Supreme Court tries to untangle death penalty debate

The Medical Board adopted a policy in January 2007 that taking part in an execution would violate a physician's code of ethics and would subject a doctor to having his or her medical license revoked.

State law requires a physician's presence at all executions, and the Medical Board's decree effectively put executions on hold in North Carolina because the Department of Correction couldn't find a physician willing to put his or her license on the line and go to a scheduled execution.

The state also faces a lawsuit from death-row inmates over the execution protocol approved by the Council of State, which also has produced a de facto moratorium on capital punishment in the state.

The last execution carried out in North Carolina occurred in August 2006. At least five scheduled executions have been put on hold since then.

A Wake County judge ruled last year that the Medical Board's policy overstepped its authority and that state law takes precedence, and the board appealed that ruling.

Justices and lawyers debated Tuesday on the proper definition of "present" as it's used in the law and tried to determine what physicians have been doing at executions for the past century.

"What does the word 'present' mean? That's really what this case turns on," said Todd Brosius, an attorney for the Medical Board. "This is a word we understand as elementary school children. When the teacher calls out your name at roll and you say, 'Present,' it means that you're there. It doesn't have any implication as to what you're doing."

Associate Justice Edward Thomas Brady challenged that reasoning, saying some dictionaries define "present" as being "actively involved."

"A physician has education, training and experience. If he's just standing there or sitting there like a potted plant, what's the purpose of that?" Brady asked. "If a condemned inmate is suffering and becomes conscious and is convulsing ... the doctor should just stand there?"

Brosius said physicians have been present at executions since 1909, when North Carolina moved all executions to Raleigh, because they could attest to each county that their death sentences were carried out.

Assistant Attorney General Joe Finarelli said the dispute arose because the Medical Board patterned its policy after a position statement of the American Medical Association against capital punishment. Also, the state had to revise its execution protocol in 2006 because a federal judge said it didn't go far enough to uphold an inmate's Eighth Amendment protections against suffering cruel and unusual punishment.

"It's difficult to understand how, other than the 'do no harm' ethic of the Hippocratic oath, that the Medical Board can state that (participating in executions) violates the ethics of the profession when they didn't enunciate the ethics of the profession until 2007," Finarelli said. "There were executions that were carried out and the physician was involved in the process well before 2007."

He argued that a physician monitors an execution to ensure the Eighth Amendment is upheld.

In the end, Associate Justice Patricia Timmons-Goodson suggested the court throw the matter back into the laps of state lawmakers to define more clearly the role of physicians in executions. Two bills introduced last year to end the death penalty stalemate never made it out of committee as lawmakers waited for the courts to rule on the issue.

"This court and other courts are always taken to task for legislating. Why shouldn't we just send this right on over (to the General Assembly) where it belongs?" Timmons-Goodson said.

A ruling is expected in a couple of months.