Archives

A three-judge panel of the Court of Appeals sent the challenge to the state’s recently-adopted lethal injection protocol back to the trial court today for further findings as to whether that protocol must undergo the administrative rule-making and review process before becoming effective.

Secretary of Public Safety Frank Perry had adopted a new protocol without such review in October 2013, after the General Assembly empowered him to do so with amendments to the law relating to executions passed last June.

Marcus Robinson and three other death row inmates had originally sued the state in 2007, arguing that the three-drug cocktail then used for executions lead to cruel and unusual punishment and that the procedures then in place for administering that injection and completing an execution had not undergone appropriate administrative review.

Wake County Superior Court Judge Donald Stephens ruled in favor of the state on the inmates’ claims in March 2012, but while the case worked its way through appeals, the legislature changed the law on executions, enabling the Secretary alone to determine necessary procedures.

Perry then issued a twenty-page document titled “Execution Procedure Manual for Single Drug Protocol (Pentobarbital)” in October 2013 which in part replaced the three-drug cocktail with a single-drug.

After that change the inmates dropped their claims regarding the drugs used but continued to argue that the protocol followed to complete executions – including issues such as whether a physician should be present to oversee an execution — had to be approved through a rule-making process which included input from members of the public.

At arguments in the Court of Appeals in January, the state argued that it was exempt from rule-making requirements when it came to issues relating solely to inmates in the custody of DPS.

But the inmates contended that the manner of executions was hardly a matter relating only to death row inmates.

“The rules in the Execution Procedure Manual affect not only condemned inmates,” they said in court filings. “They also specifically direct the conduct of a number of other persons connected with executions, including inmates visitors, attorneys, clergy, members of the media, execution witnesses and members of the public.”

Former Supreme Court Justice Robert Orr amplified that argument on behalf of the inmates. “The execution of a citizen of this state is probably the single-most impactful act that the government can do,” he said. “The public’s ability to understand how the procedure works, to understand who is there, to understand what their role is, is part of being an informed public.”

The judges themselves expressed concern during argument over whether the issue was even properly before them, given that the protocol now being challenged was adopted after the 2012 trial court ruling under appeal.  That concern became the basis for the Court’s decision today.

Writing for the panel, Judge Robert C. Hunter said:

The order from which plaintiffs appealed contains no findings of fact or conclusions of law relating to the sole issue before us. Nor could it. These arguments could not have been considered by the trial court when it entered the 12 March 2012 order because they stem entirely from subsequent changes to section 15-188 and the execution protocol made during pendency of this appeal. Thus, in effect, we have nothing to review. Absent a ruling from the trial court on these matters, we are without authority to consider them in the first instance on appeal.

Read the full decision here.

Public News Service reports this morning on new polling that shows growing sentiments among North Carolinians to do away with the death penalty:

“North Carolina support ending the death penalty in the state, according to a poll released this week. Of the 600 people polled, 68 percent said they would rather the state replace capital punishment with a sentence of life in prison without the possibility of parole.

According to Dustin Ingalls, assistant director of Public Policy Polling, the organization that conducted the poll, public opinion appears to be shifting.

“More and more, support for death penalty is decreasing, and that sort of falls in line with opposition on other social issues,” he said.

Support for abolishing the death penalty crosses party lines, according to the poll, with even a majority of conservative respondents in favor of ending capital punishment.”

Read the rest of the story and the poll results by clicking here.

It has been more than two years since anyone was executed in North Carolina. In the last few weeks, several legislative actions and court decisions have made it seem likely that executions will resume in the near future. What is really going on?

Medical Board

On May 1st, the North Carolina Supreme Court issued its decision in a lawsuit between the North Carolina Medical Board and the NC Department of Correction. The Medical Board, an agency responsible for licensing and regulation of doctors in North Carolina, had issued a policy stating that doctors cannot ethically participate in executions. The Department of Correction claimed that it was unable to find a doctor willing to assist with lethal injection, and that it was therefore unable to execute its inmates. The DOC sued, and the NCSC ruled that because the legislature has required physician participation in executions, it is not within the power of the Medical Board to sanction doctors for doing so.

Council of State

On May 13th, Wake County judge Donald Stephens issued a decision denying and dismissing the claims brought by several death row inmates against the Council of State, a body of elected officials responsible for, among other things, approving North Carolina’s lethal injection protocol. The inmates had alleged that the Council did not follow proper administrative procedure in approving the protocol. Judge Stephens found that the inmates did not have standing to challenge the Council’s decision, and that the Council’s approval was not subject to further review by any court.

Lethal Injection

Judge Stephens also issued an order setting a hearing during the June 1 session of court for oral argument on the remaining 8th Amendment issues in the inmates’ case. Both parties are expected to brief the impact of the US Supreme Court’s decision in Baze v. Rees on the question of whether the North Carolina lethal injection protocol is cruel and unusual.

Legislature

The Senate chamber of the North Carolina General Assembly voted this week to approve the Racial Justice Act, which would allow pre-trial defendants as well as death row inmates to challenge the decision to seek or impose the death penalty in their case if it was based on impermissible racial bias. The bill passed with an amendment which prohibited the Medical Board and other health care agencies from disciplining medical professionals involved in executions, removed the requirement that the Council of State approve the execution protocol, and mandated that executions cannot occur more than once every 30 days.

What Happens Now

There will be no appeal in the Medical Board litigation, but it is possible for the inmates to appeal Judge Stephens’ decision in the Council of State matter; some of Stephens’ findings were contrary to an earlier ruling by another judge. A specific date has not yet been set for the hearing on the 8th Amendment issues related to lethal injection. Finally, the House has yet to pass the Racial Justice Act, and if it does, any discrepancies between the House and Senate versions of the bill will need to be worked out.

It is hard to say exactly if or when executions will resume in North Carolina. Injunctions are still in place preventing the State from re-setting executions dates for the six residents of death row who were scheduled to be executed before the moratorium began.

What we do know is that our system of capital punishment remains imperfect. In the years we have been without executions, three innocent men were freed from death row, having served a combined 41 years and faced death for crimes they did not commit. Many of those who will face execution when the moratorium ends were convicted in an era when the standards for performance by defense counsel and fairness from prosecutors were far below what they are today. No one should be executed until all litigation is resolved and the known flaws with North Carolina’s death penalty have been remedied.