NC Appeals Court schedules arguments on death row execution protocol

ablythe@newsobserver.comDecember 5, 2013 

— North Carolina prisoners challenging the state Department of Correction's lethal injection protocol as cruel and unusual punishment have been given a chance to alter their legal argument in the wake of a policy change.

The N.C. Secretary of Public Safety changed the protocol for executing death row inmates in late October, just weeks before the state Court of Appeals was scheduled to hear legal arguments in the long-standing lawsuit.

The court agreed to delay the hearing to give both sides a chance to file supplemental briefs.

On Thursday, John H. Connell, clerk of the N.C. appeals court, entered an order that rescheduled the hearing for Jan. 21.

Prisoners sued the N.C. Department of Correction in 2007, challenging the lethal injection protocol as cruel and unusual punishment, a violation of the U.S. Constitution.

At that time, executioners injected a three-drug cocktail. But in the lawsuit, prisoners raised concerns about the possibility of improper administration of the injection, leaving someone conscious as the paralytic and heart-stopping drugs take effect.

On Oct. 24, Frank Perry, the state secretary of public safety, signed a new protocol that calls for the use of a single-drug lethal injection. On Oct. 30, attorneys for the state and prisoners asked to postpone arguments before the state Court of Appeals so they could study what impact the new procedure would have on the legal challenge.

The state has until Dec. 20 to file copies of the new protocol with the appeals court. The prisoners have until that same date to file a supplemental brief that outlines any concerns about the new protocol.

Some have argued that the protocol change is meant to sidestep the lawsuit so that executions will begin again in North Carolina.

The state has had a de facto moratorium on executions since 2006, when a series of lawsuits challenging the fairness and humanity of the state-sponsored executions were filed.

The new North Carolina protocol calls for a single dose of pentobarbital, a drug used in other states.

Legal analysts have speculated that if the lawsuit going through the North Carolina courts now fails that prisoners will file a new challenge of the single-drug protocol.

Blythe: 919-836-4948; Twitter: @AnneBlythe1

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