Lawmakers Could Be Forced to Resolve Execution Dispute
Posted March 2, 2007
"Where things sit in the courts, unless the Legislature acts, we are going to have what the governor has referred to as a de facto moratorium for a period of probably 12 to 24 months," Senate Minority Leader Phil Berger, R-Rockingham, said Friday.
Experts differed Friday on how a dispute that involves so many parties - a state and federal court, state correction officials and prosecutors, defense attorneys and the medical board - might be resolved. Some said one of the courts might be able to find a solution, while others insisted that lawmakers will eventually have to get involved.
"Somebody has got to figure out what a procedure should be," said Richard Rosen, a law professor at the University of North Carolina at Chapel Hill School of Law. "The Legislature is the body that decides the method of capital punishment."
Months after a federal judge ruled an execution could only proceed if a doctor monitored the condemned inmate to prevent pain, the medical board in January threatened to punish physicians who take part in an execution. The state's efforts to resolve that conflict created a legal morass that led Wake County Superior Court Judge Donald Stephens to place four scheduled executions on hold.
Things could get even more confusing next week, when the state is scheduled to execute convicted killer Allen Holman. He wants to be executed and has fired his lawyers, meaning there is no one to seek a stay on his behalf - a request a court would surely grant in the current environment. Officials haven't said how that case will be addressed.
The dispute made North Carolina the 11th state where some form of challenge to lethal injection - namely, whether it violates the Constitution's ban on cruel and unusual punishment - has effectively placed executions on hold. The question of doctor participation has figured in some of those disputes.
"They're looking at it all over the country," Rosen said. "Part of what's happened is folks have realized that some of these lethal injections are not just putting people to sleep."
Since approving its new policy on executions in January, medical board officials have refused to comment about their decision. Attorneys from Attorney General Roy Cooper's office met with board staff in an effort to reach a compromise, but disclosed Thursday that the board later cut off those discussions.
Noelle Talley, a spokeswoman for Attorney General Roy Cooper, said Friday that state prosecutors anticipated taking the issue back to the Stephens' court next week.
Defense attorney Robert Zaytoun, who represents one of the death row inmates whose execution is on hold, said the state will likely try to "involve the medical board in our lawsuit," Zaytoun said. "They will not be brought willingly into a courtroom."
Berger and the House Republican leader, Rep. Paul Stam of Wake County, don't believe the medical board should even be involved. Both have filed legislation that would remove the board from the debate by protecting doctors and others involved in an execution from punishment imposed by their licensing boards.
"If the word gets out on the street that our death penalty doesn't exist, innocent people will die," Stam said.
The Senate approved a formal death penalty moratorium a few years ago, but it failed in the House. Efforts to get a moratorium approved in the House last session also failed.
"To a certain extent, the ball is in the court of the Democrats that control the Legislature," Berger said. "The longer this thing drags out, the more convinced I am that it's going to take a legislative fix to move things forward."
This year, Sen. Ellie Kinnaird, D-Orange, has filed legislation that would place executions on hold until June 1, 2009, so that lawmakers can study the state's method of execution and the role of medical professions should have in capital punishment.
Zaytoun said that's an issue lawmakers should address.
"We can't have an execution on one day where a physician may thumb his nose at the medical board and another day when he does not," he said.