Reformers note that five people in NC, including Gell, have been released from death row after their convictions were overturned. One in six inmates facing execution has been represented by attorneys disciplined by the Bar (compared to a discipline rate of less than 1 percent overall), according to North Carolina State Bar data. Several studies by legal researchers opposed to the death penalty have indicated that capital punishment in North Carolina hasn't been administered fairly.
"There are substantial issues about how the death penalty is operated that would not withstand scrutiny by the community," says Henderson Hill, a Charlotte defense attorney who defended a man executed in 1999. "Race, class and geography have more to do about the imposition of the death penalty in North Carolina than the actual elements of the particular crime. That shouldn't be acceptable."
So why are district attorneys' groups, victims' rights organizations and survivors of crime resisting a two-year moratorium? Most people agree innocent people shouldn't be sent to jail, let alone killed by the state. And just as there's reason to believe some offenders never see the inside of a penitentiary, there's also justification behind the belief that innocent people are sentenced to die, or worse yet, have died.
According to the American Bar Association, since the US Supreme Court in 1976 allowed states to reinstate capital punishment, more than 100 people condemned to die later were freed from death row "because later-considered evidence established their innocence or because other systemic failures prompted officials to conclude that the death sentence was unwarranted." While the ABA takes no position on capital punishment, it has urged states to halt executions and examine what it describes as "the growing body of evidence showing that race, geography, wealth and even personal politics can be factors at every state of a capital case — from arrest through sentencing and execution."
What worries death penalty supporters is the fear that the two-year moratorium, which would be the first legislature-enacted effort to halt capital punishment, is a barely veiled attempt to slowly but certainly abolish the death penalty in North Carolina.
"Proponents of the moratorium purport to want a 'delay' in executions so they can 'study' the process. This is the most ridiculous argument of all," wrote Peg Dorer of the North Carolina Conference of District Attorneys and John Carriker of the North Carolina Victim Assistance Network, in a letter to lawmakers. "No single part of the criminal justice system has been more studied."
Death penalty opponents and supporters alike believe support for capital punishment might erode if executions were halted. A few years without it might convince more members of the public that life without possibility of parole is a suitable deterrent. In addition, any any state report that eventually found failings in the capital punishment process could further chip away support.
Some supporters of death-penalty reform efforts in North Carolina and elsewhere admit they hope moratoriums are one step toward changing society's views on executions.
When the death penalty "falls into disuse, it makes it much easier to abolish," said Robert Warden, director of Northwestern University School of Law's Center on Wrongful Convictions in Illinois.
"Is this a back door for abolishing the death penalty? I don't know," Warden said. "I don't know what's in the hearts of people who are supporting the moratorium, but the fact is most intellectually honest politicians, when they really look at this, would like a way to get out of it, and this is a way out of it."
Illinois in 2000 became the first state to declare a moratorium on executions when Gov. George Ryan, citing evidence of wrongful convictions and system inadequacies, created a commission to study how capital punishment might be carried out more fairly. Some of its proposals made two years later were passed into law. But other suggested changes have been ignored — including the panel's recommendation that the death penalty be abolished in Illinois. Still, current Gov. Rod Blagojevich has made no move to lift the moratorium.
Warden said Illinois' reforms, which among others include allowing DNA testing for any criminal matter and allows the state Supreme Court to overturn death penalties if it deems the sentence unjust, wouldn't have occurred if the state had not had so much support for a moratorium.
Hill said an academic study wouldn't give the needed "pause" of a moratorium. Hill, who has worked on several capital cases and is active in Charlotte Coalition for a Moratorium Now, said he believes the moratorium would ultimately last only two years, as required by the bill state lawmakers are now considering. During that time, a 15-member commission would study the adequacy of condemned prisoners' legal counsel, the appeals process, racial bias claims, prosecutorial misconduct and the possibility that innocent people await execution. It wouldn't keep prosecutors from seeking the death penalty in cases now being tried or appealed.
North Carolina has executed 36 people since the death penalty was reinstituted in 1984, according to the state Department of Correction. Currently, 175 people await lethal injection.
Even as North Carolina's moratorium proposal gained momentum, a national poll found a slight increase in support for capital punishment. A Gallup Poll in May found that 74 percent of Americans say they favor the death penalty for murderers. That percentage falls to 56 percent when respondents were offered the choice of life imprisonment with no chance of parole. Thirty-nine percent then said a life sentence was better. At the same time, death sentences have fallen to the lowest level since the Supreme Court's 1976 decision reinstating capital punishment, according to the Associated Press.
Some capital punishment supporters believe a moratorium could leave the justice system without what is designed to be its ultimate deterrent. One concerned supporter is Bobby Nobles, whose 26-year-old son Andy, a Charlotte-Mecklenburg police officer, was murdered in 1993 while chasing a robbery suspect. Nobles opposes the moratorium. Alden Harden now is on death row for the killings of Nobles' son and another officer, John Burnette.
"It's a terrible thing, but you have to have some type of checks-and-balances (against crime) and right now, I feel like that is the strongest thing we have," Nobles said.
"I've thought about it; I've prayed about it," Nobles said. "And I still feel like we have to have something. Until we come up with something better, I feel like that it was one of the tools we have to work with."