Former Chief Justice’s change of heart is another bellwether moment in the demise of the death penalty

Former Chief Justice’s change of heart is another bellwether moment in the demise of the death penalty

IBeverlyLake_DeathPenaltyAs chief justice of the N.C. Supreme Court, I. Beverly Lake voted to affirm nearly 200 death sentences. But last week, he published an essay explaining why he now believes the death penalty is fundamentally unfair and violates the constitutional ban on cruel and unusual punishment. That essay marks the completion of an important journey for Lake, and perhaps North Carolina as well.

What brought Lake to this point? He is in his 80’s and long past the days when he played an active role in the capital punishment system, and saw its injustices up close. The answer is that Lake walked a long winding path to get here, and the distance he had to travel in his lifetime is remarkable.

Lake’s journey mirrors that of his home state. North Carolina once sent dozens of people a year to death row, most without protections we now consider essential to fair capital trials. Today, executions have been on hold for 10 years and a recent death sentence in Pitt County was the first in nearly two years.

In 1972, Justice Thurgood Marshall wrote in Furman v. Georgia that Americans supported the death penalty because they didn’t know how it badly was administered; he predicted that as Americans became aware of the reality of capital punishment, their support for it would evaporate.  Lake is only the most recent North Carolinian to lift the veil and see the death penalty for what it is; and, as Marshall predicted, the reality appalled him.

Lake’s path began in a family firmly rooted in North Carolina’s past. His father, I. Beverly Lake Sr., a prominent judge and politician, is perhaps best known for his unsuccessful 1960 campaign for governor, in which he ran as an ardent champion of racial segregation.

When he became a judge, Lake earned a reputation for his tough-on-crime approach. He carried a gun to court. He once had a defendant’s mouth duct-taped shut.

His belief in the death penalty appeared unwavering. Lake voted to affirm 185 death sentences during 12 years on the state Supreme Court, including the sentences of four people who were later exonerated. Many more of the death sentences he upheld were reversed by later courts and governors because of issues such as prosecutorial misconduct, mental illness, intellectual disability, or race discrimination.

But even as he took a hard line on the death penalty, Lake began to recognize serious flaws in our justice system. He was deeply affected by the 1995 DNA exoneration of Ronald Cotton, who spent 10 years in prison for a rape he did not commit.

In 2002, Lake made a courageous “Nixon to China” move that only someone with his law-and-order credentials could have pulled off. He established the N.C. Actual Innocence Commission, a first-of-its-kind gathering of judges, prosecutors, law enforcement, and victims’ rights advocates along with defense attorneys and academics.  More than that, he was actively involved in his Commission’s work.

As co-director of Duke’s Wrongful Convictions Clinic, I was part of that group. It’s an understatement to say it was difficult to bring together diverse advocates whose prior relationships had been adversarial and often contentious. At one point, when differing opinions on the death penalty threatened to tear us apart, Lake preserved and strengthened the Commission by removing the death penalty from discussion.

Under his leadership, we enacted some of the strongest protections in the country for defendants, which strengthened the system and made it fairer. Because of that work, many innocent people have been freed from prison, including Henry McCollum, who was North Carolina’s longest serving death row inmate when DNA testing proved him innocent in 2014.

Lake was in the courtroom when McCollum and his brother Leon Brown, who were intellectually disabled teenagers when they went to prison, were finally granted their freedom. Lake stood and applauded; it was an iconic sight. Maybe that was the moment the former chief justice reconsidered his confidence in the death penalty itself.

Nationwide, 150 death row inmates have now been exonerated. Our system’s grievous mistakes, especially in cases in which we seek the most serious punishment, have become too glaring to ignore.

There is no justification in executing our most vulnerable and defenseless citizens — juveniles, the poor, people with mental illness and intellectual disabilities — the very people Lake said, in his op-ed last week, cannot get a fair trial in our system. Nor should we continue to pinch our nose and argue that their deaths are necessary to preserve our way of life.

It took integrity for Lake to let the people of North Carolina know he had changed his mind about the death penalty. I hope North Carolina will soon muster Lake’s courage, and say that the death penalty has no place in our future.

James Coleman is the John S. Bradway Professor of the Practice of Law at Duke University. He is also the co-director of Duke’s Wrongful Convictions Clinic.