Court: NC may need to develop death penalty rules

The N.C. Court of Appeals sent a case over North Carolina's new death penalty manual back to the lower courts in order to decide a technical issue.

Posted 2:06 p.m. Mar 18, 2014 — Updated 3:00 p.m. Mar 18, 2014

Mark Binker

RALEIGH, N.C. — The North Carolina Court of Appeals has sent a case challenging the state's death penalty procedures back to Superior Court so that a judge there can decide a technical matter in the case.

North Carolina has not executed an inmate on death row since August 2006 due to a complex set of cases that challenged whether the state was constitutionally executing people, as well as due to the now-repealed Racial Justice Act, which allowed death row inmates to challenge their sentences.

This case – brought by inmates Marcus Robinson, James Edward Thomas, Archie Lee Billings and James A. Campell – involves the method by which prisoners are executed. Those prisoners had challenged what had been the state's three-drug death penalty protocol as cruel and unusual punishment.

North Carolina's Department of Public Safety changed the method the state would use to execute prisoners in late 2013. Instead of three different drugs, the state would administer a single drug under the new rules.

That change, said the court, got rid of issues of "cruel and unusual punishment" that had been argued in the case. However, the prisoners who brought the challenge argued that the new protocol had not gone through the proper rules review process.

Writing for a three-judge panel, Judge Robert C. Hunter ruled that the lower court had not taken evidence on that issue, and therefore, the Court of Appeals didn't have enough information to decide that issue.

"Because this Court may not pass on legal issues for the first time on appeal, we remand to the trial court so that it may properly determine this matter and develop an adequate record for any subsequent appellate review," Hunter wrote.

It's unclear for how much longer this case will tie the death penalty up in litigation, even though the issue seems to be fairly technical one.

"There are very legitimate issues as to whether the process has to go through the rule making process," said Robert Orr, a former state Supreme Court Justice who is working for the prisoners.

In a recent change to state law, legislators said that the Secretary of Crime Control and Public Safety could develop a new execution protocol without going through the state's formal rule making process. However, Orr pointed out that the new manual developed by the Department of Public Safety deals with a range of issues beyond how a prisoner might be executed.

As an example, Orr said, "This controls the extent of press coverage and how it is handled."

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