Death penalty debate hinges on administrative procedures

Lawyers for five death row inmates contend that an administrative law judge was right to order state officials in 2007 to revamp North Carolina's protocol for executions.

"The execution protocol will subject inmates to substantial risks of excruciating pain and suffering," said David Weiss, an attorney with the Center for Death Penalty Litigation in Durham.

The Council of State has to approve changes to death penalty procedures, but Assistant Attorney General Joe Finarelli argued that the administrative law judge never had the jurisdiction to order any changes. A Superior Court judge sided with the council in the dispute.

The state Department of Correction is exempt from much of the state law governing review of administrative procedures, Finarelli said, so inmates should have sued the state in Superior Court if they don't like the death penalty protocol instead of challenging it in an administrative hearing.

"They are challenging the substance of the protocol, (which) undercuts the entire exemption the Department of Correction has," he said. "You would be allowing the inmates to come in and challenge through the back door what they cannot challenge through the front merely by saying the Council (of State's) approval of the protocol somehow changes the substance of what was provided."

The inmates' lawyers say the council signed off on changes to capital punishment protocol without hearing from advocates for condemned prisoners.

"(The) council is required to approve an execution protocol that involves certain specific things," Weiss said, such as what should be used for lethal injection and who should administer it. "What the council has done is not to approve appliances or personnel. It's simply delegated to the warden of Central Prison the responsibility to approve appliances and personnel."

If the Supreme Court agrees, the case will go back to a lower court for review.

North Carolina hasn't carried out an execution since 2006 because of legal disputes over the protocol and whether physicians could participate. Most death row inmates also have filed claims under the state Racial Justice Act to determine whether racial bias played a role in their sentencing. State officials also fear that problems with the state crime lab could undermine the verdicts in some capital cases.