Legislators, doctors await court's decision
Posted on Tue, May. 29, 2007
As North Carolina edges toward a full year with no executions, top state leaders aren't in a hurry to make changes that would reinstate the death penalty.
Five executions have been put on hold since a state judge in Wake County heard their cases earlier this year, as part of a national controversy over the role of doctors in executions.
Now, Democrats controlling the N.C. legislature say they are waiting for the court's decision before making any moves. Republican-backed legislation, which would allow doctors to participate without fear of discipline from the N.C. Medical Board, hadn't had a hearing in either the House or Senate by the time a key deadline for moving forward this year passed last week.
"We're waiting to hear what the court says," said Senate Majority Leader Tony Rand, D-Fayetteville. "We're not sure that the law we have is not right."
Republicans are questioning whether the inaction is part of a hidden agenda.
"The only conclusion that someone could draw is that the leadership wants a moratorium on the death penalty but doesn't want to vote on it," said Senate Minority Leader Phil Berger, an Eden Republican.
Gov. Mike Easley, a two-term Democrat, is backing the Democratic leadership's position.
The state judge issued a de facto moratorium in January after the medical board declared that doctors couldn't participate in executions without violating medical ethics.
The most recent execution was on Aug. 18, when Samuel Flippen was executed for a murder in Forsyth County.
Similar debates about the role of doctors in executions have taken place across the country, in states such as Georgia, Maryland and Missouri.Not all states have required a doctor to participate in executions, and some have banned doctors from doing so.
The American Medical Association opposes doctors' participation. It makes a few exceptions, such as relieving suffering as an inmate awaits execution and certifying death after someone else has declared the inmate dead.
The medical board, which regulates doctors, declared in January that participation is "a departure from the ethics of the medical profession" and that "any physician who engages in any verbal or physical activity ... may be subject to disciplinary action."
Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said doctors are now more vocal on the subject because of an increased focus on the mechanics of lethal injection.
"If it were the electric chair, I don't know that doctors would be much involved in this debate. Clearly, this is a medical procedure," Dieter said. "The drugs were used in the operating room prior to them being used in executions."
The medical board's action created a potential conflict with the execution protocol of the N.C. Department of Corrections, which reads in part: "The doctor shall monitor the essential body functions of the condemned inmate and shall notify the warden immediately upon his or her determination that the inmate shows signs of undue pain or suffering."
The Department of Corrections has filed suit against the medical board, arguing that the board is keeping prison officials from carrying out lawful punishments.
The lawsuit argues that monitoring an execution is not a medical procedure and asks a judge to bar the medical board from disciplining doctors.
Inmates have used the dispute to seek stays in their executions, and Judge Donald Stephens of Wake Superior Court began halting executions in January. Five are on hold, including those of Archie Lee Billings, for a murder in Caldwell County, and of James Adolph Campbell, for a murder in Rowan County.
There is no timetable for when the legal matters will be resolved, and more could be held up because the appeals process is moving forward for the rest of North Carolina's death row, said Keith Acree, spokesman for the Department of Corrections.
The de facto moratorium could create a political dilemma for Democrats, who control both chambers of the N.C. General Assembly.
They could line up behind Republican legislation that would strip the medical board and similar agencies of their power to discipline doctors, nurses and pharmacists who participate in executions.
That's the resolution the Department of Corrections seeks in its lawsuit, but a vote in the legislature could anger the most liberal of the Democrats' base.
Legislative leaders could wait for the courts to rule. That risks angering moderates and conservatives, who are more likely to support the death penalty.
In a statewide poll last month by the nonpartisan Elon University Poll, 58 percent of respondents said they support the death penalty for people found guilty of first-degree murder. Only 32 percent overall said they oppose it, but Democrats were split almost evenly and Republicans supported the death penalty by more than 4-to-1.
Support was weaker when respondents were asked the most appropriate punishment. Just under 50 percent volunteered the death penalty as an answer while 41 percent said life without parole.
Sen. Martin Nesbitt, D-Asheville, chairs a committee where the Republican-backed legislation is sitting. He said he hesitates to challenge the authority of the medical board when there's little apparent cost to waiting.
"Nobody's going anywhere," he said. "Everybody's locked up."
Death Row in N.C.
Year when N.C. restarted executions
Executions since then
Executions on hold
Men and women now on death row
Death-row inmates from Mecklenburg
SOURCE: N.C. Department of Corrections