Three Setbacks and a Death

US Supreme Court Justice Scalia, who died last week at a luxury ranch in Texas, would have welcomed three recent setbacks for death penalty opponents in the administration of the death penalty in Mississippi. Last year, Justice Scalia joined the majority of the SCOTUS Justices in upholding Oklahoma’s wish to use midazolam as a lethal injection drug, despite huge doubts about the drug’s efficacy*. And earlier this month a Fifth Circuit Court drew on that SCOTUS opinion when it lifted an injunction blocking executions in Mississippi. Fifth Circuit Judge Jennifer Walker Elrod wrote:
“The three-drug protocol and the particular drugs Mississippi proposes to use (midazolam, a paralytic, and potassium chloride) are typical for those states that use lethal injection and were recently upheld in the face of a constitutional challenge.” (italics added)

Fortunately, executions are unlikely to be resumed in Mississippi any time soon. Lawyers at the MacArthur Center, representing the three inmates who raised objections to the drugs, are expected to continue their fight against the state’s proposed execution protocol. 

The late Justice Scalia would also have supported the other two recent developments in Mississippi that have disappointed death penalty opponents. Last year he backed the statement,
“Because the death penalty is constitutional there must be a constitutional way of carrying it out.” (Glossip et al. v. Gross et al., Syllabus, page 1)
So he would have approved the move last month by Mississippi Attorney General, Jim Hood, towards allowing Mississippi to use alternative execution methods.

And he would have approved of the bill that has just passed the Mississippi Senate, designed to keep secret the “identities of all members of the execution team, the supplier or suppliers of lethal injection drugs, and the identities of those witnesses… the information is exempt from disclosure under the provisions of the Mississippi Public Records Act of 1983.”

Amid a shortage of some lethal injection drugs, the main, unstated aim of the bill is probably to encourage a compounding pharmacy to make and sell a drug to the state. By descending into secrecy Mississippi joins other states that have passed similar laws, resulting in what Andrew Cohen calls
“a nearly complete abdication of the judiciary’s role to ensure that capital punishment is neither arbitrary nor capricious”.
The bill may well attract a legal challenge, as it has in other states, for instance, in Arkansas and Missouri.

With three setbacks in quick succession, it is sadly ironic that a death offers the best hope that the death penalty in Mississippi will end. Justice Scalia’s death “leaves the [US Supreme C]ourt split evenly on capital punishment”, and his eventual replacement, even if a Republican, is “unlikely to be as much of a pro-death penalty firebrand as Justice Scalia.”

We hope that a test case will be brought to the US Supreme Court soon. And we trust that Willie Manning and his fellow death row inmates will soon be celebrating an end to the death penalty throughout the USA.

*See Justice Sotomayor’s dissent in Glossip et al v. Gross et al regarding the ‘expert’ on midazolam relied on by the majority: “Dr. Evans’ conclusions were entirely unsupported by any study or third-party source, contradicted by the extrinsic evidence proffered by petitioners, inconsistent with the scientific understanding of midazolam’s properties, and apparently premised on basic logical errors.


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