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August 25, 2015

Despite Glossip, federal judge orders halt to Mississippi's lethal injection plans

I had thought that the Supreme Court's big Glossip Eighth Amendment ruling a couple of month ago could make it at least somewhat easier for states to get their condemned murderers to execution chambers.  But, intriguingly, only two executions have been carried out since Glossip was decided, and the United States thus remains on track in 2015 for the lowest yearly total of executions in a quarter-century.  

Moreover, as reported via this (somewhat confusing) AP article, headlined "Federal judge halts executions in Mississippi," even claims that would seem to have been resolved by Glossip are still disrupting state execution efforts in a least one state.  Here are the basic details:

A federal judge on Tuesday temporarily blocked the state of Mississippi from using two drugs in executions, shutting down the death penalty in the state for now.

U.S. District Judge Henry T. Wingate issued a temporary restraining order saying Mississippi officials cannot use pentobarbital or midazolam, two drugs used to render prisoners unconscious. Mississippi law requires a three-drug process, with the sedative followed by a paralyzing agent and a drug that stops an inmate's heart.

Jim Craig, a lawyer for two inmates, said Wingate gave the order verbally Tuesday in a phone conference with him and other lawyers. Wingate was supposed to issue a written order, but no written copy was yet available later in the day.

Grace Simmons Fisher, a spokeswoman for the Mississippi Department of Corrections, wrote in an email that the order bars the state from using any drug to execute a condemned inmate. The state quickly filed notice Tuesday saying it will ask the 5th U.S. Circuit Court of Appeal to overturn Wingate's order.

"We are extremely disappointed that the federal court has frustrated the State of Mississippi's lawful duty to enforce its criminal sentence of capital punishment," Attorney General Jim Hood said in a statement. "Just months ago the United States Supreme Court approved Oklahoma's method of lethal injection. Mississippi's method follows that of Oklahoma. We feel strongly that the district court misapplied the law."

Craig expects Wingate to issue a preliminary injunction that could freeze executions until the case is complete. Craig said Wingate told lawyers he would expedite the case.

Mississippi is one of a number of states facing legal challenges to lethal injections. Hood's office asked the state Supreme Court in July to set a Thursday execution for convicted murderer Richard Jordan, one of the plaintiffs in the suit, but the state court never acted.

Prisoners say they face risks of excruciating pain and torture during an execution, and that such pain violates the U.S. Constitution's Eighth Amendment prohibition against cruel and unusual punishment. The suit says there's no guarantee Mississippi can mix a safe and effective anesthetic to knock out prisoners, and even then, prisoners could remain conscious during execution.

As the case was proceeding, Hood's office told Wingate that Mississippi was abandoning its plans to use pentobarbital and instead would use midazolam to knock out prisoners. Mississippi officials have said they've struggled to buy pentobarbital as death penalty opponents pressured manufacturers to cut off the supply.

August 25, 2015 at 10:11 PM | Permalink


Another hack judge.

Posted by: federalist | Aug 26, 2015 12:51:45 AM

This was actually a very simple case. Mississippi's execution statute requires the use of "an ultra short-acting barbiturate or other similar drug" in the execution protocol. Midazolam is not that. It is a benzodiazepine. It is not "similar" to a barbiturate, so it cannot be used.

Posted by: John Palombi | Aug 26, 2015 9:56:51 AM

Um John, I don't see how the federal court is the arbiter of Mississippi state law on that one.

Posted by: federalist | Aug 26, 2015 10:15:28 AM

As with SSM, I think it will take some time to settle.

Also, the ruling leaves openings, like the temporary reprieve handed by the Reagan appointee here, for challenges to continue. This will rely on the facts, facts in various cases that won't lead to a win, but enough for a closer look.

I don't know the specifics of the case, but if a state requires "x" to execute someone, to deprive them of life, and uses "y," it can be a violation of due process of law. In various cases, the state courts have the duty to determine what the state law requires, but the point still holds. A written order would clarify things.

Posted by: Joe | Aug 26, 2015 12:12:17 PM

"but if a state requires "x" to execute someone, to deprive them of life, and uses "y," it can be a violation of due process of law."

Um, not if Mississippi, as the arbiter of its own laws, says that Midazolam is "similar" to a barbiturate due to its macro-effect on the human body.

Posted by: federalist | Aug 26, 2015 1:07:48 PM

Yes, to quote myself, "the state courts have the duty to determine what the state law requires," but the federal courts still have the authority to determine if this is done reasonably. The 14A is the law of the land and the mere say-so that x=y is not enough. If the drug in question is reasonably acceptable under state law, federal due process would be met.

Posted by: Joe | Aug 26, 2015 1:16:32 PM

ETA: "reasonably acceptable" applies to the "what state law" requires question. There might be some independent problem.

Posted by: Joe | Aug 26, 2015 1:18:15 PM

If state law says a horse is a unicorn, I'd argue that's arbitrary and capricious. Executing someone contrary to a state's own laws would seem to violate due process even if the state's executive branch has rubber stamped the procedure.

Posted by: Erik M | Aug 26, 2015 1:30:32 PM

Of course, the law will be bastardized because "death is different", but since adverse reliance on language of the statute isn't an issue, the DPC issue is mighty attenuated.

Mississippi has the power to conclude that Midazolam is "similar." It actually has the power to conclude that an execution is lawful even in the face of the statute (necessity).

The federal judge should butt out.

Posted by: federalist | Aug 26, 2015 1:56:48 PM

federalist says "another hack judge." Translation. "Another judge I disagree with."

Posted by: observer | Aug 27, 2015 9:43:27 AM

I disagree with the argument that they can argue that a statute (essentially) doesn't apply out of necessity when it comes to criminal justice matters. I'm reminded of the quote from A Man for All Seasons about knocking down all the laws to get to the Devil. "I'd give the Devil the benefit of law, for my own safety's sake." But, even engaging it on its own terms, it's not a necessity. He's not going anywhere. They can execute him when they get more drugs that actually fall under the statute. Or they could change the statute. Either one is fine. But what they can't do is ignore the law just to make it easier to kill someone. Asking that a state at least follow their own laws is the least we can do.

Posted by: Erik M | Aug 29, 2015 9:35:25 PM

The written order is found here:


Posted by: Joe | Aug 29, 2015 11:18:29 PM

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