Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade

I had the great fortune of having the Assistant Chief Counsel for Ohio Governor John Kasich come speak to my OSU Moritz College of Law Sentencing Class about the decade-long litigation in Ohio over the state's various lethal injection protocols (which, as this post explains, is now poised to kick into yet another new phase).  With that class freshly in mind, I was intrigued to see this notable new local AP story headlined "Death penalty stalls in Mississippi."  Here are excerpts:

With sprawling litigation over Mississippi’s use of execution drugs now scheduled to stretch into 2017, the state could go five years without executing a death row inmate. That would be the longest gap between executions in Mississippi in 15 years.

Mississippi has executed 21 people, all men, since the death penalty resumed. That includes a 13-year gap between the 1989 execution of Leo Edwards and the 2002 execution of Tracy Edwards.  During that time, executions stalled out over concerns about adequate legal representation for the condemned.  That’s also when Mississippi switched it execution method from the gas chamber to lethal injection.  Multiyear gaps remained even after 2002, but the state picked up the pace, executing 11 people in a 25-month span ending in 2002.  Then, just as it became routine, the death penalty sputtered out.

That halt is in some ways a tribute to lawyer Jim Craig.  He’s tying state government in knots fighting Mississippi’s plan to use a new drug to render prisoners unconscious before injecting additional drugs to paralyze them and stop their hearts.   Craig, of the MacArthur Justice Center, says the litigation isn’t aimed at overturning the death penalty in Mississippi, only at seeking a better way of executing people.  But he’s doing a good job of keeping his clients alive.

On behalf of Richard Jordan, Ricky Chase and Charles Ray Crawford, Craig argues Mississippi can’t use midazolam as a sedative because it doesn’t meet state law’s specification for an “ultra-short-acting barbiturate” Until 2012, the state used pentobarbital. But drug makers have choked off supplies of the drug for executions.

Midazolam doesn’t render someone unconscious as quickly as a barbiturate. Craig argues midazolam leaves an inmate at risk of severe pain during execution, violating the U.S. Constitution’s prohibition on cruel and unusual punishment. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma’s use of midazolam, but Craig’s lawsuit is based in part on his claims about Mississippi state law. He’s also trying to reopen other issues surrounding midazolam.

One part of Craig’s legal offensive is a federal challenge to the drug’s use. U.S. District Judge Henry T. Wingate had issued a preliminary injunction freezing executions, but executions didn’t resume when appeals judges lifted the freeze in July. Last month, Craig and lawyers for Attorney General Jim Hood extended that lawsuit into next year, setting a trial for May. Craig rates it unlikely that the state Supreme Court will green-light executions with that case unresolved. “They aren’t stayed automatically,” Craig said. “But I think the Mississippi Supreme Court will respect the federal process and thus will not set execution dates while the federal case is active.”

To aid that case, Craig is also fighting Missouri, Georgia and Texas in court, arguing they must say who’s still supplying them with pentobarbital, so he can argue Mississippi has alternatives to midazolam and could return to its old drug. Mississippi said it destroyed all its pentobarbital and can’t get more.

There are also three cases before the Mississippi Supreme Court. Crawford is challenging the state’s ability to execute him with a drug compounded from raw ingredients, how other states are likely getting pentobarbital. Meanwhile, Jordan and Gerald Loden are fighting use of midazolam based on the barbiturate requirement.

Hood says he’s working to resume executions, but acknowledges Craig’s efforts are gumming the works. “The Mississippi Supreme Court’s resolution of those pending petitions will determine when any executions will be re-set,” Hood said in a statement. “Any delay in the federal lawsuit has been the result of the Jordan plaintiffs’ strategic decisions.”