Challenge to execution protocol to be argued in Court of Appeals

The execution of an Ohio inmate last week sparked a new round of intense debate about what constitutes “cruel and unusual punishment” for prisoners sentenced to death.

In the Ohio death chamber, where a new combination of lethal drugs was tested for the first time, witnesses reported seeing Dennis B. McGuire, the inmate convicted of raping and murdering a woman in 1989, gasping for air, convulsing and clenching his fist for 25 minutes as the injection pulsed through his veins.

Though it has not been determined whether the two-drug combination was responsible for the prolonged death or whether McGuire felt pain, it has raised questions about how states execute their death row inmates.

That question is at the root of a case scheduled to go before the N.C. Court of Appeals on Tuesday.

Inmates have challenged the state’s execution protocol as “cruel and unusual punishment,” and therefore unconstitutional.

At issue is whether a Wake County judge’s ruling about the state process used to develop a 2007 execution protocol was correct.

At the time of the Wake County judge’s ruling, the prisoners’ lawsuit and other legal challenges had created a de facto moratorium on executions in the state.

There has not been an execution in North Carolina since 2006.

Late last year, shortly before a scheduled Court of Appeals hearing on the three-drug lethal injection protocol, the state secretary of public safety signed a new protocol that calls for the use of a single-drug lethal injection.

The protocol change was instituted at a time when the drugs once routinely used in executions were in short supply.

Some European-based drug manufacturers such as the Danish-based Lundbeck, a manufacturer of pentobarbital, have banned U.S. prisons from using their drugs in executions.

The state protocol change also resulted in a postponement of the Court of Appeals hearing while attorneys for the state and prisoners amended their arguments.

Some have argued that the protocol change in North Carolina was designed to sidestep the lawsuit so that executions could begin again.

But legal analysts have speculated that if the prisoners are unsuccessful with the lawsuit going before the appellate judges on Tuesday, there will be a new challenge against the single-drug protocol and the process used to adopt it.