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Ruling backs death penalty
Inmates' lawsuit was also undercut in Senate
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Published: May 15, 2009
RALEIGH - North Carolina's procedure for lethal injections was approved through the proper channels, according to a judge's ruling released yesterday.
The ruling is the second court decision this month that upholds the death penalty in the state, and it came on the same day that state legislators, in a separate action, voted to amend state law to try to clear the way for executions to resume in North Carolina.
For nearly three years, several lawsuits have created a de facto moratorium on the death penalty in the state, but the recent developments show that both the judiciary and the legislature are trying to resolve the legal uncertainty after a long standstill.
"There's a lot of things that have been gumming up the works," said Mark Kleinschmidt, the executive director of the Fair Trial Initiative in Durham.
In his decision yesterday, Judge Donald Stephens of Wake Superior Court ruled that a court did not have to review the Council of State's decision in February 2007 to approve a new procedure for how North Carolina carries out lethal injections. Five death-row prisoners argued last October that a court review was required, and that the council should have heard from inmates before issuing its approval.
A state administrative-law judge ordered the council last year to revise the protocol, saying that the method for executing prisoners doesn't ensure that they won't feel pain. The council, made up of the governor and nine other statewide elected officials, declined.
Death-row prisoners Jerry Conner, James A. Campbell, James Edward Thomas, Marcus Robinson and Archie Lee Billings sued the council. In his five-page ruling, Stephens said that the council was authorized to draft an execution procedure, and that the prisoners did not have the right to challenge it.
"Any rights of a condemned inmate under this statute are limited to the obligation that his death be by lethal injection, in a permanent death chamber in Raleigh, and carried out pursuant to an execution protocol approved by the Governor and the Council of State," Stephens wrote.
Ken Rose, an attorney with the Center for Death Penalty Litigation, a nonprofit group working against the death penalty, said that Stephens' ruling leaves the public out of a critical process.
Rose said that the Council of State didn't allow any public input -- or public scrutiny -- as it reviewed how the N.C. Department of Correction decides "who participates in executions, and the equipment used in executions.
"I think it's of importance to the public at large. It's certainly important to the person being executed, the family, and the families of the victims," Rose said. "It should be an opportunity to look at, behind the screen of secrecy that is used by the Department of Correction, what happens during executions."
A spokeswoman for the N.C. Attorney General's Office, which represents the Council of State, said that the office had no immediate comment on the decision.
Stephens' ruling follows a May 1 decision by the N.C. Supreme Court that physicians can't be punished for participating in executions. The court said that the N.C. Medical Board overstepped its power with a threat to discipline doctors who participate in executions.
North Carolina's last execution was in August 2006, and 163 people remain on the state's death row.
The hiatus in executions stemmed from a challenge to the use of lethal injection, which opponents argue is cruel and unusual. Stephens will hold a hearing on that issue June 1.
Stephens' decision was announced after legislators tried to tackle the matter themselves yesterday through a bill known as the North Carolina Racial Justice Act. It was originally intended to give defendants new ways to challenge the imposition of the death penalty if they alleged that it was racially motivated.
But on the floor of the Senate, the Republican leader, Sen. Phil Berger, R-Rockingham, successfully inserted an amendment that would change state law so that execution procedures would no longer require the approval of the Council of State. The amendment undercuts the basis of the inmates' lawsuit.
The Senate approved the amended bill by a vote of 36-10 on its final vote, and it now moves to the House. Rep. Earline Parmon and Rep. Larry Womble, both D-Forsyth, have filed a version of the Racial Justice Act in the House.
Kleinschmidt, an attorney for one of the inmates involved in the Council of State lawsuit, said that it is "reprehensible" and "extraordinarily ironic" that a Senate bill that was intended to bring more fairness to capital punishment would be amended and used to block legal challenges over the death penalty.
The Senate bill still contains the original provisions that would allow defendants and death-row inmates to argue that the use of the death penalty was racially motivated. Those provisions are controversial in their own right because they would allow the use of statistics from prior cases to prove a trend of racial bias that would allow a judge to invalidate a death sentence.
■ James Romoser can be reached at 919-210-6794 or at jromoser@wsjournal.com.
■ The Associated Press contributed to this report.
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