Sunday, 2 September 2007

N.C. waits in death row limbo

The state has not carried out the death penalty since August of 2006

Titan Barksdale, Staff Writer

James Edward Thomas sat behind the thick glass in Central Prison's visiting room and slowly listed the men who had been executed in recent years.
He should have been on that list.

A convicted killer, Thomas was scheduled to die by lethal injection on Feb. 2.

But days before his execution date, a Superior Court judge in Wake County gave Edwards a reprieve, saying a group of top statewide elected officials must approve the state's lethal injection process. Five other scheduled executions have also been postponed.

The legal impasse has resulted in a de facto moratorium. North Carolina's last execution, of Samuel Flippen, occurred just over a year ago, last August.

Since then, the court order has set off a chain of events in which doctors, statewide elected officials, legislators, lawyers and advocates have squared off over how executions should be carried out.

Meanwhile, the families of victims await what some now feel is overdue justice. And the men on death row bide time -- borrowed time.

Lawyers for Thomas and four of his fellow inmates sued in state court over the role of doctors in executions. They argued to Superior Court Judge Donald Stephens that only a doctor can decide whether an inmate has been sedated before the lethal injection is administered. If a doctor isn't involved in the procedure, they argued, an executed prisoner could experience pain from the other drugs that would violate the U.S. Constitution's prohibition against cruel and unusual punishment.

It's an argument that's been made with some success in other states.

De facto moratoriums on the death penalty are in effect in California, Delaware, Maryland and New Jersey, said Richard Dieter, director of the Center for Death Penalty Information.

"Some states are clearly on hold, and there are others that are in flux," Dieter said. "Over the course of this year, about 12 states had some hold on executions."

What makes North Carolina unique, though, is the active role the N.C. Medical Board has played in the debate, Dieter said. The board, which licenses and disciplines doctors, began questioning what doctors were doing in execution chambers.

"Most states are saying that doctors are needed to confirm that death has occurred, but not to insert the needle and perform other monitoring," Dieter said. "But there needs to be trained medical personnel to do that, and that's where you get into the gray area."

Death vs. pain

Like most states, North Carolina uses a three-drug combination, the first to render unconsciousness, the second to paralyze all muscles except the heart, and the third to stop the heart.

If the first drug somehow fails while the others are administered, death penalty opponents contend, the prisoner could be subject to excruciating pain that might never be detected.

In 2006, U.S. District Judge Malcolm Howard questioned the constitutionality of lethal injections in North Carolina during a hearing for Willie Brown, a former death row inmate who had challenged the protocol.

Brown's execution could not proceed unless a doctor monitored his level of consciousness while the lethal drugs were injected, Howard said. Prison officials presented a new protocol that said a doctor would monitor the consciousness of inmates using a machine. They persuaded Howard that a doctor would comply with his orders, and Brown was executed last year, followed by Flippen.

Those executions are now under additional scrutiny, because a prison doctor, who was supposed to monitor a medical device that measures consciousness, said afterward that he did not monitor the machine in Brown's execution.

Staff writer Titan Barksdale can be reached at 829-4802 or

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