The North Carolina Department of Public Safety has adopted a new, single-drug protocol for executions , putting off tomorrow’s scheduled oral argument in the case challenging the constitutionality of the lethal injection procedures used by the state to carry out the death penalty.
Attorneys for both sides in Robinson v. Perry asked the Court of Appeals  late last week to remove the case from the argument calendar so that they could review the new protocol and determine its impact on the issues raised in the case.
The change to the protocol follows a push by state lawmakers to restart executions  and reinvigorate the death penalty in North Carolina, which has largely been dormant since the last execution in 2006.
In 2011, the General Assembly approved a repeal of the 2009 Racial Justice Act, which allowed death row inmates to seek a reduction of their sentence to life without parole upon a showing — through statistical evidence and otherwise — that race was a significant factor in the imposition of their sentences. But Gov. Beverly Perdue vetoed that change.
In 2012, the legislature gutted the Act by limiting the scope of statistical evidence upon which inmates could rely to prove their claims.
By 2013, the repeal was complete, and lawmakers hoped that the state could “restart the death penalty in North Carolina to ensure justice for the more than 100 families whose loved ones were taken brutally from them,” said Sen. Thom Goolsby, who spearheaded repeal efforts.
But ongoing litigation over the Act, declining public support for the death penalty and growing state difficulties in finding acceptable methods of execution at acceptable costs stand in the way of any viable restart.
After the repeal , Jeff Welty, an attorney and professor at the University of North Carolina School of Government, said executions would be slow to follow.
“It’s fairly clear to me that the repeal may untangle one or two of the threads to the knot that’s blocking executions, but there are plenty of other strands to that knot,” he said. “There’s no likelihood that I can see that executions are to begin any time soon.”
The same can be said for the change in protocol. It does not automatically pave the way for new executions.
The legal challenge to the state protocol
In Robinson v. Perry, four death row inmates sued DPS in 2007, alleging that the state’s execution procedures violated U.S. and state constitutions.
The inmates claimed that the three-drug cocktail used here — sodium pentothal to render the condemned inmate unconscious, pancuronium bromide to paralyze all voluntary muscles, including those that permit breathing, and potassium chloride, to induce cardiac arrest – inflicted cruel and unusual punishment, especially if the first drug failed.
Other states had moved to a single drug injection. “A less risky one-drug, anesthetic-only execution protocol has been used 37 times in six states without incident,” they said in their brief to the Court of Appeals. “This history firmly establishes the one-drug protocol’s feasibility and effectiveness. Although the superior court found the one-drug alternative was not sufficiently well-established, that is clearly no longer the case.”
The inmates also alleged that other elements of the state’s procedure were not being followed or otherwise failed to pass constitutional muster.
Incidents at previous executions demonstrated that drugs had been improperly administered; that inmates receiving the drugs suffered unexpected convulsions and other body movements; and that physicians or other appropriate medical personnel may not have been present at executions or were improperly trained to handle unforeseen developments during an execution.
In March 2012, after argument on motions but without an evidentiary hearing, Wake County Senior Resident Superior Court Judge Donald W. Stephens rejected the inmates’ claims and upheld the state’s execution protocol under state and federal constitutions.
Roadblocks to executions
Ongoing litigation is one reason for that de facto moratorium. And although lawmakers took a big step towards reviving executions when they repealed the Act this past summer, litigation coupled with growing public discontent over the death penalty continues to hold the restart in abeyance.
People here and across the country are growing leery of the death penalty as an efficient, humane and meaningful deterrent to crime, according to recent polls.
A Gallup poll  last month showed that nationwide, public support for the death penalty dropped to 60 percent, the lowest in 40 years.
And in North Carolina, a majority – many who identified themselves as conservative — said they favored ending the death penalty  in favor of life without parole if the costs entailed in executions could be redirected elsewhere – for victim restitution or other crime-fighting measures, for example.
Costs are driving that shift, for good reason. A 2009 Duke University study  found that North Carolina could save at least $11 million a year by abolishing the death penalty, and “that conservative estimate did not take into account significant prosecution and court costs,” according to the N.C. Center for Alternatives to the Death Penalty. 
Statistics and demographics too point to the eradication of a procedure that is in fact unevenly applied and often racially motivated.
A new report  from the Death Penalty Information Center shows that only 2 percent of the counties in the U.S. have been responsible for the majority of cases leading to executions since 1976.
That holds true in North Carolina, where only a handful of counties account for death penalty sentences  – demonstrating that where a defendant is tried may hold the key to whether he is ultimately sentenced to death.
According to the NCCADP:
Whether you are sentenced to death is heavily dependent on where you are tried. While the death penalty is intended to be reserved for the “worst of the worst,” it is instead applied differently in every county in North Carolina. Nineteen counties have not sentenced anyone to death in the modern era of the death penalty. Most urban counties have sentenced no more than 3 percent of murderers to death. Meanwhile, many rural counties sentence people to death at far higher rates, some as high as 15 percent.
On the flip side, states are finding it difficult to find acceptable methods of execution.
The new protocol here calls for a single dose of Pentobarbital, a drug used elsewhere across the country. One reason for the switch to one drug may be that the state simply ran out of its supply of the sodium pentothal used under the prior protocol, a fact alluded to in the inmates’ brief.
North Carolina is not alone on that front; other states are struggling for supplies as manufacturers ban the use of their drugs for death penalty purposes. As Dustin Volz writes in The Atlantic :
States are running out of the drugs they rely on to carry out death sentences as alternatives for how to secure them quickly diminish. And no one wants to innovate in the execution industry. As the medical community works to distance itself from the science of killing people, states are attempting to forge a difficult road ahead, one fraught with litigation, international tension, and uncertainty.
The road ahead
Given the obstacles, the new protocol won’t likely lead to an imminent return of executions here.
Litigation over the RJA is ongoing, with appeals of the four instances in which inmates had their sentences reduced to life without parole under the Act pending in state Supreme Court.
Other death row inmate requests for similar relief are likewise pending in trial court, with the state taking the position that the repeal of the Act is retroactive and bars any further action.
That question of retroactivity has been raised in State v. Golphin, now before the Supreme Court, with respect to the 2012 amendment to the Act. Ken Rose, an attorney with the N.C. Center for Death Penalty Litigation, suspects that the trial court judges will wait for a ruling on retroactivity from the Supreme Court before ruling on a similar question in the cases before them.
And litigation over the execution protocol is likely to continue as well, Rose said.
Attorneys for the parties in Robinson have until early December to let the court know how they plan to proceed with the pending appeal.
They’ll be evaluating the new protocol, Rose said, but issues still remain.
There’s the question of whether any execution protocol adopted is valid if the department hasn’t undergone the requisite rule-making process – an argument made with respect the prior protocol in Robinson and likewise applicable to the new protocol.
And there’s a larger constitutional separation of powers question arising out of the repeal of the Act yet to be litigated.
When repealing  the Act, Rose said, the General Assembly delegated too much authority to DPS, giving the department leeway in setting many of the details of executions , such as the manner and place of execution – which courts in other states have said rest solely within the province of the legislature.
The end result of the protocol change is further appeals and additional litigation, according to Rose.
“It’s going to do nothing to speed up executions,” he said.