Questions about NC execution protocol sent back to Wake County trial court

ablythe@newsobserver.comMarch 22, 2014 

— Seven years have passed since North Carolina death row inmates filed a lawsuit in Wake County Superior Court challenging the state’s execution protocol as a basis for punishment so cruel and unusual that it was unconstitutional.

On Tuesday, a three-judge N.C. Court of Appeals panel sent the case back to the trial court where it started.

Much has changed since 2007, when the inmates argued that the three-drug cocktail used to execute North Carolina prisoners – a combination that was supposed to render the inmate unconscious first, then paralyze all muscles before inducing cardiac arrest – inflicted cruel and unusual punishment, especially if the first drug failed or the injection was administered improperly.

The inmates also challenged the procedures used to establish the execution protocol.

Wake County Superior Court Judge Donald Stephens rejected the inmates’ claims in 2012 and upheld North Carolina’s execution protocol as a violation neither of the North Carolina Constitution nor the Eighth Amendment of the U.S. Constitution.

But as the prisoners’ appeal worked its way up to the three-judge panel that ruled on Tuesday, the N.C. General Assembly made changes to the law governing the execution protocol process, and the state secretary of public safety adopted a new protocol.

The General Assembly rewrote the law in 2013 so the public safety secretary had the authority to determine North Carolina’s lethal injection procedure.

In October 2013, just days before the N.C. Court of Appeals was scheduled to hear arguments in the prisoners’ case, Frank Perry, the secretary of public safety, adopted a new lethal injection protocol. In a 20-page document titled “Execution Procedure Manual for Single Drug Protocol,” the secretary went to a single-drug injection from the three-drug cocktail that had become more and more controversial across the country.

In January, when the three-judge panel heard the inmates’ appeal, former Supreme Court Justice Robert Orr argued on behalf of the prisoners that the rules in the manual affected many more, too.

Executing a prisoner, Orr said, is “probably the single-most impactful act that the government can do.”

Because of that, Orr contended, the rules should be developed in a public way so the broader community understands how the procedure works and who should be present at the executions.

The appeals court judges, Robert C. Hunter, Linda M. McGee and Richard A. Elmore, unanimously agreed that weighing arguments in the case – given the 2013 law change and the adoption of a new protocol – was somewhat akin to putting the cart before the horse.

Stephens had a different protocol before him when he ruled in 2012 and had not had an opportunity to weigh the changes.

“Absent a ruling from the trial court on these matters, we are without authority to consider them in the first instance on appeal,” Hunter said in the ruling that sent the case back to the trial court.

The N.C. Attorney General’s Office, which argued that Stephens’ 2012 ruling should be upheld, could ask the N.C. Supreme Court to review the appeals court decision.

Noelle Talley, a spokeswoman for N.C. Attorney General Roy Cooper, said late Tuesday that attorneys were reviewing the ruling and had not decided what the next step would be.

Blythe: 919-836-4948; Twitter: @AnneBlythe1

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