ABA: Stop executions until… Recent N.C. exonerations show need to examine Death Row cases

From William H. Neukom, a Seattle lawyer and president of the American Bar Association, who gave the commencement address Saturday at Duke University Law School:

As executions resume in what promises to be a rapid and steady pace in the United States, our nation needs to take a good hard look at how we administer the death penalty. North Carolina can be justifiably proud of steps it has taken to examine whether it applies this ultimate punishment fairly, and only after those who have been sentenced to death were accorded all the legal rights they are due.

At the start of this year, there were 166 people on North Carolina's death row, placing the state seventh in terms of total death row population. In recent weeks, two of those individuals have been exonerated, bringing to seven the number of North Carolinians sentenced to death who have been cleared since 1973 of committing the crimes for which they were tried.

Reforms enacted in the state undoubtedly have had a major role in these exonerations. Such actions include enactment of legislation allowing appellate lawyers for death-sentenced inmates access to all investigative files related to their clients' cases, and creation of the North Carolina Innocence Inquiry Commission in 2006. The Innocence Commission was the first and remains the nation's only state agency whose purpose is to investigate claims of innocence by death-sentenced inmates. North Carolina also was a national leader in creation of a state public defender system, established in 2001.

But much remains to be done. The American Bar Association takes no position on whether the death penalty is right or wrong. But the association strongly maintains that no person should be executed unless that person has a lawyer and received a fair trial. Yet when teams of experts from eight states' own legal communities applied ABA protocols to examine their death penalty systems, they documented evidence of racial disparities, poorly trained or inadequate lawyers, insufficient defense resources, confused jurors, failure to preserve scientific evidence for follow-up analysis and a host of other problems.

This is why the ABA renewed its call last year for a moratorium on executions in each death penalty jurisdiction, until thorough analysis can uncover each and every shortcoming, and the states can rectify the problems.

The death penalty analyses that have been done in select states demonstrate that the promise of due process often remains unfulfilled. Racially disparate treatment of people in our criminal justice system, from arrest to charging to seeking the death penalty, has been and remains a fundamental issue that we must address.

The Racial Justice Act, pending in the North Carolina General Assembly, is an effort to do so, by allowing courts of appeals to consider whether or not racism was a consideration in imposing a death sentence. Legislators should consider whether this measure will advance justice in capital cases.

North Carolina’s efforts in criminal justice reform have served the state well. I commend North Carolina, and urge its citizens to continue to seek to aspire to fulfilling the promises of our Constitution to justice and due process.