"Not only is midazolam not an ultra short-acting barbiturate, it is not a barbiturate
at all," say both appeals.
2 Mississippi death row inmates have filed fresh challenges to the state's lethal injection procedures with the Mississippi Supreme Court.
The move came after the 5th U.S. Circuit Court of Appeals told them a state court should determine whether Mississippi was breaking state law by using a new drug.
Richard Jordan and Gerald Loden filed their appeals Wednesday, saying the court should rule illegal Mississippi's plan to use midazolam as a sedative because it's not the kind of drug called for by state law.
Jordan, now 70, was convicted of kidnapping and killing Edwina Marta in Harrison County on Jan. 13, 1976.
Rachael Ring, a spokeswoman for Attorney General Jim Hood, said his office is reviewing the appeals.
The court actions are part of a series of continuing legal skirmishes nationwide over lethal injection drugs.
In August, U.S. District Judge Henry T. Wingate had issued a preliminary injunction blocking Mississippi from putting anyone to death. The appeals court overruled Wingate in February, but Wingate's injunction remained in place until Tuesday, when the appeals court published its ruling. Since then, Hood's office has been free to ask the state Supreme Court to set execution dates for inmates who have exhausted their other appeals. Hood hasn't yet done so.
Jordan's attorney, Jim Craig, predicted state Supreme Court justices wouldn't approve execution dates while challenges to midazolam were pending. He said Hood has been ducking the issue since 2014.
"All AG Hood has done is file motions and briefs to evade a court hearing where we can prove that the Mississippi Department of Corrections' procedure will torture prisoners in the death chamber," Craig said. "If he really thinks we can't prove our case, General Hood needs to come out from his hiding place and meet us in court."
Mississippi law requires a 3-drug process, specifying 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 increasingly struggled to obtain such drugs since 2010, as manufacturers refuse to sell them for executions.
"Not only is midazolam not an ultra short-acting barbiturate, it is not a barbiturate at all," say both appeals. Lawyers for both men argue that the Mississippi Department of Corrections can't unilaterally change a punishment that the Legislature wrote into law without usurping lawmakers' power.
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 Eighth Amendment to the U.S. Constitution's bar on cruel and unusual punishment. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma's use of midazolam.
Jordan's appeal raises an additional argument, arguing that his 40-yearlong wait between a death sentence and execution equals cruel and unusual punishment.
Jordan had agreed to serve life without parole after successfully challenging his sentence 3 times, but got the state Supreme Court to rule that Jordan could have only been sentenced to death or life with possibility of parole. A prosecutor then won a death penalty for the 4th time in a 1998 sentencing trial.
"These extraordinary circumstances make his execution excessive and disproportionate to the crime and thus in violation of both the federal and state constitutions," the appeal states.
Loden pleaded guilty in 2001 to kidnapping, raping and murdering Leesa Marie Gray in Itawamba County.
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"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde