The state government of Mississippi appealed a federal judge’s temporary restraining order against the use of two execution drugs, which effectively brought executions to a halt.
Even if the state’s appeal fails, the death penalty in Mississippi would remain entirely intact.
On August 25, as reported by the Associated Press, U.S. District Judge Henry T. Wingate verbally ordered the state to refrain from using pentobarbital or midazolam. The state interpreted the judge’s order as a prohibition on using “any drug to execute a condemned inmate.”
The state expressed its disappointment and declared, “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.”
On April 16, the MacArthur Justice Center filed a lawsuit [PDF] against the “use of compounded drugs in executions” and the “state’s continued use of a three-drug lethal injection protocol, given the known risks associated with such a protocol and the demonstrated success of a single-drug protocol to significantly reduce these risks.”
It argues the powder the state claims to be “the raw ingredients for compounding pentobarbital” comes from what the state admits is an “unknown source” so it likely is not FDA-approved.
The Center sought a preliminary injunction [PDF] against the use of two drugs in June.
“If the first drug in Mississippi’s execution series does not sufficiently anesthetize the prisoner, the chemical paralytic agent and potassium chloride used as the second and third drugs will cause conscious suffocation and intense internal burning,” according to the motion.
“Other states have decided the risk of torture presented by this method is unacceptably high, and now execute with a single, overwhelming dose of a barbiturate. Mississippi is one of the few states clinging to the use of the three-drug series.”
In other words, while the lawsuit did not oppose the execution of either of the inmates, it requested the state not subject them to cruel and inhuman punishment by chemically torturing them as they were put to death.
As the state noted, in a lawsuit filed by Oklahoma inmates, the Supreme Court ruled in a 5-4 decision on June 29 [PDF] that there was nothing cruel and unusual about using midazolam in executions.
“Evidence suggested that a 500-milligram dose of midazolam will induce a coma, and even one of petitioners’ experts agreed that as the dose of midazolam increases, it is expected to produce a lack of response to pain,” Justice Samuel Alito wrote.
Yet, as Justice Sonia Sotomayor noted in a dissenting opinion, this evidence about midazolam was from the “implausible testimony of a single expert witness” and rested upon dubious science.
More significantly, it is worth noting Justice Stephen Breyer was joined by Justice Ruth Bader Ginsburg in asking whether the death penalty violates the U.S. Constitution. Breyer pointed to the “serious unreliability,” “arbitrariness in application,” and the “unconscionably long delays that undermine the death penalty’s penological purpose,” as reasons why the death penalty was unconstitutional.
But the constitutionality of using any execution drugs on inmates is not an issue raised by this lawsuit challenging the state’s use of execution drugs.
On top of the fact that the execution drugs may induce chemical torture, as Jim Craig, attorney for the inmates, has suggested, the state played “procedural games for over a year to keep information secret from the public and to prevent the courts from hearing the serious issues about the drugs it plans to use to kill prisoners.”
The attorney general fought to keep the name of the “state’s execution drug supplier” secret and appealed a judge’s decision that the state’s public records law requires this information be made public.
This is not abnormal. Mississippi is part of a nationwide trend to shroud execution drugs in complete secrecy.
States with the “most active death chambers,” according to AP, such as Texas, Florida, Oklahoma, and Missouri, have refused to disclose information about the source of their state’s supplies of execution drugs.
Secrecy in Mississippi is what motivated the MacArthur Justice Center to file this lawsuit. It also is what enabled the state to chemically torture Clayton Lockett as his execution was botched in 2014.
In Sotomayor’s dissenting opinion, she recounted Lockett’s botched execution, which has inspired multiple challenges to the use of execution drugs throughout the country:
Oklahoma used midazolam for the first time in its execution of Clayton Lockett. That execution did not go smoothly. Ten minutes after an intravenous (IV) line was set in Lockett’s groin area and 100 milligrams of midazolam were administered, an attending physician declared Lockett unconscious. When the paralytic and potassium chloride were administered, however, Lockett awoke. Ibid. Various witnesses reported that Lockett began to writhe against his restraints, saying, “[t]his shit is fucking with my mind,” “something is wrong,” and “[t]he drugs aren’t working.”
It definitely seems like chemical torture, but courts should not only be concerned with stopping such cruel and inhuman treatment. They should also examine the larger question of how this fits into the death penalty system itself and broaden the scope of rulings to implicate a system which flagrantly violates the Constitution.