Judge: Medical Board Wrong to Punish Death Penalty Docs

Raleigh, N.C. — The North Carolina Medical Board overstepped its authority in threatening to discipline any physician who participates in an execution, a judge said Thursday at the same time that he tossed the legal dispute over the state's death penalty back into the laps of state officials, ruling that the Council of State needs to review the protocol for executions..

Senior Administrative Law Judge Fred Morrison Jr. noted that the medical board was wrong to say it would punish doctors for assisting in executions and that the board's efforts shouldn't prevent the state from carrying out death sentences.

"Palliative care from a doctor to prevent unnecessary suffering, prior to a person being injected with lethal drugs which can cause excruciating pain, is not unprofessional or unethical," Morrison wrote in his ruling. "To threaten to discipline a doctor for helping in this manner is not regulating medicine for the benefit and protection of the people of North Carolina."

Morrison concluded the Council of State – comprised of the governor, lieutenant governor and eight other statewide elected officials – failed to hear arguments from those representing the condemned inmates before they approved a new "execution protocol."

"The essence of due process is the right to be heard," Morrison wrote in his decision. "It was not proper procedure to consider only documents and comments from those proposing the protocol and not hear from counsel for the condemned inmates."

Morrison ordered the council to reconsider its approval of the new protocol. A spokeswoman for North Carolina Attorney General Roy Cooper, who sits on the Council of State, said his office was reviewing the judge's decision.

Members of the medical board promise to uphold the state constitution and follow the Council of State when they take their oaths of office. Because the state allows the death penalty under certain circumstances, the medical board shouldn't try to block executions, Morrison wrote.

"It is part of North Carolina’s public policy, which is not to be stymied by a non-binding position statement," he wrote.

Medical board members are reviewing the ruling and had no comment on it, spokesman Dale Breaden said. The board stands by its policy on capital punishment, he said.

The medical board adopted the policy in January, saying that participating in an execution would violate a physician's code of ethics. Any physician who took part in an execution faced having his or her medical license suspended by the board, according to the policy.

State law requires that a doctor be present at executions to guarantee that a condemned inmate doesn't suffer, which would violate the constitutional prohibition against cruel and unusual punishment.

Superior Court Judge Donald Stephens ruled in January that the medical board's policy and the state's protocol for carrying out executions conflicted with each other, and he placed several planned executions on hold until the Council of State could resolve the matter.

The Council of State revised the execution protocol in February, calling for a more active role by doctors.

Two inmates sued the state over the new protocol, and Morrison ruled Thursday that the Council of State needs to revisit the protocol.

"The state has made a very important policy decision that we're going to execute people," said Lucy Inman, an attorney representing death row inmate James A. Campbell, who was scheduled to die in early February. "It's an important and profound policy decision, and if we want to have public confidence in our policy, we need to be sure that it's imposed fairly and properly."

The protocol shouldn't allow a prison warden to halt an execution in process and shouldn't let a warden use a single monitor to determine if an inmate is unconscious during the execution, Morrison ruled. He also said state officials need to receive input from death-row prisoners before approving a new protocol.

Easley told WRAL that he didn't think the Council of State should hear from attorneys for death-row inmates while reviewing the execution protocol. Given the backgrounds of the council members, he said the panel doesn't have the expertise to make a decision in the matter.

Easley has called the debate, which has involved the council, two state agencies, several courts and an independent regulatory panel, a "Gordian knot." He urged the state legislature to try and resolve the dispute, but lawmakers adjourned for the year earlier this month without taking any action.