North Carolina S.Ct. Hearing on Lethal Injection
"Should doctors monitor execution? High court wants clarification on law," is the title of Dan Kane's report in the News & Observer.
The debate over the word "present" has created a de facto moratorium on executions in North Carolina.
The legal battle pits the N.C. Medical Board against the Department of Correction, which wants a doctor to make sure lethal injections are properly administered. That, the department says, guards against a violation of the constitutional law against cruel and unusual punishment.
But the medical board contends that lawmakers, in requiring a doctor's presence, only meant that the doctor should certify that an inmate was executed. Taking part in the execution by monitoring an inmate's vital signs would violate a doctor's basic mission to preserve life, the board says.
That has prevented the Department of Correction from finding doctors to monitor executions.
Several justices peppered the attorneys with questions during an hourlong hearing. Associate Justice Edward Thomas Brady quickly challenged Todd Brosius, a lawyer for the medical board, on the legislature's intent in having a doctor present.
"The physicians are trained to save people," Brosius said. "They are not trained to kill people."
"Aren't they trained to detect pain and suffering?" Brady asked.
Brady and other justices also challenged state Assistant Attorney General Joseph Finarelli, who argued that lawmakers meant for doctors to do more than attend and certify death.
"Execution stalemate frustrating court," by Mark Binker in the Greensboro News-Record.
Lawyers for the Department of Correction argue existing law allows doctors to monitor the brain activity and other vital signs of prisons. Medical Board lawyers say it merely means to be in the room, likening their presence to "a potted plant."
The board has threatened to sanction any doctor who takes part in an execution. That has made it impossible for Correction officials to carry out executions under plans approved by the state's top elected officials.
Justices seemed reluctant to choose between two groups acting with seemingly equivalent grants of authority from the General Assembly.
"Why don't we send this right over where it belongs?" asked Justice Patricia Timmons-Goodson. "What would be wrong with us construing the word 'present' very strictly, plainly, and letting the legislature take care of it?"
During the past two-year session, some legislators have indicated a willingness to break what amounts to a deadlock over capital punishment. But they are mainly Republicans, who are the minority in the House and Senate.
"It's not for lack of trying," said Rep. Laura Wiley, who added that she hoped the court's comments would help break the stalemate if their ruling doesn't.
Though death-penalty opponents have been equally unsuccessful in prodding legislators to abolish executions, the stalemate effectively serves the same purpose, although temporarily.
The court did not indicate when or how it might rule. Typically, the justices issue written opinions once a month. With executions stopped in the state, the court faces no deadline to act.
Berger said that he would refile legislation next year to break the deadlock, regardless of the court's decision. His bill, and a companion measure filed in the House last year, would have authorized doctors to take part in executions and forbade the Medical Board from taking action.
The fall election changed little in the makeup of the General Assembly, so it's likely that most top legislative leaders will return to their posts.
The Winston-Salem Journal carries AP's filing, "Top state court hears executions case - Issue is doctors' role as inmate is put to death."
But it's not clear if executions will resume once the high court rules on the role of doctors. And all sides -- attorneys for the state prison system, the state's medical-licensing board, and the court's justices -- agreed that the issue really ought to be sorted out by legislators, who have shown little inclination to get into the issue.
"This isn't the only problem they have with the death penalty," said James Coleman Jr., a law professor at Duke University.
"Somebody should have a commission to figure out what this thing ought to look like. Nobody wants to tinker with it," Coleman said.
The pause in executions stems from a 2006 challenge to the use of lethal injection, a method of execution that opponents argue is cruel and unusual. A federal judge later said that the state must monitor the condemned for signs of pain, and in an attempt to comply, North Carolina altered its procedure for putting an inmate to death.
The change expanded the role a doctor plays in an execution beyond state law, which requires only that a doctor be "present."
The state medical board responded by adopting an ethics policy that threatens to punish any doctor who takes part in an execution. Yesterday, the high court was asked to reverse a lower judge who ruled that the board had overstepped its authority.
Earlier coverage of the lethal injection issue in North Carolina is here; StandDown's lethal injection index here.
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