Proportionality Review

Common sense isn't sexy. It's hard to get all worked up over something that seems perfectly reasonable. Maybe that's why so little attention has been paid to House Bill 341. That, and explaining the death penalty appeals process in a soundbite is about as easy as carrying a rhinocerous in your purse.

For right now, let's just focus on the direct appeal. After a defendant has been convicted of first-degree murder and sentenced to death, his or her case is automatically appealed to the North Carolina Supreme Court. The purpose of this review is to ensure that the death penalty is administered consistently from case to case. Nothing wrong with that, right? Whether or not you believe that the death penalty is influenced by arbitrary factors like race and geography, you probably don't want capital punishment to depend on passion, prejudice, and chance. Hence proportionality review.

Moving on to the 'sense to come in out of the rain' portion of our lesson. At present, the relevant statute directs the Supreme Court to compare the result in a given case to "the penalty imposed in similar cases, considering both the crime and the defendant" to ensure that the death sentence is not "excessive or disproportionate." N.C. Gen. Stat. 15A-2000(d)(2). What that statute says to me is, "If you've got a case involving a guy with a prior robbery conviction who shoots a convenience store clerk during a stick-up at 2 AM, you should check to see if there are any other murder cases involving a guy with a prior robbery conviction who shoots a convenience store clerk during a stick-up at 2 AM." Call me crazy.

Call the North Carolina Supreme Court...something else. The Court has interpreted "similar cases" to mean "cases in which the same sentence was imposed," thereby ignoring the 97% of homicide cases in which the defendant is not sentenced to death. Consideration of similar crimes and similar defendants occurs only within the pool of death-sentenced cases, and the Court often cobbles together its justification piecemeal. Rather than looking at the ten cases with identical facts which resulted in life sentences, the Court will reach back in time to find a death case - any death case - involving a prior felony OR a convenience store OR a killing in the middle of the night. Similar enough.

In applying such blinders, the Court has virtually ensured that no death case will be found excessive or disproportionate. When you're a hammer, everything looks like a nail. The Supreme Court has failed to meet its obligation to consider each case individually. It's as if they cut and paste reasoning from past decisions without any further thought; the Court continues to cite cases that have long been overruled. In the last twenty-four years, over two hundred death-sentenced defendants have come before the Supreme Court for proportionality review. Relief has been granted in only eight cases, and every death sentence has been upheld since 2002.

The Court has utterly failed to protect against excessive and disproportionate sentences. Even supporters of the death penalty, like former North Carolina Supreme Court Chief Justice Burley B. Mitchell, Jr., recognize that being sentenced to death in North Carolina is, “like being picked in a lottery…it’s totally arbitrary.”

Representatives Earle (D-Mecklenburg), Glazier (D-Cumberland), Parmon (D-Forsyth), and Wainwright (D-Craven and Lenoir) are the primary sponsors of House Bill 341, which would return common sense and judicial responsibility to direct appeals in North Carolina. The bill makes explicit the Supreme Court's obligation to consider the full range of first-degree murder cases:

In determining whether a sentence of death imposed under this section is disproportionate, the Supreme Court shall consider and compare factually similar cases that have been reviewed on appeal by the Supreme Court or the Court of Appeals. The reported cases compared by the Supreme Court shall include both those in which the jury recommended life imprisonment, with or without parole, and those in which the jury recommended the death penalty.

Nothing outrageous about that. Contact your representative and let them know that when someone's life is at stake, the Supreme Court owes them - and all of us - more than just a rubber stamp.


You were quite graceful

explaining this issue, what with that rhinocerous in your purse and all. ;) I rec'd you just for that.

Seriously, your logic here is really easy to follow to me. And yep, it seems pretty crazy that they still use cases for these Proportionality Reviews (which I had never heard of until tonight) that "have long been overruled." Seriously? That's pretty danged disturbing if you ask me.

"They took all the trees and put them in a tree museum Then they charged the people a dollar 'n a half just to see 'em. Don't it always seem to go that you don't know what you've got till it's gone? They paved paradise and put up a parking lot."

glad you like my rhino

Seriously. If (some of) those guys and gals were still practicing lawyers, I wouldn't hire them to represent me in traffic court.

Most excellent explanation.

That is some good clear writing.

For future debates, is anybody making an economic argument that doing these reviews right will cost a lot more than they way they currently do it? Seems unlikely . . . just trying to figure out who would be against this.

Who would be against this?

The same wingnuts who say, "Kill 'em all, let God sort 'em out."

Seriously, there is no rational basis to support the death penalty, and plenty of rational bases to oppose it. So by definition, supporters of the death penalty are irrational; they don't need a reason that makes sense. Retribution, vengeance, that's reason enough.

Wouldn't put it past 'em

While I haven't heard anyone make that argument, the bill is still in committee, so there is plenty of time for the crazy to shine on through.

Of course, the reality is that if the Supreme Court did their job and caught these things the first time around, the State would save all kinds of money on the subsequent appeals needed to get relief on the issue.