Appeals court opens way for Mississippi to resume executions

AP News
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Posted: Jun 27, 2016 8:06 PM

JACKSON, Miss. (AP) — Mississippi could be able to resume executions early next month after an appeals court denied to rehear a case challenging a drug the state plans to use in lethal injections.

The U.S. 5th Circuit Court of Appeals on Monday denied the motion by Ricky Chase, Richard Jordan and Thomas Loden Jr. to have the entire court reconsider a February ruling by a three-judge appeals panel. Jordan and Loden have exhausted their appeals, meaning Attorney General Jim Hood could ask the state Supreme Court to set execution dates.

The lawsuit is one of a series of continuing legal skirmishes nationwide over lethal injection drugs.

Hood's office didn't immediately respond to requests for comment. Jim Craig, a lawyer for Chase and Jordan, said it would be Hood's "usual practice" to immediately seek an execution date. However, he noted that the court hadn't acted on a request for an execution date for Jordan for nearly a month when the federal suit was filed.

The judgment will be published July 5, dissolving a freeze on executions by U.S. District Judge Henry T. Wingate. The three-judge panel overruled Wingate in February, saying questions about whether Mississippi is using drugs that don't meet state legal requirements belong in state court.

"Plaintiffs face a challenge here," Circuit Judge Jennifer Walker Elrod wrote in a revised opinion released Monday. "Mississippi's sovereign immunity prevents a federal court from issuing an injunction against state officials solely to require them to adhere to state law."

Mississippi law requires a three-drug process, with an "ultra-short-acting barbiturate" followed by a paralyzing agent and a drug that stops an inmate's heart. But Mississippi and other states have increasing struggled to obtain such drugs since 2010, as manufacturers refuse to sell them for executions.

Now, Mississippi says it intends to use another sedative, midazolam, which doesn't render someone unconscious as quickly. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma's use of midazolam.

Craig said he'll seek a fresh block on executions.

"I suspect we'll be going back to Judge Wingate to ask him to consider our injunction on the other parts of the lawsuit," he said.

Midazolam leaves an inmate at risk of severe pain during execution, Craig argues, violating the Eighth Amendment to the U.S. Constitution's bar on cruel and unusual punishment.

Craig continues to question why Mississippi doesn't adopt a one-drug method of execution, as Texas, Missouri and Georgia have done. Inmates represented by Craig are pursuing legal actions against Texas, Missouri and Georgia trying to find out where those states get pentobarbital.

Since the court overruled only a preliminary injunction, Wingate could also still decide the case in favor of the prisoners. A trial is set for October.

Mississippi lawmakers earlier this year passed a law saying names of prison employees at an execution and in-state providers of lethal drugs must remain secret. The bill also makes secret the names of execution witnesses who are members of a victim's or condemned inmate's family. Lawmakers dropped a proposal to allow executions by firing squad.

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