For Lyle May, the death penalty is not a cause, a protest, or a political debateat least, not entirely. It’s the sound of prison guards’ boots pinging against the floor as they approach a condemned man’s cell. It’s looking on as a friend packs his few belongings into a cardboard box. It’s hugging his neck during a final goodbye. It’s knowing that after his heart beats for the last time, some other inmate is one moment closer to the day he, too, feels the sting of a needle.
May has been down that particular road dozens of times since he was convicted of killing a woman and her son and disposing of their bodies along the Blue Ridge Parkway near Asheville nearly twenty years ago. And not every man he has seen take the long, lonely walk to Central Prison’s “death watch” blockthe solitary section of death row that sits adjacent to the execution chamberhas stoically accepted his fate.
Eddie Hartman was a mentor of sorts, a man May shared countless laughs with over card games. So as his execution date approached in the fall of 2003, May tried his best to be both a shoulder to cry on and a sounding board for the friend who found himself, at long last, contemplating his fleeting mortality.
“At some point, you just have to be OK with being executed, with dying,” May says. “Well, he wasn’t. He said, point blank, ‘I don’t want to die. I don’t want this to end.’ What do you say to someone who you know is about to die? I wanted to be anywhere but this place.”
There’s nothing dignified about those last few days, nothing to signal to the men left on the row that everything will be OK. Just a handshake. A long, emotional embrace. And then, for hours, silencean eerie calm May likens to waiting for a storm to pass.
“You try to find something to take your mind away from what’s happening,” he says. “And just like a tornado, once it’s over, [dwelling on the aftermath] is useless. There’s nothing you can do.”
It’s the unease that comes with knowing that you, too, will one day take that same final walk that makes living on the row a unique incarceration experience. For May, that wait is his personal hell.
“It’s absolutely torture,” he says. “It’s absolutely on my mind every day I wake up, every time I go to sleep. In here, it’s really difficult to think about having a future. Without that threatthat constant worry that all I’m doing now would be for nothing and that I will eventually die in an execution chamberlife would be incredibly different.”
And in North Carolina, thanks to a de facto moratorium that has been in place for more than ten years, that wait is indeterminatebecause, here, the death penalty is a cause, a protest, and a political debate.
North Carolina hasn’t broken out the needle since 2006, when Samuel Flippen was executed as punishment for murdering his two-year-old stepdaughter. But the moratoriuma result of legal challenges stemming from arguments that lethal injection violates the Eighth Amendment’s ban on “cruel and unusual punishment” to the 2009 passage of the Racial Justice Act, which allowed (until its repeal in 2013) death row inmates to challenge their convictions on the grounds of racial biashas not yet prompted the state to eliminate capital punishment from the books.
That fact troubles death-penalty abolitionists, who have argued that the costs associated with trying capital casesthe millions spent on both the prosecution and defense and on the many appeals guaranteed to the condemnedis simply too heavy a burden for taxpayers. More important, they note that in the last ten years, murder rates have declined (thus debunking the deterrent argument), four death-row inmates have been exonerated, the State Bureau of Investigations admitted to falsifying evidence in dozens of trials, and a judge found evidence of statewide racial bias in the use of the death penalty.
Meanwhile, public support for the death penalty has plummeted. A Pew Research poll released in September revealed that fewer than half of Americans49 percentwere in favor of capital punishment, a decrease of 7 percentage points from 2015. In North Carolina, 68 percent of those polled in 2013 were in favor of life in prison without the possibility of parole as the state’s maximum sentence, and the majority of those who think the death penalty is antiquated61 percentdisagree with the notion that capital punishment deters criminals.
So why, they ask, are men and women still being sentenced to die, even though experts, including many of the district attorneys who try these cases, say the death penalty likely won’t be used for years to come, if ever? And is forcing someone, guilty or not, to wait in limbo for an execution that might not ever come itself a form of cruel and unusual punishment?
Susanna Birdsong, the policy counsel for the state ACLU, says it is.
“If somebody wakes up every day having to think about that and the gravity of thatthe uncertainty of itit’s certainly psychological torture in a way,” she says.
She continues: “More and more people are saying, we shouldn’t, as a state, be putting people to death and, you know, it’s been ten years since the last execution in North Carolina, and in that time, four more people have been exonerated. And a lot of times people talk about, ‘We need the death penalty. It really helps to lower the crime rate when people know they could be sentenced to death by the state.’ But in the time that there has been this de facto moratorium in North Carolina, the murder rate has, in fact, declined. So it disproves that myth. The state and the people would be much better served by doing away with [the death penalty] completely.”
The cost of capital punishment in North Carolina can be measured in more than the toll it takes on the 147 men and three women who are waiting to die. It imposes a substantial economic burden on the state’s taxpayers as well. According to a 2009 Duke University study by Philip Cook, the standard-bearer of rigorous evaluations on capital punishment in North Carolina, death-penalty prosecutions cost taxpayers at least $11 million a year. Why? Because the vast majority of inmates residing on the row have been deemed indigent and, consequently, are guaranteed a legal defense on North Carolina’s dime. These cases require two attorneys and a team of investigators and a direct appeal to the N.C. Supreme Court upon conviction.
“On average, defending a capital case costs four times as much as a first-degree murder trial in which the defendant faces a maximum of life imprisonment,” Cook concluded. And that figure doesn’t include prosecution costs, “despite the fact that death-penalty cases can eat up hundreds of hours in state-funded district attorneys’ offices and law enforcement agencies.” An earlier study, conducted by Duke researchers in 2007, found that it costs North Carolina more than $2 million to prosecute a capital homicide and see it through to execution.
“The bottom line is that the death penalty is a financial burden on the state and a resource-absorbing burden on the trial courts,” Cook wrote. “That conclusion is relevant to the debate over whether preserving the death penalty is in the public interest, but surely not among the most important considerations.”
Prosecutors are finding it more and more difficult to justify pursuing the death penalty. In fact, the number of capital cases in North Carolina has been on the decline for the better part of a decade. Since the moratorium took effect, no more than a handful have been tried statewide in any given year.
Many district attorneys shy away from such undertakings because finding jurors willing to send someone to his or her death can be difficult. Others know that a death sentence is, at this point, more symbolic than anythingnot worth the man hours required to see it through. Last year, North Carolina saw zero capital convictionsan exclamation point on a downward trend that has seen the number of new death-row inmates nosedive since the turn of the century.
Durham District Attorney Roger Echols knows all too well what it takes to put together a capital case. His office will soon argue to a jury that Craig Hicks should be sentenced to death for murdering three Muslim students in February 2015. Despite that casethe first capital case he’s tried during his two years as DAhe acknowledges that determining a death sentence is not something to pursue lightly and that current legal hurdles and waning public support have changed the equation. So what does he use as guidance when making the call?
“Are there aggravating circumstances, which is what legally have to be present to seek the death penalty? Are those things present?” he says. “Some people may think that it’s just a decision, whether you want to go for the death penalty or not, but there are legal hurdles. Every case that is charged, and every case that we may think that there is an argument for first-degree murder, does not qualify for death-penalty prosecution. I think that’s one thing we’re looking at. I’m also looking at the nature of the offense, meaning obviously it’s homicide, but what are the facts involved? How heinous is it? What effectively makes this case different from any homicide case?”
As required by state law, he also has to consider what the victim’s family wants.
“We consult the victim or the victim’s family in the case of a homicide, and the victim’s-rights case, before we make certain types of decisions,” Echols says. “I’m not going to be seeking the death penalty just because I can. And generally, the public doesn’t want it.”
Of course, not everyone sees it that way. During closing arguments in Lyle May’s trial, prosecutors argued that for some people, life in prison is too lenient a sentenceand the jury listened.
“I know it’s hard when you sit here and you look at [May] like that in his shirt and sometimes his tie, it’s hard to picture him in a prison yard playing cards with the guys, in a prison gym punching a punching bag, in a prison cell having a snack, watching TV or listening to the radio,” the prosecutor said. “But if your verdict is life, one day soon, that’s what he’ll be doing, and life will not be worse for him. He isn’t someone who will sit there contemplating what he’s done and where he’s gone wrong. He’ll sit there eating his fireballs, savoring his memory of how much he enjoyed what he did.”
Every door and stretch of trim inside death row is painted reda deep burgundy that serves as a reminder for people like May that the end of their story has already been scripted.
“Red is synonymous with death,” May says. “Red. You know, because there’s blood on our hands.”
The paint isn’t the only thing that differentiates death row from Central Prison’s general population. There’s a single TV located in the dayroom that serves those 147 men. In the yard, there’s a dirt lot next to a concrete lot; aside from a beat-up football and two worn basketball goals, there’s not much to engage with during the hour the inmates are permitted to spend outside on days when the weather is fair.
May embraces those sixty minutes. He finds they offer him a sense of normalcy. “I like the smell of the fresh air,” he says, before acknowledging that even that serves as a grim reminder of his circumstance. “I don’t think I’ve seen a night sky in nineteen years. I’d love to be under one.”
While conditions on the row are quieter and cleaner than one might encounter in a county jail, at every turn May is confronted with a routine he says would be far more bearable if he were serving a life sentence somewhere else.
“If you add into [a life sentence] that threat of death and the fact that you’re isolated from the population and denied the ability to gain access to work programs, school programs, vocational programs, to have contact visits, the ability to engage in discourse with a varying population, there’s nothing to work toward in here,” he says. “I mean, not too long ago, we got to use plastic chairs to bring into the dayroom, and that was a big deal for us. Those are the things we have to look forward to. And having things to look forward to, you have no idea how humanizing that can be.”
May has spent the better part of his life on the row, looking for, as he describes it, “something to distract you from the inevitable truth that it means absolutely nothing.” Little things like phone accessa privilege granted in March that ultimately enabled May and other inmates to contact the INDY for this storyallow the men to feel, if only in bursts, human again. But fifteen minutes on the phone or an hour outside can only do so much.
“You have to really find a way to give meaning to your life,” he says. “Each day is like an obstacle course that starts with that door opening, the lights coming on, and those guards screaming into the intercom, ‘Chow time. Chow time,’ at six a.m.”
Still, as May reflects on his first few years there, he admits those days were cathartic.
“No matter how much time you spend in prison, whether it’s with a life sentence or a death sentence, you can’t help but go over the mistakes you’ve made in the past,” he says. “Even if you don’t see them as mistakes, you’re going to rethink everything that got you to this point. And there’s gonna be some kind of unintentional rehabilitation that comes with that. … You know, I’m here because I lost my mind. I lost my mind one time and now I’m here. For the first handful of years, it’s all I thought about, but eventually, you’re forced to think about and deal with it because if you don’t, it’s gonna keep coming back to pound you into the ground until you’re dead or crazy.”
But with that realization came a yearning to find a way to make up for his past transgressions. And that, he says, is another aspect of a death sentence people on the outside simply don’t understandand certainly not something the prosecutor in his case believed him capable of.
“Out there,” he says, “is an opportunity to grow and learn the way you can’t when you’re in death row. We’re capable of change.”
The Killing Machine
North Carolinians have been debating the constitutionality of the death penalty since 1917, when Rufus Satterfield was electrocuted for more than six minutes before he was pronounced dead. Legislators argued that his death amounted to unconstitutional torture, prompting legislation passed in 1935 that changed the method of execution to lethal gas.
Nearly forty years later, the Supreme Court ruled that the death penalty itself was unconstitutional, but that 1972 decision was later amended, and, in 1976, the court allowed executions to again be carried out, so long as jurors had a choice between capital punishment and life imprisonment.
By 1984, North Carolina’s death row was back in business, but dissent lingered. In 2003, state senator Eleanor Kinnaird, D-Orange, proposed a bill to create a two-year study on the inequalities in capital sentencing. The measure, however, was defeated in the state House.
The first real blow to capital punishment came in 2007, when the North Carolina Medical Board issued an ethics policy prohibiting a doctor from doing anything more than being present at an executionand threatened disciplinary action against doctors who facilitated one. The order was in direct conflict with the state’s execution procedures, which required that a doctor be present and monitor the inmate’s essential body functions until he or she was dead. That obstacle was cleared in 2009, when the N.C. Supreme Court ruled against the state medical board.
The same year, however, with the passage of the Racial Justice Act, inmates were given an opportunity to appeal their convictions on the grounds of racial bias, complicating matters further. And even though the legislature repealed it in 2013, injunctions and reviews of Racial Justice Act cases have left the state unable to carry out lethal injections. And so, for more than a decadeand probably for years hencethose on death row have been left in limbo. Ken Fine
This article appeared in print with the headline “Dead man waiting.”