by Bob Geary
For nearly a century, state law has required that a physician be "present" during executions. But does present mean merely that a doctor is on hand to pronounce death, as it doubtless did in 1909 when the state centralized executions in Raleigh and started using the electric chair instead of hangings? Or does present mean, now that lethal injections have replaced the chair, that the doctor is available to take an active role?
The legal dispute over that issue, as fought out between the N.C. Medical Board and the Easley Administration's Department of Corrections -- represented by the Attorney General -- has created a de facto moratorium on capital punishment here since August, 2006. The dispute reached the N.C. Supreme Court today. Oral arguments, an hour long, can be viewed online at WRAL.com.
The Medical Board, a state-created agency with the power to govern doctors' practices and discipline them for violating medical ethics, argues that physicians cannot ethically play a role in executions and were never expected to -- or else, what role were they supposed to play in an electrocution?
The Attorney General maintains, though, that a doctor's presence was required for humane reasons, not just to sign the death certificate. And now that the law specifies executions by lethal injection in accordance with a protocol (set of procedures) developed by the warden of Central Prison and approved by the Council of State, the physician who is present must follow the protocol. It requires the physician to monitor the prisoner's condition so that, after an anethetic drug is administered followed by a paralyzing agent, he remains unconscious while the lethal drug is injected. Otherwise, the prisoner would experience excruciating pain prior to death.
Given that the Medical Board is operating under one law and the Department of Corrections another, and given that the meaning of the word present in the latter statute isn't clear, Justice Patricia Timmons-Goodson asked Deputy Attorney General Joseph Finarelli a pertinent question:
Why shouldn't the Court construe the meaning of present very strictly -- not read anything into it, not legislate from the bench -- and resist the temptation to do the legislature's job for it, she asked. Let the General Assembly decide, in other words.
"Why shouldn't we just send this right on over there where it belongs?" Timmons-Goodson wondered.