NC Supreme Court Rules, Lethal Injection Battle Continues

October 10, 2011

On Friday, the North Carolina Supreme Court issued a ruling in the ongoing litigation over lethal injection in the Tarheel State.  (Opinion available here.)  To be clear, last week’s decision did not open the floodgates for executions to resume in North Carolina.  The Court simply ruled that death-sentenced inmates cannot file a lawsuit in administrative court challenging the Council of State’s decision to approve the lethal injection protocol – inmates remain free to challenge the Council’s actions in other types of courts.

North Carolina is unique in that it requires the method of execution to first be mapped out by the Warden of Central Prison and then green-lighted by the Council of State, a group of executive branch elected officials. The issue in this case arose when the Council refused to hear from representatives for the inmates before approving the lethal injection protocol.  The inmates alleged that in doing do, the Council did not follow proper procedure under the Administrative Procedure Act.

The Court’s decision here turned on whether the Council of State is subject to the APA.  The Supreme Court ruled that because of the Council’s unique position in state government, the APA cannot be applied when the Council reviews a lethal injection protocol.

Although it ruled that the condemned have no right to contribute to the Council of State’s decision-making process, the  Court specifically noted that the inmates’ other concerns about the protocol could be addressed by state and federal courts.  What remains to be decided is the core issue of whether the lethal injection protocol in North Carolina complies with laws regarding cruel and unusual punishment.

As a practical matter, even if the protocol were to be approved by the courts, actually executing someone would require a drug of which there is a worldwide shortage at the moment. (More on that here and here.)  The Court’s decision may have closed the door on administrative remedies, but it has not reopened the door to the execution chamber.

NC Supreme Court Hears Lethal Injection Arguments

March 14, 2011

The  North Carolina Supreme Court is hearing oral arguments this morning in a case involving five death row inmates and the Council of State.  This is the next step in ongoing litigation between the five inmates – Jerry Conner, James Campbell, J.T. Thomas, Marcus Robinson, and Archie Billings – and the Council of State, the group charged with approving North Carolina’s lethal injection protocol.  Briefs for the parties are here and here.  The central question before the Court today is whether the Wake County Superior Court was wrong to find that the inmates cannot challenge the Council’s decision to change the procedure by which they would be executed.

Update: Video of the argument is currently available online here.

Where the Death Penalty Stands in North Carolina

May 15, 2009

It has been more than two years since anyone was executed in North Carolina. In the last few weeks, several legislative actions and court decisions have made it seem likely that executions will resume in the near future. What is really going on?

Medical Board

On May 1st, the North Carolina Supreme Court issued its decision in a lawsuit between the North Carolina Medical Board and the NC Department of Correction. The Medical Board, an agency responsible for licensing and regulation of doctors in North Carolina, had issued a policy stating that doctors cannot ethically participate in executions. The Department of Correction claimed that it was unable to find a doctor willing to assist with lethal injection, and that it was therefore unable to execute its inmates. The DOC sued, and the NCSC ruled that because the legislature has required physician participation in executions, it is not within the power of the Medical Board to sanction doctors for doing so.

Council of State

On May 13th, Wake County judge Donald Stephens issued a decision denying and dismissing the claims brought by several death row inmates against the Council of State, a body of elected officials responsible for, among other things, approving North Carolina’s lethal injection protocol. The inmates had alleged that the Council did not follow proper administrative procedure in approving the protocol. Judge Stephens found that the inmates did not have standing to challenge the Council’s decision, and that the Council’s approval was not subject to further review by any court.

Lethal Injection

Judge Stephens also issued an order setting a hearing during the June 1 session of court for oral argument on the remaining 8th Amendment issues in the inmates’ case. Both parties are expected to brief the impact of the US Supreme Court’s decision in Baze v. Rees on the question of whether the North Carolina lethal injection protocol is cruel and unusual.


The Senate chamber of the North Carolina General Assembly voted this week to approve the Racial Justice Act, which would allow pre-trial defendants as well as death row inmates to challenge the decision to seek or impose the death penalty in their case if it was based on impermissible racial bias. The bill passed with an amendment which prohibited the Medical Board and other health care agencies from disciplining medical professionals involved in executions, removed the requirement that the Council of State approve the execution protocol, and mandated that executions cannot occur more than once every 30 days.

What Happens Now

There will be no appeal in the Medical Board litigation, but it is possible for the inmates to appeal Judge Stephens’ decision in the Council of State matter; some of Stephens’ findings were contrary to an earlier ruling by another judge.  A specific date has not yet been set for the hearing on the 8th Amendment issues related to lethal injection. Finally, the House has yet to pass the Racial Justice Act, and if it does, any discrepancies between the House and Senate versions of the bill will need to be worked out.

It is hard to say exactly if or when executions will resume in North Carolina.  Injunctions are still in place preventing the State from re-setting executions dates for the six residents of death row who were scheduled to be executed before the moratorium began.

What we do know is that our system of capital punishment remains imperfect. In the years we have been without executions, three innocent men were freed from death row, having served a combined 41 years and faced death for crimes they did not commit.  Many of those who will face execution when the moratorium ends were convicted in an era when the standards for performance by defense counsel and fairness from prosecutors were far below what they are today.  No one should be executed until all litigation is resolved and the known flaws with North Carolina’s death penalty have been remedied.

Media on Decision to Resume Executions

May 15, 2009

From the News and Observer (Raleigh):

A Wake Superior Court judge issued an order Thursday rejecting a number of death row inmates’ claims that the state’s newest execution protocol did not go through the proper channels.

The decision by Senior Resident Wake Superior Court Judge Donald Stephens removed one of the few remaining roadblocks to resuming executions in the state, though one attorney representing inmates said there will be an appeal to a higher court.

Stephens’ order found that the N.C. Council of State, a group of statewide elected officials, did not need to consider the opinions of condemned inmates or have a judicial body review its February 2007 passage of a new execution protocol. A judge for the N.C. Administrative Office of Hearings had ruled the opposite way before the matter was appealed to Stephens.

Ken Rose, an attorney with the Center for Death Penalty Litigation, a Durham-based legal group that represents death row inmates, said there should be comment and review with any matter as important as an execution.

“The entire process of execution is shrouded in secrecy,” said Ken Rose. “If it’s not scrutinized by the public through the Council of State, it will never be scrutinized.”

There has been a great deal of movement this month regarding the death penalty, which has been on hold in the state for the 163 inmates on death row because of various legal challenges.

The N.C. Supreme Court issued a 4-3 decision May 1 that found the N.C. Medical Board did not have authority to punish doctors for taking part in an execution. The new execution protocol passed by the Council of State requires a doctor to be present and to monitor an inmate’s vital signs. The medical board had argued that taking part in executions violated a doctor’s ethical duty to preserve life.

After Stephens issued his order Thursday, he also set a hearing June 1 on whether executions through lethal injections are allowed under the U.S. Constitution or if they would be considered cruel or unusual punishment. Whatever decision Stephens makes on that question will likely be appealed, as are most lower-court decisions about the death penalty.

The June hearing will likely touch on a 2008 decision from the U.S. Supreme Court that upheld lethal injection in a Kentucky case.

Executions in North Carolina are administered in a death chamber in Raleigh’s Central Prison. A lethal injection of three drugs is given to an inmate to sedate, paralyze and kill. Though a doctor must be there to monitor the condemned person’s essential life functions, the one actually administering the injection need not be a doctor: Nurses, emergency medical technicians and physician assistants could do so.

The last execution in North Carolina took place Aug. 18, 2006, when Samuel Flippin, 36, was put to death for killing his 2-year-old stepdaughter.

Executions are scheduled by the secretary for the N.C. Department of Correction once he hears that an inmate has exhausted all appeals. No executions have been scheduled since the moratorium went into effect, department spokesman Keith Acree said.

More from WRAL and the Winston-Salem Journal.

NC Judge Green Lights Executions

May 14, 2009

Judge Donald Stephens in Wake County has issued an order putting an end to the administrative law claims in the Council of State litigation.  Judge Stephens has further ordered a hearing the week of June 1st to determine whether the US Supreme Court’s ruling in Baze v. Rees closes the question of whether the lethal injection procedure in North Carolina is unconstitutional.

If Stephens rules against the inmates at that hearing, executions could resume any time.

More to follow.

A Change is Gonna Come

May 14, 2009

[With props to Sam Cooke]

NC Lawyer Weighs In

May 9, 2009

Click here to watch Durham attorney Mark Kleinschmidt speaking with News 14 Carolina about the meaning of the Medical Board ruling and the future of lethal injection in North Carolina.


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