Prosecutors in Wake County are selecting a jury in a first-degree murder trial this week. It is the fifth case in North Carolina this year where a defendant could face capital punishment. But a series of lawsuits have blocked the death penalty for years in this state. And now, a little-known drug could become another obstacle.
In 2007, executions were scheduled for four death row inmates: Archie Lee Billings, James Campbell, Allen Holman and James Thomas. Each of them had been convicted of murdering someone. One confessed to the crime. Another actually asked to be executed.
And state officials wanted to carry out the sentences. Then, attorneys filed a lawsuit arguing the chemicals used in lethal injections would result in cruel and unusual punishment.
Last year, state lawmakers tried to find a way around that. Senator Thom Goolsby of New Hanover County led the effort to pass a new law.
“We wanted to make sure that there would be allowances for the department of public safety,” Goolsby says, “to find the most humane chemicals to use and not have to simply come back to the legislature time and time again for carrying out the death sentence for cold-blooded first-degree murderers.”
So Public Safety Secretary Frank Perry signed a new protocol for executions. The only thing it changed was that it called for a different drug: pentobarbital. It’s commonly used as an anesthetic. The thing is that it’s made by a company in Denmark that won’t sell it for executions.
The question, then, is: why would state officials turn to a drug that isn’t for sale?
“It'd be my estimate that they turned to it because they know it works," says David Work. He’s one of the few healthcare professionals willing to talk openly about this. He used to be director of the North Carolina Board of Pharmacy. He’s retired now.
“It's an effective drug, and it does work,” he says. “One of its effects is that it depresses breathing, and the patient, or the defendant in this case, stops breathing, and eventually all the body systems stop.”
Around the country
Other states facing similar challenges have also turned to pentobarbital. Authorities in Texas and Missouri have gotten it from small compounding pharmacies, where they make small quantities of drugs on demand. Opponents of capital punishment criticize that. They say if the drug comes from anyone other than the manufacturer, its potency and therefore likelihood of a swift death is unpredictable.
The North Carolina Department of Public Safety declined to say whether it has already gotten the drug or where it will get the drug. David Work says it’s not easy: “I think it would be somewhat difficult because the compounding pharmacies would have to be operated by a pharmacist,” Work says. “And that pharmacist knows that he or she would be at risk for their license if it was discovered that they actually did the compounding.”
To be clear, the new law passed last year says boards like the North Carolina Medical Board or the North Carolina Board of Pharmacy cannot penalize a professional for being part of the process -- at least not directly. And even though there’s no cruel-and-unusual-punishment challenge to pentobarbital, there is a challenge to how it was added to the execution protocol. David Weiss is an attorney in the case. He says there was no public input before the protocol was changed. He says there should have been.
“First, so we can make sure it’s done correctly,” Weiss says. “But also second so the public can have confidence that this very serious task that the government is undertaking is done with all of the right information and all of the right input.”
Judges in the North Carolina Court of Appeals heard arguments for and against this new protocol last month. They haven’t yet issued a ruling.
If the courts clear the way, executions could resume at Central Prison in Raleigh -- if the state can get the drug.