Section 15-188 of the North Carolina General Statutes requires the superintendent of Central Prison in Raleigh to "cause to be provided, in conformity with this Article and approved by the Governor and Council of State, the necessary appliances for the infliction of the punishment of death and qualified personnel to set up and prepare the injection, administer the preinjections, insert the IV catheter, and to perform other tasks required for this procedure in accordance with the requirements of this Article."

Pursuant to this provision in February 2007, the North Carolina Council of State approved an execution protocol ("Protocol") prepared and submitted by the Secretary of the Department of Corrections and the Warden of Central Prison.

In 2007, five death-sentenced prisoners of the State of North Carolina initiated grievance proceedings against the North Carolina Council of State in the Wake County Office of Administrative Hearings. The prisoners argued that the Council had violated their due process rights in adopting a lethal injection protocol after failing to provide them notice and an opportunity to be heard, in violation of Chapter 150B of North Carolina's Administrative Procedure Act (APA). The prisoners claimed that their attorneys had sent letters requesting specific changes in the proposed lethal injection protocol and requesting to participate in the process, but that they were either denied the right to participate or ignored completely.

The prisoners further objected to the secrecy with which the lethal injection process was carried out in North Carolina. They claimed that the Department of Corrections had historically "failed to comply with various statutory provisions," including administering only half the necessary dose of anesthetic, withholding anesthetic until after the inmate was already dead, misusing monitoring equipment, and failing to have a physician monitor the inmate's level of consciousness.

The Council filed a Motion to Dismiss, arguing that the OAH lacked jurisdiction to consider the Petition and that the death row prisoners were not "persons aggrieved" under the Administrative Procedures Act. The administrative law judge assigned to the case rejected the Council's motion to dismiss and recommended that the Council reconsider its approval of the Protocol. The Council subsequently issued a Final Decision and Order that concluded that the OAH lacked jurisdiction over the Petition and rejected the ALJ's findings.

The Council asked the Office of Administrative Hearings to dismiss the action, arguing that the prisoners had not exhausted the grievance procedures with the Department of Corrections, and the prisoners opposed the dismissal, arguing that they did not have to grieve their complaint with the Department of Corrections before bringing this complaint against the Council.

The prisoners filed a Petition for Judicial Review in Wake County Superior Court seeking to overturn the Council's Final Decision and Order. The Petition was dismissed by the Superior Court on the ground that the OAH lacked jurisdiction to review the Council's approval of the Protocol.

The prisoners filed a notice of appeal to the Court of Appeals. However, in May 2010, the Council filed a Petition for Discretionary Review Prior to a Determination by the Court of Appeals. The Supreme Court allowed the petition in October 2010.

On October 8, 2011, the NC Supreme Court (Judge Barbara Jackson) issued its opinion affirming the lower court's ruling that the APA does not apply to the Council of State's approval of the lethal injection protocol in accordance with §15-188, and that petitioners' rights pursuant to §15-188 do not include the right to present evidence to the Council and that the Council's obligations pursuant to §15-188 do not include a substantive review of the protocol before it is approved.

Denise Heberle - 06/26/2012


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