Lethal injection has been on hold in North Carolina since January 2007. The North Carolina stay predated and outlasted the national moratorium from Baze v. Rees. But the killing machine may be gearing up again...
Attorneys for five death row inmates appeared in a Wake County courtroom yesterday as part of an ongoing lawsuit over North Carolina's lethal injection protocol.
A quick rundown of the players. The inmates are Jerry Conner, James Campbell, Archie Billings, Marcus Robinson, and James "JT" Thomas. Perhaps not the guest list for your next dinner party, but if you don't think they are at least human beings with basic human rights, you may as well stop reading now.
On the other side is the Council of State, an executive committee made up of the Lieutenant Governor, the State Treasurer, the State Auditor, the Commissioner of Labor, the Attorney General, the Secretary of State, the Commissioner of Insurance, the Superintendent of Public Instruction, and the Commissioner of Agriculture. Who, given the nature of their day jobs, know about as much about lethal injection as you'd imagine they do.
Buried deep in the laws of the State of North Carolina is one which requires the Council of State to approve any changes to the state's execution protocol. In January of 2007, Judge Donald Stephens stayed the inmates' executions because the Department of Correction had changed the lethal injection protocol without consulting the Council of State. The Council of State quickly met behind closed doors and rubber-stamped the protocol without consulting anyone other than the DOC. Which is a problem, because according to another North Carolina law, the Council was required to hold public hearings and accept comment from outside sources. Law, schmaw.
So the inmates appealed to an administrative law judge, who held a proper hearing and determined that the Council's approval of the protocol was invalid. The Council decided to ignore the judge's decision. The inmates then filed the present action in Superior Court, asking Judge Stephens to enforce the ALJ's recommendation.
Which brings us to the present day. At yesterday's hearing, Judge Stephens heard about three hours of argument and testimony. Attorneys for the inmates argued that the Council should receive evidence from both sides before making a decision, and that the protocol approved by the Council does not ensure that inmates will not endure extreme pain during their executions. The Council's attorney argued that it is "an odd duck" and "doesn't have any defined responsibilities," and is therefore not required to analyze the protocol before approving it.
Noting that a separate but related appeal is before the North Carolina Supreme Court, Judge Stephens declined to rule until NCSC has decided its case. The NCSC case was brought by the Medical Board, a body which licenses and disciplines doctors in North Carolina. The Medical Board sued the Department of Correction because its new protocol requires active doctor participation in executions, which the Board feels is a violation of medical ethics. Arguments in that case will be heard November 18th.
The last person executed in North Carolina was Samuel Flippen in 2006. If the Medical Board and inmate lawsuits fail, executions could begin again in 30 to 60 days.