The present moment is “the best of times and the worst of times for the death penalty in North Carolina,” said Maher, whose public interest law firm represents clients facing capital trials, on direct appeal to the North Carolina Supreme Court, and in the post-conviction process in federal and state courts. Maher’s firm also assists in litigation strategy and legislative efforts on death penalty issues throughout the state.
On one hand, fewer inmates are being sentenced to death at the trial level, observed Maher, who attributed the drop, in part, to jurors’ concerns about wrongful convictions, as well as the relatively recent option of imposing a sentence of life without parole as an alternative to the death penalty.
Nationwide, he added, courts also are granting more relief at the post-conviction stage than they have previously. “Many trials, at the time of conviction, seemed unremarkable, but later prove to have very serious flaws. At least for some judges and justices, the notion that the system is not working perfectly is percolating [up.]” In North Carolina and elsewhere, too, the quality of representation for capital defendants has gone up dramatically.
On the other hand, more than 160 people are currently on death row in North Carolina. As federal and state courts resolve challenges to execution protocols, their authorization by the state, and physicians’ involvement in executions, those death row inmates who have exhausted their post-conviction appeals will face execution, said Maher.
Stays of execution have been lifted in other states in light of the Supreme Court’s April 2008 ruling, in Baze et al v. Rees, that the commonly-used three-drug execution “cocktail” is constitutional, and the risk of it being improperly administered was not so great as to put it in violation of the Eighth Amendment ban on cruel and unusual punishment, Maher explained. Stays remain in North Carolina pending the completion of litigation over whether the Council of State has properly approved the three-drug protocol, as is required by statute.
“At some point, we will likely be back in court to decide whether the North Carolina [drug] protocol meets the Baze standard, which I don’t think is particularly high,” he said, predicting that the state could soon see a higher rate of executions than it ever has previously.
Recent cases of note: Kennedy and Panetti
Kennedy v. Louisiana, which struck down a law that authorized the death penalty for the rape of a child, stands as a particularly important case from the last Supreme Court term, said Maher. Not only did it add to other recent limits, such as the ban against execution of minors and mentally retarded inmates, but it made clear “that the scope of what [the justices] are willing to consider in deciding whether the Eighth Amendment prohibits the death penalty is fairly broad,” he said. He noted the possibility that the Court will rehear Kennedy, however, as the fact that the Military Code of Justice allows executions for rape — and thus sets a precedent in federal law — was overlooked in the briefing and argument of the case.
The Court’s June 2007 ruling in Panetti v. Quarterman was significant both for its reaffirmation of the principle that an execution cannot proceed against an individual who doesn’t understand the reason he or she is being executed — due, in that case, to mental illness — and for it’s procedural ruling that courts can and should consider whether an inmate is competent to face execution as it draws near.
“Can you forcibly medicate inmates to make them sufficiently sane that you can kill them?” asked Maher. “The legal question is whether it’s proper to do that, and that’s an issue that was not resolved by the United States Supreme Court.”
Maher flagged two cases to note during the upcoming Supreme Court term. At its conference on Sept. 29, the Court is likely to decide whether to accept a case concerning limits on prosecutors’ use of victim impact evidence — such as emotionally-charged videos — as they argue for the imposition of the death penalty.
The central issue in Harbison v. Bell, which will be argued in the coming term, is whether federal statutes properly authorize federal courts to pay for state clemency work in death penalty cases. In Harbison, the Sixth U.S. Circuit Court of Appeals ruled that federal courts are not authorized to pay for lawyers to represent inmates in clemency petitions to the governor. By contrast, said Maher, the Fourth Circuit reads the same statutes as giving it authority to do so.
“It has incredible importance,” Maher said of the possibility that the Supreme Court might uphold the Sixth Circuit ruling. “Then, unless the states change their statutes and authorize payments, a significant number of inmates will be facing execution with no lawyers doing the clemency work.”