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In My Opinion

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Drug shortages and the death penalty

By Fannie Flono
Associate Editor
Jack Betts
Fannie Flono writes on news, politics and life in The Carolinas. Her column appears on the Editorial pages of The Charlotte Observer.

Tuesday’s decision by the N.C. Court of Appeals to send back to the trial court a lawsuit by N.C. death row inmates thrusts the state into thicket of the nationwide execution drug protocol controversy.

If you’re unaware of the issue, it’s time to get schooled.

The death penalty is still the law in 32 U.S. states, but the number of actual executions dwindled to 39 last year – 16 of them in Texas. Some of the decrease can be traced to changing public opinion and public policy about the death penalty across the nation.

A Pew Research Center poll last month showed that while 55 percent of Americans support the death penalty for murderers, that’s a dramatic drop from the 78 percent who favored it in 1996. Just 18 percent said they strongly favor the death penalty, down from 28 percent in 2011.

The public policy shift has been big, too. New York, New Jersey, New Mexico, Illinois, Connecticut and Maryland have banned the practice in recent years, bringing the total to 18 (plus the District of Columbia). Last month, Washington state Gov. Jay Inslee joined governors in Colorado and Oregon in halting the use of the death penalty. And courts have effectively suspended its use in Georgia, Arkansas, Tennessee, Louisiana – and here in North Carolina.

In 2007, N.C. death row inmates filed a lawsuit in Wake County Superior Court challenging the state’s execution protocol, calling it punishment so cruel and unusual that it was unconstitutional.

That protocol had been a three-drug cocktail that was supposed to render the inmate unconscious first, then paralyze all muscles before inducing cardiac arrest. The inmates’ lawyers argued that could inflict cruel and unusual punishment, especially if the first drug failed or the injection was administered improperly.

Last year, N.C. lawmakers who were determined to rev up the state’s executions again passed a law empowering the state Department of Public Safety to come up with a way around those concerns. In October, just days before the appeals court was to hear arguments in the case, secretary of public safety Frank Perry signed a new lethal injection protocol – this one using a single drug: pentobarbital.

The Tar Heel state’s pursuit of pentobarbital for executions would put it squarely in the spotlight of the national death drug protocol controversy. The drug’s manufacturers, most often located in European countries that oppose the death penalty, have cut off supplies. They don’t want their drugs used in executions.

And it’s not just pentobarbital. Oklahoma was forced to seek a different drug protocol in 2011 after its supply of lethal injection drugs dried up and the drug manufacturer refused to supply more. It went to a different three-drug protocol but this week ran out of the pentobarbital that is part of it. The state couldn’t get more despite “nothing short of a Herculean effort,” Assistant Attorney General Seth Branham said. Two scheduled executions were postponed while the state ponders another combination of drugs for executions.

Texas’ current inventory of pentobarbital expires in little more than a week on April 1. But it has already obtained a new batch of drugs from a compounding pharmacy in the U.S. Death-row inmates are suing, arguing that drugs from compounding pharmacies may be impure and raise the same issues of cruel, inhumane punishment that were raised in the N.C. case. They point to the Jan. 16 execution of an Ohio man, Dennis McGuire, who appeared to gasp and choke after being administered a new lethal drug combination. In Oklahoma, just 10 days earlier, Michael Wilson’s last words after getting the state’s new three-drug protocol were: “I feel my whole body burning.”

McGuire raped and killed a pregnant newlywed. Wilson beat to death a convenience store clerk with a baseball bat. Their heinous crimes deserve severe punishment. Life in prison with no opportunity for parole is just that – even more so than death, I’d argue.

In any case, with the current situation, states are now involved in an absurdist reality play – scrapping and scrounging for drugs to kill, and often doing so in secret to avoid withering public scrutiny.

North Carolina, if it gets the court’s OK for its new drug protocol, will find itself in the fray too.

Lawmakers still have time, though, to change course. They don’t have to allow the state to be subsumed into the undercover drug business that states like Texas now are engaged in. Regardless, we, the public, should not allow the state to be secret about the process if it does resume executions. If North Carolina plans to execute its citizens, the state should be transparent about how and with what it will do so.

But let’s be clear. The system of state-sponsored killings is clearly flawed, with race, class and gender too often big factors in its application. In this state, some of those convicted of the most heinous murders do not end up on death row, and others whose crimes are arguably less heinous do.

More troubling is North Carolina’s track record of wrongful murder convictions that have been overturned only in recent years as inmates have gained access to DNA evidence.

The United States now stands with places like Somalia, Syria, Afghanistan and North Korea among the minority of countries that still permit the death penalty. Developed countries like Britain, Canada, France, Germany – 140 in all – have long ago given up this barbaric practice.

Instead of pressing on to continue the death penalty, North Carolina should be among a new group of states that will move the U.S. closer to joining its allies across the world and abolishing it. The controversy over drug protocols is another sign that it is time.

Email: fflono@charlotteobserver.com.
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