Judge: Medical Board Can't Punish Death Penalty Docs

Superior Court Judge Donald Stephens said executions don't fall under the purview of the medical board because they aren't medical procedures. He also said the General Assembly is responsible for establishing the rules regarding physician activities, and medical board policies can't trump state law.

The medical board was reviewing the decision Friday and hadn't decided whether to appeal it, attorney Thom Mansfield said. The board has 30 days to file an appeal.

The board adopted a policy in January stating that participation in executions violates a physician's code of ethics. Any physician who takes part in an execution put his or her medical license at risk, according to the policy.

The policy conflicted with state law, which requires that a physician be present at every execution to ensure that the condemned inmate's constitutional protections against cruel and unusual death are protected.

Because of the conflict, Stephens put six planned executions on hold.

The Council of State, a nine-member panel that includes Gov. Mike Easley and other statewide elected officials, revised North Carolina's execution protocol in February, enlarging the role physicians play in executions. Rather than merely being present, physicians under the revised protocol would have to monitor a condemned inmate's vital signs and alert officials if it appeared the inmate was suffering.

The state Department of Correction sued the medical board in March, demanding that the policy not be enforced. The DOC said officials couldn't find a physician in the state that would assist in executions because of the policy.

In a six-page ruling issued Friday, Stephens said the medical board doesn't have the authority under state law to prevent physicians from carrying out specific tasks set up by the General Assembly, including participating in executions.

"Although the current effort by the medical board to prohibit physician participation in executions may well be viewed as humane and noble, such a decision rests entirely with representatives elected by the citizens of this state," Stephens wrote. "As of this date, the legislature has taken no such action."

Defense attorney Hardy Lewis, who represents death-row inmate Jerry Conner, said the ruling doesn't mean executions are back on in North Carolina. Other legal issues regarding the state's use of the death penalty remain unresolved, he said.

"It's disappointing to us, but not surprising to us," Lewis said of the ruling. "The ruling comes down, and you hear the drum beat out in the public. But we have a deliberate process that takes time. Hopefully, folks will give the process space to work."

In a separate lawsuit over the death penalty, Senior Administrative Law Judge Fred Morrison Jr. said earlier this summer that the medical board had overstepped its authority in threatening to punish physicians for taking part in executions.

That suit was brought by several death-row inmates who challenged the execution protocol. Morrison ordered that the Council of State review the protocol again and accept input from inmate attorneys before adopting revised procedures.

The council is expected to discuss the protocol next month.