RALEIGH – Whatever you think of North Carolina’s use of the death penalty – I believe that it is the only just punishment for those who commit the most grievous crimes imaginable – the de facto moratorium of the past two years should have struck you as illegal and outrageous.
North Carolina did not stop executing its most depraved and dangerous murderers because the elected General Assembly of the state, in its collective wisdom, chose to outlaw capital punishment. Executions were not suspended because the people of the state chose, via constitutional amendment, to abolish them. Our death penalty wasn’t even struck down by a duly constituted state or federal court as a cruel or unusual punishment.
I would have disagreed with lawmakers, voters, or jurists in each of these cases. But at least the principles of constitutional, representative government would have been respected.
Instead, ideologues inside and outside of an appointed regulatory agency, the N.C. Medical Board, concocted a scheme to suspend executions by declaring that it was unethical for physicians to be present to, say, monitor pain or declare an inmate to be deceased. Because the General Assembly had enacted a law requiring a physician to be present for precisely those reasons – practical and humane reasons, no less – the result was that a few political appointees were able to substitute their own political preferences for those of elected officials and the general public.
I won’t let the General Assembly off the hook, however. While most members say they agree with the public about capital punishment, they did not pass legislation to overrule the Medical Board’s manipulation of the process, which the legislature could have done by, for example, removing the matter from the board’s jurisdiction. Such boards only have powers to the extent they are specifically authorized by legislation.
So when I looked at the N.C. Supreme Court’s 4-3 ruling against the Medical Board, I saw some sensible argumentation from both sides. Writing for the majority, Justice Ed Brady argued that the legislature clearly intended for physicians to be able to intervene during an execution in case a mistake led to grievous pain, for example. The laws creating the Medical Board were “not intended to give [it] the authority to prohibit doctors from performing specific statutory tasks enacted by the legislature in other statutes,” Brady wrote. An appointed regulatory agency would never have the authority to overrule an elected legislature on such an issue.
On the other hand, wrote Justice Robin Hudson in dissent, the dispute has lasted for a couple of years – plenty of time for the General Assembly to clarify its intentions with legislation. Why hasn’t it?
Good question. I don’t think, in the end, that it amounts to a sufficient argument for dismissing the lawsuit against the Medical Board’s action. But it does underline the political cowardice present in spades here.
Apparently, executions will not yet resume in North Carolina. Other legal challenges await resolution. But at least this grotesque little episode is at an end. Again, I respect those whose conscience leads them to oppose capital punishment. I don’t agree with their conclusion, but surely the issue is full of weighty and complicated moral and practical issues about which reasonable people can differ.
What I could never understand is why anyone thought it was proper for the Medical Board to trump legislative intent and substitute its judgment for that of willing physicians and the public at large. If you want to ban capital punishment, follow the law and the constitution. Don’t play games.
Hood is president of the John Locke Foundation