Ervin cast deciding votes in precedent-setting cases that could free Raleigh mass murderer

Justice Sam "Jimmy" Ervin IV asks a question during N.C. Supreme Court oral arguments in Edenton. (Image from N.C. Supreme Court YouTube channel)
  • Ervin joined decisions that could remove more than 100 of the state’s most brutal killers from death row.
  • Ervin's vote overturned a bi-partisan state law requiring lifetime police GPS tracking of repeat sex offenders.
  • “What range of punishment is appropriate for someone who participates in the brutal execution of multiple people? ... Today this Court, in a blatant stroke of judicial activism, decides that it will legislate criminal justice policy.” - Chief Justice Paul Newby

Suppose last week’s 15-year-old Raleigh mass murderer, Austin Thompson, survives his injuries. In that case, he could someday be released back on our streets because Democrat State Supreme Court Justice Jimmy Ervin cast a deciding vote in prior, highly controversial cases that critics contend elevate the desires of convicted killers above protecting the innocent public.  

It is difficult to talk about public policy in the wake of such a tragic and sad event. However, we have to talk about this now because when the results of Ervin’s ruling become clear, he will long be off the bench. The victims, their loved ones, even Ervin himself, and I will be long gone by then. 

In two 4-3 party line rulings where Ervin cast the deciding vote, Democrats on the State Supreme Court declared that a juvenile killer must be eligible for parole after 40 years. 

Now consider that Thompson, 15, is suspected of killing five people and injuring two others in the shooting spree on October 13, 2022.  Because of Ervin’s ruling, Thompson’s age means he could be released back into society in his mid-50s.

Ervin’s Rulings

In the 2012 Miller v. Alabama case before the U.S. Supreme Court, the justices ruled that juvenile offenders could not automatically be sentenced to life without parole. However, it did not prevent the sentence from being applied in all cases.

However, in North Carolina’s State v. Conner,  Ervin and his fellow Democrat justices set a new 40-year maximum prison sentence before a juvenile offender would become eligible for parole, no matter what they did or how many people they killed.

Ervin also joined liberal Democrat Justice Anita Earls opinion when she wrote in State v. Kelliher, “What a child’s actions do not reflect, in the vast majority of cases, is that child’s permanent and fundamental depravity.”

In the second case, State v. Conner, Ervin joined Democrat state Supreme Court Justice Michael Morgan in declaring that those who committed horrible offenses under the age of 18 “must have the opportunity to seek an early release afforded by the prospect of parole after serving no more than forty years of incarceration.”

The point of the decisions is not to give the “opportunity” for parole but to see some of the most vicious killers rejoin us in civilized society with shorter and shorter prison terms. As noted by NC Policy Watch:

These recent court decisions set a precedent that attorneys can cite when petitioning to get their clients out of prison. The justices set a 40-year threshold on parole eligibility, but not a minimum.

“You’re fighting for 40 years. That’s what you’re fighting for, at a maximum. I mean, so why couldn’t you get 30? Why couldn’t you get 20?” said the state’s Juvenile Defender, Eric Zogry.

 “Now, we start getting people free,” said Dawn Blagrove, executive director of Emancipate NC, an organization funded partly by the controversial Black Lives Matter and dedicated to closing prisons and ending cash bail.

As forecast by Republican Justice Phil Berger Jr., because of Ervin’s ruling, Raleigh’s mass murderer might serve no additional time for killing five people rather than one.

“[D]oes the de facto life sentence and mandatory forty-year parole eligibility rationale apply such that they receive a ‘volume discount’?” wrote Berger.

Berger also wrote that Ervin and the other Democrat justices engaged in the worst kind of legislating from the bench by delivering a ruling that has no basis in law.

“[T]he majority darts into the legislative lane, usurping legislative authority by enacting its new law simply because they find this result ‘desirable’ for violent juveniles,” Berger wrote in dissent.

“The majority’s judicial sentencing scheme which introduces de facto life in prison and implements mandatory parole eligibility after forty years in prison is supposedly ‘mandate[d]’ by the state and Federal constitutions. But one toils to locate this fiction in the text of either document or precedent,” added Berger.

According to Justice Ervin IV, mass murders, like Austin Thompson are entitled to a “realistic, meaningful, and achievable opportunity for release to parole.”

“We conclude that any sentence or combination of sentences which, considered together, requires a juvenile offender to serve more than forty years in prison before becoming eligible for parole is a de facto sentence of life without parole within the meaning of article I, section 27 of the North Carolina Constitution because it deprives the juvenile of a genuine opportunity to demonstrate he or she has been rehabilitated and to establish a meaningful life outside of prison,” the majority concluded.

Chief Justice Paul Newby wrote for the dissenting Republican justices. 

What range of punishment is appropriate for someone who participates in the brutal execution of multiple people?” Newby asked. “What branch of government is designed to enact criminal justice policy? Today this Court, in a blatant stroke of judicial activism, decides that it will legislate criminal justice policy.

It determines the maximum sentence for a seventeen-year-old who killed multiple people is the same as if he had killed only one. It boldly declares that any harsher penalty is unconstitutionally ‘cruel.’ The majority legislates this sentence not through judicial review but by its own determination of ‘evolving societal standards and its desire to bring North Carolina in line with its view of international law and what some other states have done. In doing so, the majority casually disregards decades of our precedents and ignores the plain language of various constitutional provisions.

The majority’s holding today sets dangerous criminal policy,” Newby warned. “It devalues
human life by artificially capping sentences for offenders who commit multiple murders. Its decision feeds the growing trend of gangs using younger members to do their killings as they recognize the leniency of criminal sentencing of minors. Further, this decision removes any incentive to limit the murder of witnesses at the crime scene.

With this ruling, the Ervin veneer of a moderate Democrat blew up.

On crime, Ervin joined other court Democrats in ordering Tilmon Golphin, who brutally executed two law officers in 1997, removed from death row despite no claim of actual innocence. Ervin joined decisions that could remove over a hundred of the state’s most brutal killers from death row. One of the killers decapitated his wife. Their potential removal is not based on claims or evidence of actual evidence.

Ervin even overturned a bipartisan state law requiring lifetime police GPS tracking of repeat sex offenders. Ervin joined the Democratic majority, holding that repeat sex offenders’ privacy was more important than preventing future sex assaults.

Because of Ervin, citizens have to worry that someday criminals like the Raleigh mass murderer will lurk among us.

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