Wednesday, August 16, 2017
JACKSON, Miss. (AP) — Mississippi prison officials have obtained new supplies of execution drugs, which could allow the state to carry out lethal injections after some other drugs expired, they said in court papers.
The state provided that information Monday in an ongoing lawsuit over its execution methods. Mississippi's new execution secrecy law should block lawyers for death row inmates from finding out too much about the state's plans to administer the death penalty, the state said. Among the things the state wants is a federal judge to protect the identity of the drug supplier, as well as any clues in other documents about who that supplier might be.
Lawyers for death row inmates, though, are asking U.S. District Judge Henry T. Wingate to force the state to provide more information about Department of Corrections' drug-buying effort, saying it's necessary to pursue their lawsuit challenging Mississippi's current execution method. The court showdown will determine whether the state law can trump a federal lawsuit on the subject.
Attorney General Jim Hood told The Associated Press in June that he hopes to ask the Mississippi Supreme Court to set execution dates for Richard Jordan and Thomas Loden Jr. this year. Mississippi hasn't executed anyone since 2012, in part because of the legal challenges and the drug shortages. Both Loden and Jordan have filed fresh appeals since they lost state appeals over the use of midazolam and Jordan is also still seeking a rehearing, so it's unclear when executions can move forward
Plaintiffs say they need the information about drugs because under federal law, if they're going to challenge Mississippi's method of execution, they have to propose a "known, available alternative." Lawyer Jim Craig would prefer that the state use only pentobarbital, the drug Mississippi formerly used as the first drug in a three-drug sequence. Craig notes Texas, Georgia and Missouri are all still using pentobarbital in executions.
Mississippi now plans to use the sedative midazolam, followed by a paralyzing agent and a drug that stops an inmate's heart. The use of midazolam has been repeatedly challenged nationwide because prisoners have coughed, gasped and moved for extended periods during executions. Lawyers for Jordan and others argue prisoners feel pain as drugs are administered after midazolam, violating the U.S. Constitution's ban on cruel and unusual punishment.
In court papers, Mississippi officials said they stopped being able to buy pentobarbital in 2015, and couldn't find a pharmacy to make some using raw ingredients.
So, after a 2015 U.S. Supreme Court ruling approved Oklahoma's use of midazolam, Mississippi officials rewrote their execution procedure to use that drug. The state acquired some midazolam that year, but court papers state that it expired at the end of May. Employees of Attorney General Jim Hood and the Corrections Department then found a Mississippi pharmacy identified only as "Supplier 1" in court papers to sell new drugs to the state.
An unnamed person testifying on behalf of the pharmacy said the business agreed to supply drugs only under conditions of secrecy, citing fears that death penalty opponents would harass the pharmacy "resulting in physical and/or financial harm" and that drugmakers whose products the pharmacy is selling to Mississippi might cut off business because they don't want their drugs used in executions.
Craig wrote that the state has dragged its feet over 22 emails that the state is still refusing to give to the plaintiffs, said the state lied in responses to public records requests and said lawyers lied to Wingate when they said on May 31 that didn't know whether the state had obtained new supplies of execution drugs. The drugs had arrived in early May. Craig wants all the people involved in obtaining drugs identified by name.
"Defendants have stonewalled Plaintiffs' attempts to determine exactly who, what, when, and how MDOC has attempted to secure lethal injection drugs," Craig wrote.