Next step unclear after North Carolina leaders approve new execution protocol

RALEIGH - A reluctant panel of the state's top leaders approved a new execution procedure for North Carolina, but it wasn't clear whether Tuesday's decision would move the state any closer to resuming lethal injections.

The council was forced into the fray by Superior Court Judge Donald Stephens. Last month, he stayed three executions, citing a law written in 1909 that requires the governor and the council to approve any change in the state's execution procedure.

The Council of State - the governor, lieutenant governor and the elected heads of eight state government agencies - by voice vote approved a new “execution protocol” meant to help resolve the role a doctor must play in the execution process.

State law requires the participation of doctors, but the state medical board changed its ethics policy recently, threatening to punish doctors who take part in executions.

The council's action, while required by law, did little else to resolve the matter.

Attorney General Roy Cooper indicated that he would try to negotiate with the state medical board before returning to Stephens' court.

“At this point we are working with the Department of Correction and consulting with the medical board,” Cooper spokeswoman Noelle Talley said after the meeting, at which Cooper said little and voted in favor of the procedure.

Last month, the state said in a federal lawsuit challenging the constitutionality of lethal injection that a nurse and a medical technician - instead of a doctor - would monitor a condemned inmate's vital signs. The state said a doctor would only observe the execution and later sign a death certificate.

That change was apparently designed to satisfy both the medical board and the demands of the federal court, which had previously agreed to let an execution proceed only after the state said a physician and a registered nurse would ensure inmates don't suffer pain as they are put to death.

But the change also led to Stephens' ruling, and he stayed the executions of Marcus Reymond Robinson, James Adolph Campbell and James Edward Thomas until the council approved the new procedure.

The council appeared uneasy with the idea Tuesday, and three members voted against the policy. Several said the matter ultimately must be settled in court and by the state Legislature, and the full council formally asked the General Assembly to take up the matter.

“I don't find that we've got the jurisdiction to even get into an issue like this,” said Insurance Commissioner Jim Long, who voted against approving the protocol along with fellow Democrats Secretary of State Elaine Marshall and Superintendent of Public Instruction June Atkinson.

A day earlier, a House study committee attempting to discuss lethal injection fell into an emotional argument over whether lawmakers who wanted to await the council's action before taking up the issue were running from the fight.

“I would hope that the Council of State's directive would provide some stimulus that this is an issue that we need to study, and that they recognized they're not suited for that,” Rep. Pricey Harrison, D-Guilford, who raised the issue in committee, said Tuesday. “I hope that we'll get to it right away because I don't know how else this is going to happen.”

While the council's vote should meet the requirements of the 1909 law, the new execution procedure appears to increase the role of a doctor. Instead of tasking a nurse and medical technician with monitoring an inmate's vital signs, it requires a physician to monitor “the essential body functions of the condemned inmate” and notify the warden if the inmate shows signs of “undue pain and suffering.”

Several defense attorneys with clients on the state's death row have said that appears to conflict with the dictates of the medical board, which decided in January that a doctor's participation in capital punishment constitutes “a departure from the ethics of the medical profession.”