U.S. | Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object

The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.” Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one. Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

Mississippi justices reject challenges over execution drug

Mississippi's state Supreme Court on Thursday denied appeals from 2 death row inmates over Mississippi's plans to execute them using a sedative called midazolam.

In a pair of 7-2 rulings Thursday, justices found that Thomas Edwin Loden Jr. and Richard Gerald Jordan hadn't presented enough scientific evidence about the drug to justify a hearing on whether inmates executed using it would feel pain. A state law calls for an inmate to be unconscious when executed, and the inmates say the drug isn't powerful enough to guarantee unconsciousness.

However, a federal court challenge involving both Loden and Jordan continues, making it unlikely either will be executed soon. Mississippi hasn't executed anyone since 2012, amid efforts by death penalty opponents to cut off supplies of execution drugs and legal challenges to new procedures to get around the resulting shortages of older drugs.

The use of midazolam has been repeatedly challenged nationwide because prisoners have coughed, gasped and moved for extended periods during executions. Mississippi plans to follow the sedative with a second drug to paralyze an inmate and third drug to stop an inmate's heart.

Jordan has served 41 years on death row for kidnapping and killing Edwina Marta in Harrison County in 1976. Loden pleaded guilty in 2001 to kidnapping, raping and murdering Leesa Marie Gray in Itawamba County.

The separate cases were parallel, with prisoners and the state relying on sworn statements from the same experts and judges giving similar reasons for their rulings.

Presiding Justice Michael Randolph wrote for the majority in Loden's case, describing a sworn statement from Oklahoma State University pharmacology professor Craig W. Stevens questioning midazolam as offering so little scientific proof that it was a "sham." Under Mississippi law, that means justices could rule in favor of the state's arguments without ordering a lower-court judge to conduct a hearing weighing from Stevens and the state's expert.

"Loden has not carried his burden of proof in presenting a substantial showing of the denial of a state or federal right," Randolph wrote.

Randolph also said the U.S. Supreme Court's 2015 rejection of a challenge to midazolam in an Oklahoma case "dictates the outcome in this case," saying Stevens "failed to present any new argument that was not already considered and rejected by the United States Supreme Court."

Chief Justice William Waller Jr. used similar reasoning but more reserved language in Jordan's case, writing that midazolam is "likely to render the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain."

"Jordan has failed to provide credible evidence to support the contention that midazolam does not meet the statutory requirements," Waller wrote.

In both cases, justices Leslie King and James Kitchens dissented, arguing Stevens presented enough proof on behalf of the inmates to justify a further hearing.

"The majority's conclusion, which is essentially that any scientist who disagrees with the majority's unscientific opinion on midazolam is a sham, is simply not supported," King wrote of Loden's case.

Both said Mississippi's court needs to consider separately whether midazolam meets Mississippi's state law requirement that a prisoner be unconscious. They noted that the U.S. Supreme Court ruling in the Oklahoma case turned on the separate legal issue of whether the use of midazolam violated the U.S. Constitution's Eighth Amendment prohibition of cruel and unusual punishment.

Jordan and Loden are among plaintiffs in a separate federal court challenge to Mississippi's use of midazolam. That case has been stayed pending a decision by the U.S. Supreme Court in a challenge to Missouri's lethal injection methods. The high court is scheduled to hear the case in November.

Source: The Associated Press, December 7, 2018

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