In the summer of 2001, North Carolina executed 42-year-old Ronald Wayne Frye, convicted of stabbing and robbing his 70-year-old landlord in 1993. The crime was brutal and there was no question of his guilt. Yet the circumstances of Frye’s trial and conviction would come to shock members of the public — and even members of his own jury — as his execution approached. Two jurors came forward to say that they would not have sentenced Frye to death row had they known then what they had since learned. Like many who end up on death row, Frye lived a life marked by severe abuse and trauma. This history was never investigated by his defense attorneys, despite the fact that it would have made for powerful mitigating evidence. “A background of neglect and abuse would have changed my decision and my vote,” one juror told the Hickory Daily Record weeks before Frye’s execution. Among the evidence the jury never heard was that Frye’s mother had given him and his brother away to a pair of strangers she met at a gas station when Frye was a young boy. The couple beat Frye and his brother with a bullwhip and forced the boys to beat each other as well. Frye was reluctant to share this history with his court-appointed lawyers. “I didn’t want my family involved,” he told one reporter. “I felt like I had shamed them enough already.” A competent capital defense attorney would have navigated this challenge to save a client’s life. Instead, Frye was represented by a man named Tom Portwood, a dentist-turned-attorney who had a severe drinking problem. His alcoholism would force him to stop practicing just a few years later. Portwood all but abandoned his client, later admitting that he did no work on Frye’s case outside the courtroom. Portwood’s co-counsel did not speak up until two weeks before Frye’s scheduled execution, writing in a sworn statement that he “chose to believe the best about my friend for as long as I could.” North Carolina’s legal community was moved to action by Frye’s looming execution. “For the first time in its 35-year history, the 4,000-member N.C. Academy of Trial Lawyers asked for clemency for a death-row prisoner,” the Raleigh News and Observer reported in August 2001. If the governor allowed the execution to go forward, the group’s president said, “The right to counsel has lost its meaning in this state.” Nonetheless, on August 31, 2001, Frye died by lethal injection.

Photo: Courtesy of the Center for Death Penalty Litigation

Frye’s execution came at a flashpoint for capital punishment across the country. In the late 1990s, the American Bar Association had recommended a national moratorium on the death penalty, citing unfair trials, racism, and wrongful convictions as pervasive problems. In North Carolina, activists, lawyers, and lawmakers took up the cause; in 2000, a legislative commission recommended a moratorium on executions in the state. A few months before Frye’s execution, a major study examining data from 1993 through 1997 found new evidence of racism in North Carolina’s death penalty system. It was in this same era that the North Carolina legislature passed the first in a series of hard-fought reforms to the state’s death penalty system. Among them was the establishment of Indigent Defense Services, a state office that coordinates the representation of people facing the death penalty. Opened in July 2001, it imposed standards to ensure that cases were assigned to competent lawyers who received decent compensation — too late for defendants like Frye, but to the benefit of scores of defendants in the years to come.

The majority of people on death row were tried in a system that was effectively rigged against them.

The overhaul of indigent defense was a game-changer in North Carolina. But it was its combined effect with other systemwide reforms that would transform the landscape of capital cases in the state. This evolution is at the heart of a new report by the Durham-based Center for Death Penalty Litigation. Titled “Unequal Justice: How obsolete laws and unfair trials created North Carolina’s outsized death row,” it reveals how the majority of people on death row were tried in a system that was effectively rigged against them. Of the 141 men and women facing execution in North Carolina, more than 100 — 73 percent — were sentenced before the creation of the indigent defense office. The majority were also convicted prior to laws that prohibit the execution of people with mental disabilities; impose protections against wrongful convictions; and require prosecutors to share evidence against defendants before trial. The CDPL report shows how the implementation of such reforms has led to a precipitous drop in death sentences. “The death penalty is all but extinct in North Carolina,” the authors write. “Juries have recommended only a single new death sentence in the past four years. Capital trials have become rare. The state hasn’t carried out an execution since 2006.” Although North Carolina’s death row is still among the largest in the country, it “is a relic of another era.” In Catawba County, where Portwood once practiced, no one has been sentenced to death for 20 years. Yet his legacy lives on. In 2012, the state settled a federal civil rights lawsuit brought by Glen Edward Chapman, sentenced to die in 1994 for a double murder he insisted he did not commit. Represented by Portwood, Chapman spent years on death row before a Superior Court judge overturned his conviction and ordered a new trial. He was exonerated in 2008. Another one of Portwood’s former clients, Nathan Bowie, remains on death row. Bowie was 20 years old when he was tried alongside his uncle for a double murder in 1993. Today he is 47. Bowie is one of a handful of condemned men profiled in detail in the report, which describes his case as “emblematic of capital defense at the time.” Portwood was appointed to represent him despite his well-known drinking problem and assisted by a lawyer with no experience in capital defense. Bowie remembers Portwood showing up to one of their first meetings smelling like alcohol. In the time he represented Bowie, the report notes, Portwood was involved in a car crash and found to have a blood alcohol level sufficient to kill him.

Perhaps not surprisingly, Portwood and his co-counsel did little investigation into Bowie’s background. As a child, Bowie had experienced poverty, abuse, and bouts of homelessness; he was removed from his home when he was 12 and placed in the custody of the Department of Social Services. At 13, he was sent to Sipe’s Orchard Home, a facility for troubled youths, where he stayed until he was 19. Portwood did not review the records or interview staff from the facility. If he had, he would have discovered evidence of sexual abuse that occurred at Sipe’s, where Bowie kept a stick in his possession that he called his “protector.” Portwood’s failures were compounded by the conduct of the prosecutor in Bowie’s case, Jason Parker. “His office had prosecuted a Sipe’s staffer for molesting boys there,” the report reveals, yet Parker cast the facility as a wholesome environment before the jury. Arguing for the death penalty, he also emphasized that no one from the facility had appeared at trial on Bowie’s behalf. Yet Parker had actually received a letter from the head of the facility offering to testify on Bowie’s behalf, which he never disclosed to defense. Parker is now retired. In total, he sent seven people to death row, including Frye and Chapman, the two other people represented by Portwood. Parker said he never saw evidence that Portwood was drunk on the job in the years he tried cases against him. “Everybody knew he would take a drink here and there,” Parker said, “but as far as coming to court drunk, alcohol on his breath, never saw it.” Parker’s personal feelings about the death penalty have not changed, he said. “In certain horrific cases, the death penalty is highly justified.” Nevertheless, he says he would no longer seek death sentences if he were still working as a prosecutor today. “My reason is simple,” he said. “In reality the death penalty does not exist in North Carolina.” Parker explained that of all people he sent to death row, only one — Frye — has been executed. One man killed himself. Another two died of natural causes. The remaining men — Bowie and his uncle — “have outlived the son of my co-counsel who was born during their trial” and died in a car accident at 24. “My position would be: Why waste my time?” “Zombie Cases” More than 40 years since the start of the so-called modern death penalty era in the United States, it has become widely understood that most people sentenced to death are more likely to die awaiting execution than on the gurney. In California, home to the country’s biggest death row population, the last execution was carried out in 2006; only 13 people have been executed since the 1970s. Those who do live to see the death chamber have often spent decades on death row. The result is what Stephen Bright, founder of the Southern Center for Human Rights, has described as “this very strange situation now, in which these people sentenced to death a long time ago” are coming up for execution in cases that would be highly unlikely to lead to a death sentence today. Bright called them “zombie cases” — convictions that “remind us of just how unfair” the system used to be. In Georgia, Kenneth Fults was executed in 2016 despite revelations that one of his jurors harbored racist animus against him, telling an investigator, “Once he pled guilty, I knew I would vote for the death penalty because that’s what that nigger deserved.” Veteran death penalty lawyer Thomas Maher, who heads Indigent Defense Services, has written about this disconnect in North Carolina. “The question, then, that policymakers and courts should confront is this: Should we execute scores of inmates for crimes that would not warrant the death penalty if they were tried today?” Gretchen Engel, director of CDPL, explains that the report was published to “ignite a conversation” about this question. “It speaks to a need for there to be some kind of mechanism that will account for our evolving standard of decency,” she said. Given that most of North Carolina’s death row population would likely not be sentenced to die today, “it’s very hard to justify how we can execute them now.”

Photo: Courtesy of CDPL

Engel joined CDPL soon after graduating law school in 1992. “I think when I arrived there were maybe 75 people on the row” in North Carolina, she said. But the 1990s became “just a very bloody, frenzied time.” By the end of the decade, there were more than 175 people on death row. Part of what drove the surge in capital prosecutions were overzealous prosecutors like Ken Honeycutt, who “celebrated new death sentences by handing out noose lapel pins to his assistant DAs,” as the CDPL report notes. Particularly notorious was Joe Freeman Britt in Robeson County, who attracted national media attention and even a listing in the Guinness World Records as the “world’s deadliest DA.” Britt sent some 38 people to death row over his 14-year tenure. Among them were two teenagers, Henry McCollum and Leon Brown, who were famously exonerated of murder and rape in 2014. The impact of overzealous prosecutors has been well-documented where capital punishment is concerned. But in North Carolina, the phenomenon was compounded by a perverse, lesser-known feature of the state’s death penalty system. One of the more startling areas of the CDPL report is a section that explains how prosecutors were essentially coerced into seeking death sentences as often as possible. “In the 1990s, N.C. was the only state that required prosecutors to seek the death penalty for every aggravated first-degree murder,” the report explains, “regardless of other factors that called for mercy.” Rooted in years of rulings by the state Supreme Court, the sentencing scheme was originally intended to ensure uniformity in the application of the death penalty. But in practice, it curtailed prosecutorial discretion to an absurd degree. Prosecutors were forbidden from arranging plea deals in which a defendant could plead guilty to first-degree murder in exchange for a life sentence. Instead, their only alternative was to reduce a charge to second-degree murder.

In 1993, the year Bowie was tried, 33 people were sent to death row in the state.

Parker began handling capital cases in Catawba County in 1990. He recalls seeking the death penalty in numerous cases that he would not have tried capitally had they come later in his career. In the case of Nathan Bowie, Parker actually offered a plea deal for second-degree murder. “That wasn’t the world’s greatest case,” he explains. The witnesses were unreliable — the kinds of people who say one thing in a meeting, then “go out on the stands and they say something entirely different.” But Bowie and his uncle rejected the deal. “So I didn’t have any choice but to try them for the death penalty. Once they turn down that second degree, it was on.” Alex Charns, Bowie’s current attorney, counters that in fact, Parker did have a choice in Bowie’s case. “It could have been tried as second degree,” he says, adding that most prosecutors would not be inclined to do that. Bowie’s fate speaks to the utter neglect of Portwood in representing his client at every stage of his case, Charns says. But it is also illustrative of a phenomenon known as a “trial penalty,” in which prosecutors come down especially hard on defendants who refuse their plea offers. The notion that a crime could merit a charge of second-degree murder in one minute and a death sentence the next is also emblematic of the arbitrariness so often described by critics of capital punishment. The lack of prosecutorial discretion in first-degree murder cases was “perhaps the biggest driver of a decade of excessive death sentences” in the state, the CDPL report says. It “propelled North Carolina to one of the highest death sentencing rates in the nation.” In 1993, the year Bowie was tried, 33 people were sent to death row in the state. In 2001, the North Carolina legislature finally passed a law to address the problem of prosecutorial discretion. “Some DAs were having to try capital cases that they really didn’t want to try,” remembers Rep. Phil Baddour, a Democrat from Wayne County who sponsored the bill. “It went through without a lot of opposition.” To Engel, it made sense that prosecutors would not oppose the new law. “It increased their power and so they didn’t fight it. I think that’s why it was really probably the least controversial of the reforms.” What she and her colleagues did not necessarily expect was just how dramatic a change would follow. Death penalty prosecutions “plummeted,” from an average of 50 per year in the 1990s to roughly 16 capital trials per year in the decade following the 2001 law. The drop was no doubt due to prosecutors like Parker, for whom the death penalty became an easy way to force a defendant to plead guilty in exchange for life. “Most of the cases I tried for the death penalty after the law changed were those who rejected the plea offer taking the death penalty off the table.” Still, defendants were inclined to take the deal, he said. “Once you prove that you could put somebody on death row, it was a heck of a tool.” A Legacy of Racial Violence “I think if you polled district attorneys, they would all say, ‘Oh yes, the death penalty is very necessary,’” Engel says. But their actions betray the truth. Prosecutors are seeking fewer death sentences and are more willing to accept a plea to a life sentence, she points out. Indeed, as Parker recalls, after the law changed, “I made that offer available in the great majority of first-degree murder cases.” Engel sees something similar among the general public, which seems to favor the death penalty more in theory than reality. “I think while public support for the death penalty in North Carolina has fallen just like it has nationally, you’d still have a fairly large number of people who would say, ‘Yes, of course, we should execute the worst of the worst.’” Yet “jurors are not returning death sentences, even in really horrendous cases.” Nevertheless, the stubborn devotion to North Carolina’s death penalty has been on dramatic display for much of the past decade, in the ugly battle over the state’s Racial Justice Act. Passed in 2009, the groundbreaking law provided a way for condemned people to fight their sentences if they could prove that racism played a role in jury selection at their trials. Four people on death row succeeded in getting their sentences commuted to life without parole before the Republican-led legislature repealed the RJA in 2013. Two years later, the North Carolina Supreme Court vacated the judge’s rulings, sending the four defendants back to death row. It was up to Engel and her office to share the wrenching news. By then, a couple of them had gone to medium custody, she recalls. One, Christina Walters, had completed her GED. “The impact on the families of those clients — to think your [child] is spared from execution and then three years later, oh no, you’re back on death row — it was devastating.”

Nathan Bowie, left, with his father in Philadelphia circa 1989. Photo: Courtesy of the Bowie family/CDPL

Nathan Bowie was among those who sought relief under the RJA before its repeal. In a 2012 filing, Charns, his lawyer, details the history of racial violence in Catawba County and the surrounding area. In 1919, the filing noted, a black man named Tom Gwyn died in the electric chair for raping a white girl despite the efforts of a mob that tried to lynch him first. He was still awaiting trial when a local newspaper declared the guilt of the “brute” with “beast-like hands.” An all-white jury convicted him in 10 minutes. Racism permeated the prosecution of black men in rape cases into the 1970s, Charns points out. In the late 1980s and early 1990s, a group called North Carolinians Against Racist and Religious Violence tracked racial intimidation by the Ku Klux Klan in Catawba County. By the time Bowie went to trial before an almost all-white jury in 1993, the county had a black population of less than 9 percent. Parker, who is black himself, appealed to the racist fears and biases of the jury in court. Although there was no evidence that the crimes had anything to do with gang rivalry, Parker attributed the murders to a gang war, invoking Philadelphia, where Bowie came from, and contrasting it with the town of Hickory — “your community.” Parker demurred when asked about evidence of racism in North Carolina’s death penalty system. And he was dismissive of Bowie’s RJA motion. “All I can say is … you had a black guy trying two black guys for killing two black people,” he said. “So if that’s injustice, fine. You know? I don’t see it.”

The evidence of systemic racism contained in Bowie’s RJA filing — and the aggressive denial that such a thing exists — underscores the broader thesis underlying the CDPL report. It’s not just that North Carolina’s death sentences are a relic dating back to the bad laws of the 1990s. Its death penalty system is inextricable from a history of racial violence rooted in slavery and reconstruction. As in the rest of the South, the same kind of fearmongering propaganda once used to defend lynchings would support state-sanctioned executions, particularly as punishment for rape against white women. The bloodlust extended all across the state; in 1922, 16-year-old McIver Burnett — “convicted in three minutes and 30 seconds,” according to the Daily Free Press — was executed for rape in Raleigh amid a crowd of spectators holding tickets to the execution, a mob dominated by “youths wearing the red caps that distinguish State College freshmen,” according to the News and Observer. Evidence of enduring racism in capital cases helped pave the way for the landmark 1972 Supreme Court ruling in Furman v. Georgia. The plurality decision held that the death penalty was arbitrarily and thus unfairly imposed. Some death penalty states responded to Furman by crafting new statutes that would provide for bifurcated trials with a penalty phase to weigh aggravating and mitigating evidence — the system widely in place today. But others decided that the solution was to make the death penalty mandatory for crimes like murder and rape. The first to do so was North Carolina.

Photo: Harold Valentine/AP

One of the first people to face North Carolina’s mandatory death penalty was a black woman named Joan Little. The 20-year-old had been charged with first-degree murder after stabbing a white guard to death with an ice pick while being held at the Beaufort County Jail in 1974. She said she had killed the man to stop him from raping her — his body was found naked from the waist down in her cell, with seminal fluid on his leg. Nevertheless, Little faced a mandatory death sentence if she was convicted. As Little’s trial approached, the case became a cause célèbre — a symbol of the South’s deep-rooted racism and the largely unspoken sexual abuse of black women by white men dating back generations. In 1975, amid demonstrations, a jury acquitted Little. The next year, in Woodson v. North Carolina, the U.S. Supreme Court struck down the state’s mandatory sentencing scheme. For Jennie Lancaster, one of the jurors in the case, the Little trial would indelibly shape her perspective on the criminal justice system. As a 25-year-old counselor at a juvenile prison facility in Raleigh, “I had this almost idealistic view of what you could accomplish” within prisons, she recalls. After the Little trial, she went on to become warden of the state’s women’s prison and eventually the Central Region director in the North Carolina Division of Prisons, where she supervised 12 facilities, including the prison in Raleigh that houses death row.

“Racism and sexism. That was prevalent in the whole judicial process within deep eastern North Carolina.”

Among Lancaster’s early responsibilities was presiding over the 1984 execution of Velma Barfield, a white woman convicted and sentenced to die for poisoning four people. As her execution date approached, the case of the “death row granny” became a media circus and political lightning rod; the state set the execution date just days before a major election for Senate. Democratic North Carolina Gov. James Hunt faced incumbent Sen. Jesse Helms. Hunt, who would go on to lose, denied Barfield’s pleas for clemency. “I got to know Velma,” Lancaster says. “I got to know her family. I got to know what a positive influence she was” at the prison. She also saw the additional ways in which women behind bars were abused and dehumanized. Lancaster recalls having to fight with prison administrators to allow Barfield to wear a bra during her execution. “She was a big-breasted woman and she asked me, ‘Miss Lancaster, if I’ve got to go through this, I would like to have the dignity of wearing a bra.’” The Barfield execution would eclipse the Little case in North Carolina’s death penalty history. But it was the latter that opened Lancaster’s eyes. “The system was on trial,” she said. “And our role in the criminal justice system was really on trial.” While she was proud at the outcome, the case was only her first look at the rampant abuse within prisons. “It ingrained a stronger sense of responsibility within me, about how we should be caretakers. And how we should not allow, if we’re in a supervisory role, the taking advantage of offenders who are under our care.” “And also, the amount of racism,” Lancaster added. “Racism and sexism. That was prevalent in the whole judicial process within deep eastern North Carolina.” Out of Sight, Out of Mind

Photo: North Carolina Department of Public Safety