In the latest development in a tangle of state and federal cases that have led to a de facto moratorium on North Carolina's death penalty, state lawyers argued that the Council of State, a body of statewide elected officials, should not be required to have a public hearing to consider how the state executes prisoners.
Attorneys for the Council of State asked a judge on Feb. 6 to dismiss a complaint by five death row inmates that argues the council violated state law when it approved the state's lethal injection methods without substantive discussion in February 2007.
"Petitioners can point to no evidence that [the Council of State's] members did not knowledgeably approve the Execution Protocol," the state's brief asserts.
The inmates' complaint argues that the law requires the council to provide accountability and serve as more than a "rubber stamp" when it considers the state's execution methods.
In February 2007, the warden of Central Prison and the secretary of the N.C. Department of Correction submitted to the council an execution protocol. The council considered and approved the protocol without discussing the lethal injection process in detail. It also refused to take statements from inmate lawyers, in keeping with its routine practice.
"Our view is that there is a reason the legislature assigned to the Council of State oversight over the passage of an execution protocol," says Hardy Lewis, lawyer for James Campbell, one of the death row inmates. "If we didn't need to shine some light on the process of the execution protocol, why don't we just do it the way we do everything else on DOC [without oversight]?" he asks.
The Council of State's role in approving lethal injection has been in dispute since the last execution, which took place 18 months ago, when Wake County Superior Court Judge Donald Stephens discovered in the statutes a requirement that lethal injection protocol be approved by the governor and the Council of State, which is made up of officials such as the superintendent of public instruction and the commissioner of insurance who don't usually consider criminal justice matters. The N.C. Department of Correction, which executes prisoners sentenced to death row, had never sought or received approval of its execution protocol from the Council of State, even though the law has been on the books for almost 100 years. Stephens stayed two executions and ordered corrections officials to seek the council's approval.
After that body approved the lethal injection methods, several lawyers filed a suit in the Office of Administrative Hearings on behalf of the sentenced prisoners, and in August, administrative law judge Fred Morrison ruled that the council should review the lethal injection procedure again. The council voted 8-1 to reject Morrison's recommendation, and the prisoners appealed in Wake Superior Court, where the case is now being considered.
Like other cases that have effectively stalled executions in North Carolina, this one promises to wind on for several months, lawyers say.
The Department of Corrections is also in the midst of litigation with the N.C. Medical Board, which declared that doctor participation in executions is unethical and renders physicians subject to discipline. Stephens ruled that the policy unlawfully prevents the DOC from carrying out executions, but the medical board appealed.
At the federal level, the U.S. Supreme Court heard arguments last month in a Kentucky death penalty case, Baze v. Rees, in which the plaintiff argues that Kentucky's method of lethal injection—the same method used in North Carolina—violates the cruel and unusual punishment clause of the Eight Amendment because lethal injections cause an unnecessary risk of pain and suffering. The Supreme Court case will likely delay action in the state case involving the Council of State, says Ken Rose, a lawyer with the Center for Death Penalty Litigation who represents one of the death row prisoners. "My guess is that nothing much is going to happen in that [Council of State] litigation, because in part it's dependent on the decision by the U.S. Supreme Court in terms of the constitutional standard for cruel and unusual punishment."
North Carolina's last execution was Aug. 18, 2006, when Samuel Flippen died by lethal injection. Six executions have been scheduled since then and not happened, according to DOC spokesperson Keith Acree. No executions have been scheduled this year in lieu of the court proceedings. "We're sort of spectators in this, waiting to see what's going to happen," Acree says.