North Carolina’s Failure to Perform Comparative Proportionality Review: Violating the Eighth and Fourteenth Amendments by Allowing the Arbitrary and Discriminatory Application of the Death Penalty

This article argues that because of the North Carolina Supreme Court’s failure to perform its statutorily mandated comparative proportionality review of all death sentences, North Carolina’s imposition of the death penalty violates the Eighth and Fourteenth Amendments to the United States Constitution. The article makes a two-part showing to demonstrate this violation: first, that the state supreme court does not meaningfully perform its statutorily mandated comparative proportionality review, and second, that under current United States Supreme Court precedent, this failure violates the Eighth and Fourteenth Amendments. While the U.S. Supreme Court has held that comparative proportionality review is not always necessary for a state’s death penalty statutory scheme to be constitutional, it also made clear that the review would still be required where a state’s capital sentencing system was so lacking in other checks as to allow arbitrariness and discrimination in death sentencing. North Carolina’s is just such a scheme. North Carolina Supreme Court opinions make clear that meaningful proportionality review is a primary mechanism under which the state purports to comply with the constitutional mandate to prevent discriminatory death sentences. More importantly, evidence brought forth by the recent Racial Justice Act cases demonstrates that the state has indeed failed to prevent discriminatory sentences when not following its statute and adequately performing the review. Because comparative proportionality review of all death sentences by the North Carolina Supreme Court is constitutionally required, and because the court fails to adequately perform that review, North Carolina’s imposition of the death penalty violates the Eighth and Fourteenth Amendments to the Constitution.

Duke Scholars

Author Brooks Emanuel Kenan Institute for Ethics