Death Penalty in NC: conflict of laws

Mark Kleinschmidt, head of the Fair Trial Initiative, which trains young lawyers to represent capital defendants (also my Council colleague), has the go-to blog for the amazing story unfolding within the courts and the halls of state about the North Carolina death penalty. For a capsule summary, this morning's N&O tells the story up to press time. As of this morning, the Council of State was about to meet, per Judge Stephens' order, to reconsider the protocol for executions. The N.C. Medical Board had recently announced an ethics policy saying that doctors cannot assist in an execution in any way, not even by monitoring medical devices attached to the defendant's body. To the state's argument before Judge Stephens that the equipment would be monitored by nurses and EMTs, he responded that that would constitute a change in the protocol. Citing a statute that neither side had raised, he ruled that the change in protocol had not been approved by the Council of State, as was required. (The monitoring equipment was required in response to a federal court opinion demanding more certainty in the administration of lethal drugs.) Effectively this opinion put all executions on hold, making North Carolina the eleventh state to halt lethal injections.

What did the Council of State do this morning? They affirmed a problematic protocol requiring a doctor's participation, in effect returning the issue to the courts. Mark has more:

During this morning's Council of State meeting, NC's state-wide elected officials approved on what appeared to be a 6-3 vote, a protocol for executions that requires the participation of a doctor. The Council's decision, in the words of Sec. of State Elaine Marshall just "shoves this back to the Medical Society." Two weeks ago, the NC Medical Board voted unanimously to declare it a violation of professional ethics to participate in executions.

Counsel for the Council and the Attorney General promise to take this decision back to Wake Co. Superior Ct. Judge Stephens and to work with the Medical Board.

Voting against the protocol were School Superintendent June Atkinson, Sec. of State Elaine Marshall and Insurance Commissioner Jim Long. A motion was unanimously approved -- made by Marshall and seconded by State Treasurer Richard Moore -- to refer this matter to the General Assembly for further consideration.

Marshall and Long both fought hard to kill approval. Marshall referenced the "off-label" use of the BIS monitor that was added just last year to the protocol. The BIS monitor monitors the vital signs of the death row inmate. Ostensibly to make sure the inmate is completely unconscious before the final poisons are injected. Manufacturers of the machine have protested the use of the monitor for this purpose and have made it clear in court papers that they would never have sold the machine to NC if they knew it would be used for this purpose.

Meanwhile as the N&O reports, yesterday the House Select Committee on Capital Punishment "gave up a chance to weigh in on the issue that has derailed three executions."

Nobody wants this issue.

Analogies are risky to be sure, so I wouldn't press this one farther than my intent. But in a conversation I had with Mark this morning it struck me that there are certain parallels between the death penalty and slavery. Mark pointed out that the conflict is between two arms of the state: the Council of State, which defines the protocol for executions, and the Board of Medical Examiners, whose members are appointed by the governor, which has its own standard of ethics. One is carrying out the will of the people, through the legislature, to put certain criminal defendants to death. The other is working out in concrete terms a body of ethical practices to ensure that a doctor "does no harm." These missions are bound to clash.

By the 1830s, slavery was a robust enough system to have its own body of case law. But these cases were riddled with contradictions, contradictions at the heart of which was the conflicted position of the slave body itself: is it a piece of property, or does the enslaved person have human rights that must be recognized in court? If the slave does have certain rights, how are those rights to be adjudicated differently from the rights of the free?

Just within the line of North Carolina cases involving quarrels between a white man and a slave, the results are all over the map. A white man may be guilty of a crime of battery against a slave that belongs to somebody else. (State v. Hale, 1823.) But a master may with impunity commit assault and battery upon his own slave, or even one he has leased, as a form of correction; his powers are "absolute," wrote Judge Thomas Ruffin. (State v. Mann, 1829.) But then, if a slave lashes out violently against a master in self-defense, held Judge William Gaston, the crime may be mitigated from murder to "felonious homicide," just as it would in the case of two white actors; the logic of Mann was "never intended to cover the entire relation between master and slave." (State v. Will, 1834.) And even though a master has virtually unlimited powers of physical "correction," he may be guilty of murder if he goes too far, Ruffin held. (State v. Hoover, 1839.) Further, the court will look sympathetically even upon a slave, reducing murder to manslaughter, if he kills a white man in a fit of passion brought on by that man's attack upon another slave, held Gaston, over Ruffin's vigorous dissent. (State v. Caesar, 1849.)

These difficult cases--even, at one level, the quarrel they represent between two judges who were great friends, Ruffin and Gaston--are, in James Oakes' analysis in Slavery and Freedom, "emblematic demonstrations of the problem of slave resistance in a liberal society." Placed, as they were from time to time, in the position of criminal defendants or victims, slaves forced the courts to address them as human beings. Indeed, as Oakes argues, although in one way the slavery opinions rallied the master class to solidify its defense of the institution, in another way the very slipperiness of the slave's legal position underscored the moral conundrum. Contradictory in outcome, the cases if anything tended to extend the rights of slaves as criminal defendants--intimations of liberty. Slavery was in some danger of breaking down under force of law, even before the war started.

When we judge the moral actions of those who came before us, such as slaveholders--when it seems so clear to us that what they participated in was wrong--we're sometimes led to wonder what moral failings future generations will accuse us of. It's my prediction, or at least a hope, that the death penalty will be one.

UPDATE 2/8: Richard Hart in the Independent Weekly on the "contradictions that simply can't be resolved."

UPDATE 2/9: NC nurses oppose requirement to participate in executions.

UPDATE 2/11: Today's N&O on the origin of the current, troublesome procedures for lethal injection. They were conceived by a Davidson College graduate, an Oklahoma legislator, who now regrets it. The rationale for this "three-drug cocktail," which starts with a sedative then moves to a paralytic and then a drug to stop the heart, has to do with the spectators: with us. It has to do with not wanting to watch a person die, with the shame of putting someone to death. The troublesome issue is that it's possible that the dose of sedative isn't enough for the person not to feel the paralysis or the heart drug. It is known that a person can be killed with a high dose of the sedative alone. But there's a problem. The person's body will react with physical movement. And it might take up to 30 minutes.

As Elizabeth Kuniholm, one of the lawyers for the defendants in the North Carolina case, said, "We don't want to feel like barbarians, and so we want it to look like a peaceful death.

It's about us.