Executions to Resume?

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Several developments this week week have brought North Carolina much closer to resuming executions. The last execution in the state took place in August 2006.  Since then, we’ve had a de facto moratorium, because of three related pieces of litigation. First, defense lawyers argued that lethal injection was a cruel and unusual method of execution. Second, defense lawyers argued that if lethal injection were constitutional at all, it could be so only if a physician were present to monitor the process. When the North Carolina Medical Board threatened to discipline any doctor who participated in an execution, the Department of Corrections filed suit against it, arguing that it was overstepping its statutory authority. Third, partly in response to the first two issues, the Department of Corrections revised its execution protocol, and defense lawyers argued that the revised protocol had not been properly approved by the Council of State.

The first issue was largely resolved by the United States Supreme Court in Baze v. Rees, 553 U.S. __ (2008), available here, which upheld Kentucky’s lethal injection protocol — a protocol similar to North Carolina’s. The second issue was largely resolved by the North Carolina Supreme Court earlier this month, when it ruled that the Medical Board could not discipline doctors for participating in executions. (I blogged briefly about that opinion here, and posted a link to the opinion itself.) That left the de facto moratorium in place principally by virtue of the litigation over the Council of State’s approval of the new protocol.

This week, two separate developments undercut that litigation. As the News and Observer reported here, the state Senate approved a bill that would make it unnecessary for the Council of State to approve execution protocols. (It would also create a new avenue for defendants to raise claims of racial discrimination, but that’s a separate topic, for a future post.) The House hasn’t considered the bill yet, but if passed, it appears likely to render the Council of State litigation moot. Totally independently, Wake County Senior Resident Superior Court Judge Don Stephens just ruled against the defense attorneys in that litigation.  The News and Observer’s story is here. The ruling appears certain to be appealed, so the litigation isn’t over, but it has moved a step closer.

I’m omitting some details, and the overall picture isn’t quite as tidy as the above summary makes it seem, but the bottom line is that the de facto moratorium of the past several years appears to be nearing an end. A substantial number of cases have finished post-conviction review during the de facto moratorium, setting the stage for a possible series of executions in quick succession — at least to the extent that anything in the death penalty world happens quickly.

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