RALEIGH — North Carolina’s Court of Appeals began deliberating Tuesday whether an appointed state official alone can decide how convicted killers are executed or whether the procedure must be aired and debated by a commission that reviews agency rules.
North Carolina hasn’t carried out executions since 2006. A final decision in this case is likely many months away, and several other legal challenges working their way through courts means a quick resumption of death sentences is unlikely.
The case before the appeals court has morphed several times since it was filed in 2007 by four killers facing death sentences arguing the state’s lethal combination of three drugs was unconstitutionally cruel and unusual. The appeal comes after a trial judge sided with the state in 2012.
But then the General Assembly changed state law in June to give Gov. Pat McCrory’s appointed head of the public safety agency authority to decide on the procedures for lethal injections. State Public Safety Secretary Frank Perry issued a 20-page manual in October describing how workers at Central Prison and the North Carolina Correctional Institution for Women would carry out executions.
Last year’s changes left at least two of the judges on Tuesday’s three-judge panel suggesting the case should be sent back to a lower court where the new circumstances could be argued out. But state attorneys want the court to decide whether state law really does give prison officials the right to avoid outside review of their rules.
Unless appeals courts settle that question “every time the (death penalty) protocol is changed, we will have to ask again, ‘Is it subject to rule-making?” reviews, Assistant Attorney General Jodi Harrison said.
The new rules say condemned prisoners will be injected with a short-acting barbiturate such as pentobarbital, which is frequently used to put animals to death. Perry’s rules also would let prison authorities determine who can witness how the death penalty is carried out, what questions news reporters can ask in interviews, and other details.
That goes well beyond the state law giving prison authorities exemption from normal public reviews of rules “relating solely to persons in its custody or under its supervision,” said Robert Orr, an attorney for the inmates and a former state Supreme Court judge. If any bureaucratic process were left free of rulemaking oversight, it can’t involve executions and can’t be so broad, Orr said.
“We’re not talking about boat slips. We’re not talking about general administrative rulemaking issues. We’re talking about the state of North Carolina putting an individual to death, and this manual is expansive in scope,” Orr said. “When you look at the breadth of this execution procedure manual, it doesn’t say this manual applies only to prisoners. This manual applies to all individuals involved with carrying out a court-ordered sentence of death.”
The hearing comes less than a week after an Ohio execution using an untested two-drug combination left the condemned killer gasping and snorting for nearly a half hour before he died.