In late April, the United States Supreme Court heard oral arguments in the case of Glossip v. Gross, which centers on whether Oklahoma’s lethal injection protocol is constitutional under the Eight Amendment. The case, arising out of the botched execution of Clayton Lockett in April 2014, has sparked controversy surrounding lethal injections and has arguably led to multiple governors and even former U.S. Attorney General Eric Holder calling for moratoriums on the death penalty.
If the current bill, which allows for medical professionals other than doctors to be present during executions passes, it would effectively allow the state to side step the decision of the North Carolina Medical Board.
However, in stark contrast to many states’ move away from capital punishment, in late April North Carolina lawmakers approved a bill aimed at resuming executions. House Bill 774, named the “Restoring Proper Justice Act,” passed in the House of Representatives by a vote of 84-33 and would allow executions to be conducted without a doctor present. The law currently requires a doctor to be present at all lethal injections, but the new bill would allow for any medical professional to carry out an execution, including nurses, physicians’ assistants, or even paramedics. However, even under House Bill 774, a doctor would still have to pronounce the inmate dead. There are currently 149 people on death row in Central Prison in Raleigh, North Carolina.
North Carolina has not executed an inmate since 2006, largely due to decisions of the North Carolina Medical Board. In 2007, the North Carolina Medical Board rendered an opinion that doctors who participate in lethal injections violate the code of ethics of their profession. If the current bill, which allows for medical professionals other than doctors to be present during executions passes, it would effectively allow the state to side step the decision of the North Carolina Medical Board. Lawmakers who introduced the bill say they hope it will enable executions to resume in North Carolina by eliminating the problem of finding a doctor who is willing to break the code of ethics and his oath to do no harm.
Not surprisingly, lawmakers are sharply divided on the allowance of any medical professional to carry out executions.
“We have to move about in a way that continues to allow the state to use that tool that we have to make sure those who commit a heinous crime are punished for the crime they commit,” Rep. Justin Burr, R-Stanly, said.
In contrast, some lawmakers find it crucial for a physician to be present during executions, largely due to the gruesome botched execution of Lockett last year. Lockett’s execution was botched when an intravenous line of midazolam, the first drug in the three-drug cocktail, was misplaced in Lockett’s thigh. This caused the midazolam to collect in the surrounding tissue rather than flowing into Lockett’s bloodstream. Midazolam is used to render the inmate unconscious before the injection of heart-stopping drugs and if not administered properly, the second two drugs in the three-drug cocktail cause excruciating pain and eventually suffocation. Due to the misplaced intravenous line, fifteen minutes into the execution Lockett began to attempt to sit up while gasping for air and writhing in pain. After nearly forty-five minutes Lockett died of a heart attack. He had been on death row for shooting a nineteen-year-old woman and burying her alive in 1999.
“We just saw some horrific scenes where the state was killing someone in an inhumane manner,” Rep. Larry Hall, D-Durham, said.
Officials at the Center for Death Penalty Litigation in Durham, North Carolina, which represents death row inmates, also expressed concern for House Bill 774’s elimination of the requirement that a physician be present during executions. “If N.C. were to resume executions at some point in the future, removing the requirement that a doctor be present increases the risk that we will have a botched execution,” officials at the Center for Death Penalty Litigation said.
Other opponents of the death penalty feel as if North Carolina’s effort to resume executions in the midst of many states placing a moratorium on executions, at least until the Supreme Court renders a decision in Glossip, shows that North Carolina lawmakers are acting retrogressively.
According to a News & Observer editorial:
“The death penalty is unnecessary, unjust and irreversible. Its use now is only an act of vengeance against a few prisoners who happen to be convicted in death penalty states and whose lawyers failed to negotiate the many legal options that could have spared them. Prosecutors say the death penalty is a useful tool for negotiating with suspects, but an absolute penalty cannot be both fairly applied and negotiable . . . Laws are not enforced for their own sake. They are enforced because they serve justice or the public good. When a law fails to do that, it should be repealed or struck down.”
Nonetheless, pharmaceutical companies have been increasingly reluctant to sell their drugs to executioners, as many companies believe it violates their profession’s code of ethics by participating in executions.
In addition to abolishing the requirement of a physician, House Bill 774 also aims to protect the identities of pharmaceutical companies that manufacture the lethal drugs as well as workers who administer those drugs. Pharmaceutical companies play a large role in executions by supplying the drugs necessary for lethal injections. Nonetheless, pharmaceutical companies have been increasingly reluctant to sell their drugs to executioners, as many companies believe it violates their profession’s code of ethics by participating in executions. However, this reluctance has proven somewhat dangerous, as it has led to prisons being forced to experiment with new, untested drug cocktails by compounding pharmacists. Still, the last minute addition to the bill providing protection to pharmaceutical companies was also problematic, as many are concerned that allowing these companies to have anonymity will make it more difficult to know how effective and safe the drugs being used for lethal injections are.
Republican Rep. Leo Daughtry, who sponsored House Bill 774, explained why the provision protecting pharmaceutical companies was added in at the last minute. “This language is to protect the doctor or the pharmacist from people going there and harassing them,” he said.
Since the Supreme Court reinstated the death penalty in 1976, 152 death row inmates across the United States have been exonerated due to the emergence of new evidence, seven of whom were on death row in North Carolina.
Not surprisingly, one of the biggest concerns for opponents of House Bill 774 and the death penalty is the execution of those who are wrongly convicted. “It should horrify us as a state that we might execute someone who is innocent,” North Carolina Democratic Rep. Pricey Harrison said. Since the Supreme Court reinstated the death penalty in 1976, 152 death row inmates across the United States have been exonerated due to the emergence of new evidence, seven of whom were on death row in North Carolina.
Despite the passing of House Bill 774 in the House of Representatives, executions may not be within North Carolina’s immediate future. The bill still must pass through the Senate, and North Carolina Governor Pat McCrory has yet to state whether or not he will approve the measure. According to the Center for Death Penalty Litigation, House Bill 774 alone will not restart executions in the state. Pending claims under the Racial Justice Act, despite the fact that it has now been repealed, as well as constitutional issues surrounding the execution protocol must first be dealt with before executions will be resumed.