North Carolina

The information on this page provides a brief overview of capital clemency in North Carolina and is not intended to serve as the basis for a capital clemency petition or campaign. For additional information, please see the full North Carolina Clemency Memo prepared by the ABA Capital Clemency Resource Initiative:

North Carolina Capital Clemency Memo

The Power Defined

Under Section 5 of Article III of the North Carolina Constitution, the governor has the power to issue clemency in three different ways: he or she may grant a reprieve from a sentence to enable further fact finding; commute a death penalty to a sentence of life imprisonment; or issue a pardon, absolving a convicted person of criminal penalties.

The Decision Maker(s)

The clemency power lies exclusively with the governor. The Supreme Court of North Carolina has held that the clemency power lies outside the scope of judicial review and is a non-justiciable political question.

Two separate statutes detail parts of the clemency process. North Carolina General Statutes section 147-16(a)(1) requires the governor to retain a directory of all applications for pardons and commutations of sentences, while section 147-21 requires all pardon applications to be made in writing.

While exclusive power to grant or deny clemency rests with the governor, section 143B-720 of the General Statutes sets up a Post-Release Supervision and Parole Commission that is tasked with assisting the governor “in exercising his authority in granting reprieves, commutations, and pardons,” while also performing any other “services as may be required by the governor in exercising his powers of executive clemency.”

How Petitions are Brought

Staff at the Governor’s Clemency Office suggest that other than the statutory requirements, the process for seeking clemency in capital cases is determined on a governor-to-governor basis and may or may not conform to past procedure or statutory requirements concerning non-capital clemency determinations. Because there has been a de facto moratorium in place in the state since January 2007, North Carolina’s current capital clemency process is untested. The following section therefore details the statutory clemency process for non-capital cases—which the governor may or may not elect to follow if called on to consider clemency for a death-sentenced prisoner at some point during his term. Practitioners reviewing this information should be sure to contact the Governor’s Office if they are considering seeking clemency in a capital case to ensure that new policies or procedures have not been established since the publication of this information.

The Governor’s Clemency Office processes all requests for clemency. No formal application or form is required. North Carolina general statute states that every clemency application must be made to the Governor in writing. Each application must be accompanied by a certified copy of the indictment and the verdict and judgment of the court thereon.

According to a detailed guide on pardons (“Guide”) published by a third party researcher, the individual seeking clemency should write a personal narrative letter addressed to the governor and sent to the Clemency Office at the address provided above. This letter should include personal information about the clemency seeker, including age, marital status, employment history, and citizenship, among other things.  It should also explain why the petitioner is deserving of clemency, keeping in mind that clemency is only granted in exceptional cases. While there is no indication that an individual seeking commutation in a capital case is required to follow these same guidelines, this Guide nevertheless provides helpful insight into the basic information the Clemency Office takes into account in reviewing clemency application.

The Guide specifies that the personal letter should be accompanied by a number of documents related to the conviction, including the original indictment, the plea agreement (if any), and the Judgment and Commitment papers. Clemency petitions do not have to be written by the individuals seeking clemency, and are normally prepared by their lawyers (although according to practitioners in the state, some requests have been authored by petitioners or petitioners’ family members).

Hearing Practice

No hearing is required under the relevant statutes.

Responding to a Petition

The governor is not required to make any information concerning a denial of clemency public. The governor is required to keep records of all applications for pardons and commutations, but is not under an obligation to make this information, or the reasons underlying a decision not to grant clemency, public. In the case of a denial, however, the governor may “in his discretion” choose to return the materials submitted in favor the request to the applicant.

However, if the governor elects to grant a commutation of any sentence, he or she is required to provide the following notice:

(b) The Governor shall, unless otherwise requested by any person listed in subdivisions (1) through (4) of this subsection, provide notice of the commutation of any sentence within 20 days after the commutation by first-class mail to the following at the last known address:

(1) The victim or victims of the crime for which the sentence was imposed;

(2) The victims’ spouse, children, and parents;

(3) Any other members of the victims’ family who request in writing to be notified; and

(4) The Chairs of the Joint Legislative Oversight Committee on Justice and Public Safety.

Current Clemency Decision Maker(s)

Democrat Roy Cooper was elected governor in 2016 after the nation’s longest-running gubernatorial race. In his campaign, Mr. Cooper focused significantly on expanding educational opportunities and improving economic conditions for the middle class.

Mr. Cooper previously served four consecutive terms as North Carolina Attorney General (2001–2017). He was also elected to both the North Carolina House (1987–1991) and the North Carolina Senate (1991–2000), and served as State Senate Majority Leader (1997–2001).

As Attorney General of North Carolina, Mr. Cooper focused on several criminal justice initiatives, including increasing funds for DNA testing of crime evidence, advocating for increased restrictions on sex offenders, and others.

Past Capital Clemency Decisions

Grants

Since 1976, there have been five grants of capital clemency in North Carolina.

• Anson Avery Maynard

The first clemency granted in North Carolina since 1976 occurred in 1992, when Governor James G. Martin granted clemency to Anson Avery Maynard. Clemency was granted on the grounds of doubts about the prisoner’s guilt.

Maynard was convicted of murdering a fellow burglar who had made a deal to testify against Maynard in exchange for a reduced sentence. However, there was no physical evidence linking Maynard to the crime, and additional evidence suggesting his innocence came to light while Maynard was imprisoned on death row. A woman who testified against him at trial subsequently admitted that she had lied, and several alibi witnesses who had not previously testified came forward on Maynard’s behalf. After this information was presented to Governor Martin, he commuted Maynard’s sentence to life imprisonment one week before his scheduled execution. Clemency was granted via an order issued by the Governor’s office.

Maynard’s case was cited by two former governors of North Carolina, Democrat Jim Hunt and Republican Jim Martin (who granted Maynard clemency in 1999), in an amicus brief they filed alongside many other state governors in support of using federal funds to pay for representation during clemency proceedings in the Supreme Court case Harbison v. Bell. In the brief, the former governors praised the strenuous efforts of post-conviction defense counsel in securing clemency for their client. In particular, they praised their decision to pursue “every shred of evidence” in order to get their client off death row. It is worth noting that in Harbison, the Supreme Court upheld the right of death row prisoners to receive federally appointed defense counsel in post-conviction clemency proceedings under 18 U.S.C § 3599.

• Wendell Flowers
  

Wendell Flowers was granted clemency by Governor Jim Hunt on December 15, 1999, two days before his scheduled execution. Clemency was granted on the grounds that Flowers was no more culpable than his codefendants in a conspiracy to commit murder case, where the other conspirators had not received death sentences.

Flowers received the death penalty for his participation in the murder of another prisoner while Flowers was already serving a life sentence for a different murder. Flowers had not participated in the physical attack on the prisoner, instead serving as a lookout while three fellow prisoners carried out the killing. Governor Hunt explained his decision in a brief statement: “I am convinced from all that I have learned about this case that several inmates were involved in this murder. From the testimony of the eyewitness it is not clear exactly what role Flowers actually carried out … [b]ut it is clear as a bell that Flowers did not kill Rufus Watson alone.”

• Marcus Carter

Marcus Carter received clemency from Governor Hunt on November 22, 2000, the day he was scheduled to be executed. Carter had been convicted of rape and murder in December 1989. However, Governor Hunt concluded that a commutation was appropriate because of infirmities in Carter’s trial. First, Carter chose to represent himself after his first trial ended in a hung jury, which the governor found to have led to an unfair result. Second, Governor Hunt found that racial bias and pro-death penalty bias had tainted the jury selection process, leading to a death penalty conviction for Carter, who is African American. These arguments, and others, were made by Carter’s lawyers in their clemency petition.

While there was no question of innocence in Carter’s case, Governor Hunt did not appear to suffer a backlash as a result of his decision to commute the sentence. Hunt’s popularity remained high within the state after granting clemency twice. Hunt was the first North Carolina governor to twice be elected to serve two consecutive terms as governor, and in the 2000 election he was succeeded by another Democrat.

• Robert Bacon, Jr.

Governor Michael Easley commuted the sentence of Robert Bacon, Jr. on October 2, 2001, three days before his October 5, 2001 execution date. Unlike Governor Hunt, Governor Easley did not offer an extensive explanation of his decision, stating only that his “review of the matter in its totality” led him to conclude that a death sentence was inappropriate.

A letter authored by the ACLU in support of clemency for Bacon points to racially charged components of the case, including the fact that Bacon, a black man, had conspired with Bonnie Clark, a white woman, to murder her (white) husband and collect insurance money. The ACLU letter also argued that the prosecution had made two seemingly diametrically opposed arguments at the trial and punishment stages; it had argued at trial that Ms. Clark was the “mastermind” of the scheme with Bacon as her “pawn,” and had switched tactics at Bacon’s punishment stage by arguing that he was the primary architect of the murder and therefore deserved the death penalty. Ms. Clark received life without parole. Mr. Bacon’s clemency petition made similar arguments based on both the prosecution’s inconsistent arguments and potential racial biases that led to his death sentence.

• Charlie Mason Alston

Charlie Mason Alston was granted clemency by Governor Michael Easley on January 10, 2002, only hours before he was scheduled to be executed. As before, Governor Easley did not offer a detailed explanation for his clemency grant, which resulted in a commutation to life without parole.

Alston had been convicted of the murder of his former girlfriend, and no physical evidence connected him to the crime. Alston’s attorneys had strenuously argued that there was potentially exculpatory DNA evidence in fingernail scrapings from the victim, but this evidence had been lost. An ACLU letter filed prior to Alston’s clemency grant argued for clemency based on the lack of evidence supporting guilt together with claims of ineffective assistance of counsel. Alston’s efforts to prove his innocence continued after his commutation, and in 2014 his attorneys secured a release order for North Carolina Innocence Inquiry Commission records related to his case.

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