an IQ score as a range, rather than a precise figure, given the inherent measurement error in IQ tests. Justice Kennedy wrote that “[a] score of 71, for instance, is generally considered to reflect a range between 66 and 76 with 95% confidence.”
Justice Kennedy then turned to state laws, finding that “at most nine States” impose a strict cutoff like Florida’s. He reasoned that the remaining states either do not employ the death penalty or define intellectual disability more flexibly. Further, Justice Kennedy stated that the trend since Atkins has been away from a strict IQ cutoff. He viewed these facts as evidence of an emerging consensus against the use of a strict cutoff.
Finally, acknowledging that Atkins promised to give the states the power to implement its mandate, Justice Kennedy wrote that the states’ discretion was not unfettered and that Florida had overstepped its authority by adopting and unreasonably restrictive test. Ultimately, the Court concluded, “[i]ntellectual disability is a condition, not a number. . . [and] when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”
The dissent. Justice Alito wrote the dissent for the Court’s four most conservative Justices. First, he tallied the states differently than Justice Kennedy, finding that among death penalty states, about equal numbers allow consideration of measurement error in IQ tests; do not allow it; and have not addressed the issue. Thus, he saw no consensus among the states. Second, he argued that the views of “a small professional elite” – that is, the medical community – do not necessarily reflect the views of society as a whole and should not be viewed as dispositive on the Eighth Amendment issue. Third, he foresaw practical difficulties with depending on mental health professionals’ views when interpreting the Eighth Amendment: what happens if the professionals’ definition of intellectual disability changes in the future, as it has done in the past? What if the professionals disagree with one another about the proper definition? Fourth, and finally, even assuming that the medical community’s views are authoritative, Justice Alito suggested that Justice Kennedy misunderstood measurement error and had confused the two prongs of the clinical definition of intellectual disability.
Effect on North Carolina. North Carolina’s mental retardation statute is G.S. 15A-2005. It defines “significantly subaverage general intellectual functioning” as “[a]n intelligence quotient of 70 or below.” Such language is consistent with the idea of a strict cutoff. Justice Kennedy observed that “Arizona, Delaware, Kansas, North Carolina, and Washington have statutes which could be interpreted to provide a bright-line cutoff leading to the same result that Florida mandates in its cases.” However, Justice Kennedy also noted that some states’ courts have interpreted apparently strict cutoffs to allow consideration of measurement error. Our state supreme court hasn’t considered the issue. The closest it seems to have come is in State v. Locklear, 363 N.C. 438 (2009), where it simply recited the statute in the course of a discussion of the procedural requirements for determining mental retardation.
Perhaps our courts will interpret G.S. 15A-2005 in a way that is consistent with Hall. Even if they don’t find the statute amenable to such an interpretation, of course, Hall trumps the statute and capital defendants must be given the requisite leeway regarding IQ scores. The General Assembly could also weigh in, revising the statute in accordance with its understanding of Hall.
If you have additional or different thoughts about Hall and the litigation of intellectual disability claims under it, please send me an email or post a comment.
The state supreme court heard oral argument yesterday in two cases concerning the Racial Justice Act. In the first case, Superior Court Judge Gregory Weeks struck down the death sentence imposed on Marcus Robinson under the RJA as enacted in 2009. In the second, Judge Weeks vacated the death sentences imposed on Quintel Augustine, Christina Walters, and Tilmon Golphin, under the original RJA and, in the alternative, under the RJA as amended in 2012.
The cases present important issues about the proper interpretation of the RJA, including the extent to which a defendant may relay on statistical evidence of racial bias that isn’t connected directly to the defendant’s own case. The second case also presents the question of whether defendants who filed their claims under the original RJA are entitled to have their claims adjudicated under the law as it stood at the time of filing, a question that has taken on added importance since the legislature repealed the RJA altogether in 2013. I wrote about some of these issues in the Capital Case Law Handbook, though the chapter on the RJA clearly will need revision after these cases are decided.
I wasn’t able to attend the oral argument, but media reports suggest that the justices asked few questions and didn’t tip their hands. (The Fayetteville Observer story is here, while WRAL’s is here.) One interesting aspect of the proceedings is that Justice Beasley recused herself in the second case because she once helped defend Golphin. The recusal creates the possibility of a tie vote in that case.
As a side note, there was apparently tremendous public interest in the case, with the courtroom completely full and some spectators watching from a remote overflow location. Many people would probably be interested in a more complete understanding of what took place at oral argument than media reports convey. Yet our supreme court doesn’t post recordings or transcripts of oral arguments. The United States Supreme Court does, as do many state supreme courts, including our neighbors Georgia, Virginia, and Tennessee. [Update: A reader notes that WRAL has posted a video of the argument here.]
I will blog about the decisions when they come out.
Although the number of capitally-tried cases has declined in recent years, capital cases remain important, complex, and hotly contested. So I’m happy to announce that a new edition of the North Carolina Capital Case Law Handbook is now available. I’m the author, though the new edition is built upon the sturdy foundation of the previous versions, which were written by my colleague Bob Farb.
The marketing blurb: “A research reference for North Carolina judges and lawyers who handle capital cases, this 300-page book is designed to help them understand statutes and case law affecting the trial and sentencing of defendants charged with first-degree murder in which the state seeks the death penalty. Although its primary focus is the sentencing process, it also discusses selected pretrial and trial issues that commonly arise in first-degree capital murder trials. The third edition updates and builds on previous editions and includes the following features:
- Summaries of appellate cases rendered through the end of 2012
- Relevant statutory law that has also been updated
- More expanded analysis and discussion than previous versions
- A new chapter on the Racial Justice Act
- The book also contains an index of cases cited and a subject index”
Information about AOC purchases: Some court employees will get a copy through the Administrative Office of the Courts. The AOC has advised us that “a bulk purchase [of the book] has been made by using funds available. Upon receipt of the books, distribution will be made to the Senior Resident Superior Court Judges and the District Attorneys by inclusion in the regularly scheduled supply deliveries. Distribution should be complete by the end of June. Indigent Defense Services (IDS) has arranged to participate in this project, and deliveries will be made to IDS/Public Defenders also by inclusion in the regular supply deliveries. Distribution should be complete by the end of June.” I don’t know exactly how many copies each office will receive.
More information: You can get more information, and buy the book if you are so inclined, here. I welcome feedback of all kinds about the organization and content of the book.
Jeff previously posted news items about North Carolina’s Racial Justice Act (RJA), including one here updating readers on the bill’s path to law, and one here about actual RJA filings. I was recently told by the N.C. Administrative Office of the Courts that there now are at least 204 filed RJA motions. Although most of those motions have been filed as post-conviction motions for appropriate relief (MARs) by death row inmates, a number have been filed in pending capital cases (the RJA allows for filing at the Rule 24 hearing or post-conviction as a MAR). Given the number of filings and the novelty of the act itself, I am fielding a fair number of questions about RJA procedure (discovery, nature of the hearings, etc.), and questions of statutory interpretation. In this post I’ll focus on the act’s core provisions and highlight three significant interpretation issues relating to those provisions.
The RJA provides that “[n]o person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was sought or obtained on the basis of race.” G.S. 15A-2010. It further provides:
“[a] finding that race was the basis of the decision to seek or impose a death sentence may be established if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.”
G.S. 15A-2011(a). Thus, to prevail on a RJA claim, a defendant need not prove that race was the basis of the decision to seek or impose a death sentence in his or her particular case. By the express terms of the statute, a RJA claim may be established by showing that race was a significant factor in decisions to seek or impose the death sentence in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed. Other sections of the RJA provide that statistical evidence may be used to prove a RJA claim. Specifically, the RJA provides that evidence relevant to establish a RJA claim may include statistical or other evidence that, irrespective of statutory factors, one or more of the following applies:
(1) Death sentences were sought or imposed significantly more frequently upon persons of one race than upon persons of another race.
(2) Death sentences were sought or imposed significantly more frequently as punishment for capital offenses against persons of one race than as punishment of capital offenses against persons of another race.
(3) Race was a significant factor in decisions to exercise peremptory challenges during jury selection.
G.S. 15A-2011(b). Factor (1) focuses on the defendant’s race. Factor (2) focuses on the victim’s race. And factor (3) focuses on the race of the venire members.
These core provisions present a number of interpretation issues. Among them are the following:
- What is the meaning of the term “race”? The RJA speaks of race generally, and does not limit its application to any particular race. However, the RJA does not define the core term race or incorporate by reference any commonly used racial classifications. Because all RJA claims are likely to present statistical evidence, the question of “who is in” and “who is out” of the statistical groupings can make a lot of difference on what the statistics show.
- What is a “significant factor”? While the statute provides that a defendant may establish a RJA claim by showing that race was a significant factor in decisions to seek or impose the sentence of death, it does not provide guidance on that statutory term. Clearly race has to be more than a factor; by the statute’s express terms it must be a significant factor. Does the term significant factor mean that the factor has to be statistically significant? Legally significant? We don’t know.
- What is the meaning of the phrase, “at the time the death sentence was sought or imposed”? While the statute provides that a claim may be established if the court finds that race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, it does not specify the relevant period of time. Because the RJA authorizes proof by statistical evidence, questions inevitably will arise about the appropriate time period to be used in the statistical analysis. And as noted above with regard to racial groupings, the strength of the statistical case may vary dramatically depending on the period used in the analysis.
These are just three issues that judges and litigants will struggle with as the current glut of RJA motions work their way through the system. I welcome your thoughts on these questions and identification of others that warrant a closer look.