Sunday, 4 February 2007

Legislature's job

Point of view:

Legislature's job
M. Gordon Widenhouse Jr.

Published: Feb 04, 2007 12:30 AMModified: Feb 04, 2007 02:24 AM

CHAPEL HILL - When Judge Donald W. Stephens of Wake County Superior Court stayed three upcoming executions, he taught, by example, a significant lesson in civics regarding the separation of powers among the three branches of government.

He did so by interpreting a law that had been passed by the legislature. Now the governor and the Council of State have an opportunity to follow his lead and re-enforce this lesson. They can do so by not approving an execution method that does not comply with the law.

This issue emerged before Judge Stephens when the N.C. Medical Board decided that a doctor could not participate in an execution. The board ruled that a doctor's involvement contravened the physician's oath to do no harm. The General Assembly had passed a law in 1909 stating that a physician shall be present at any execution. Thus a conflict arose between the law and the directive of the Medical Board.

Lawyers representing the men with pending executions argued that the executions could not proceed without a doctor being present, as this law required. The state's lawyers argued that the warden of Central Prison had devised a new method for administering lethal injections in which the doctor would be present but would not participate in the execution.

The judge realized that another law, also passed by the General Assembly in 1909, was pertinent. This provision authorized the warden to provide the "appliances" and qualified personnel necessary to carry out an execution in conformity with this article and approved by the governor and the Council of State. When Stephens learned that the new method for administering lethal injection had not been approved by the governor and Council of State, he said the executions could not proceed.

The judge properly fulfilled his responsibility by interpreting the law. The General Assembly had made the law that required the appliances and qualified personnel necessary to carry out an execution be approved by the governor and the Council of State. The law had not been followed. After Stephens' ruling, the matter appeared to be in the hands of the governor and the Council of State.

But the issue is not nearly as simple as it seems. Its complexity is best understood by recognizing the structure of state government. When the people of North Carolina adopted their new constitution in 1970, they reaffirmed a commitment to a government comprised of three distinct entities: the executive, the legislature and the judiciary. Each branch has its own exclusive function with respect to the law. The executive administers or enforces the law. The judiciary interprets the law. The legislature makes the law.

The Council of State is part of the executive branch and includes the governor, lieutenant governor, secretary of state, auditor, treasurer, superintendent of public instruction, attorney general, commissioner of agriculture, commissioner of labor and commissioner of insurance. Each is elected by the people. Each has a specific role in the administration of the law. However, the Council of State is not empowered to make the law or change the law.

That role is the exclusive province of the legislative branch, whose members are elected by the people. Since the General Assembly requires a physician to be present during an execution, neither the governor, the Council of State, the warden or even Judge Stephens can decree that an execution can take place without a physician being present and, presumably, available to participate as needed in the process.

Whether a physician should be present during an execution is a matter of public policy. The state's public policy is set out in its law, and those laws are made by the legislature. The legislature has decided this policy and enacted a law accordingly. Only the legislature can change this law unless it violates the federal or state constitutions.

Any debate about the legitimacy of capital punishment generally or lethal injection specifically belongs in the halls of the General Assembly, among those men and women duly elected by the people to make the laws on their behalf. If this discussion occurs, it should include serious questions beyond the role a physician plays in an execution, including the flaws in a system where innocent people are convicted, the unacceptable role race plays in deciding who lives and who dies, and the high monetary cost associated with capital punishment.

If the Council of State considers the issue of the new method of execution this week, it can and should follow Stephens' lead and teach, by example, a continuing lesson in civics. The question before the council should not the legitimacy of capital punishment, but the proper role each coordinate branch of government plays in the orderly development, administration and interpretation of the law.

I hope the Council of State will recognize its limited authority and will not overstep this boundary, just as the judge wisely and properly refused to do.

(Gordon Widenhouse is a Chapel Hill attorney and an adjunct professor at both UNC and N.C. Central schools of law. He also represents several inmates currently facing death sentences.)

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