Tuesday, October 11, 2011

High Court Rules in Council of State Litigation

Last Friday, the N.C. Supreme Court ruled for the state in Conner v. N.C. Council of State.

In Conner, a group of death row defendants challenged the procedure by which the execution protocol was enacted. N.C. law gives the responsibility to the Council of State--a highly political body consisting of the Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and the Commissioner of Insurance--final authority to adopt execution protocols.

The North Carolina Administrative Procedures Act (APA) generally applies to the promulgation of rules and regulations by state administrative agencies. For example, if the Department of Health Service Regulation wants to change the rules for how clinical laboratories conduct analyses, they must follow the APA. The APA basically requires that, before a rule or regulation is made, that notice is given to stakeholders, who can then provide comments, and the agencies considers those comments when making a decision. So, in the above example, the DHSR would give notice of how they were going to change the lab regulations, then patient advocacy groups, laboratories, doctors, etc. could provide their thoughts, then the DHSR would consider those comments, make appropriate changes, then issue the regulations.

In January of 2007, the Council of State placed a proposed execution protocol on it's agenda. Interested parties sent a letter to the Council asking them not to use a BIS monitor (which monitors consciousness), as it was not approved by the FDA for use in executions and might lead to unnecessary suffering. The Council of State refused to consider this and proceeded to adopt the protocols without notice and comment. 

The Supreme Court resolved this controversy (which had worked it's way through the administrative hearing and court process) by finding that the decisions of the Council of State are not subject to the APA. The court found that, while the Council of State by definition is an administrative agency, "its constitutional creation,
composition, purpose, and functions set it apart from agencies created and defined by statute."

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So, what does this mean for the Death Penalty in North Carolina? It removes one of the major barriers to the state beginning executions. This litigation was just part of a larger controversy about whether or not North Carolina's lethel injection protocol is cruel and unusual punishment. That larger issues is still working it's way through the courts. N.C.'s temporary stay on execution is still on....for now.


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