With 142 inmates waiting to die, North Carolina has the sixth largest death row in the country.
But a report released Tuesday says most of the prisoners would not be awaiting execution if their cases were investigated and tried today.
In “Unequal Justice: How obsolete laws and unfair trial created North Carolina’s outsized Death Row,” the Center for Death Row Litigation in Durham says the state’s death row is stuck in time while the views of capital punishment continue to evolve.
“They are prisoners of a state that has moved on, but refuses to reckon with its past,” the report says. “Today, the death penalty is seen as a tool to be used sparingly. Instead of a bludgeon to be wielded in virtually every first-degree murder case.”
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According to the report, almost three-quarters of the men and women on N.C. death row were tried before 2001. That’s when a series of reforms — from how police and prosecutors handle investigations and share evidence to DNA testing and higher performance standards for defense attorneys — began reducing the number of capital cases.
The state also eliminated a law — the only one of its kind in the country — that forced prosecutors to seek the death penalty in every case of aggravated, or first-degree, murder.
“If these people on death row had been tried under modern laws, most of them would be serving life without parole sentences instead of facing execution,” said Gretchen Engel, executive director of the litigation center, in a statement accompanying the report.
Mecklenburg County District Attorney Spencer Merriweather was not available for comment Tuesday.
More than 100 of the condemned inmates were convicted in the 1990s, when the state operated under radically different laws, Engel says.
Today, the state’s death row inmates are stuck in legal limbo. North Carolina has not executed a prisoner in 12 years.
Juries across the state have handed down only a single death penalty in the past four years, the report says. Mecklenburg County, the state’s largest local court district has not sent a prisoner to death row in almost a decade.
The Durham-based center compiled the report based on the case files of the death penalty Among the report’s findings:
▪ 92 percent of the death row prisoners were tried and convicted before a 2008 reform package aimed at limiting false confessions and mistaken eyewitness identifications.
▪ 82 percent, 118 prisoners in all, were sent to death row before North Carolina passed a law giving the defense the right to view all the prosecution’s evidence. Up to then, district attorneys routinely withheld vital information until it was presented at trial, giving the accused little time to prepare a defense, the report says.
▪ 73 percent of the death row population, 103 inmates in all, were sent there before the passing of laws barring the execution of people with intellectual disabilities.
▪ That same percentage were convicted before the state eliminated the only law in the country that required prosecutors to pursue the death penalty in every aggravated first-degree murder case. Now, district attorneys have the discretion to limit death penalty cases to the most heinous of crimes.
The impact of those reforms has been significant. In the 1990s, according to the report, North Carolina averaged about 50 death-penalty murder cases a year. Today, there are fewer than five.
Mistaken identifications are a leading cause of wrongful convictions around the country, the report says. To illustrate, it homes in on the case against Elrico Fowler of Charlotte.
In 1997, Fowler was sentenced to death in Mecklenburg for the murder of a Howard Johnson’s motel employee during a 1995 robbery in Charlotte. Four years later, his conviction and sentencing were upheld by the state Supreme Court.
“Elrico Fowler executed an unarmed man lying face down on the floor,” one of his prosecutors said in 2001. “He’s an exceptionally dangerous human being, and the ultimate punishment is the only we can ensure he doesn’t murder another innocent person.”
The report, however, says Fowler was largely convicted based on the questionable eye-witness identification of the manager of the motel restaurant. He told Fowler from the witness stand during the trial, “I hope you fry, man.”
What the jury did not know, according to the report, is that the restaurant manager identified Fowler after weeks of shifting descriptions and after undergoing multiple photo lineups, including one that occurred after police had publicly circulated photographs of Fowler and another suspect.
“Every practice now required to prevent false identification was violated,” according to the report. The lineups were not recorded. The police conducted them (now, someone who does not know the suspect’s identification must run the lineup), and the investigators did not take a statement from the witness on his level of confidence in the identification, among other missteps, the report says.
Gerda Stein, a spokeswoman for the litigation center, said the goal of the report is to educate the public and decision-makers about the inequities in the state’s history with capital punishment.
Eventually, she said, the center hopes that “these injustices” would be remedied by the courts, the General Assembly or the governor.