by John Hood

RALEIGH – Does the future of capital punishment hinge on a semantic distinction?

Since last year, North Carolina has had a moratorium on executions. The moratorium wasn’t the result of death-penalty foes prevailing in the court of representative government – the General Assembly has for years declined to approve a moratorium bill. And North Carolina’s moratorium wasn’t the result of death-penalty foes prevailing in the court of law – by proving a violation of the constitutional protection against cruel and unusual punishment, for example.

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Instead, North Carolina’s death-penalty moratorium was the de facto result of intervention by an unelected body, the N.C. Medical Board, that derives its authority to regulate the practice of medicine from the state. While state law requires that a doctor be present at each lethal injection, the board announced that it would consider any such doctor to be in violation of medical ethics and subject to discipline.

The state sued. Last month, it won in trial court. Wake Superior Court Donald Stephens ruled that the Medical Board did not have the authority to threaten disciplinary action against the doctors in question, both because state law supercedes the ruling of a licensing board and because the matter was not within the proper jurisdiction of the board in the first place.

Two words from Stephens’ decision have stoked controversy: “medical event.” The judge ruled that while doctors present at executions could well be expected to perform “medical tasks” such as alleviating “unnecessary and excessive pain” and “pronouncing death,” the execution of the criminal itself was not a “medical event.” Thus when the board ruled that a doctor cannot ethically take a life, and thus can’t comply with the law’s requirement than a physician be present, it was in error, Stephens wrote. State law does not require, nor does current practice involve, a doctor executing a criminal. That act is performed by law-enforcement personnel.

Death-penalty foes have excoriated, and sometimes ridiculed, Stephens’ decision. They are off-base. His decision is legally required. Remember, no doctor is compelled to be present at an execution. Those who choose to do so believe that it is ethical. It is not enough for other physicians to disagree with their views. To punish them, it must be proved that medical ethics and presence at an execution are impossible to reconcile. But that’s clearly not true.

Consider the analogy of a battlefield during wartime. There is nothing unethical about a doctor being present to treat the wounded and alleviate pain. Indeed, there is a long tradition of conscientious objectors serving in a medical capacity in wartime, sometimes heroically, because it was understood that they were not taking lives and thus not violating their beliefs. However, it is also true that without the presence of medical personnel, an army cannot be effective in battle. In a sense, though doctors are present to alleviate pain and suffering, including that of captured enemies, they are also part of a larger enterprise that defends their nation, even at the cost of taking lives.

An apt comparison would be between the state’s execution laws and the laws of war that forbid the targeting of innocents or the torture of captured soldiers. At an execution, the state clearly has the right to take the murderer’s life. But it does not have the right to torture him, either by imposing excessive pain or by failing to complete the execution swiftly. The presence of a doctor is a guard against those eventualities.

The analogy to a battlefield isn’t much of a leap. Those who commit first-degree murder essentially declare war against society. Unlike soldiers in battle, they deserve a presumption of innocence, adequate legal representation, and a fair trial. These are sometimes denied to criminal defendants, a legitimate concern. But once the state arrives at the point of execution, it has the same moral right to execute a dangerous criminal than it does to kill a wartime adversary. The fact that a doctor is present doesn’t make that doctor the executioner. Indeed, the protection against cruel and unusual punishment would seem to require that a doctor be present.

If the state didn’t already require physicians to be present to intervene if something goes wrong, many of the same folks cheering on the Medical Board today would likely be demanding that the state enact just such a law. And they’d be right. In this case, though, they have been banking on a flimsy technicality to achieve a policy result they could not achieve through proper democratic and legal channels.

Judge Stephens called them on it. They’re angry, but they’re wrong.

Hood is president of the John Locke Foundation and publisher of CarolinaJournal.com.