Published on Tuesday, February 06, 2007
A reluctant panel of the state's top leaders on Tuesday approved a new execution procedure, but it wasn't clear whether their decision would move North Carolina any closer to resuming lethal injections.
The council was forced into the fray by Superior Court Judge Donald Stephens, who stayed three executions last month, citing a law written in 1909 that requires the governor and the council to approve any change in the state's execution procedure.
State correction officials had changed their "execution protocol" in an attempt to resolve an ongoing debate between the state, the courts and the North Carolina Medical Board over the role a doctor should play when an an inmate is put to death.
State law requires only that a doctor be present at an execution. But last year, a federal judge agreed to let an execution proceed only after the state said a physician and a registered nurse would ensure the condemned inmate didn't suffer pain.
Last month, the state medical board complicated the issue by threatening to punish any doctor who takes an active role in an execution.
In trying to find a compromise, state correction officials said in a federal lawsuit challenging the constitutionality of lethal injection that a nurse and a medical technician _ instead of a doctor _ would monitor a condemned inmate's vital signs. The state said a doctor would only observe the execution and later sign a death certificate.
But citing the 1909 law, Stephens said the governor and the Council of State _ the governor, lieutenant governor and the elected heads of eight state government agencies _ must approve such a change. He then stayed the executions of Marcus Reymond Robinson, James Adolph Campbell and James Edward Thomas until the council did so.
Following Tuesday's vote, Attorney General Roy Cooper indicated that he would try to negotiate with the state medical board before returning to Stephens' court.
"At this point we are working with the Department of Correction and consulting with the medical board," Cooper spokeswoman Noelle Talley said after the meeting, at which Cooper said little and voted in favor of the procedure.
The council appeared uneasy with the topic Tuesday, and three members voted against the policy. Several said the matter ultimately must be settled in court and by the state Legislature, and the full council formally asked the General Assembly to take up the matter.
"I don't find that we've got the jurisdiction to even get into an issue like this," said Insurance Commissioner Jim Long, who voted against the protocol along with fellow Democrats Secretary of State Elaine Marshall and Superintendent of Public Instruction June Atkinson.
A day earlier, a House study committee attempting to discuss lethal injection fell into an emotional argument over whether lawmakers who wanted to await the council's action before taking up the issue were running from the fight.
"I would hope that the Council of State's directive would provide some stimulus that this is an issue that we need to study, and that they recognized they're not suited for that," Rep. Pricey Harrison, D-Guilford, who raised the issue in committee, said Tuesday. "I hope that we'll get to it right away because I don't know how else this is going to happen."
The execution procedure approved by the Council of State appears to increase the role of a doctor. Instead of tasking a nurse and medical technician with monitoring an inmate's vital signs, it requires a physician to monitor "the essential body functions of the condemned inmate" and notify the warden if the inmate shows signs of "undue pain and suffering."
Several defense attorneys with clients on the state's death row have said that appears to conflict with the dictates of the medical board, which decided in January that a doctor's participation in capital punishment constitutes "a departure from the ethics of the medical profession."
"The way things have been done today are backward," said Ann Groniger, who represents Thomas. A spokeswoman for the medical board has said the organization won't comment on the new protocol until the full board reviews it.
Easley said it's unlikely the state will carry out any executions for some time.
"I think it has effectively stopped them until all this gets resolved," he said after the meeting. "Obviously, there's clearly a moratorium in place right now. How long that will last will depend on how long it takes to untangle this Gordian knot."