Members of the North Carolina Court of Appeals appeared to show Tuesday that they wanted to return to a lower court a seven-year-old case over the lethal injection chemicals the state uses in executions.
A three-judge panel heard arguments on whether the state Department of Public Safety should have followed a public rule-making process when it switched its execution procedures from a three-drug chemical mixture to a single-drug injection.
The plaintiffs in the case, four death-row inmates, had originally sued over the three-drug mixture, which they said would lead in a cruel and unusual death. Then, last October, the secretary of the public safety department changed the state’s execution protocol to say lethal injections would contain only the drug pentobarbital.
In Tuesday’s hearing, judges Rick Elmore, Robert C. Hunter and Linda McGee told attorneys that if they motioned to return the case to the Superior Court of Wake County, they would likely concede the request. Assistant Attorney General Jodi Harrison replied that she did not want the case sent to the lower court, but Hunter said further findings on the new drug would be necessary before the appellate court could make a ruling.
“The details of the protocol are necessary in order to decide whether or not it’s exempt” from public review, Hunter said from the bench.
Harrison told the court that under the state’s Administrative Procedures Act, the public safety department’s rules for inmates are exempt from a public rule-making process because they’re matters that pertain strictly to prisoners. She cited a 2011 case in which the state Supreme Court ruled the department could make at-will changes to the protocol without violating the act.
“Carrying out a sentence of death is focused solely more on the inmate than anything else,” Harrison said.
Robert Orr, who is representing the inmates in the appeal, argued the Administrative Procedure Act doesn’t apply because executions impact the families of victims and of prisoners as well as the general public. He added that the case should be reviewed in a lower court because the central fact of the drug in question has changed since the original filing.
“The bottom line is that we’re talking about how the state can use the greatest power that it has, and that is to execute someone,” Orr told the court. “This is a dramatically new process that has not been evaluated by the trial court.”
