Former Chief Justice Exum Among Those Calling For Abolition of Death Penalty

The current issue of the N.C. Law Review Forum features an article by former North Carolina Chief Justice James Exum that makes the case that the North Carolina death penalty is not only morally abhorrent but unconstitutional. Exum is the latest of many North Carolina judges and leaders who upheld the death penalty during the 1980s and 1990s, but have since been persuaded by accumulating evidence that it cannot be applied fairly.

In 2018, 12 former North Carolina judges, prosecutors, and law enforcement officials filed an amicus brief in the Supreme Court of North Carolina, asking the court to abolish our state’s death penalty because of studies showing rampant racial bias. In 2016, former Republican Chief Justice I. Beverly Lake, once an avid supporter of capital punishment who upheld dozens of death sentences, published an op-ed saying that he now believes the death penalty is unconstitutional.

In Exum’s new article, Capital Punishment in North Carolina, the Democratic former chief justice describes his own path to concluding that the death penalty should be abolished. He now believes “a reliable death penalty system is beyond the ability of human beings to devise.”

Exum’s article adds to a growing consensus that the death penalty must be eliminated. After Virginia’s general assembly approved legislation last week, it is on the cusp of becoming the first Southern state to abolish capital punishment. Polls show that the public increasingly supports a maximum sentence of life imprisonment. After supporting the death penalty for decades, President Biden campaigned on a pledge to end it at the federal level because of the risk of executing the innocent. In December 2020, a state Task Force on Racial Equity in Criminal Justice noted the North Carolina death penalty’s “relationship to white supremacy” and called for a truth and reconciliation commission to study it.

Exum writes that, from the very beginning of his career, he opposed capital punishment as a matter of policy. “I believed it inconsistent with the function of government to set an example of respect for life, I doubted its efficacy as a deterrent, and I disagreed with those who urged retribution as a valid justification of capital punishment or other sanctions in our criminal justice system.”

However, as a judge, Exum believed it was his role to enforce the law, not to create it. He goes on, “I truly thought that by refining our law and procedures, we could achieve a system that would reliably, rationally, and fairly sort people who committed murder into two distinct groups: those who deserved the death penalty and those who did not.”

As the years passed, however, Exum saw evidence that the death penalty was arbitrary and unreliable. He watched a steady stream of death row exonerations, and capital cases that reached results defying any rational explanation.

Exum cites three main points that finally persuaded him of the death penalty’s unconstitutionality:

First, despite 40 years of reforms, capital punishment remains as arbitrary as a lottery, with no rational way of choosing those who most deserve death. Only a tiny fraction of the people who commit murder are sentenced to death, and those on North Carolina’s death row today are far from a collection of the “worst of the worst.” Instead, they are often people with severe mental illness, or people who had inadequate legal representation.

Second, studies have proven that the North Carolina death penalty is poisoned by the same racism that haunts the rest of the criminal system. Exum points to data showing that Black citizens are unfairly excluded from juries, and that decisions about who receives the death penalty are driven by the race of the victim — with crimes against white people deemed more worthy of death.

Lastly, he cites the impossibility of ensuring that no innocent person will be executed. Exum pointed to the cases of 10 death-sentenced people who have been exonerated in North Carolina, including Henry McCollum, whose innocence took three decades to be revealed.

“It is hard to imagine a greater affront to due process, and the protection from cruel or unusual punishment, than the imposition of a death sentence on an innocent person,” Exum writes. “Yet we cannot seem to get it right.”