Posted on Sun, Feb. 11, 2007

EDITORIALS

But is it just?

Moratorium or not, state death system needs fixing

In the middle of a national debate over whether lethal injections violate the 8th Amendment ban on cruel and unusual punishment, N.C. executive, judicial and legislative branch officials have been groping for answers.

First a Superior Court judge halted three executions because inmates' lawyers argued lethal injections are unconstitutional. Then a House study committee recommended refinements in the death penalty system. And the Council of State, the 10 executive officials elected statewide, recommended changes in the lethal injection protocol and sent the issue back to the courts.

Gov. Mike Easley, a death penalty supporter, observed there's a de facto halt. "Obviously there's clearly a moratorium in place right now," he said. "How long that will last will depend on how long it takes to untangle this Gordian knot."

The moratorium exists because of the likelihood of further delays, either from Superior Court Judge Don Stephens or, if he approves the revised protocol, from appellate courts if inmates' lawyers appealed such a ruling.

This legal wrangling obscures the real debate that ought to be taking place. It's not whether there should be capital punishment for the worst murders. The public supports it. But unresolved questions go right to the heart of how the state administers the death penalty. As the Observer demonstrated in news stories several years ago about capital punishment, there are fundamental questions of fairness:

• The death penalty is applied differently, depending upon where crimes are committed. Some prosecutors pursue death sentences more than others, which means your chances of getting life in prison or lethal injection depend upon where you commit a murder. Is that just?

• A murderer's chances of getting a death sentence may depend on racial cues -- particularly the race of the victim. The killer of a white person may be more likely to face death than the killer of a black person. Is that just?

• And whether you get the death penalty depends on whether you get a good lawyer. While the state has cleaned up a number of problems regarding defense lawyers and required more training, there are still Death Row residents who were defended at trial by poorly trained, ill-equipped lawyers you wouldn't hire to represent you on a traffic ticket. While these inmates may have good appellate lawyers now, they are at a huge disadvantage, because lawyers can't bring up all the issues on appeal they can in a trial. Is that just?

This is why state legislators should use this de facto moratorium to revisit critical issues that reflect poorly on our system of criminal justice. It is not enough to excuse its problems by saying all death cases are messy in some way, and questions of justice for killers don't really matter when killers had little regard for their victims. If we are going to kill convicted felons in society's name, we are obliged to get it right every time. If the system cannot assure that kind of certainty, it cannot assure justice, either.