The state of North Carolina has said it plans to use one lethal chemical instead of three drugs to execute death row inmates, changing its protocol in a move that could slightly loosen the legal knot that's delayed carrying out capital punishment for years.
The updated rules signed two weeks ago by Department of Public Safety Secretary Frank Perry describe how workers at Central Prison of the North Carolina Correctional Institution for Women would carry out an execution.
The new rules say prison officials will inject into the condemned prisoner a short-acting barbiturate such as pentobarbital, which is frequently used to put animals to death. Previous rules directed a three-drug method- using sodium pentothal, pancuronium bromide and potassium chloride in succession - but many states with capital punishment have moved away from that approach.
The change is important because lawyers for some North Carolina prisoners argue the three-drug method constitutes cruel and unusual punishment. They cite attorneys who witnessed the bodies of executed prisoners convulsing and jerking shortly before the death. They also said any execution protocols must go through the regular rule-making process within state government. The state disagreed.
A Superior Court judge rejected those arguments, which then went to the state Court of Appeals. The appeals court granted late last week a request by attorneys for the state and some death-row prisoners to delay oral arguments set for Wednesday so they can have time to examine the new rules. The next step in the case now won't come before early December.
The new rules, first reported by the liberal-leaning group NC Policy Watch, were developed in response to a law approved by lawmakers in June and signed by Gov. Pat McCrory, Department of Public Safety spokeswoman Pam Walker said late Tuesday.
The previous law directed executions be carried out using an "ultrashort-acting barbiturate in combination with a chemical paralytic agent." The new law gave more latitude to the department secretary to determine the drug or drugs used for an execution but, lawmakers also directed the secretary to "ensure compliance with the federal and state constitutions."
The department "will comply with this law as it relates to issues about scheduling an execution," Walker wrote by email.
Backers of the new law, which also repealed the Racial Justice Act, said it would help open the door to resume executions, the last of which occurred in 2006. There are 151 people on North Carolina's death row. Several lawsuits, including those on the protocol and whether doctors could be punished by regulators for participating in an execution, have left the death penalty in abeyance.
But resolution on capital punishment could still be years away. Extended litigation is also expected by death row prisoners who sought relief under the Racial Justice Act after it was passed in 2009 but lost this method to challenge their sentence when it was repealed. The act allowed a judge to reduce a death sentence to life without parole if it's determined race was a significant factor in receiving the death penalty.
Under the previous execution rules, a condemned inmate would be rendered unconscious by sodium pentothal. The pancuronium bromide then paralyzes all voluntary muscles, including those for breathing. The inmate undergoes cardiac arrest with the potassium chloride, according to a brief filed by attorneys for prisoners.