Henry McCollum’s Innocence and the Stakes for Death Row Inmates in a Red State

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©Jenny Warburg

On Tuesday, September 2, in a courtroom packed with his family members, his original lawyer, and even members of the family of the eleven-year old girl from Red Springs, North Carolina, he had been convicted of raping and murdering, death-row inmate Henry McCollum saw his conviction overturned after being in jail for thirty-one years.

"Henry, I think, was overwhelmed," said Vernetta Alston, a staff attorney at the Center for Death Penalty Litigation, which helped with McCollum's case. "I think it's still taking him a while to soak it all in. I think folks were very relieved."

The decision not only granted McCollum his freedom but it also took away an archetype. McCollum was used by conservatives as a rationale for capital punishment, his face used on campaign mailers to paint Democrats as soft on crime. Justice Antonin Scalia pointed to his case as for a reason to maintain the death penalty.

While, in an unlikely turn of events, McCollum was able to establish his innocence, the chances of justice for others in his circumstance have gotten slimmer. Last year, North Carolina lost a vital avenue to helping many people in situations similar to Henry McCollum's, a loss that could lead to the execution of other innocent people.

In the 2001, two professors at the University of North Carolina at Chapel Hill conducted a study determining that murder cases with a white victim had a death-sentencing rate almost twice as high. The numbers were even more disproportionate when the victim was white and the defendant was not.

"The death penalty was most likely to be given when a non-white individual was the defendant and the victim was white," said Isaac Unah, one of the researchers who conducted the study and a professor of political science at UNC-Chapel Hill.

The study provided a framework for what would be known as the Racial Justice Act. The law, sponsored by state Senator Floyd McKissick, Jr., would allow defendants to petition to show that racial bias had been a factor in issuing a capital punishment sentence and could in turn have their sentences commuted to life in prison without parole.

"The Racial Justice Act … tried to level the playing field in cases that deserved closer examination," McKissick said in an interview. "The Racial Justice Act sent a strong message to prosecutors that that prejudicial conduct would not be tolerated."

As a result of the act, four people in North Carolina had their death sentences commuted. More evidence also mounted that there had been evidence of racial bias in the past. A study by Michigan State University found that prosecutors in North Carolina had selected juries in a way that was biased against minorities, striking out qualified African Americans at more than twice the rate they excluded potential white jurors. The study also found that of 159 death row inmates in the state, thirty-one were sentenced by all-white juries, and thirty-eight were sentenced by a jury with only one minority member.

But the law was highly unpopular with state Republicans. In the subsequent 2010 midterm elections, a mailer was distributed featuring McCollum ostensibly as the kind of horrififying criminal the law could set free, despite the fact the law was never meant to release prisoners.

"He was clearly used by the forces that ultimately repealed the Racial Justice Act as a poster child," said Rob Schofield, director of research at North Carolina Policy Watch.

The mailer slammed state legislator Hugh Holliman for his support of the law, saying the Racial Justice Act could lead to his and another convicted murderer's release. As if the smears were not despicable enough, the targeting was particularly tone-deaf because Holliman's own daughter had been abducted, raped and murdered. Her murderer was executed. (The chairman of the North Carolina GOP later apologized.)

"If we still had people like Hugh Holliman [in the legislature], then we might be thinking more carefully," Engel said, noting that

the smears against Holliman were reminiscent of the infamous Willie Horton ad used to smear Michael Dukakis in the 1988 presidential election

.

In 2010, when the Republican Party gained both houses of the legislature for the first time since 1898, they began work on repealing the Racial Justice Act. But Democratic Governor Bev Perdue vetoed a bill that would have virtually invalidated the law.

It was only after Republican Governor Pat McCrory was elected in 2012 that the law was repealed. At the end of the General Assembly session, North Carolina House Speaker Thom Tillis touted the repeal as ending "the de-facto moratorium on the death penalty in North Carolina."

With the recent release of Henry McCollum and Leon Brown, Republicans have one less boogeyman to use to scare voters in North Carolina, but this likely does not mean that there will be a reconsideration of capital punishment or the Racial Justice Act while the GOP remains in power.

While the Racial Justice Act was not used to free prisoners, and McCollum and Brown were not freed based on the law, McCollum's and Brown's case was a case in miscarried bias and injustice. McCollum, who, like his brother, had an IQ below 70, was coerced to sign a confession. Similarly, it was found that the state had worked to remove three black jurors.

But without the Racial Justice Act, many who were sentenced based on race, and quite possibly innocent people like McCollum run the risk of being executed.

"This case should shake people's confidence now we know everyone [tried for brutal crimes] is guilty," said Engel. "We're now where we're re-fighting battles we thought we won. There's trying to be retrenchment."

Meanwhile, upon news of the release of McCollum and Brown, the response of some politicians like Tillis-who is now running for U.S. Senate and could not be reached for comment-has been disturbing. Shortly after the release, Tillis said to Think Progress, "At least the process worked."

"I'd like to see what happens when it's not working," Engel said. For Tillis, the idea that two half-brothers with low IQs could spend three decades in prison for a crime they didn't commit before being released is justice and not the fact that they had to wait for years.

"I think it's unfortunate," McKissick said. "It speaks to his character and to his values."

Similarly, Paul "Skip" Stam, who helped establish with the Innocence Inquiry Commission that helped free McCollum but who opposed of the Racial Justice Act, told local media that among the people remaining on death row, there is no chance that any might be innocent of the crimes for which they were convicted.

But in the past ten years, five death row inmates- four of them black, including McCollum and Brown-have been exonerated in North Carolina, according to the Death Penalty Information Center. In one instance, a man was sentenced to death by an all-white jury despite no physical evidence.

Unah said he believes the innocence of McCollum should show the repeal of the Racial Justice Act needs to be re-examined.

"For the Racial Justice act to be repealed and just about a year later and have someone on death row for 30 years to be found to not [have] committed a crime has to raise some questions to examine this issue," Unah said.

McKissick on the other is not as optimistic. Sadly, it is unlikely that the Racial Justice Act will be reviewed as long as the GA remains under Republican control. As a result, convicts who were targeted for capital punishment because of their race will be executed, perhaps including inmates who never committed the crime for which they were convicted. McCollum may be innocent, but the archetype created by the right could long outlast the memory of his innocence, and that is just as tragic as his wrongful conviction.