Friday, March 02, 2007

Death Penalty in North Carolina

My readers not living in North Carolina (read: all of them) probably aren't aware of the interesting legal tussle going on over the state's rules for performing executions.

It seems that state law requires a doctor to be present at all executions. From what I gather, the law doesn't actually spell out any duties the doctor must perform, but only that one must be present. The problem is that the state medical ethics board has ruled that doctors may not ethically participate in executions, or even be present to fulfill the statutory requirement, without risking sanction by the board. In essence, the board has ruled that it is unethical for a doctor to participate in the taking of a human life.

So, there's a bit of a stalemate going on, and executions are on hold in NC until it can be resolved.

The issue was referred to the NC Council of State, a body of statewide elected officials that is chaired by the Governor, which, according to a state law that I believe dates from 1909, must approve changes to capital punishment procedures in NC. The Council of State, however, has chosen not to deal with the issue, almost certainly for political reasons, since I can't see how any solution they posed would not alienate a large segment of the electorate.

The Attorney General's office has apparently gone to court, but the courts have said that they aren't the place to resolve the issue. A period of negotiation between the Attorney General's office and the medical board followed, but that apparently has broken down, and so the Attorney General's office is saying it will "pursue legal avenues" or something to that effect, which seems to mean going back to court. Which, according to the NC Public Radio analyst is unlikely to go anywhere, since the court has already said it isn't the place for this issue.

The analyst predicted the issue would eventually end up in the state legislature. If so, the legislature will have to resolve the conflict between two laws it enacted: the law requiring doctors to be present at executions, and the law granting authority to the state medical board to determine medical rules and policy in the state.

The easy answer appears to be dropping the requirement for a doctor to be present at executions, but there's a problem with that idea. Judging by recent rulings in Federal courts in other parts of the country that halted executions by lethal injection -- the method used in NC -- on grounds that it may constitute "cruel and unusual punishment" if the prisoner isn't fully sedated during the execution, it seems necessary to have a doctor present to sedate the prisoner and ensure he or she isn't aware and feeling any pain. Dropping the requirement will thus not solve the stalemate, as it will likely lead to a Federal injunction against executions in NC.

But it also is going to be difficult for the legislature to do anything about the medical board's decision, in my opinion. For one thing, I doubt the legislature wants to be seen as trumping the decisions of medical professionals about how doctors should conduct themselves. That would likely draw a lot of criticism for interfering in something the legislature has no business interfering in. Plus, of course, doctors have a lot of money and form an important lobby, and alienating them by overruling and embarrassing the medical board is unlikely to be good for the legislators' careers.

So, really, I don't know what is going to happen. As an opponent of the death penalty, I am glad that there is a moratorium on executions for the time being. Plus, it seems to me, even if I set aside my bias against capital punishment, that the medical board has a very strong case for it being unethical for a doctor to assist in someone's death, even if it is legally sanctioned.* But I also don't see how executions don't fail the "cruel and unusual punishment" test if there isn't a doctor there to ensure the prisoner is unconscious.

So, it seems to me the only way the issue can be resolved is to somehow force the medical board to allow doctors to participate in executions. And, even if the legislature strips the medical board of its jurisdiction over this matter, I doubt the state can force doctors to participate. I'm sure there are doctors who don't feel that participating in executions is unethical, but I don't know if they will want to participate if the legislature strips their profession of some of its rights. They may close ranks against any such move. I don't know.

In any case, I do think this is an interesting dilemma that points out another incoherency of the whole idea of capital punishment in this nation. I hope that, in the end, everyone decides that it isn't worth it to have a big fight over this issue, and they just stop executing prisoners. I don't know if that will happen, but I can hope.

*Even in cases of assisted suicide, which I think should be legal. I don't just think so because I oppose the death penalty.


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