The De Facto Moratorium on the Death Penalty

Joint Republican Press Conference

Because of actions by the State Medical Board and recent court decisions we are faced with a de facto moratorium on the death penalty for first-degree murder.  This contravenes the intent of the law and the will of North Carolinians.

The State Medical Board is a creature of the state legislature.  So is the procedure for executing first-degree murderers.   The courts will act when they will.  We must act now.  The voices of the victims silenced by murder must be restored.  

We must enact HB 442, introduced by Rep. Tim Moore or SB 114, introduced by Senate Republican Leader Phil Berger.  They are with us today to discuss these bills.

A Moratorium on the Death Penalty is Unwarranted


One of the most important duties of any government is the suppression of murder.  I believe the death penalty is the appropriate way to deter murder while vindicating and reaffirming the ultimate high value that we place on the life of the innocent victim.

Individual Moratorium:  Death sentences are already reviewed extensively by both state and federal courts, and by the Governor. On average, 8 to 15 years pass before executions are carried out.  Capital cases are reviewed by 47 judges, state and federal, all looking at claims of error in the trial or claims of innocence. Each murderer already has an individual moratorium. 

Procedural protections are extensive:

Open-file discovery:  In 1996 the General Assembly provided capital defendants the right to complete post-conviction discovery of all files, and may use such discovery to claim the prosecution failed to disclose evidence the defendant believed to be important.

Innocence Protection Act:  In 2001, pre-trial and post-trial DNA testing was augmented to prevent the conviction of the innocent.

No Death Penalty for the Mentally Retarded:  In 2001, the General Assembly prohibited the execution of mentally retarded defendants.

Prosecutorial discretion:  In 2001, prosecutors were granted authority to use discretion in deciding not to seek the death penalty. Ironically, proponents of a moratorium now point to the use of that discretion as an argument for a moratorium.

Additional representation:  Indigent defendants facing the death penalty are appointed two trial attorneys, and, since 1996, capital defendants are provided two attorneys post-conviction.

Proportionality considered:  The Supreme Court of North Carolina reviews all death penalty cases on direct appeal for proportionality to other similar cases.  On the other hand the Court does not have authority to reject a life sentence and make it capital. 

The Innocence Inquiry Commission:  In 2006, the General Assembly created the Innocence Inquiry Commission to insure we provide every avenue of relief for those who claim to be factually innocent.   I was pleased to be the Republican House floor leader for the 2006 Innocence Inquiry Act - Session Law 2006-184.

Innocence claims are rare:  Of 43 convicts executed after North Carolina reinstated capital punishment in 1977, none had a credible claim of "actual innocence."  65% of those executed have been white, which puts a new light on the claim most were minorities.

Deterrence:  Whether or not the death penalty deters murder is debatable.  I believe the evidence is it deters some, murders.  A moratorium almost guarantees criminals will not be deterred. District attorneys are unlikely to try capital cases during a moratorium since the considerable expense may well be for naught.

Professors Marchesini and Cloninger of the University of Houston found a 21-month court-imposed moratorium in Texas probably caused 90 additional homicides.  Whether North Carolina would experience a similar “surge” in homicide during the two-year period of a moratorium is unknowable but likely.  If so this would mean the “cost” of a moratorium in North Carolina would include around 25 additional innocent victims of homicide per year.  This is  unacceptable to me.  I have attached extracts of many studies on deterrence.

These studies differ on the numbers of additional homicide victims resulting from a suspension of executions, but they are of the same order of magnitude as the Marchesini study.

Conclusion:  In view of the safeguards and the exhaustive state and federal court review of all death penalty cases, as well as the absence of any actual demonstration of real systemic problems in North Carolina resulting in the execution of the actually innocent, a moratorium on executions of murderers is unwarranted.  A de facto moratorium on the death penalty will cause real harm, pain and suffering to the families of the innocent victims whose voice must be heard.